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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BIROU v. FRANCE - 13319/87 [1992] ECHR 11 (27 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/11.html Cite as: (1992) 14 EHRR 738, 14 EHRR 738, [1992] ECHR 11

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In the case of Birou 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 F. Gölcüklü,

Mr L.-E. Pettiti,

Mr A. Spielmann,

Mrs E. Palm,

Mr I. Foighel,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr F. Bigi,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 February 1992,

Delivers the following judgment, which was adopted on that date:

_______________

Notes by the Registrar

* The case is numbered 70/1991/322/394. 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.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 July 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. 13319/87) against the French Republic lodged

with the Commission under Article 25 (art. 25) by Mr Roland Birou, a

French national, on 16 September 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

object of the request 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 (art. 5-3).

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 lawyer

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 29 August 1991 the

President drew by lot the names of the other seven members, namely

Mr F. Gölcüklü, Mr A. Spielmann, Mrs E. Palm, Mr I. Foighel,

Mr A.N. Loizou, Mr J.M. Morenilla and Mr F. Bigi (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

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"), counsel for the applicant

and the Delegate of the Commission on the organisation of the

procedure (Rule 37 para. 1).

5. An attempt to reach a friendly settlement gave rise, between

14 November 1991 and 6 February 1992, to a number of letters and

telephone conversations between the Government, the applicant's

lawyer and the Registrar.

6. On 6 February 1992 the Government communicated to the

Registrar the terms of an agreement which had been reached with the

applicant. On 13 February the applicant confirmed his acceptance of

the agreement.

The Delegate of the Commission was consulted and raised no

objection.

7. On 24 February 1992 the Court decided to dispense with a

hearing in the case, having satisfied itself that the conditions for

this derogation from its usual procedure had been met (Rules 26

and 38).

AS TO THE FACTS

8. Mr Roland Birou, a French national, was suspected of having

taken part in two armed robberies. On 23 July 1983 he was charged

and remanded in custody by an investigating judge at the

Aix-en-Provence tribunal de grande instance.

He submitted a series of unsuccessful applications for release to

the indictments division of the Aix-en-Provence Court of Appeal

(judgments of 12 December 1984 and 27 August 1985) and the

Bouches-du-Rhône Assize Court (judgments of 16 April, 19 June and

28 October 1986, 28 January and 1 October 1987 and 7 January 1988).

The applicant's appeal to the Court of Cassation against the

above-mentioned judgment of 28 January 1987 on the grounds of formal

defects was dismissed on 30 June 1987. On 3 October 1988 the Court

of Cassation quashed for want of jurisdiction the indictments

division's decision of 23 June 1988 dismissing a further application

for release by Mr Birou. The case was remitted to the Assize Court,

which granted the application on 19 October 1988. Two days later,

the court convicted the applicant and sentenced him to eight years'

imprisonment; the period spent in detention on remand fell, by

operation of law, to be deducted from the term of imprisonment

(Article 24 of the Criminal Code).

PROCEEDINGS BEFORE THE COMMISSION

9. Mr Birou lodged his application with the Commission on

16 September 1987. He alleged that the length of his detention on

remand had exceeded the "reasonable time" required under

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

10. The Commission declared the application (no. 13319/87)

admissible on 1 October 1990. In its report of 17 April 1991

(Article 31) (art. 31), it expressed the unanimous opinion that

there had been a violation of Article 5 para. 3 (art. 5-3). The

full text of the Commission's opinion is reproduced as an annex to

this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 232-B

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

11. On 6 February 1992 the Court received from the Ministry of

Foreign Affairs of the French Republic a document signed by Mr Birou

on 25 January 1992, which read as follows:

"I ... declare that I accept the friendly settlement proposed to me

by the French Government in the proceedings pending against that

Government in the European Court of Human Rights, subject to the

following condition:

- payment of compensation of 30,000 FF.

I acknowledge that the payment of the above-mentioned sum will

constitute full and final reparation for all the pecuniary and

non-pecuniary damage alleged by me in my application and will also

cover in their entirety the lawyer's fees and other costs incurred

by me in this case.

I therefore agree to withdraw from these proceedings and not to

institute any further proceedings in this matter against the French

State in the national or international courts.

I note that the French Government will take the measures necessary

to implement the terms of the friendly settlement as soon as the

Court has decided to strike the case out of the list.

..."

In a letter of 11 February 1992 to the Registrar, the applicant's

lawyer confirmed that his client and the Government had agreed a

settlement. The Delegate of the Commission was consulted and raised

no objection.

12. The Court takes formal note of the friendly settlement

reached by the Government and Mr Birou. It discerns no reason of

ordre public (public policy) why the case should not be struck out

of the list (Rule 49 paras. 2 and 4 of the Rules of Court).

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 55

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

27 February 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar