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(2002-06-24) Council of Europe Replies of the Committee of Ministers

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800th meeting - 20 and 24 June 2002

Item 3.2

Written questions by members of the Parliamentary Assembly -
Written question No. 403 to the Committee of Ministers by Mr Jurgens : “Hakkar case”
(CM/Del/OJ/OT(2002)798 Addendum General Questions and CM(2002)30)

Decision

The Deputies adopted the following reply to Written Question No. 403 :

“The Committee of Ministers informs the honorable member that, during its examination of his question, the French Delegation provided information for the first six points raised therein. This information is reproduced in the appendix.

As regards the last issue raised in his question, the Committee of Ministers has taken note of the explanations provided by the French authorities regarding the delays incurred in the holding of the new trial. The new trial will now take place in November 2002. If this trial takes place as foreseen, the need for considering reopening this case will not arise.”

Appendix

Information given by the Delegation of France

- on what legal grounds Mr Hakkar is still being kept in prison, although his trial has been declared unfair, and he has in the meantime served his 18-year sentence ;

“Mr Hakkar was sentenced by the Yonne Assize Court to life imprisonment, of which 18 years were unconditional (and not to 18 years’ imprisonment) for intentional homicide, attempted intentional homicide, armed robbery, and further armed and other robberies.

This sentence was suspended by the Criminal Judgments Review Board on 30 November 2000. He is not therefore imprisoned in execution of this sentence, which he is no longer serving at present.

He is still, however, imprisoned in execution of sentences passed on him in criminal proceedings other than those which led him to apply to the European Commission of Human Rights. He was in fact sentenced to :

- 18 months’ imprisonment for attempting to escape, by the Paris Appeal Court on 2 December 1988 ;

- 3 years for aiding and abetting escape, by the Paris Appeal Court on 5 February 1990 ;

- 8 years for aiding and abetting escape, by the Paris Appeal Court on 27 February 1992 ;

- 6 months for possessing narcotics, by the Reims Appeal Court on 14 March 1996.”

- whether the previous sentence has been annulled with a view to a new trial, and if not, if the old sentence still applies, is this not an infringement of the rule of "ne bis in idem" ;

“The Review Board’s decision of 30 November 2000, allowing Mr Hakkar’s application for review of the sentence passed on him by the Yonne Assize Court does not, ipso facto, set that sentence aside. In fact, the judgment given by the new assize court, to which the Review Board has referred the case, will merely replace that given by the Yonne Assize Court, and a single sentence will then be executed, if appropriate.

Otherwise, execution of the sentence passed in the criminal judgment which is under review may simply be suspended, under Article 626-5 of the Code of Criminal Procedure.

The Review Board actually availed itself of this possibility in its decision of 30 November 2000, the operative part of which reads :

“For these reasons :

Allows the application for review of the judgment given by the Yonne Assize Court on 8 December 1989, sentencing A. Hakkar to life imprisonment, with a period of 18 years’ unconditional imprisonment.

Refers the case to the Hauts de Seine Assize Court.

Orders that execution of the sentence of life imprisonment be suspended (...)”.”

- whether it is true that his case before a civil court asking for Mr Hakkar’s release on the ground that his continuing imprisonment is unlawful, considering that he has not had a fair trial, has been stopped by the Préfet of Ile-de-France who brought the case before the Tribunal des conflits in April 2000, and that no decision has been taken by the Tribunal des conflits one-and-a-half years later ;

“In April 2000, Mr Hakkar lodged an urgent application with the President of the Paris Regional Court, principally requesting that his imprisonment, which he termed an illegal intrusion on his liberty, be terminated.

On 17 April 2000, the Préfet of the Ile de France Region lodged an objection to jurisdiction, which was dismissed by decision of the President of the Regional Court, dated 21 April 2000.
The Préfet then decided to raise the question of jurisdiction formally on 9 May 2000. However, since this issue had not been examined within the statutory time limit, the judicial proceedings were resumed, in accordance with Article 7 of the Order of 12 March 1831.

These proceedings ended with a finding by the President of the Paris Regional Court that he lacked jurisdiction, as the Act of 15 June 2000, establishing the Criminal Judgments Review Board, had been passed since the decision of 21 April 2000. The Board had suspended execution of the sentence passed on Mr Hakkar, and this meant that he could no longer claim that the state had been guilty of any failure to act, constituting illegal interference with his liberty.

No appeal had been lodged against this decision by 25 January 2002.”

- whether it is true that Mr Hakkar is now being held on the ground of "evasion par bris de prison" committed respectively in 1988 and 1992, for which he was condemned to one-and-a-half and eight years’ imprisonment, and that this sentence is now being executed on top of the 18 years he has already served, and if so, is this in the special case of Mr Hakkar, compatible with reasonable principles of justice ;

“As mentioned above, in addition to the offences for which he was sentenced to life imprisonment, Mr Hakkar was sentenced for several other offences, including escape.

Under Article 434-1 of the Criminal Code, sentences imposed for escape are consecutive, and may not be served concurrently with those which the escaped prisoner was serving, or those imposed for the offence which led to his imprisonment.

In this instance, the Review Board did indeed suspend execution of the sentence of life imprisonment, but, under Article 626-5 of the Code of Criminal Procedure, it could only suspend execution of the sentence passed in violation of the European Convention on Human Rights. This being so, Mr Hakkar’s application to the Board, asking it to suspend execution of the sentence of imprisonment passed by the Paris Appeal Court on 27 February 1992, was inadmissible.

Mr Hakkar, who disputed the enforcement of these non-concurrent sentences, applied to both the judge for summary applications of Paris Regional Court and the 10th criminal chamber of Paris Appeal Court on points arising on the execution of the judgment.

The summary application procedure resulted in a decision that the court was not competent on 17 December 2001. The judge for summary applications pointed out that the Criminal review board established by the Law of 15 June 2000 had suspended the execution of Mr Hakkar’s sentence and ruled that the latter could therefore no longer claim a failing of the State constituting illegal action by the authorities.

The 10th criminal chamber of Paris Appeal Court rejected Mr H Hakkar ’s application on 22 March this year, on grounds that the sentences passed for escape had been correctly enforced on 30 November 2000. It pointed out that the Criminal review board decision suspended execution of the penal judgment referred to it but had no effect on the enforceability of the other two sentences, which were final, could not be served concurrently owing to the nature of the acts punished and were not barred by limitation owing to committal and the execution of another sentence or of a provisional detention measure

That is why the completion date for execution of the sentences passed on Mr Hakkar is currently set for 28 March 2010, taking account of the sentence reductions accrued as of 30 November 2001.

- whether it is true that Mr Hakkar is being kept in solitary confinement ;

“Since 27 September 2000, Mr Hakkar has been held at La Santé prison in Paris, to which he was transferred when he applied to have his sentence reviewed.

On 30 November 2000, he was placed in solitary confinement for security reasons. The reasons given for this decision, and contested by Mr Hakkar, were the following : “Risks of physical violence against staff, in view of threats voiced on several occasions, if the judicial decision on review did not suit you. This measure is necessary to protect staff and avert the danger of escape”.

Solitary confinement was extended for successive three-month periods from 28 February 2001, for the same reasons which had led to this decision in the first place.

However, it should be emphasised that, since 28 May 2001, solitary confinement has been extended because Mr Hakkar himself refuses to return to a normal cell.

Nonetheless, Mr Hakkar is entitled to have visitors. Passes have been issued to several visitors. His sister, for example, visits him every two months.

Additional comment

Mr Hakkar’s own conduct is responsible for the fact that the Hauts de Seine Assize Court has not yet retried him. He in fact lodged a complaint, claiming damages, with the senior investigating judge in Auxerre, alleging that some of the evidence in the very file which that court would have to reconsider had been forged. On 19 June 2001, the judge in question formally refused to investigate his complaint. Mr Hakkar’s appeal against this decision was dismissed by the Paris Appeal Court on 10 February. However, Mr Hakkar has now appealed this second decision to the Court of Cassation, and so the retrial will be delayed until this appeal has been decided.

On 23 May this year the Court of Cassation ruled that the appeal to have the judgment set aside was inadmissible.

In order to ensure that justice is properly administered, and to forestall any objection when the Assize Court is considering the facts, the Principal State Prosecutor at the Versailles Appeal Court has decided not to fix a date for the hearing until Mr Hakkar’s various appeals had been decided.”

This date can now be fixed : Mr Hakkar’s case should be raised during the assizes session in November.”