Human Rights

Human Rights protection is entrusted with the Human Rights European Court (HREC) in Europe. But it must be kept in mind that there are also various other international bodies entrusted with same, among which is the top one, i.e. the United Nations represented by the High Commissioner for Human rights, who has the rank of Under Secretary-General of the United Nations (OHCHR).

The European Court of Human Rights (ECHR) was created some fifty years ago to check compliance by Member States of the Council of Europe with the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

ECHR was made a full-time court, with private access by individuals and jurisdiction mandatory, as of November 1, 1998. Thereafter, ECHR has become a tool for European citizens to benefit from effective guarantee for respect of Human Rights The number of applications rose from 12.700 in 1996 to 50.500 in 2006.

96 percent of applications are summarily rejected by ECHR. One third of all applications are dismissed on administrative grounds. The remainder is generally dismissed by a three judge filtering committee making unmotivated decisions notified to applicants by a standard letter from the Clerk.

Specialists are now debating about bias and/or partiality and politics of ECHR, watching judgments for judges’ predispositions and/or considerations other than the law.

Governments influence ECHR line through the choice of candidates who are selected so as to fit in a frame of mind suiting the government’s purposes. In effect the judicial ideology of ECHR judges mirrors most often the political ideology of the governments which appointed them. Besides, judges come from official circles and they are likely to respond favourably to their government’s solicitations, in order to ensure their presentation for a new election at the end of their six years term, or to improve their career later.

Judges in ECHR may be divided into two categories, one which includes those who are inclined to rule in favour of applicants and against a government on one hand, and the other judges who are on the opposite side and who show restraint when ruling against a Member State on the second hand. The former may be classified “activists” and the others “self-restrainted”. The increased activism in ECHR is likely to be due to appointments of activist candidates selected by countries aspiring to EU membership. Appointment of an activist judge is a way to signal commitment to Human Rights and Europe. Besides, countries favourably disposed towards European integration tend also for selecting activists judges candidates.

An appearance of possible national bias exists apparently because the Rules of Court provide that the judge appointed by a country shall sit on the bench in any case where his country is the defendant. This should put en end in favour of reality to the bias debate in Britain about appearance vs. reality.

In various cases ECHR has used the vague concept of “margin of appreciation” to deal with controversial issues. In other instances where ECHR found cases inadmissible, decisions could be explained only by the political concern of not angering a defendant Member State. In the opposite, cases have been dealt with for political willingness to please general public opinion by condemning a Member State.

To achieve the above, ECHR has played with article 35 of the Convention providing that individual requests must be lodged within a six months period after exhaustion of domestic remedies. In certain cases, ECHR has decided that the rule did not play if enough reasonable efforts had been spent by the applicants to its satisfaction. In other cases, on the contrary, applications have been dismissed as being late though they were not ; because dismissals by a filtering committee are not made public, the known cases are extremely rare. There is one however where the committee has dismissed an application on grounds it was late by taking into consideration an interim decision from a Court of Appeals whereas it did not retain the true date of the final decision from the Supreme Court. That case dishonours ECHR and shall be appealed against where-ever it may be.

Under the Human Rights Act 1998, UK has granted authority to ECHR case law. An ECHR judgment coming before a British court could modify the effect of any relevant statutory instrument so as to bring it into conformity with that judgment, provided that this can be done consistently with the provisions of the applicable *primary* legislation. This exposes Britain to be governed in part by judgments made by foreign judges without home grown British law.

Judgments made in Strasbourg should be subject to further research same as the ways to reform ECHR. At present ECHR is crumbling under the weight of a backlog of about 90.000 cases which is increased daily by about 140 new applications. It is obvious that the task cannot be handled by 47 judges.

I thank you in advance for your attention and trust that my standard of English language is one you will be able to make sense of.

One can watch the case in video by down-loading it from www.lulu.com where it is located under the name "Scandale fiscal". One could also down-load from lulu.com my e-book in French entitled "Forfaitures".

Hereunder is the application I lodged with the HREC on September 22, 2006:

I. THE APPLICANT

Representative : None. The applicant is a JurisDoctor, thesis Paris 1961 (« Docteur d’Etat en Droit », thèse Paris 1961). He was a tax and legal consultant (« conseil juridique et fiscal ») for many years in international practice and thereafter a member of the Paris Bar.

The present application is grounded on Article 37 § 2 of the Convention for the Protection of Human Rights and fundamental Freedoms (the “Convention”) and Article 43 of the Rules of the Court (the “Rules”) providing as follows:

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

(5) The Court may restore an application to its list if it considers that exceptional circumstances justify such a course.

Therefore the Court has issued directions that files be preserved for one year before they are destructed.

The purpose of the present application is to have the Court restore to its list of cases the two former applications hereunder:

- Individual application under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) which was lodged with the Court on May 2, 2003 against the French Republic and entered into list of cases under No. 17488/03,

- Individual application under Article 34 of the Convention which was lodged with the Court on October 12, 2004 and completed on November 30, 2004 against the French Republic and entered into list of cases under N° 37322/04.

III. STATEMENT OF FACTS

A tax collector (“receveur”) had claimed wrongfully 130.328 € for payment of inheritance taxes.

An auctioneer (“commissaire-priseur”) appointed by the tax collector had taken over and away the furniture and office equipment of the taxpayer for payment of the taxes.

(The document is the formal evidence issued by the Tax Administration that no tax was due, where the box to that effect has been checked)

But the furniture and office equipment were never returned to the taxpayer who lost his property.

These facts are documented and evidenced by a judgment of the Court of Appeal of Versailles dated April 26, 2000 as follows:

“ He (the applicant) recalls and justifies by producing the minute of the seizure that all his furniture was seized, whereas the claim was not even challenged but did not exist; that the sale of his furniture took place on 10/22/1996 ; that he does not intend to put the functioning of the administration in cause but attempts to demonstrate the penal liability of one or several persons”.

“Il (le requérant) rappelle et justifie par la production du procès-verbal de saisie, que tous ses meubles ont été saisis, alors que la créance était non pas contestée mais inexistante ; que la vente de ses meubles a été réalisée le 22/10/1996 ; qu’il n’entend pas mettre en cause le fonctionnaire (lire : fonctionnement) de l’administration mais tente de démontrer une responsabilité pénale d’une ou plusieurs personnes ».

Two complaints for criminal offences with civil party application (“plaintes avec constitution de partie civile”) were lodged by the applicant on September 19, 1998 before courts of great instance (”tribunaux de grande instance”), on one hand against the tax collector (“receveur”) and on the other hand against the auctioneer (“commissaire-priseur”) .

The complaints were lodged pursuant to Article 2 of the Code of criminal procedure which provides as follows:

“All those who have personally suffered from the damage directly caused by a serious offence (“crime”), less serious offence (”délit”) or petty offence (“contravention”) may bring civil party proceedings (“action civile”) to seek compensation for such damage”.

The applicant wanted to obtain damages from the auctioneer (“commissaire-priseur”) but also from the French Republic as it is liable under civil law for the torts caused by its employed tax collector.

Pursuant to courts’ rules of territory jurisdiction, and for lack of evidence of collusion for peculation (“concussion”), the complaints were lodged with two courts. Violations alleged against the tax collector were deemed to have taken place in Saint-Germain-en-Laye where is located the tax collector’s office, which is within the jurisdiction of the court of Versailles, whereas the violations alleged against the auctioneer had taken place in Paris, where the applicant’s furniture and office equipment were located at his residence of boulevard of Courcelles, No 94, when they were taken over and away.

So, courts of first instance of Paris and Versailles judged initially the two criminal complaints aiming at different persons. Eventually the cases reached the Court of cassation after separate proceedings of different durations before investigation Chambers (“Chambres de l’instruction”) of Courts of Appeal of Paris and Versailles. In the end, the Court of cassation made two decisions, one on November 14, 2002 notified on December 16, 2002, and the other one on February 24, 2004 notified on June 21, 2004.

Within the six months periods after notice of each of the decisions was given to the applicant, he lodged with the European Court the two applications mentioned herein-above under Article 34 and in compliance with Article 35 § 1 of the Convention.

