Detention conditions, inhuman treatment, degrading treatment, Court of Appeal, High Jurisdiction, European Convention on Human Rights, Code of Criminal Procedure, Article 803-8, burden of proof, judicial appeal
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Abstract
The High Jurisdiction censured a Court of Appeal judgment regarding detention conditions, emphasizing the need for 'precise, credible and current' evidence.
Extract
[...] Court of Cassation, Criminal Chamber, October No. 21.84-498 - On whom does the burden of proof rest when the request concerns the detention conditions of the accused? Commentary on the Judgment - Crim. October No. 21.84-498 In a decision 'B.M. and others v. France', the European Court of Human Rights (ECHR) not only confirms the solution rendered in the judgment 'J.M.B v. [...]
[...] and others delivered on 30 January 2020. The condemnation of France is due to its detention conditions that the Court finds in violation of Articles 3 and 13 of the Convention, relating respectively to the prohibition of inhuman and degrading treatment and the right to an effective remedy. According to the principle retained, it is 'open to a person detained the possibility of invoking the inhuman or degrading nature of their detention conditions in the context of the detention dispute' In parallel, in the exercise of its role as a common law judge of the ECHR, the latter is under an obligation to apply not only the Convention but also the decisions taken by the European Court without waiting for the modification of the legislation since these are decisions of principle5. [...]
[...] We then observe that the Court of Cassation has created a ground for release on bail. The high court has clarified in this sense that it is up to the investigating chamber, in the case where the public prosecutor has not previously had these allegations verified, and outside of the power it holds to order the release of the interested party, to have additional checks carried out in order to appreciate the reality of the 'description made by the applicant' when it is 'sufficiently credible, precise and up-to-date'6. [...]
[...] Indeed, the Criminal Chamber emphasizes that the Court of Appeal is seeking proof of the "unworthiness of his detention" (7.). However, as the jurisprudence of July wishes, it is up to the latter to verify the elements transmitted which appear credible, precise and current. We then understand that the judicial judge, as a controller of the dignity of detention, has completely missed the motivation. In this case, the detainee has indeed relied on the unworthy character of his detention conditions and produced what could be considered as a beginning of evidence. [...]
[...] ) cannot correspond to the individual situation' (14.) of the applicant since he has been incarcerated since December 2020. Thus, the provided elements would no longer be sufficiently up-to-date in the sense of the jurisprudence of July 2020. However, since the Court of Cassation does not seem to respond explicitly to this reason, we can understand that it implicitly accepts the value of this report. This response is reasonable when we cannot expect a report of this type for each individual situation. [...]
