CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 août 1992

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text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (CHAMBER)             CASE OF TOMASI v. FRANCE   (Application no. 12850/87)             JUDGMENT       STRASBOURG   27 August 1992 In the case of Tomasi v. France [] , The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") [] and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   R. Bernhardt ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   C. Russo ,   Mr   A. Spielmann ,   Mr   J. De Meyer ,   Mr   J.M. Morenilla , and also of Mr M.-A. Eissen , Registrar , and Mr H. Petzold , Deputy Registrar , Having deliberated in private on 27 February and 25 June 1992, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission"), and then by the Government of the French Republic ("the Government"), on 8 March and 13 May 1991, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12850/87) against the French Republic lodged with the Commission under Article 25 (art. 25) by a French national, Mr Félix Tomasi, on 10 March 1987. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 para. 3 and 6 para. 1 (art. 3, art. 5-3, art. 6-1). 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30). 3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 22 March 1991, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mrs D. Bindschedler-Robert, Mr F. Matscher, Mr J. Pinheiro Farinha, Sir Vincent Evans, Mr C. Russo, Mr R. Bernhardt and Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr F. Gölcüklü, Mr A. Spielmann and Mr N. Valticos, substitute judges, replaced Mrs Bindschedler-Robert, Mr Pinheiro Farinha and Sir Vincent Evans, who had resigned and whose successors at the Court had taken up their duties before the hearing (Rules 2 para. 3 and 22 para. 1). 4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant’s lawyers on the organisation of the proceedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Government, the applicant and the Delegate of the Commission lodged their memorials on 5 November, 22 November and 13 December 1991, respectively. On 9 July 1991 the Commission produced the documents in the proceedings before it, as the Registrar had requested it to do on the instructions of the President. On 20 February 1992 one of the applicant’s lawyers provided various documents at the request of the Registrar or with the Court’s leave, as the case may be (Rule 37 para. 1 in fine). 5. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 February 1992. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government   Mr J.-P. Puissochet , Director       of Legal Affairs, Ministry of Foreign Affairs,   Agent ,   Mr B. Gain , Head       of the Human Rights Section, Department of Legal         Affairs, Ministry of Foreign Affairs,   Miss M. Picard , magistrat,       on secondment to the Department of Legal Affairs,         Ministry of Foreign Affairs,   Mr R. Riera , Head       of the Litigation and Legal Affairs Section, Department of Public Freedoms and Legal Affairs, Ministry of the Interior,   Mr J. Boulard , magistrat,       on secondment to the Department of Criminal Affairs and       Pardons, Ministry of Justice,   Counsel ; - for the Commission   Mr H.G. Schermers ,   Delegate ; - for the applicant   Mr H. Leclerc , avocat,   Mr V. Stagnara , avocat,   Counsel . The Court heard addresses by Mr Puissochet for the Government, by Mr Schermers for the Commission and by Mr Leclerc and Mr Stagnara for the applicant, as well as their answers to its questions. The applicant also addressed the Court. On the same day the Government replied in writing to the questions put by the Court. On 7 April one of the applicant’s lawyers sent to the Registrar a letter concerning these questions, together with a document, with the Court’s leave (Rule 37 para. 1 in fine). 6. At the deliberations on 25 June 1992 Mr J. De Meyer, substitute judge, who had attended the hearing, replaced Mr Valticos, who was prevented from taking part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1). AS TO THE FACTS 7. Mr Félix Tomasi, a French national born in 1952, resides at Bastia (Haute-Corse). He is both a shopkeeper and a salaried accountant. At the time of his arrest, he was an active member of a Corsican political organisation, which put up candidates for the local elections and of which he was the treasurer. 8. On 23 March 1983 the police apprehended him in his shop and placed him in police custody until 25 March at Bastia central police station. They suspected him of having taken part in an attack at Sorbo-Ocagnano (Haute-Corse) in the evening of 11 February 1982 against the rest centre of the Foreign Legion, which was unoccupied at that time of the year. Senior Corporal Rossi and Private Steinte, who, unarmed, were responsible for maintaining and guarding the centre, had been shot at and wounded, the former fatally and the latter very severely. The attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features. The following day the "ex-FLNC" (the Corsican National Liberation Front), a movement seeking independence which had been dissolved by decree, had claimed responsibility for the attack and for twenty-four other bomb attacks which had been perpetrated the same night. 9. On 12 February 1982 the Bastia tribunal de grande instance had opened an investigation relating to charges of murder, attempted murder and the carrying of category 1 and category 4 weapons and ammunition. The same day the investigating judge had issued instructions for evidence to be taken on commission (commission rogatoire) to the Regional Criminal Investigation Department (SRPJ) of Ajaccio. I. THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE APPLICANT A. The investigation proceedings (25 March 1983 - 27 May 1986) 1. The proceedings conducted in Bastia (25 March 1983 - 22 May 1985) (a) The investigative measures i. Judge Pancrazi 10. On 25 March 1983 Mr Pancrazi, investigating judge at Bastia, charged Mr Tomasi and remanded him in custody following the latter’s first appearance before him; he took the same measures in respect of a certain Mr Pieri. On 8 April he questioned Mr Tomasi on his alleged involvement in the offences. 11. He took evidence from witnesses on 28, 29 and 31 March, 14 and 29 April, 19 and 30 May and 2 June 1983. On 19 May he questioned Mr Pieri and on 26 May another co-accused, Mr Moracchini, who had been held on remand since 24 March 1983. He organised confrontations between them on 30 and 31 May, and then on 1 June. In addition he issued formal instructions for evidence to be taken on 26 May and 27 October 1983. 12. The recapitulatory examination of Mr Tomasi and Mr Pieri was conducted on 18 October 1983, and that of Mr Moracchini on 21 November. On 26 October 1983 the investigating judge visited the scene of the crime. ii. Judge Huber 13. The case was transferred to another investigating judge, Mr Huber, with effect from 2 January 1984. Mr Pieri escaped from prison on 22 January 1984; he was recaptured on 1 July 1987. Between 4 May 1984 and 10 January 1985, Mr Huber issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities. On 24 January 1985 he rejected a request by the applicant for documents to be added to the file. (b) The applications for release 14. Mr Tomasi submitted eleven applications for release. 15. The investigating judge rejected them by orders of 3 May, 14 June and 24 October 1983, 2 January 1984, 24 January, 20 March, 5 April, 18 April, 24 April, 3 May and 7 May 1985. On 6 June 1984 he issued instructions that the applicant be interviewed in Marseille on the conditions of his detention on remand. That interview took place on 18 June. 16. The applicant challenged the orders of 14 June 1983, 2 January 1984, 24 January and 20 March 1985, but the indictments division (chambre d’accusation) of the Bastia Court of Appeal upheld them on 7 July 1983, 26 June 1984, and 20 February and 17 April 1985. In its judgment of 20 February 1985 it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses, to prevent unlawful collusion between the accomplices, to protect public order (ordre public) from the prejudice caused by the offence and to ensure that Mr Tomasi remained at the disposal of the judicial authorities. (c) The request for a transfer of jurisdiction 17. On 10 January 1985 the Bastia public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island. 18. On 25 March the principal public prosecutor at the Court of Cassation referred the matter to the Court of Cassation (criminal division), which gave its decision on 22 May; it transferred the case to the Bordeaux investigating judge "in the interests of the proper administration of justice" (Article 662 of the Code of Criminal Procedure). 2. The proceedings conducted in Bordeaux (22 May 1985 - 27 May 1986) (a) The investigative measures 19. On 5 September 1985 Mr Nicod, investigating judge at Bordeaux, interviewed Mr Tomasi for the first and last time. He questioned Mr Moracchini on 1 October 1985 and 13 January 1986, and Mr Satti - another co-accused - on 15 November 1985. In addition, he organised a confrontation between them on 13 December 1985. 20. On 14 January 1986 the investigating judge made an order transmitting the documents to the prosecuting authorities. On 14 February 1986 the Bordeaux public prosecutor decided to forward the case-file to the principal public prosecutor’s office. From mid-March to mid-April 1986, the investigating judge added various documents to the file. On 17 April he made a further order transmitting the case-file to the prosecuting authorities, endorsed by the Bordeaux public prosecutor’s office. The case-file was forwarded to the principal public prosecutor’s office by a decision dated 22 April 1986. (b) The applications for release 21. Mr Tomasi submitted seven applications for his release. The investigating judge dismissed his applications on 31 May, 7 June, 29 June, 13 August, 10 September and 8 October 1985 and 14 January 1986. 