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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> WOUKAM MOUDEFO v. FRANCE - 10868/84 [1988] ECHR 20 (11 October 1988) URL: http://www.bailii.org/eu/cases/ECHR/1988/20.html Cite as: [1988] ECHR 20, (1991) 13 EHRR 549

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In the Woukam Moudefo case*,

_______________

* Note by the Registry: The case is numbered 12/1987/135/189.

The second figure indicates the year in which the case was referred

to the Court and the first figure its place on the list of cases

referred in that year; the last two figures indicate, respectively,

the case's order on the list of cases and of originating applications

(to the Commission) referred to the Court since its creation.

_______________

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 J. Pinheiro Farinha,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr C. Russo,

Mr J.A. Carrillo Salcedo,

Mr N. Valticos,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 27 August and 7 October 1988,

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") on 16 October 1987, within the

three-month period laid down in Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 10868/84) against the Republic of France lodged with

the Commission under Article 25 (art. 25) by

Mr Gabriel Woukam Moudefo, a Cameroon national, on 8 September 1983.

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

object of the request was to obtain a decision from the Court as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 5 paras. 3 and 4 and Article 6 para. 1

(art. 5-3, art. 5-4, 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 pending before the Court 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 30 November 1987, in the presence of

the Registrar, the President drew by lot the names of the other five

members, namely Sir Vincent Evans, Mr C. Russo, Mr R. Bernhardt,

Mr J.A. Carrillo Salcedo and Mr N. Valticos (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43). Subsequently,

Mr J. Pinheiro Farinha, substitute judge, replaced Mr Bernhardt, who

was unable to attend (Rules 22 para. 1 and 24 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

French Government ("the Government"), the Delegate of the Commission

and the applicant's lawyers on the need for a written procedure

(Rule 37 para. 1). In accordance with the order made in consequence, the

Registrar received the Government's memorial on 8 April 1988 and the

applicant's memorial on 21 April 1988.

In a letter received on 17 May, the Secretary to the Commission

informed the Registrar that the Delegate would submit his observations

at the hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 18 May that the

oral proceedings should open on 27 September 1988 (Rule 38).

6. On 12 July the applicant's lawyers submitted a declaration by

their client stating that he agreed to "withdraw" from the proceedings

subject to the payment of compensation under the terms proposed by the

respondent State.

For his part, the Agent of the Government wrote to the Registrar

on 22 July to ask whether or not the Court could accept this friendly

settlement and, accordingly, strike the case out of its list pursuant

to Rule 48 para. 2.

The Delegate of the Commission was consulted and stated on 5 August

that he did not wish to formulate any observations.

Consequently, on 27 August the Court decided to cancel the hearing

which was to have been held on 27 September.

AS TO THE FACTS

7. Mr Woukam Moudefo is a Cameroon national and was born in 1951.

He lives at present in Douala.

On 1 October 1980, when residing in France, in the Paris area, he was

arrested by the police on suspicion of having taken part in an armed

bank robbery at Saint-Brice-sous-Forêt (Val-d'Oise) on 28 March 1980.

Two days after his arrest, he appeared in Pontoise before an

investigating judge who ordered his detention on remand and charged

him with aggravated theft and attempted murder.

8. The applicant submitted a number of applications for release

from detention, in at least some of which he relied, inter alia, on

the Convention. He submitted seven such applications to the

investigating judge, all of which were rejected (19 December 1980,

21 February 1981, 22 May 1981, 23 June 1981, 10 July 1981,

18 December 1981 and 2 April 1982). He appealed unsuccessfully

against two of these decisions to the Indictments Chamber (chambre

d'accusation) of the Versailles Court of Appeal (judgments of

13 August 1981 and 27 April 1982). In addition he applied directly to

this Chamber on four occasions in accordance with either Article 148-4

or Article 196-1 paras. 2 and 3 (the latter repealed by an Act of

10 June 1983) of the Code of Criminal Procedure, but these

applications also failed (judgments of 3 July 1981, 24 February 1982,

8 June 1982 and 4 January 1983). Finally, he appealed against two of

the Indictments Chamber's judgments, those of 27 April 1982

and 4 January 1983, to the Court of Cassation, which dismissed his

appeals on 4 June 1982 and 12 April 1983.

9. Before lodging his second appeal to the Court of Cassation,

the applicant had, on 7 January 1983, asked the President of the

Conseil d'Etat and the Court of Cassation Bar Association to appoint a

lawyer to act for him. On 13 January the President replied to him that

in criminal proceedings the services of a lawyer were not obligatory.

He added however that he proposed to request a colleague to examine

the case and that he would appoint defence counsel if a genuine ground

of appeal were found to exist.

Consequently, Mr Woukam Moudefo lodged the above-mentioned appeal

himself on 26 January and his own written pleadings on 3 February.

The President of the Bar Association, to whom he had again written on

29 March and 12 May, confirmed to him on 12 April that he had asked a

colleague to examine the case and then, on 17 May, that the lawyer

concerned had been unable to find a ground which could be usefully

relied upon. He stated further that the Criminal Chamber of the Court

of Cassation had dismissed the appeal on 12 April (the date of the

previous letter).

10. On 26 December 1983, the investigating judge ordered the

applicant's discharge on the ground that there was insufficient

evidence against him.

The applicant, who was detained in Loos (Nord) in connection with

another matter, was released from detention on 18 January 1984.

On 20 June 1984 he lodged a claim with the Compensation Board of the

Court of Cassation for compensation on the basis of Article 149 of the

Code of Criminal Procedure. According to this provision: "...

compensation may be granted to a person who has been held in detention

on remand during proceedings terminated by a decision discharging him

... which has become final, where such detention has caused him damage

of a clearly exceptional and particularly serious nature".

By a decision of 21 February 1986, in which no reasons were stated,

the Compensation Board awarded the applicant 30,000 French francs

(FF). In his submissions, the procureur général (State Prosecutor)

acknowledged that "the length of the detention on remand" in question

- approximately three years and three months - appeared "manifestly

excessive".

PROCEEDINGS BEFORE THE COMMISSION

11. In his application of 8 September 1983 to the Commission

(no. 10868/84), Mr Woukam Moudefo complained of the length of both his

detention on remand (Article 5 para. 3 of the Convention) (art. 5-3)

and the criminal proceedings in question (Article 6 para. 1) (art. 6-1).

He further relied on the fact that he had not received the assistance

of a lawyer in the Court of Cassation (Article 6 para. 3 (c)) (art. 6-3-c).

12. The Commission declared the application admissible on

21 January 1987. It stated however that, in its view, the complaint

under Article 6 para. 3 (c) (art. 6-3-c) should in fact be dealt with

under Article 5 para. 4 (art. 5-4).

In its report of 8 July 1987 (Article 31) (art. 31), it found a breach of

Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1) (by eleven votes, with

one abstention) and of Article 5 para. 4 (art. 5-4) (by six votes to five,

with one abstention). The full text of the Commission's opinion and

of the two separate opinions accompanying it is reproduced as an annex

to this judgment.

FINAL SUBMISSIONS TO THE COURT

13. In his memorial Mr Woukam Moudefo asked the Court to find that

he had "been the victim of a breach by France of Articles 5 para. 3, 5 para. 4

and 6 para. 1 (art. 5-3, art. 5-4, art. 6-1) of the Convention" and

to award him just satisfaction under Article 50 (art. 50).

The Government in their memorial requested the Court to "declare the

application ... inadmissible" with regard to Articles 5 para. 3 and 6 para. 1

(art. 5-3, art. 6-1), on the ground that he was no longer a "victim"

or for failure to exhaust domestic remedies, and to find that there

had been no breach of Article 5 para. 4 (art. 5-4).

AS TO THE LAW

14. By a declaration communicated to the Registrar on 12 July 1988

(see paragraph 6 above), the applicant stated that he accepted the

compensation of 134,000 FF which the French Government were offering

him. This sum was to be in addition to the 30,000 FF which had been

awarded him in 1986 on the basis of Article 149 of the Code of

Criminal Procedure (see paragraph 10 above). He acknowledged that it

would "constitute full and final compensation for all of the pecuniary

and non-pecuniary damage alleged" by him and would "also cover in

their entirety the legal and other costs incurred [by him]". He

therefore agreed, "subject to payment" of the above-mentioned sum, to

"withdraw" from the proceedings pending before the Court and "not to

take any further action against France in this matter in national or

international courts". He noted that the payment would take place "as

soon as the Court has decided to strike the case out of its list".

For their part, the Government asked the Court whether or not it could

accept this solution and apply Rule 48 para. 2, according to which

"When the Chamber is informed of a friendly settlement ..., it may,

after consulting, if necessary, ... the Delegates of the Commission

..., strike the case out of the list."

The Delegate of the Commission was consulted and submitted no

observations.

15. The Court takes formal note of the friendly settlement reached

by the Government and the applicant. In view of its responsibilities

under Article 19 (art. 19) of the Convention, it would nevertheless

be open to the Court to disregard this settlement if a reason of

public policy appeared to necessitate such a course (Rule 48 para. 4).

In this connection, the Court notes in the first place that it has had

to review the length of detention on remand or of criminal proceedings

as to their "reasonableness" (Articles 5 para. 3 and 6 para. 1 of the

Convention) (art. 5-3, art. 6-1) in several previous cases (see the

following judgments: Wemhoff, 27 June 1968; Neumeister, 27 June 1968;

Stögmüller, 10 November 1969; Matznetter, 10 November 1969; Ringeisen,

16 July 1971; Eckle, 15 July 1982; Foti and Others, 10 December 1982;

Corigliano, 10 December 1982; Baggetta, 25 June 1987; and Milasi,

25 June 1987, Series A nos. 7, 8, 9, 10, 13, 51, 56, 57, 118-B and

118-C respectively). In so doing, it clarified the nature and extent

of the obligations undertaken in these areas by the Contracting

States.

As regards Mr Woukam Moudefo's complaint under Article 6 para. 3 (c)

(art. 6-3-c) - considered by the Commission under Article 5 para. 4

(art. 5-4) - relating to the lack of defence counsel in the Court of

Cassation (see paragraphs 9, 11 and 12 above), the Court's case-law

already provides some guidance for the interpretation of these two

provisions.

Accordingly it is appropriate to strike the case out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 54 para. 2, second sub-paragraph, of the Rules of Court,

on 11 October 1988.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar