CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 mars 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }          In the case of Muller v. France (1),           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 Rules of Court A (2), as a Chamber composed of the following judges:           Mr   R. Ryssdal, President,         Mr   F. Gölcüklü,         Mr   F. Matscher,         Mr   L.-E. Pettiti,         Mr   N. Valticos,         Mr   R. Pekkanen,         Sir John Freeland,         Mr   B. Repik,         Mr   E. Levits,   and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,           Having deliberated in private on 30 November 1996 and 18 February 1997,           Delivers the following judgment, which was adopted on the last-mentioned date: _______________ Notes by the Registrar   1.   The case is numbered 13/1996/632/816.   The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).   The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.   2.   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).   They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. _______________   PROCEDURE   1.       The case was referred to the Court by the French Government ("the Government") on 31 January 1996, within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47).   It originated in an application (no. 21802/93) against the French Republic lodged with the European Commission of Human Rights ("the Commission") under Article 25 (art. 25) by a French national, Mr Patrick Muller, on 8 March 1993.           The Government's application 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 object 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 Article 5 para. 3 of the Convention (art. 5-3).   2.       In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).   On 19 September 1996 the President granted him legal aid (Rule 4 of the Addendum to Rules of Court A).   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. 4 (b)).   On 8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr N. Valticos, Mr R. Pekkanen, Sir John Freeland, Mr B. Repik and Mr E. Levits (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).   4.       As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).   Pursuant to the order made in consequence, the Registrar received the applicant's memorial on 22 July 1996 and the Government's memorial on 30 July.   On 6 September 1996 the Secretary to the Commission indicated that the Delegate did not wish to reply in writing.           On 31 October 1996 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.   5.       In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 November 1996.   The Court had held a preparatory meeting beforehand.           There appeared before the Court:   (a) for the Government       Mr   J.-F. Dobelle, Deputy Director of Legal Affairs,         Ministry of Foreign Affairs,                            Agent,     Mrs M. Dubrocard, magistrat, on secondment to the         Legal Affairs Department, Ministry of Foreign         Affairs,     Mrs N. Berthélémy-Dupuy, magistrat, on secondment to the         Human Rights Office, European and International         Affairs Department, Ministry of Justice,     Mr   F. Fèvre, magistrat, on secondment to the         Department of Criminal Affairs and Pardons,         Ministry of Justice,                                 Advisers;   (b) for the Commission       Mr   J.-C. Soyer,                                         Delegate;   (c) for the applicant       Mr   G.-M. Ney, of the Saverne Bar,                        Counsel.           The Court heard addresses by Mr Soyer, Mr Ney and Mr Dobelle.   AS TO THE FACTS   I.       Circumstances of the case   6.       Between July and November 1988 several armed bank robberies were committed in eastern France.   Five concurrent judicial investigations were begun, in Colmar on 25 August, Montbéliard on 23 September, Mulhouse on 28 October and Colmar again on 31 October.           On 13 December 1988 the Mulhouse Regional Crime Squad arrested the applicant and his brother and took them into police custody.   They immediately admitted the offences of armed robbery, attempted armed robbery, theft and criminal conspiracy of which they were accused.   On 15 December the Colmar investigating judge charged them and ordered their detention pending trial.   He charged five other persons with criminal conspiracy, aiding and abetting armed robbery or attempted armed robbery, handling stolen goods or the proceeds of armed robbery and unlawful possession of a firearm and ordered that one of them be detained.           Mr Muller was held in pre-trial detention for the entire duration of the judicial investigation (see paragraphs 21-28 below).       A.   The criminal proceedings           1.   The judicial investigation proceedings               (a)   Instructions to the police   7.       Surveillance by means of shadowing and telephone tapping had already been ordered before the arrests were made in judicial investigations begun in proceedings against a person or persons unknown.   Further instructions were issued on 14 February 1989 to the gendarmerie in Antibes, Barr and Saverne, on 15 December 1989 to the gendarmerie in Montbéliard, on 28 September 1990 to the Strasbourg CID and on 28 November 1990 to the gendarmerie in Saverne, Strasbourg, Mulhouse and Wintzenheim.               (b)   Amalgamation of proceedings and replacement of                  investigating judges   8.       The proceedings were amalgamated by the joinder on 15 December 1988 of the two investigations begun in Colmar and by the transfer of the cases for which the Montbéliard and Mulhouse investigating judges were responsible from them to their colleague in Colmar on 2 February 1989 and 28 December 1989 respectively.   On three occasions thereafter (11 April 1989, 1 February and 18 April 1990) the judge investigating the case was replaced.               (c)   The charges   9.       In March 1989 the investigating judge brought three further charges against suspects already being proceeded against, including the applicant.   On 10 October 1990 he charged a further person with aiding and abetting robbery and ordered his detention pending trial for one year, which order was renewed on expiry of the warrant.   He arranged with that person a confrontation of the co-accused, which Mr Muller refused to attend.   As a result, a further confrontation was arranged for 11 June 1991 between the applicant and four co-accused. Three other persons were charged on 27 November 1990, 5 February 1991 and 10 July 1991.   The charge brought on 5 February had been requested by the public prosecutor on 30 October 1990.               (d)   Questioning and other investigative measures   10.      In 1989 the investigating judge questioned Mr Muller on 2 and 13 February, 30 June, 27 October and 8 and 29 November.   He examined his brother, who had also been charged as a principal, on 27 January, 24 and 27 October and 8 and 30 November and some of the co-accused on 5 June and 26 October.   The psychiatric, medical and social inquiry reports on the applicant and his brother that were ordered on 14 February 1989 were filed on 15 March.   On 3 March 1989 the investigating judge had received the documents requested on 13 February 1989 from the judge responsible for the execution of sentences in Strasbourg.   Fearing that the applicant might escape, he had him transferred on 28 April from Colmar Prison to Strasbourg Prison.   On 11 July he ordered that a co-accused who had been in custody since 15 December 1988 should be released subject to court supervision on terms which he subsequently varied.   11.      In 1990 he questioned the principals together on 1 March and 2 July and some of the co-accused on 12 March and 18 October. Psychiatric reports ordered on 28 September 1990 on two of the main co-accused were filed on 3 November.   On 4 January 1991 the judge received a report requested on 28 November 1990 on a person charged on 27 November 1990.   On 14 June 1991 he ordered a psychiatric report on the accused whose detention pending trial he had ordered on 10 October 1990.   He received it on 30 June 1991 at the same time as information on that accused's personality which he had requested from the Lure investigating judge on 4 April 1991.               (e)   Closure of the judicial investigation   12.      On 8 August 1991 the investigating judge sent the investigation file to the public prosecutor, who on 24 September 1991 applied for orders for severance, a partial committal to the Criminal Court, a partial discharge and transfer of the remainder of the case to the Principal Public Prosecutor.   13.      On 7 November 1991 the judge ordered that the case be sent to the Principal Public Prosecutor in respect of the offences classified as serious crimes (crimes) - armed robbery, attempted armed robbery, aiding and abetting armed robbery and handling the proceeds of an armed robbery - and the connected other major offences (délits) of theft, conspiracy and unlawful possession of firearms and ammunition.   In particular, he considered that there was sufficient evidence against the applicant to commit him for trial on four counts of armed robbery, three counts of attempted armed robbery, one count of conspiracy to commit one or more serious crimes and various counts of theft of vehicles.   He made a partial discharge order in respect of three co-accused.   14.      On 12 December 1991 the Indictment Division of the Colmar Court of Appeal committed seven people, including Mr Muller, to stand trial at the Haut-Rhin Assize Court.   It ordered their arrest and detention in the prison near the Assize Court.   With respect to the length of time that the applicant had spent in pre-trial detention, it held as follows:           "With regard to the reasonable time laid down in Article 5         para. 3 of the Convention (art. 5-3), failure to comply with         which could be sanctioned only by the release of the accused,         which he has not applied for, Mr Patrick Muller, who has been         in custody since 15 December 1988, stands accused of a number         of armed robberies committed within the jurisdiction of         three different tribunaux de grande instance and is currently         the main subject of a single judicial investigation, which was         made complicated by transfers and joinders and covered         twelve principal accused, co-principals and accomplices, all         members of one and the same criminal conspiracy.           Although the investigations were not perhaps conducted with         quite as much diligence as was desirable, we are satisfied from         the summary of the investigative measures in the investigating         judge's order of 9 August 1991 dismissing the accused's only         application for release, that the length of his detention has         not, to date, exceeded the authorised limit."           Having considered the information on the applicant's personality, it also noted: "His conduct in detention, like his brother's, has been deplorable owing to the influence he has exerted on the other inmates by a policy of systematic protest."   15.      In judgments dated 14 April 1992 the Court of Cassation dismissed as being out of time the appeals on points of law brought by Mr Muller, his brother and a co-defendant on 17 January 1992 against the order committing them for trial at the Assize Court.           2.   The trial proceedings   16.      Owing to the suspensive effect of these appeals to the Court of Cassation, the case could not be tried by the Assize Court until the appeals on points of law had been heard.   17.      In August and September 1992 the experts, other witnesses and the civil parties were summoned to appear at the trial set down for 21 September 1992 at the Haut-Rhin Assize Court, whose president examined the defendants on 7 September 1992.   18.      On 18 September 1992 the defence lawyers applied for an adjournment of the trial on the ground that they had not been able to communicate with their clients since 12 September because of a prison warders' strike.   On 21 September the Assize Court granted their applications and the trial was adjourned to the December session. Fresh summonses to appear were served in November and the trial took place on 7, 8 and 9 December 1992.   19.      On 9 December 1992 the Haut-Rhin Assize Court convicted the applicant and his brother and sentenced them to ten years' imprisonment for armed robbery, attempted armed robbery, theft and conspiracy; four other accused, on whom it passed a two-year suspended sentence; and a fifth accused, who was given a three-year suspended sentence. Mr Muller was released on 13 July 1996, the entire period he had spent in pre-trial detention having been deducted from his sentence.       B.   Proceedings relating to pre-trial detention   20.      While the applicant was in custody pending trial, a number of disciplinary penalties were imposed on him: a 25-franc fine in November 1989 for producing an identity document from which the photograph had been removed (he had given it to his wife during a prison visit), a suspended sentence of four days' confinement to his cell in April 1990 for refusing to allow himself to be searched when leaving the prison visiting room and two days' solitary confinement in July 1990 for "jeopardising public order or prison discipline".           On 24 October 1989 the governor of Strasbourg Prison had reported to the investigating judge on the behaviour of the applicant and his brother in prison.           1.   The first extension of pre-trial detention             (12 December 1989)   21.      After holding an adversarial hearing on the issue of detention in the presence of the accused as required by law, the Colmar investigating judge made an order on 12 December 1989 detaining Mr Muller for a further period of one year from 15 December 1989 on the following grounds:           "The offences with which the accused is charged - three armed         robberies and one attempt to commit armed robbery, carried out         within a period of three months - are particularly serious.         He did not hesitate to use his weapon and tied up a bank         manager while threatening him with it.   In addition, he has         six previous convictions.   He must therefore remain in custody         while the investigation continues in order to avoid his         reoffending or attempting to escape punishment."           2.   The second extension of pre-trial detention             (4 December 1990)   22.      On 4 December 1990 the investigating judge ordered an extension of pre-trial detention for a further period of one year from 15 December 1990 on the following grounds:           "The accused admits that he has committed several robberies;         he has previous convictions for similar offences; and         investigations are continuing in order to establish the role         of each of the co-accused.   In view of the sentence he faces,         the accused, Patrick Muller, is unlikely to appear for trial."           3.   The first application for release             (6 August 1991)   23.      On 6 August 1991 the applicant made an application for his immediate release on the following grounds:           "(a) at no stage of the investigation has my behaviour         obstructed the ordinary course of justice;           (b) I admitted the offences even before I appeared before the         judge responsible for investigating my case;           (c) the investigation of this case by successive judges is         being protracted entirely because they persist in trying to         establish the guilt of persons unconnected with the offences         with which I am charged;           (d) I have been in custody for thirty-three months;           (e) had I been tried within a 'reasonable' time, I would have         received the following reductions of sentence:               (i) nine months for the bicentenary of the             1789 Revolution;               (ii) nine months granted by the President on the occasion             of Bastille Day;               (iii) three times three months' ordinary remission;           (f) had I been granted these reductions, I would have served         a term of five years;           (g) it is by no means certain that the sentence which the         Haut-Rhin Assize Court will pass will exceed the period I have         already spent in pre-trial detention."           The prosecution opposed his release for the following reasons:           "The accused is implicated in several armed robberies and he         has previous convictions for similar offences, so is an         habitual offender.   He is unlikely to appear for trial in view         of the sentence he faces."   24.      In an order of 9 August 1991 the Colmar investigating judge refused the application in the following terms:           "In order to determine whether [the length of the pre-trial         detention ordered on 15 December 1988 exceeded the 'reasonable         time' referred to in Article 5 para. 3 (art. 5-3)], regard must         be had to the complexity of the proceedings and to the         accused's conduct during the investigation.           It must be observed that Patrick Muller is charged with         six armed robberies and attempted armed robberies committed         with his brother ...   Although both accused have admitted the         offences, they have consistently sought to exculpate their         accomplices and their associates charged with         criminal conspiracy.   That has meant that numerous         investigations, interviews and confrontations have been         necessary in order to establish the precise role of each of the         twelve accused in the proceedings, which have been particularly         complex owing to the number of offences with which the accused         were charged.           Furthermore, Patrick Muller refused to be taken from prison to         attend the confrontation on 29 October 1990, which consequently         had to be reorganised for 11 June 1991 with the accused         present.   In addition, it was necessary to issue a warrant on         30 October 1990 for the arrest of L., who was not arrested         until 5 February 1991.   Moreover, it is to be noted that         Patrick Muller has at no stage applied for release.   Lastly,         the chronology of the main investigative measures [which he set         out] indicates that there were no interruptions in the         investigation.           ...           Patrick Muller's application for release must be refused.         Mr Muller must be kept in custody, firstly, in order to ensure         that he appears for trial as, in view of the sentence he faces,         there is a risk of his absconding and, secondly, to prevent him         reoffending, since he has previous convictions for similar         offences."   25.      On 29 August 1991 the Indictment Division of the Colmar Court of Appeal upheld the refusal to release the applicant, as follows:           "The defendant admitted, on his first appearances before the         investigating judges in charge of the cases concerning him,         that he had taken part in three armed robberies and         two attempted armed robberies committed between 1 July and         28 October 1988 in different banks in the Colmar area.           He also admitted stealing a number of cars used in the hold-ups         and being in possession of weapons used during them.           In the proceedings concerned he is one of twelve accused whose         actions have given rise to an investigation.           The various steps taken during the investigation are summarised         in the order appealed against, to which reference is made on         this point.           It is to be noted not only that the proceedings were         complicated by joinders and transfers of jurisdiction but also         that, in order to clarify the exact role and the degree of         involvement of the various co-accused in the offences with         which Patrick Muller is charged, it was indisputably necessary         to keep him in custody, given the risk of his putting pressure         on those persons or influencing what they said in their         statements.           The last confrontation took place in the investigating judge's         office on 11 June 1991 and it was necessary beforehand to         determine - a complex process - the exact role played by the         various accused.           The investigating judge sent the case to the public prosecutor         on 8 August 1991 with a view to making a disposal order.           Patrick Muller, whose detention was justified until the role         of all the accused involved in the hold-ups and the surrounding         events had been established, is consequently precluded from         claiming that the length of his pre-trial detention is         unreasonable and from using that as a ground for applying for         release.           Given the need to ensure that Patrick Muller, who in view of         the sentence he faces is likely to abscond, appears for trial,         and given the risk of his reoffending (which is all the greater         as he has previous convictions for similar offences), the         investigating judge was right in the circumstances to dismiss         the application."   26.      On 18 December 1991 the Criminal Division of the Court of Cassation dismissed the applicant's appeal on points of law against that decision.   It gave the following reasons in its judgment:           "It is noted in the judgment appealed against that         Patrick Muller was involved in a series of three armed         robberies and two attempted armed robberies committed between         1 July and 28 October 1988 in various banks in the Colmar area.         