22. On appeals against various of the investigating judge’s orders, the indictments division of the Bordeaux Court of Appeal upheld them by decisions of 3 September and 29 October 1985. The first such decision referred to the particular gravity of the offences, the existence of "precise and convincing evidence", the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial. The second decision contained the following reasoning: "It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order; without disregarding the pertinent observations of the accused’s counsel concerning the length of the proceedings, it appears nevertheless that, as the investigating judge decided, Tomasi’s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial;" 23. The two decisions gave rise to appeals on points of law by the applicant, which were dismissed by the criminal division of the Court of Cassation on 3 December 1985 and 22 January 1986. The latter decision was based on the following reasons: "In the light of the available evidence the Court of Cassation is satisfied that the indictments division ordered the continuation of the applicant’s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions, and for cases, specified in Article 144 of the Code of Criminal Procedure; it may also be seen from the grounds of the decision that there is in this case, as is required under Article 5 para. 1 (c) (art. 5-1-c) of the Convention, ... reasonable suspicion that the accused has committed an offence; it follows moreover that, having regard to the specific circumstances of the case and the proceedings, the duration of the detention appears reasonable;" B. The trial proceedings (27 May 1986 - 22 October 1988) 1. Committal for trial (a) The first committal 24. On 27 May 1986 the indictments division of the Bordeaux Court of Appeal indicted Mr Tomasi and Mr Pieri for murder with premeditation, attempted murder with premeditation and carrying category 1 and category 4 weapons, together with the corresponding ammunition; it committed them - as well as Mr Moracchini and Mr Satti - for trial at the Gironde assize court. 25. On 13 September 1986 the criminal division of the Court of Cassation allowed the appeal lodged by the applicant on 27 June 1986 on the ground that defence counsel had not been allowed to speak last at the hearing on 27 May. It remitted the case to the indictments division of the Poitiers Court of Appeal, instructing that court to commit the accused for trial at the Gironde assize court if there were grounds for indicting him (Article 611 of the Code of Criminal Procedure). (b) The second committal 26. On 9 December 1986 the Poitiers indictments division committed Mr Tomasi for trial at the Gironde assize court. This decision did not give rise to an appeal on points of law. (c) The third committal 27. On 3 February 1987 the indictments division of the Bordeaux Court of Appeal ruled that it lacked jurisdiction to commit the applicant - but not his three co-accused - for trial at the specially constituted Gironde assize court, in other words the assize court sitting without a jury. The principal public prosecutor’s office had requested it to apply the provisions of Law no. 86-1020 of 9 September 1986, according to which persons accused of acts of terrorism must be tried before such a judicial body. 28. On 7 May 1987 the criminal division of the Court of Cassation dismissed the appeal on this issue filed by the principal public prosecutor at the Bordeaux Court of Appeal. 29. On 16 June 1987 the Poitiers indictments division allowed an application lodged on 20 May 1987 by the prosecuting authority and committed the applicant for trial at the specially constituted Gironde assize court. It thereby acknowledged that the offences of which Mr Tomasi was accused were "related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror" (Article 706-16 of the Code of Criminal Procedure). 30. On 24 September 1987 the criminal division of the Court of Cassation dismissed a further appeal by the applicant. 2. The applications for release (a) The first application 31. By a decision of 27 May 1986 (see paragraph 24 above), the Bordeaux indictments division dismissed an application for release which Mr Tomasi had submitted on 6 May. It gave the following grounds: "The detention on remand, which started on 25 March 1983, has certainly lasted a very long time. However, the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge. The period of detention, although long, does not in itself constitute a violation of the European Convention on Human Rights. On the contrary, in this particular case continued detention appears to be essential, given the exceptional gravity of the offences and the fact that Tomasi would not hesitate to abscond if he were released." 32. The applicant filed an appeal on points of law, but the criminal division of the Court of Cassation rejected the submission based on the violation of Article 5 para. 3 (art. 5-3) of the Convention. On this issue its judgment of 13 September 1986 stated as follows: "In the light of the available evidence the Court of Cassation is satisfied that the applicant’s continued detention was properly ordered in accordance with the conditions laid down in Article 148-1 of the [Code of Criminal Procedure], by a decision setting out specific reasons, having regard to the features of the case as is required under Article 145 of that Code and for cases exhaustively listed in Article 144; In addition the indictments division discussed the complexity and the length of the proceedings, carrying out an unfettered appraisal of the facts, which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [; it follows] that the submission must fail ..." (b) The second application 33. Mr Tomasi submitted a new application for release on 19 January 1987. By