Ecuador 11.992

1. In a petition received by the Inter-American Commission on Human Rights (hereinafter "the Commission" or the "IACHR") on December 29, 1997, the Comisión Ecuménica de Derechos Humanos [Ecumenical Commission for Human Rights] (hereinafter called “the petitioner") filed a complaint against the State of Ecuador (hereinafter called "Ecuador" or "the State") for violating the human rights of Mrs. Dayra María Levoyer Jiménez. The petitioner maintains that Mrs. Levoyer Jiménez was detained on June 21, 1992, without judicial order and held (incommunicado) for 39 days, during which time she was subjected to psychological torture. She was held, without a conviction being rendered, for six years, when finally all of the charges against her were dismissed.

2. During her detention, numerous writs of habeas corpus were filed unsuccessfully. Finally, on June 16, 1998, the Constitutional Court ruled in an appeal on the last habeas corpus that she be set free in view of the extended duration of her pretrial imprisonment. The petitioner further maintains that the detention and subsequent incarceration of Mrs. Levoyer Jiménez for more than five years is due exclusively to the fact that she is the companion of Hugo Jorge Reyes Torres,^[1] who was accused of being the leader of a powerful gang of drug traffickers in Ecuador. The petitioner also alleges that the State violated her right to property, because the property seized when she was detained has not yet been returned to her.

3. Consequently, the petitioner alleges that the State violated her rights to humane treatment, personal liberty, due process, property, and access to simple and prompt recourse to have her rights recognized, in accordance with Articles 5, 7, 8, 21, and 25 of the American Convention on Human Rights (hereinafter "the Convention" or "the American Convention"). The State argues that domestic remedies have not been exhausted.

4. At its 106^th regular session, the Commission in Report 29/00 (7/03/00) declared the petition of alleged violations of Articles 5, 7, 8, and 25 of the American Convention admissible. The Commission also decided to postpone for the report on the merits its decision on the admissibility of an alleged violation of Article 21 in conjunction with Articles 8 and 25 of the Convention. Following an examination of the facts of the case, the Commission concludes in the present report that the Ecuadorian State has violated Articles 5, 7, 8, and 25 of the American Convention.

5. On March 19, 1998, the Commission opened Case 11.992. After substantiating that the proper procedures were followed, the Commission issued Report 29/00 on March 7, 2000 on admissibility, in which it determined that it was competent to examine the merits of the case. In its report, the Commission also indicated that it had decided to postpone for the report on the merits its findings on the admissibility of the alleged violation of Article 21 in conjunction with Articles 8 and 25 of the Convention.

6. In February and December 1999, before approving the report on admissibility, the Commission made itself available to the parties so that they could reach a friendly settlement. In report 29/00, the Commission again made itself available to the parties so that a friendly settlement could be reached in accordance with the principles established in the American Convention. In a letter dated April 7, 2000, the petitioner indicated that all previous attempts at a friendly settlement had been unsuccessful, and it therefore wanted the Commission to continue with its examination of the merits of the case. The State has not expressed its views on this point.

7. According to the complaint lodged with the Commission, Mrs. Levoyer Jiménez was detained without a judicial order on June 21, 1992, in Operation Cyclone ("Operación Ciclón”), a police operation in which a large number of people suspected of being members of a gang of drug traffickers were arrested. At the time of her arrest, she was not told why she was being detained. She was held in solitary confinement for 39 days, during which time she is alleged to have been subjected to psychological torture in order to force her to make a statement. The warrant for her arrest was issued by the police chief after she was detained, on July 30 and 31, 1992, charging her with the crimes of drug trafficking, acting as a “front”, illicit enrichment, and asset laundering (conversión de bienes). In addition, the judge of the criminal court of Pichincha issued an arrest warrant on August 11, 1992, nearly two months after her arrest. The petitioner alleges that the absence of a judicial warrant and the lack of compliance with the time periods and requisites established by law constitute an arbitrary and illegal detention in violation of Article 7 of the American Convention. The petitioner further alleges that incommunicado detention for 39 days was a violation of the period established in the domestic legislation and, therefore, of Article 7(2) of the Convention, as well as of Article 5 of the same treaty since it constitutes cruel, inhuman, and degrading treatment.