Both applications were declared non-admissible by a committee under Article 28 of the Convention composed of three judges (K. Jungwiert, president, M. Ugrekhelidze and A. Mularoni):

The applicant sustained in the application that his case had not been heard equitably because he had no knowledge of the report from the counsellor-reporter (“conseiller rapporteur”) before the hearing of the criminal Chamber (“Chambre criminelle”) of the Court of cassation.

“The undersigned points out that he has deposited by himself his memorial for cassation (“mémoire en cassation”), and that, as he was not represented by a lawyer to the Councils (“avocat aux Conseils”), he could not have knowledge of the report from Counsellor DULLIN before the audience of the criminal Chamber and that he could not therefore reply in writing. Now, the right to contradictory proceedings within the meaning of article 6 § 1 such as interpreted by a constant case-law (Richen and Gaucher case of January 23, 2003) entails as a principle the right for the parties to a lawsuit to receive communication of, and discuss, any document or observation presented to the judge, even by an independent magistrate, in order to influence his decision. ”

« Le soussigné fait valoir qu’il a lui-même déposé son mémoire en cassation, et que s’étant abstenu de se faire représenter par un avocat aux Conseils, il n’a pu connaître le rapport du conseiller DULLIN avant l’audience de la chambre criminelle et que partant il n’a pu y répliquer par écrit. Or le droit à une procédure contradictoire au sens de l’article 6 § 1 tel qu’interprété par une jurisprudence constante (arrêt Richen et Gaucher du 23 janvier 2003) implique en principe le droit pour les parties à un procès de se voir communiquer et de discuter toute pièce ou observation présentée au juge, fût-ce par un magistrat indépendant, en vue d’influencer sa décision. »

Since the Rheinhardt and Slimane Kaïd vs. France case of March 31, 1998 (Recueil des arrêts et décisions 1998.II.pp.665-666), the Court has continuously held that the failure to communicate the report from the counsellor-reporter (“conseiller-rapporteur”), because of its importance, creates an unequality which does not fit with the necessities of a fair lawsuit and is detrimental to the applicant.

A list of decisions made by the Court against the French Republic, judging that the failure to communicate the report from the counsellor-reporter (“conseiller rapporteur”) is in violation of Article 6 § 1 of the Convention is as follows, subject to error or omission :

- Rheinhardt and Slimane-KaÏd vs. France of March 11, 1998 (mentioned above), § 105;

- Fontaine et Bertin vs. France, No. 38410/97, § 15, and No 40373/98 of July 8, 2003, § 62;

- Crochard and six others vs. France, No. 68255/01, No. 68256/01, No. 68257/01, No. 68258/01, No. 68259/01, No. 68260/01, No. 68261/01 of February 3, 2004, § 13;

- SCP Huglo, Lepage & Associés, Conseil vs. France, No. 59477/00 of February 1, 2005, § 26;

As of February 1, 2003, in order to end the above violations and put its proceedings in conformity with the case law of the European Court, the Court of cassation implemented new measures in cases where to be represented by a lawyer to the Councils (“avocat aux Conseils”) is not mandatory. This was obviously an acknowledgement by the French Republic that former proceedings were in violation of rules for a fair lawsuit.

More precisely, in the André vs. France case above-mentioned, taking into account the case law of the European Court about the subject-matter and the date when the applicant's appeal for cassation was examined (a date which was before the changes made in the practice of the Court of cassation pursuant to the case law) the government has stated that it relied upon Court's wisdom to appreciate whether the complaint about the failure to communicate the report from the counsellor-reporter (“conseiller rapporteur”) is grounded.

In the present case, Court of cassation rendered the decision on November 14, 2002, that is when the Court was erring, before new measures were taken to correct the earring. The date of the decision should be enough evidence that it was in violation of the European Court case law.

It is true that two cases may narrow the present case law by withdrawing from its domain particular cases dealt with under prior admission proceedings for an appeal to Court of cassation (“procédure préalable d’admission des pourvois en cassation”) provided for by article L.136-1 of the Code of judiciary organization (“Code de l’ organisation judiciaire”). The cases are Stepinska vs. France, No 1814/02 of June 15, 2004 and Salé vs. France, No 39765/04 of March 21, 2006.