a decision of 3 February 1987 (see paragraph 27 above) the Bordeaux indictments division found that it lacked jurisdiction as the committal had been decided by the Poitiers indictments division. (c) The third application 34. On 17 April 1987 the applicant lodged a further application for his release. On 28 April the Bordeaux indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons, the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise. (d) The fourth application 35. The applicant lodged a further application for release on 22 May 1987 with the indictments division of the Poitiers Court of Appeal, which dismissed it on 2 June for the following reasons: "A campaign of intimidation against the witnesses, policemen and judges has been waged in the course of the investigation; A mere recital ... of the offences which led to Tomasi being charged is sufficient, besides the fact that the said offences seriously prejudiced public order, to justify the accused’s continued detention; there is a grave danger that if he were to be released he would enter into contact with members of the FLNC, who would no doubt be only too pleased to help him evade trial; it does not appear that his continued detention is, in the circumstances, such as to infringe the provisions of the Convention ..." (e) The fifth application 36. On 6 November 1987 the applicant once again applied to the Bordeaux indictments division for his release. On 13 November his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby. 37. He then filed an appeal on points of law, which the criminal division of the Court of Cassation dismissed on 2 March 1988. 3. The trial 38. On 22 January 1988 the President of the Bordeaux Court of Appeal had directed that the session of the assize court was to open on 16 May 1988. On 28 April the President decided to postpone the opening of the session until 17 October 1988, following an exchange of correspondence in March and April between the principal public prosecutor’s office and counsel for Mr Tomasi and Mr Pieri. On 15 July and 23 September he altered the composition of the trial court. 39. The trial took place from 17 to 22 October 1988. On that last date, the applicant was acquitted and immediately released. His three co-accused were given suspended sentences of one year’s imprisonment for carrying or possession - as the case may be - of a category 1 weapon. C. The compensation proceedings (18 April 1989 - 8 November 1991) 1. The application to the Compensation Board 40. On 18 April 1989 Mr Tomasi lodged a claim with the Compensation Board at the Court of Cassation under Article 149 of the Code of Criminal Procedure. According to this provision, "... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer (non-lieu) or acquitting him, when that decision has become final, where such detention has caused him damage of a clearly exceptional and particularly serious nature". 2. The submissions of the principal public prosecutor at the Court of Cassation 41. On 5 June 1991 the principal public prosecutor (procureur général) at the Court of Cassation made the following submissions to the Compensation Board: "... IN THE MATTER OF THE DETENTION During his detention, Tomasi lodged twenty applications for release, eleven applications to the Bastia investigating judge and nine to the investigating judge and the indictments division in Bordeaux. Six judgments confirming decisions were given, four by the Bastia indictments division and two by that of Bordeaux. Finally, two decisions of the criminal division of the Court of Cassation, of 17 October and 2 March 1988, dismissed Tomasi’s appeals from the two decisions of the Bordeaux indictments division. In their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences, the prejudice caused to public order, the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses. DISCUSSION 1. The length of the proceedings . From 12 February 1982, the date on which the investigation was opened, to 25 March 1983, Tomasi was not yet implicated. . From 25 March 1983, the date on which Tomasi was charged, to 18 October 1983, the date of his recapitulatory examination, the proceedings progressed at a normal pace and there were no delays. . From November 1983 to May 1984 the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier. Thus the result of the commission rogatoire concerning the victim’s spectacles was not communicated until March 1984; it had not been issued until 27 October 1983 ..., whereas it could have been right at the beginning of the investigation. Similarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the Sorbo-Ocagnano camp and for a study and plans to be made of the premises was not issued until 26 May 1983... The evidence obtained under that commission rogatoire was produced only in the course of the months of March and April 1984, which undeniably prolonged the proceedings. . The lack of progress in the proceedings between May 1984 and January 1985 is incomprehensible. Thus nearly three months elapsed between the order of 4 May 1984 transmitting the papers to the prosecuting authority and the additional prosecution submissions of 31 July 1984 calling for a ballistic examination, which had already taken place. Yet it was not until the following 15 November, three and a