8. As a result of that arrest warrant, four sets of proceedings were instituted against Mrs. Levoyer Jiménez and other persons. One of the defendants, a Major General in the Army, was subject to special jurisdiction. Consequently, the proceedings were removed to the Superior Court of Quito.^[2] The President of the Superior Court of Quito (hereinafter called “the Superior Court”) established jurisdiction for the judicial proceedings in September and November 1992, and upheld pre-trial detention in the four cases, and the detention orders were issued on December 1, 1992.

9. In the proceedings for illicit enrichment, although no charges were brought by the Prosecutor, the President of the Superior Court ruled that the proceedings be initiated on November 22, 1996. This ruling was appealed and brought before the bench in the Fourth Division of the Superior Court, which on April 29, 1998, dismissed the proceedings. In the proceedings for asset laundering, on September 30, 1996, the President of the Superior Court issued a temporary stay of the proceedings and sent up for consultation, which was resolved by the Fourth Division of the Superior Court on April 29, 1998, which again dismissed the proceedings.

10. In ruling on the legal consultation, the Fourth Division of the Superior Court ordered the dismissal of the proceedings for illicit enrichment and asset laundering, on the basis of Articles 76 and 77 of the Narcotics and Psychotropic Substances Act, which stipulate that a prerequisite for bringing such charges is that the crime of drug trafficking must have been committed, which had not been proven in the case.

11. The Attorney General’s Office (Ministerio Público) filed a motion for cassation (annulment) of the decision handed down by the Fourth Division in both cases (illicit enrichment and asset laundering). As the motion for annulment of the judgment was denied, the Prosecutor filed a motion of fact.^[3] According to the information provided to the Commission, this last motion was being processed in July 1998. Consequently, the judgment dismissing the charges in the two cases of illicit enrichment and asset laundering was not final. The petitioner alleges that, according to the jurisprudence of the Supreme Court on motions for annulment, the filing of such a motion is unlawful since the Code of Procedure provides that it may only be used against judgments in the criminal courts when a violation of the law has occurred.^[4] Therefore, the petitioner argues, the remedy may not be used against rulings for dismissal by a division of the Superior Court, as in the present case. The State has not responded to these assertions.

12. In the proceedings relating to acting as a “front” for criminals, on April 29, 1996, the President of the Superior Court ordered that Mrs. Levoyer be released. On March 23, 1998, an order to initiate the proceedings was handed down and was appealed. On July 7, 1999, the First Division of the Superior Court upheld the dismissal of the case and ruled that the property be returned to her upon judgment being rendered. The petitioner alleges, therefore, that the right to property has been violated, since as the charge has been dismissed there will be no judgment, and the withholding of the property is, therefore, tantamount to confiscation. In the proceedings for drug trafficking, on July 19, 1995, a dismissal was ordered. Upon review, the First Division of the Superior Court upheld the dismissal on April 16, 1996.

13. As each of the various proceedings against Mrs. Levoyer was dropped, orders for her release were issued. However, these orders could not be executed since the Code of Criminal Procedure requires that all motions for dismissal must be sent up for consultation to the Superior Court. Accordingly, one after another the proceedings were reviewed by different divisions of the Superior Court of Quito as mentioned above. In proceedings that involve offenses punishable under the Narcotics and Psychotropic Substances Act, the defendant must remain in custody for the duration of the proceedings even though a case may have been dismissed. The petitioner maintains that for any other offense, the defendant would have been released before the dismissals were sent up for consultation.

14. The report the Commission received from the petitioner on December 10, 1998, noted that, after Mrs. Levoyer was detained, in addition to the four proceedings mentioned above, the following proceedings were instituted:

15. In the proceedings for asset laundering brought by the Banco de los Andes, the Second Division of the Superior Court, after several incidental pleas, referred the case to the associate judges of that same bench, who issued a ruling of (definitive) dismissal of the charges on July 5, 1999. Apparently, the bench found that three cases for asset laundering had been instituted arising out of “Operation Cyclone,” in violation of the prohibition of double jeopardy.

16. The petitioner notes that during her detention Mrs. Levoyer filed many writs of amparo or habeas corpus in an effort to seek her release, on grounds that her detention violated the Constitution, the law, and human rights treaties. Writs were filed on July 26, 1994, on April 3, 1995, in March 1996, on October 18, 1997, and on November 18, 1997. All of these motions were filed with the President of the Supreme Court of Justice, who did not rule on any of them. Consequently, the petitioner claims that the filing of four writs of habeas corpus without success constitutes lack of access to simple and prompt recourse and therefore violates Article 25 of the Convention.

17. On April 15, 1998, a writ of habeas corpus was again filed, requesting that the Mayor of Quito^[5] release Mrs. Levoyer immediately. The petition was denied on April 21, 1998, a ruling that was appealed on April 24, 1998 before the Constitutional Court.

18. The Second Division of the Constitutional Court, in a ruling handed down on June 16, 1998, considered that the terms specified in Law 04^[6] had been exceeded. It reversed the Mayor’s decision and ordered that Mrs. Levoyer Jiménez be released. The Constitutional Court noted in its ruling that the exception in the Narcotics and Psychotropic Substances Act as to the application of Article 114(1) of the Criminal Code, for offenses considered thereunder, had been declared unconstitutional by that same Court in Resolution Nº 119-1-97 of December 24, 1997. Accordingly, it added, it was no longer in force. On these grounds, the Court considered the time requirements specified in Article 114(1) to be met and ordered the release of Dayra María Levoyer Jiménez, which occurred a few days later.

19. Mrs. Levoyer Jiménez was released in June 1998, six years after she was detained. All charges against her have now been dismissed. The petitioner alleges that preventive detention for a period of five years contravenes Article 7(5) of the Convention because it is excessive, and also violates the principle of the presumption of innocence. It further alleges that the duration of the proceedings against her, which are not yet fully concluded, have exceeded the reasonable time established in Article 8(1) of the American Convention.

20. The petitioner also alleges that in the instant case there has been a violation of Article 21 of the Convention since the property seized when Mrs. Levoyer Jiménez was detained has not yet been returned to her.

21. On July 27, 1998, the State's response was received. It maintains that in the instant case a violation of human rights cannot be considered to have occurred because domestic remedies have not been exhausted.

22. The State argues that, according to Article 249 of the Code of Criminal Procedure, once a provisional dismissal has been issued, the preliminary proceedings are suspended for five years, during which time new evidence may be presented as to the defendant’s innocence or guilt. In addition, Article 252 of the Code provides that, once that period has lapsed, and provided that the proceedings have not been re-opened, the court shall issue a ruling of (definitive) dismissal.

23. Accordingly, the State considers that since the periods provided for in Article 249 have not expired, and until the proceedings are closed under the terms of Article 252, domestic remedies have not been exhausted. In this same vein, it notes that in the proceedings for illicit enrichment a full trial was ordered and, therefore, domestic proceedings have not yet concluded.

24. The State has reported that the following proceedings are ongoing against Mrs. Levoyer (as of May 14, 1998):

As mentioned earlier, the courts have ruled that most of the charges be dismissed.

IV. ANALYSIS OF THE MERITS

25. The Commission now moves on to determine in the present case whether the rights of personal liberty and humane treatment, judicial protection, the right to property, and access to a simple and prompt recourse, as established in Articles 1, 5, 7, 8, 21, and 25 of the American Convention, have been violated.

26. According to the information and documentary evidence furnished by the parties, Dayra María Levoyer Jiménez was detained on June 21, 1992, at approximately 1:00 p.m. by a group of 15 individuals in civil dress and uniforms, who did not identify themselves as police officers, and did not have in their possession an arrest warrant issued by a competent authority. On July 30 and 31, 1992, the Police Chief issued a warrant for her arrest on charges of drug trafficking, acting as a “front”, illicit enrichment, and asset laundering. From August 11 to 13, 1992, the four judges to whom it fell to hear each of the cases, issued the respective warrants for arrest.

27. The petitioner alleges that these facts constitute an illegal and arbitrary detention in violation of Article 7(2) and 7(3) of the American Convention and Ecuadorian law.

28. In its response, the State did not specifically address the detention without a judicial order but maintained in general terms that: “The national courts have acted within their competence in the proceedings… against the petitioner, in what was known as Operation Cyclone, with utmost diligence in reaching a decision on the different and complex matters that cases of this kind entail… That is why this Commission must refer to the proceedings to establish that the rights relating to due process and personal liberty of the petitioner have been respected, in the manner established by the Commission and the Court.”^[7]

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

30. It is therefore fitting to establish, first, what are the “conditions established beforehand by Law”, whether such conditions are consistent with the provisions of the Convention and lastly whether such provisions were observed in the present case.