Twelve other persons have also been charged in connection with         the same matters.           Muller appeared before the court below and was assisted by his         counsel.   With respect to his submission, repeated in the         ground of appeal, that there had been a violation of Article 5         para. 3 (art. 5-3) of the European Convention, the court found         that the proceedings had been complicated by joinders and         transfers of jurisdiction and by the need to clarify the exact         role and the degree of involvement of various co-accused in the         offences with which Patrick Muller was charged.   It added that         the last confrontation had taken place on 11 June 1991 and that         the investigating judge had sent the case to the public         prosecutor on 8 August 1991 with a view to making a disposal         order; for those reasons, it held that the accused, Muller, was         precluded from claiming that the length of his detention had         been unreasonable.           In those circumstances the Indictment Division justified its         decision in law in respect of the provisions referred to in the         ground of appeal, which, calling into question as it does the         unfettered discretion of the courts of trial and appeal in         assessing the length of detention, cannot be allowed."           4.   The second application for release             (18 September 1992)   27.      On 18 September 1992 the applicant made his last application to the Assize Court for release and at the same time applied for the trial to be adjourned (see paragraph 18 above).   He submitted that there was every reason for him to appear for trial as he had a family and could stay with his mother, and he complained of a failure to comply with the "reasonable time" requirement of Articles 5 and 6 of the Convention (art. 5, art. 6).   28.      The Assize Court refused his application on 21 September 1992. On 23 March 1993 the Court of Cassation dismissed the applicant's appeal on points of law against that decision in these terms:           "It appears from the procedural documents that by a decision         of the Indictment Division of the Colmar Court of Appeal of         12 December 1991 which has become final, Patrick Muller was         committed to stand trial at the Haut-Rhin Assize Court on the         indictment [see paragraph 14 above].   The case was set down for         hearing on 21 September 1992.   On that date the accused's         counsel sought an adjournment as he had been unable to         communicate with his client and also applied for the accused's         release.           In order to answer the submission that there had been a         violation of Article 5 para. 3 of the Convention (art. 5-3) on         the ground that pre-trial detention had exceeded a reasonable         time, the court below stated: 'In the instant case, in view of         its complexity and the number of offences with which the         accused is charged, this "reasonable time" has not been         exceeded'.           The Court of Cassation has no jurisdiction to review that         assessment of fact."   II.      Relevant domestic law   29.      The relevant provisions of the Code of Criminal Procedure on pre-trial detention are the following:                                   Article 144           "In cases involving serious crimes [matière criminelle] and         other major offences [matière correctionnelle], where the         possible sentence is equal to or exceeds one year's         imprisonment in the case of an offence discovered during or         immediately after its commission [délit flagrant], or         two years' imprisonment in other cases, and if the constraints         of court supervision are inadequate in regard to the functions         set out in Article 137, detention pending trial may be ordered         or continued:               (1)   where detention of the accused pending trial is the             sole means of preserving evidence or material clues or of             preventing either pressure being brought to bear on             witnesses or victims, or collusion between accused and             accomplices;               (2)   where such detention is necessary to preserve public             order from the disturbance caused by the offence or to             protect the accused, to put an end to the offence or to             prevent its repetition or to ensure that the accused             remains at the disposal of the judicial authorities.           Detention pending trial may also be ordered, in the         circumstances set out in Article 141-2, where the accused         deliberately fails to comply with the obligations imposed by         court supervision."                                   Article 145           "In cases involving major offences [matière correctionnelle]         an order for detention of the accused pending trial may be made         at any stage of the investigation and must set out the legal         and factual reasons for the decision with reference to the         provisions of Article 144; the accused shall be informed orally         of the order and be given a full copy of it, receipt being         acknowledged by signature in the case file.           The provisions of the preceding paragraph shall [also] apply         to cases involving serious crimes [matière criminelle].           Whatever the classification of the offence, an         investigating judge who is considering detaining an accused         pending trial shall inform him that he has a right to the         assistance of counsel of his own choosing or assigned         officially.   He shall also inform him of his right to have         adequate time for the preparation of his defence.           The chosen member of the Bar or, where an application has been         made for counsel to be assigned officially, the chairman of the         Bar shall be promptly informed of the detention by any         available means; mention of this formality shall be made in the         record of the judicial investigation.   The lawyer shall be         entitled to inspect the case file immediately and to         communicate freely with the accused.           The investigating judge shall give his decision in chambers,         after an adversarial hearing at which he shall hear the         submissions of the public prosecutor, then the observations of         the accused and, if appropriate, of his counsel.           However, the investigating judge may not order the immediate         detention of the accused if he or his lawyer requests time for         the preparation of his defence.           In that case the investigating judge may, in an order that is         reasoned with reference to the provisions of the preceding         paragraph and against which no appeal shall lie, direct that         the accused be taken into custody for a fixed period, which may         in no case exceed five days.   Within that period he shall again         have the accused brought before him and (whether or not the         accused is assisted by counsel) shall proceed as prescribed in         the fourth and fifth paragraphs.   If he does not order         detention of the accused pending trial, the accused shall be         released.           Any period spent in temporary custody shall, where appropriate,         count as part of the period of detention pending trial for the         purposes of Article 145-1.   Temporary custody shall be treated         as detention pending trial within the meaning of Article 149         of this Code and Article 24 of the Criminal Code."                                  Article 145-2           "In cases involving serious crimes [matière criminelle] an         accused cannot be held in detention for more than one year.         However, the investigating judge may, at the end of that         period, decide to prolong detention for a period not exceeding         one year in an order made in accordance with the provisions of         the fifth paragraph of Article 145 and renewable in the same         way.   The order must set out, with reference to the provisions         of sub-paragraphs (1) and (2) of Article 144, the legal and         factual reasons for the decision.           The provisions of this Article shall apply until the         disposal order is made."                                   Article 147           "Whatever the classification of the offence, the accused may         be released, subject or not to court supervision, by means of         an order made by the investigating judge of his own motion         after the public prosecutor has submitted his observations,         provided that the accused undertakes to attend for procedural         purposes whenever required to do so during the investigation         and to keep the investigating judge informed of all his         movements.           The public prosecutor may also apply at any time for the         accused to be released.   The investigating judge shall rule         within five days of such an application."                                   Article 148           "Whatever the classification of the offence, the accused or his         lawyer may at any time lodge with the investigating judge an         application for release, subject to his giving the undertakings         referred to in the preceding Article.   The investigating judge         shall communicate the file immediately to the public prosecutor         for his submissions.   He shall at the same time, by whatever         means, inform any civil party, who may submit observations.         The registrar shall record in the investigation file when and         by what means the information prescribed in this paragraph was         given.           The investigating judge shall take a decision, in an order         giving specific grounds as laid down in the first and         second paragraphs of Article 145, not later than five days         following communication of the file to the public prosecutor.         However, where a decision has still to be taken on a previous         application for release or on an appeal against an earlier         order refusing release, the five-day period will only start to         run on the date of the decision of the investigating judge or         Indictment Division.           Where release is granted, it may be made subject to court         supervision.           Where there is a civil party to the proceedings, the         investigating judge's order can only be made forty-eight hours         after notice has been given to that party.           If the investigating judge fails to give a decision within the         period laid down in the third paragraph, the accused may apply         directly to the Indictment Division, which after receiving the      &#xa0