half months later, that the investigating judge gave his order dismissing that request for an expert examination. . From January 1985 to May 1985, the time taken for the transmission of documents to the indictments division and then the Court of Cassation and the return of the file to Bordeaux seems normal. . On the other hand it was not until 5 September 1985, more than three months after the case had been referred to him, that the Bordeaux investigating judge carried out his first substantive investigative measure by interviewing Tomasi, after having dismissed the latter’s applications for release on four occasions. This lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible. . From September 1985 to 14 January 1986 the interrogations and confrontations were continued at the rate of one investigative measure per month. Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly. . From January 1986 to May 1986 the time taken to complete the file and transmit it to the assize court appears normal. . On the other hand, from May 1986 to March/April 1988 there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights. . Finally, it should be noted that the decision in the course of March and April 1988 to renounce holding the May session and to replace it by a session fixed for 17 October 1988 was taken by mutual agreement between the prosecuting authorities and the defence. In conclusion, in view of the significance and the complexity of the case the investigation was bound to last longer than average. However, it could have been considerably shortened without the various delays noted above. 2. The necessity of keeping Tomasi in detention during the proceedings Given the nature and the gravity of the offences and the results of the police investigation, Tomasi’s detention was at first justified, up until his recapitulatory examination of 18 October 1983. Moreover, until that date, Tomasi had not filed an application for release. However, by 18 October 1983 the witnesses had already been interviewed and the confrontations carried out. The measures taken after that date, in particular the commissions rogatoires and the expert examinations, did not concern Tomasi directly, except the expert medical examinations ordered following his declarations regarding the conditions of his police custody, which clearly could not justify his continued detention. It should moreover be stressed that between 18 October 1983, the date of the recapitulatory record, and 17 October 1988, the date on which the assize court session opened, in other words for five years, Tomasi was questioned only once, on 5 September 1985, and at his request. The decisions rejecting his various applications for release were based on the exceptional gravity of the offences, the prejudice caused to public order, the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses. The gravity, even of an exceptional nature, of offences may constitute a ground for detention only if there is sufficient evidence against the person held. In this case, charges had been preferred against Tomasi, who had always protested his innocence and had been on hunger strike several times, exclusively on the basis of Moracchini’s statements, which were far from being as precise as they were claimed to be throughout the proceedings. In fact, according to various documents from the proceedings, and in particular: - the report of the public prosecutor to the Bastia principal public prosecutor of 11 April 1983 ..., - the memorandum from the SRPJ of Ajaccio of 8 June 1983 ..., - the application by the Bastia investigating judge for a transfer of jurisdiction of 10 January 1985 ..., Moracchini stated that Tomasi had suggested that he take part in the `nuit bleue’ (night of terrorist outrages) of 11 to 12 February 1982, and specifically carry out an attack against the Foreign Legion camp of Sorbo-Ocagnano. Yet if all Moracchini’s statements are read carefully it may be seen that although he did state that Tomasi had suggested that he participate in the `nuit bleue’, at no time did he mention an attack against the Foreign Legion camp ... Quite the contrary, Moracchini always claimed that he had learned of the attack for the first time the day after the events. Thus, for example, in the course of his interrogation at his first appearance before the investigating judge ... Moracchini stated as follows: ‘I was aware that Pieri knew Félix Tomasi. The latter had indeed suggested a few days earlier that I should take part in a `nuit bleue’. I had refused, but at no time did he say what attack I would have been expected to carry out. As for me, I only heard about the legionaries through the newspapers, on the morning of 12 February.’ Furthermore, it should be observed that all the witnesses who confirmed Moracchini’s statements merely reported what he had told them. None of them was a direct witness to the events. In addition, it does not seem that the release of Tomasi, who could provide sound guarantees that he would appear for trial and who had no previous convictions, could have represented a risk of pressure being brought to bear on witnesses or on Moracchini, a co-accused who was free. In fact, Tomasi, like Pieri and Moracchini, was not remanded in custody until more than a year after the events and Pieri, implicated by the same witnesses as Tomasi, had escaped from prison on 22 January 1984 and remained free for three and a half years until his arrest on 1 July 1987, apparently without any pressure being brought to bear on the witnesses. Finally, it should be noted that on 10 March 1987 Félix Tomasi lodged an application with the European Commission of Human Rights under Article 25 (art. 25) of the European Convention for the Protection of Human Rights, making the following complaints: - excessive duration of his detention on remand (violation of Article 5 para. 3 of the Convention) (art. 5-3); - inhuman and degrading treatment during his police custody (violation of Article 3 of the Convention) (art. 3); - excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim (violation of Article 6 para. 1 of the Convention) (art. 6-1). This application was the subject of a report by the European Commission of Human Rights adopted on 11 December 1990, in which the Commission declared the application admissible and expressed the opinion by twelve votes to two that there had been, in the case under review, a violation of Article 3 (art. 3) of the Convention, by thirteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention and, unanimously, that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention. IN CONCLUSION In the light of the various considerations set out above, and the particularly distressing conditions of his detention, Félix Tomasi, who spent five years and nearly seven months in detention and in respect of whom the investigation produced only weak and insufficient evidence, suffered considerable damage on this account. For all these reasons I call upon the Board to award appropriate compensation." 3. The decision of the Compensation Board 42. By a decision of 8 November 1991, which contained no statement of the reasons on which it was based, the Compensation Board awarded the applicant 300,000 French francs. II. THE CRIMINAL PROCEEDINGS INSTITUTED BY THE APPLICANT A. The origin and the filing of the complaint 43. Mr Tomasi was apprehended on 23 March 1983 at 9 a.m. (see paragraph 8 above). He remained in police custody until 9 a.m. on 25 March, in other words forty-eight hours, Judge Pancrazi having granted the police an extension of twenty-four hours at 6 a.m. on 24 March. 44. During this period, the applicant: (a) had been present at a search of his home on 23 March from 9.15 a.m. to 12.50 p.m.; (b) had undergone several interrogations: - on 23 March from 1.15 p.m. to 2.30 p.m., from 5.30 p.m. to 8 p.m. and from 8.40 p.m. to 10.15 p.m., a total of five hours and twenty minutes; - on 24 March from 1.30 a.m. to 2 a.m., from 4 a.m. to 4.45 a.m., from 11 a.m. to 1 p.m., from 3.40 p.m. to 8 p.m. and from 8.30 p.m. to 9.20 p.m., a total of eight hours and twenty-five minutes; - on 25 March from 4.30 a.m. to 4.50 a.m., twenty minutes; (c) had been examined on 24 March at 11 a.m. by a doctor, who had concluded that his state of health was compatible with the extension of the police custody. The applicant signed the recapitulatory record drawn up at the end of his police custody, but refused to sign that of his last interrogation. 45. On 25 March 1983, when he first appeared before the investigating judge (see paragraph 10 above), he made the following statement: "I note the charges of which you have informed me. I am a declared member of the CCN [Cunsulta di i cumitati naziunalisti]. I am not a member of the FLNC. I will make a statement later in the presence of my lawyer, Mr Stagnara. I should like to add, however, that I was struck during my police custody by police-officers; I do not wish to give their names. I was not allowed any rest. I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich. This morning, I was left naked in front of an open window for two or three hours. I was then dressed and beaten up. This went on continuously throughout the police custody. I can show you bruises on my chest and a red patch under my left ear." The judge had the words "seen, correct" entered at the end of this statement. 46. On 29 March 1983 Mr Tomasi laid a complaint against persons unknown together with an application to join the proceedings as a civil party (constitution de partie civile), "for assault committed by officials in the performance of their duties and abuse of an official position". The following day the senior investigating judge ordered that the applicant lodge a deposit set at 1,200 francs and communicated the file to the public prosecutor’s office. B. The investigation proceedings (29 March 1983 - 6 February 1989) 1. The proceedings conducted at Bastia (29 March 1983 - 20 March 1985) (a) The investigative measures i. Judge Pancrazi 47. On 29 March Mr Pancrazi, the investigating judge, interviewed as a witness Dr Bereni, Senior Medical Officer at Bastia Prison. He stated as follows: "I am a medical officer in the Prison Service and I examined Charles Pieri on his arrival at the prison and Félix Tomasi, as I do with all the inmates. ... In Félix Tomasi’s case, I observed behind the left ear a haematoma which had spread slightly towards the cheek. I noted slight superficial scratches on the chest. In addition, Tomasi reported pain in his head and neck, as well as in his legs, arms and back, but, as I have already stated, I was unable to find objective evidence to support these claims. In both cases the injuries were very slight with no serious features and could not lead to incapacity for work." 48. On 25 March 1983 the same judge had instructed a Dr Rovere, an expert attached to the Bastia Court of Appeal, to carry out the following tasks: "1. Effect an examination of the victim’s injuries, illnesses or disabilities, describe them, specify their likely sequelae and give an opinion as to their causes; 2. Describe the extent of the incapacity and assess its probable duration." The doctor, who had examined Mr Tomasi on 26 March 1983 at 12 noon in the prison, in the presence of the investigating judge, lodged his report on 30 March. The report stated as follows: "III. CURRENT CONDITION (1) Symptoms complained of Mr Félix Tomasi complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of. (2) Clinical examination ... (a) General examination: . Weight: 60kg; height: 1m65 (estimation). Blood pressure: 11,5/7. Pulse rate: 84 beats to the minute. Cardiopulmonary examination: normal. (b) Cranio-facial segment: - Two barely visible abrasions, one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid, measuring 2cm in length, colour purplish-red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes (the patient states that he had this condition before his police custody), non- traumatic in origin - Neurological examination: . Pupils equal size, regular and contractile. No nystagmus . Romberg negative. No asymmetry, no dysdiadochokinesis . Tendon reflexes - normal. No deviation in the index finger test and the blind walk   test - Left ear:. A dark-red-coloured bruise, warm and allegedly painful   on palpation, in the helix and the anthelix . The external auditory meatus and the eardrum show no   sign of a traumatic injury. (c) Cervical rachis: - No apparent trace of traumatism. Pressure on the processus spinosis of the cervical vertebrae C1 and C2 allegedly painful. Unrestricted neck movement, cracking sounds in   articulations could be heard on side movements of the   head (commonplace after the age of thirty). No muscular contraction. (d) Thorax and abdomen: - Ecchymotic striae (vibices) located as follows:. one at the level of the praesternum . one at the level of the metasternum . three others at the level of the epigastric region . one at the level of the right hypochondrium.   These marks are red in colour, surrounded by a purplish halo, visible in non-artificial light and allegedly painful on palpation. - No hepatomegaly - No splenomegaly (enlarged spleen) - Slight abdominal distension. (e) Lumbar region: - No apparent trace of traumatism. No restriction on scope of trunk movement. No paravertebral muscular contraction. (f) Left arm: On the upper third of the postero-internal face of the arm there is a bruise which is red in colour, with a purplish periphery in its lower part, measuring 8cm in length and 4cm in width, claimed to be painful on palpation. Below this bruise, two others may be seen, of a circular shape, measuring 1.5cm in diameter, less highly coloured. IV. DISCUSSION AND CONCLUSION Mr Félix Tomasi has the following symptoms, as observed in the examination of 26 March 1983: - Superficial bruising to the left upper eyelid, the front of the chest, in the epigastric region and that of the right hypochondrium, on the left arm and the left ear - Two barely visible cutaneous abrasions on the right temple. The red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as between two and four days before the examination on 26 March 1983. The simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin; however, biological tests could be carried out in order to eliminate another medical cause. Their extent and form offer no indications of how they first occurred; they are thus consistent with Mr Tomasi’s declarations but could equally have a different traumatic origin. These injuries entail temporary total incapacity of three days." 49. On 24 June 1983 Judge Pancrazi interviewed Mr Tomasi as an accused. After the expert medical reports concerning the victims of the attack of 12 February 1982 had been read out to the applicant and his co-accused, the applicant stated: "The injuries which were noted during the examinations made firstly by Dr Rovere and then by Drs Rocca and Ansaldi, were the result of the acts of Superintendent [D.], his deputy [A.] and some of the other officers of the criminal investigation department. I was beaten for forty hours non-stop. I didn’t have a moment’s rest. I was left without food and drink. A police-officer, whom I would be able to recognise, held a loaded pistol to my temple and to my mouth, to make me talk. I was spat upon in the face several times. I was left undressed for a part of the night, in an office, with the doors and windows open. It was in March. I spent almost all the time in police custody standing, hands handcuffed behind the back. They knocked my head against the wall, hit me in the stomach using forearm blows and I was slapped and kicked continuously. When I fell to the ground I was kicked or slapped to make me get up. They also threatened to kill me, Superintendent [D.] and officer [A.] told me that if I managed to get off they would kil