Case Summary of Selmouni v France (2000) 29 EHRR 403
Selmouni v France (2000) is a European Court of Human Rights (ECtHR) decision concerning Article 3 (Prohibition on Torture) and Article 6 (Right to a Fair Trial) of the European Convention on Human Rights (ECHR) 1953. The Court also considered the circumstances in which Article 35 - requiring claimants to exhaust all domestic remedies before bringing a claim before the ECtHR - would be deemed to be satisfied.
Mr Selmouni was a joint Netherlands and Moroccan national, who was sentenced to thirteen years in prison after being convicted of drug trafficking offences in France (Selmouni v France 2000, para 26). After being arrested on 25th November 1991, Mr Selmouni was held in custody for a total of three days. During this time, he alleges that he was the subject of repeated serious ill treatment. This included 'being repeatedly punched, kicked, and hit with objects' which include a baseball bat, being urinated over by a police officer who demanded that he suck his penis, and being threatened with a blowlamp and syringe'; he also alleged that he was anally raped by an officer using a truncheon, who told the claimant that 'you Arabs enjoy being screwed' (ibid para 28, 82).
Mr Selmouni complained repeatedly that he was being subjected to ill treatment, and a medical practitioner examined him on no fewer than five separate occasions over the three days that he was initially detained (ibid, paras 12-16). A medical report submitted in response to the allegations noted at least 22 separate injuries, concluding that 'lesions of a traumatic origin [....] were sustained at a time which corresponds to the period of police custody' (ibid, para 19-20). The police officers concerned claimed that the injuries were sustained as a result of a struggle upon arrest (ibid, para 51). However, a doctor reviewing Mr Selmouni's medical notes commented that that although some of the injuries could be attributed to such a struggle, others 'were not seen on the first examination and would certainly have been sustained after arrest' supporting the claimant's version of events (ibid, para 54).
A criminal and civil investigation into the allegations was convened in February 1993 (ibid, para 28). A medical re-examination in June 1993 noted that residual wounds were healing well, but found no evidence of sexual assault 'mainly owing to the amount of time which [had] elapsed since the alleged acts (ibid, para 31). The doctor noted that Mr Selmouni did not mention the sexual assault at the time 'because he felt ashamed of it' (ibid, para 31). The claimant was also having problems with the sight in his left eye, but the examining doctor concluded that further examination would be required to establish whether there was a link between this injury and the alleged ill treatment (ibid, para 31).
Litigation surrounding the allegations was eventually heard at the Versailles Criminal Court on 5th February 1999 (ibid, para 58). In its judgment, the Court rejected a number of Mr Selmouni's arguments. In doing so, it made the following observations:
- 'neither the medical certificates nor the expert reports support the allegation of anal penetration;'
- 'the expert report prepared by the court doctor does not allow a causal link to be established between Mr Selmouni's loss of visual acuity and the blows he received;'
- 'the acts of violence inflicted on Ahmed Selmouni which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime' (ibid, para 59).
The Court did however find a number of officers guilty of the charge of 'assault occasioning total unfitness for work' (ibid, paras 57, 61).
Article 35 of the ECHR states that 'The Court may only deal with the matter after all domestic remedies have been exhausted.' Selmouni's application to the ECtHR was declared admissible on 25th November 1996, well before the conclusion of domestic proceedings (Selmouni v France op. cit, para 67). The Court rejected a challenge from the French government, concluding that with regards to the seriousness of the allegations and the time that had elapsed, the authorities had not taken 'all positive measures to bring investigation to a rapid conclusion' (ibid, para 73).
The applicant alleged that his treatment passed the threshold of severity required for it to be considered torture under Article 3 of the ECHR, claiming that the motivation of the police officers was to extract a confession (ibid, para 91). The ECtHR agreed, citing Articles 1 and 16 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987, which defines torture as 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession' (ibid, para 97). This extends the definition originally set out in Ireland v United Kingdom (1979), where it was determined that torture would be reserved for instances of 'very serious and cruel suffering' which 'attach a special stigma to deliberate inhuman treatment' (ibid, para 96).
The Article 6 complaint was closely related to the Article 35 argument, and concerned the length of time taken for proceedings to be brought against the police. Noting that the applicant had an arguable claim under Article 3, it concluded that the six years it took for the case to be heard was not 'reasonable time' as prescribed by Article 6.1 of the Convention, and that consequently, the claimants rights in this regard had been breached (ibid, paras 116-118).
The Decision in Selmouni v France is profound for a number of reasons. It reaffirms the Courts view of Article 3 as 'one of the most fundamental values of democratic societies' and was cited in the recent decision of Er V Turkey (2013) as authority that compounded suffering can be tantamount to torture in certain circumstances. On this point, Farrell (2015) notes that the case also heralded a new era in the development of interpretation of Article 3, switching the emphasis from the conduct of the accused to the suffering of the alleged victim.
It is also an important case in establishing that the rule in Article 35 is not absolute. It assumes that an effective remedy exists within the national jurisdiction. Part of the criteria for an effective remedy is the absence of excessive delays. This case demonstrates that the ECtHR is prepared to hear a claim if it is satisfied that remedy exists in theory but not in practice (EL Rev 2000).
Er v Turkey (2013) 56 E.H.R.R. 13
Ireland v United Kingdom (1979-80) 2 EHRR 25
Selmouni v France (2000) 29 EHRR 403
Legislation and Treaties
European Convention on Human Rights 1953
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987
E.L. Rev. 2000, 25 Supp (Human rights survey), 108-109,179 (No Author).
Farrell. M., 2015. 'Just how ill-treated were you? An investigation of cross-fertilisation in the interpretative approaches to torture at the European Court of Human Rights and in international criminal law'. N.J.I.L. 2015, 84(3), 482-514.