But in the two cases, it has been judged that the complaint that the failure to communicate the report from to the counsellor-reporter to the applicant and his counsel before the hearing was not ill-founded with regard to Article 35 § 3 of the Convention. Consequently, in both cases, the Court found the requests to be admissible.

In the present case, the Court of cassation made its decision of November 14, 2002:

As far as need be, it is to be reminded that the civil party (“partie civile”) has the same rights as the defendant in a criminal lawsuit and must receive communication of documents submitted to court. The word “défense” is a generic term which covers both the defendant and the civil party (Cassation, crim. February 15, 2000).

In the Holstein vs. France case, No 76450/01 of July 18, 2006 (§ 35), there has been stated again the principle : “The Court reminds that the lack of communication of the report from the counsellor-reporter (“conseiller rapporteur“) to the parties, whereas this document has been passed on to the prosecuting attorney (“avocat général”) did not agree with the requirements of the equitable lawsuit.

In its decision of November 14, 2002, the Court of cassation, meeting as provided for in article L.136-1 of the Code of judiciary organization (“Code de l’ organisation judiciaire”), has not declared the appeal not admitted as being non-receivable or not grounded, and the decision was taken after hearing the report from the counsellor-reporter Dullin that the invoked arguments did not allow to receive the appeal.

But the applicant refrains here and now from arguing the case in substance because the present application is limited to request that the case is re-entered in the Court’s list of cases in order to be submitted to a chamber.

It shall be up to a chamber to appreciate in the present case whether the lack of communication of the report of the counsellor-reporter to the applicant constitutes a violation of Article 6 § 1 of the Convention, or does not.

According to Article 53 of the Rules, the field of a committee’s decisions is about matters which require no further examination. A decisions inconsistent with the Court’s case law, which does require a substance examination, is consequently outside the committee’s powers to declare not admissible an application or strike it out of the Court’s list of cases. Only a chamber can reach such a decision after further examination.

“The Court considered that the final domestic decision, within the meaning of Article 35 § 1 of the Convention, was the decision made on September 10, 2003, that is more than six months before the date when the application was made. It results there from that the application was made lately”.

“La Cour a considéré que la décision interne définitive, au sens de l’article 35 § 1 de la Convention, était la décision rendue le 10 septembre 2003, soit plus de six mois avant la date de l’introduction de la requête. Il s’ensuit que la requête a été introduite tardivement. »

Surprisingly, that consideration does not specify what is the nature of the final decision it says has been taken on September 10, 2003. This will be argued and shown later on in the present application.

The applicant had lodged on September 19, 1998 with the Court of great instance (“tribunal de grande instance”) of Versailles a complaint pursuant to Article 2 of the Code of criminal procedure (above-mentioned).

In lodging the complaint, the applicant wanted to obtain damages a from the French Republic as it is liable under civil law for the torts caused by its tax-collector. A complaint with civil party application (“plainte avec constitution de partie civile”) is within the domain of the Convention (Chesnay vs. France, No 56588/00 of October 12, 2004, § 12).

- the investigation judge’s decision ( “ordonnance du juge d’instruction”) made on August 31, 1999 dismissing the complaint,

- the decision of the indictment Chamber (“Chambre d’accusation”) of the Court of Appeal of Versailles of April 26, 2000 nullifying the judge’s decision above,

- the new investigation judge’s decision ( “ordonnance du juge d’instruction”) made on March 13, 2003 dismissing the complaint,

- the decision of the investigaton Chamber (“Chambre de l’instruction” – new name of the indictment Chamber) of the Court of Appeal of Versailles of September 10, 2003 ratifying the judge’s decision above of March 13, 2003

- the decision of the criminal Chamber (“Chambre criminelle”) of the Court of cassation of February 24, 2004, which was notified on June 21, 2004.

September 10, 2003 is the date when was made the decision of the investigation Chamber (“Chambre de l’instruction”) of the Court of Appeal of Versailles.

That decision was appealed against to the Court of cassation, which made the final decision on February 24, 2004 .

The decision of September 10, 2003 of the investigation Chamber (“Chambre de l’instruction”) of the Court of Appeal of Versailles is not the final decision provided for in the Convention’s Article 35 and the starting date of the six-months period is June 21, 2004 when was notified the decision made finally by the criminal Chamber of the Court of cassation on February 24, 2004. Then the six months period was to expire on December 20, 2004 and the application which was lodged on October 12, 2004 and duly completed on November 30, 2004 was not out of time.

The applicant wrote his first letter to the Court on October 12, 2004 (copy attached hereto). The Court answered by letter of October 20, 2004 stating that the October 12, 2004 letter shall be considered as the date when the application is made. Later, the applicant sent to the Court on November 30, 2004 the standard official application form duly filled up with all required documents.

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.”

In effect, it is a principle of international law that protection of human rights is carried out by national governments, and access to international enforcement mechanisms is seen as a last resort, after the State has failed to correct the violation or to carry justice.

The individual citizen must first attempt to remedy the violation using national law. This is provided for in the Rules of the European Convention as well as in the Rules of the Inter-American Court of Human Rights (Article 46) and the Human Rights Committee of the United Nations.

It is obvious that the exhaustion of national remedies within the French judiciary system requires in principle that appeal is made to Court of cassation.

The Committee of Human Rights of the United Nations maintains the principle even though there were doubts about effectiveness of the recourse.

In Communication N° 550/1993 of 16/12/1996 (paragraphs 4.3 and 4.4), the French government itself invoked that case law and submitted that the communication was inadmissible on the basis of non-exhaustion of domestic remedies, in so far as Mr. F…

not appeal his case to the Court of cassation to remedy the alleged violation. And the French government reminded the Human Rights Committee of its jurisprudence that mere doubts about the effectiveness of available remedies do not prejudice the exhaustion of domestic remedies.

The following statement made in this case by the French government about the Court of cassation shows that it is and must be the last remedy :

“4.4 In this context, the State party notes that while the Court of cassation indeed does not examine facts and evidence in a case, it does ascertain whether the law was applied correctly to the facts, and can determine that there was a violation of the law, of which the Covenant is an integral part (art. 55 of the French Constitution of 4 June 1958). Article 55 stipulates that international treaties take precedence over domestic laws, and according to a judgment of the Court of Cassation of 24 May 1975, domestic laws contrary to an international treaty shall not be applied, even if the internal law was adopted after the conclusion of the treaty. Thus, the author remained free to invoke the Covenant before the Court of cassation, as the Covenant takes precedence over the law of 13 July 1990.”

The European Court adheres to the principle and it is its well established case law that the exhaustion of domestic remedies prescribed by the Convention entails the obligation to go to the Court of cassation:

- Remli vs. France of April 23, 1996, jugements et décisions 1996-II, p. 571, § 42,

In the case Remli vs. France above-mentioned, the Court stated again that an appeal to Court of cassation must be made in principle event if it is likely to be unsuccessful.

In the Civet vs. France case, the Court reiterated that the finality of Article 35 of the Convention is to give the Contracting States the opportunity of preventing from, or putting right, the violations alleged against them before those allegations are submitted to the European Court. Thus the complaint that it is intended to submit to the Court must first have been raised, at least in substance, within the forms and time prescribed by the national law, in front of the suitable national jurisdictions.

An appeal to the Court of cassation should not be deemed useless in advance, or deprived of any chance of success, because a change in case law is always possible (Frangy vs. France mentioned above).

Because of the authorities which support the principle that the recourse to Court of cassation is a necessity for the exhaustion of domestic remedies, it cannot be discarded by a committee under Convention’s article 28 without further examination.

Besides, the restrictive effect of Article 575 of the Code of Criminal Procedure on a civil party’s right to appeal to the Court of cassation is relaxed under the liberal interpretation by the criminal Chamber of the Court of cassation of the sixth circumstance set out in the second paragraph of Article 575. By extending the notion of “conditions essential” for the legal validity of the judgment to the reasoning, the Court of cassation has held that an appeal by the civil party alone was possible if the judgment was not properly reasoned, omitted to address to the main argument of the civil party’s memorial, contained no statement of the facts or did not give adequate reasons in respect of the charges laid in the complaint and civil party application. Because of that more liberal case law, article 575 of the Code of Criminal Procedure does not prevent any more the civil party to appeal to Court of cassation (see Berger vs. France above mentioned, § 27). And the decision of the Court of cassation of February 24, 2004 did not even look for application of article 575.

Attached to the applicant’s first letter of October 12, 2004 to the Court were copies of the decision of the Court of cassation of February 24, 2004 and the notification thereof made to the applicant on June 21, 2004. And in the answer from the Court of October 20, 2004, the applicant was warned that the Court shall verify that all national remedies were exhausted as it is required under Article 35 of the Convention. Of course the applicant complied as it is evidenced by page 5 of the application attached hereto.

In any case, the decision of non-admissibility is not one which could be taken without further examination (Article 53 of the Rules of the Court) for applying Article 35 § 1 of the Convention to a judgment of the investigation Chamber (“Chambre de l’instruction”) without consideration to the appeal made later to Court of cassation which did render a decision on February 24, 2004 notified on June 21, 2004 starting the six months period from that date.

At last, it must be pointed out that if the decision made by the committee on November 22, 2005 was validated as a matter of case law and that the six-month period were to run from the date when a judgment is made by the investigation Chamber (“Chambre de l’instruction”), then an applicant would run the likely risk that his application is dismissed later for failing to exhaust domestic remedies for lack of an appeal to Court of cassation.

a) Decision of the investigation Chamber of the Court of Appeal of Versailles in date of September 10, 2003, which was wrongly considered to be the starting date of the six months period of Convention’s Article 35,

b) Decision of the criminal Chamber of Court of cassation in date of February 24, 2004, which is the last decision for exhaustion of domestic remedies,

c) Notification made on June 21, 2004 to the applicant of the Court of cassation’s decision of February 24, 2004. Said notification is the starting date for the computation of the six months period of Convention’s Article 35,

The decision of October 25, 2005 taken by a committee under Article 28 of the Convention is in full contradiction with Court’s well-established case law about fair trial.

The decision of November 22, 2005 taken by a committee under Article 28 of the Convention is also in full contradiction with Court’s well-established case law when it abstains from considering the final recourse to Court of cassation made by the applicant. The Court of cassation did make a decision on February 24, 2004 and the six months period prescribed by Article 35 of the Convention started upon the date when the decision has been notified to the applicant, i.e. on June 21, 2004. Furthermore, the committee’s decision is in formal contradiction with the case law of the Human Rights Committee of the United Nations, which is the authority about what are the “generally recognized rules of international law” referred to in Article 35 of the Convention.

The applications were made in good faith and in earnest by the applicant who is a specialized lawyer, obviously they are not unfounded nor abusive and they do contain grounds for alleged violations to the Convention ratione materiae.

There are no grounds whatever to find the applications non-admissible for any reasons whatsoever under Article 35 § 3 of the Convention.

Europe’s protection must be insured under the Convention and be dispensed by the Court in order to protect the victim from abuses and/or improper functioning of governmental bodies, what-ever may be the stain resulting there from for the State concerned. The Court should have no care to preserve a stainless picture that a government would strive to maintain about its tax administration or auxiliaries of its judiciary system when the Convention has been breached.

There results from the above that the Court has to deal with a very exceptional set of circumstances such as justifying the use of Article 37 § 2 of the Convention.

I feel the problem I faced in my case is that the ECHR judges are beholden representatives of the very governments which are accused of European Convention's violations before the Court.

For the true and effective protection of fundamental rights, I believe that there should be demanded Trial by Jury in ECHR where European citizen-jurors should curtail tyrannical judges.

Let me quote Sir Francis Jacobs (Avocat général à la Cour de Justice): "It is widely accepted that there is a close link between the effective protection of fundamental rights and the legitimacy of the European Union".

On that basis, I will bring my case up to the highest European authorities, if necessary

France has been condemned on July 28, 1999 for torture and inhuman and degrading treatment of a Moroccan-Dutch national named Ahmed Selmouni.

Selmouni had denounced before the Strasbourg Court the mistreatment he suffered during his detention in a police station. The Court noted the existence of several medical certificates containing precise information concerning the origin of the injuries, which established the existence of physical pain and mental sufferings. The circumstances attested that the pain or suffering were intentionally inflicted by the policemen in the performance of their functions to get a confession from the plaintiff. The Court also noted that the plaintiff was victim of a certain number of acts which the Court could only call odious and humiliating for anyone. Such acts were of a nature to cause fear, anxiety and inferiority, so as to humiliate, degrade and eventually break down the physical and moral resistance of the plaintiff. Under such conditions, the Court was convinced that the acts of physical and mental violence committed on the person of the plaintiff, taken as a whole, caused acute pain and suffering and were of a particularly serious and cruel nature. Such acts must be regarded as acts of torture in the sense of article 3 of the European Convention for the Protection of Human Rights.

The plaintiff had complained that he was hit with fists, clubs, baseball bats, and kicked, and he affirmed that a policeman had forced him to his knees and had shown him his penis then urinated on him. He added that he had been threatened with a blowtorch, then with a syringe, and that finally, another policeman raped him with a little club. The Court found that the facts alleged by Selmouni could be considered as established, except for the rape.

Thereafter, the French lower criminal court had condemned the policemen to three years in jail and the police officer to four years. The Court of Appeals in Versailles was far more lenient and converted the sentence into several months in jail suspended for the policemen and eighteen for the police officer, out of whih dfifteen suspended.

WARNING: The application to HREC for Mr. Selmouni was not an individual application. It was lodged by the Dutch Government on his behalf . If the application had been an individual one, I have doubts that it should have succeed.

Amnesty International denounces police impunity in France

On 06/04/2005, Amnesty International denounced the "generalized" impunity which would characterize in France violences committed by police officers.

"After having inquired during years", Amnesty concludes there exists a phenomenon of factual impunity in favor of police officers in France", states the report published on April 6, 20005.

The report deals with about thirty cases "of serious violations of Human rRghts, proven or alleged, committed by police officers, generally against young people", between 1991 and 2005. All cases concern people of foreign origin and the majority deals with problems of bad treatments by the police.

Amnesty makes in particular statements about people having received "fist, kicks or bludgeon strikes, which involved fractures of the nose, eyes damage, or other wound". Violences which moreover are often accompanied with racist insults or degrading treatments.

Furthermore, there is a lack of eagerness from the police force, the public attorney and courts "to convict the authors of Human Rights violations when the authors are police officers".

Amnesty regrets there is a "justice at two speeds" which proves "much faster when dealing with complaints filed by police officers rather than when dealing with complaints filed against police officers and whose judgments are often not in relation to the gravity of the violations involved".

It recommends creation in France of an independent body to inquire into alleged Human Rights violations committed by members of the police force, in place of internal complaints procedure now existing.

It exhorts also French authorities to make so that any person detained on sight can consult a lawyer very quickly, that all the interrogations by police force are filmed and that procedures and policies relating to identity checks "are carefully re-examined in order to avoid discriminatory controls".

All the cases examined concern people of foreign origin, and Amnesty International regrets there is an underlying racism within the police force.

Amnesty considers the French legal arsenal sufficient but it requires that the existing antiracist laws are applied more strictly, and wishes that one racist mobiles are taken into account as aggravating circumstance in some violations.

L'Organisation des Nations Unies a établi différents Commissions dans divers domaines d'actions, à commmencer par celui des Droits de l'Hommre en général, .qui peuvent être saisies par l'intermédiaire de l' Office of the High Commissioner for Human Rights, United Nations Office at Geneva, 1211 Geneva 10, Switzerland. Il existe une Model Complaint Form que l'on peut se procurer à l'adresse : http://www.ohchr.org/english/bodies/docs/annex1.pdf . Ce document comporte d'ailleurs la question posée au requérant de savoir 'il a auparavant saisi la Cour Européenne des Droits de l'Homme et si celle-ci a rejeté sa requête. La France a en effet formulé une réserve lui permettant de s'opposer à la saisine de la Commission au cas où une affaire aurait déjà été soumise à la Cour Européenne.

Hereunder is the application I lodged with the HREC on September 22, 2006:

I. THE APPLICANT

II. PURPOSE OF THE APPLICATION

III. STATEMENT OF FACTS

A tax collector (“receveur”) had claimed wrongfully 130.328 € for payment of inheritance taxes.

VI. LIST OF DOCUMENTS

VII. CONCLUSION