31. The Commission now turns to an examination of the conditions established under domestic legislation for making an arrest. Article 22(19)(h) of the Ecuadorian Constitution, in effect at the time of the detention, set forth the following:

No one shall be deprived of his liberty except by written order of the competent authority, as appropriate, for the period and according to the procedures prescribed by law, save in the case of flagrante delicto, nor may he be held without a trial order for more than twenty-four hours. In either case, he may not be held incommunicado for more than twenty-four hours.

32. Moreover, Article 172 of the Code of Criminal Procedure provides for pre-trial detention in the following instances: “before criminal proceedings begin, the judge hearing the case may order the detention of an individual on the basis of personal acquaintance, or oral or written reports by officers of the National or Judicial Police or by any other person….”

33. Ecuadorian law further establishes, in Article 56 of the Code of Criminal Procedure, that detention without a judicial warrant may only occur in the case of an individual caught in the act of committing a crime or when a serious presumption of responsibility exists. Paragraph 6 of the same Article 56 establishes that one of the functions of the Judicial Police is:

To order and execute the temporary detention of any individual caught in the act of committing a crime or when a strong presumption of responsibility exists, and to bring the said individual before the competent examining magistrate (juez de instrucción) within the following forty-eight hours.

34. The State has not alleged or presented evidence demonstrating that Mrs. Levoyer Jiménez was apprehended in flagrante delicto, a circumstance that would justify a detention without a judicial order. The Commission understands that the detention took place in accordance with the principle of “serious presumption of responsibility.”

35. It is appropriate to examine the standard of “serious presumption of responsibility” and how it applies to Ecuadorian law. Although local courts have the authority to determine the constitutionality of the provisions of domestic law, the Commission is empowered to analyze such provisions to determine whether their wording or application may be inconsistent with the provisions of the Convention.

36. As noted earlier, the Ecuadorian Constitution formally establishes the circumstances required for making an arrest, that is by order of a competent authority, save in the case of flagrante delicto. The Constitution provides only one exception to the rules, and that is the case of an individual in the act of committing a crime, where a warrant issued by a competent authority is not necessary in order to make an arrest. The Code of Criminal Procedure, however, departs from the Constitution by establishing additional grounds for an arrest without a warrant. The Commission is of the view that the law does not set forth the objective circumstances that would constitute a “serious presumption of responsibility,” leaving the definition to the discretion of the police officer making the arrest.

37. Moreover, the Commission considers that this provision also contravenes the Convention since it leaves the decision as to the appropriateness of the arrest to the subjective judgment of the police officer carrying out the arrest. The Commission understands that the requirement for a statutory description of a crime set out in the obligation to “establish beforehand” the conditions of arrest, requires that the law establish precisely and in specific detail the reasons for which, and the conditions in which, an arrest may be made. Such a criterion is not satisfied by a vague and general prescription such as “serious presumption of responsibility.”

38. Accordingly, the Commission considers that Mrs. Levoyer Jiménez was arrested on June 21, 1992, without a judicial warrant in circumstances not constituting an exception to the requirement set forth in the Constitution. According to the information presented in the instant case, the first arrest warrant was issued by the Chief of Police on July 30, 1992, or 39 days after the arrest was made. The first judicial arrest warrant was issued by a Judge on August 11, 1992, or 51 days after her arrest. The State has not presented any document to contradict these assertions. Therefore, it may be concluded that her arrest was not made on the grounds or in the circumstances provided for in the domestic legislation, and that Mrs. Levoyer was arbitrarily detained in violation of Articles 7(2) and 7(3) of the American Convention.

39. As indicated earlier, the Commission notes that the domestic legislation establishes a maximum period for detention without being charged. Article 22(19)(h) of the Ecuadorian Constitution states that such a period may not exceed 24 hours. On this basis, the Commission finds that Mrs. Levoyer Jiménez was detained on June 21, 1992, but having been transferred to a detention center on July 30, 1992, was held incommunicado at police stations, for a period of 39 days. This was a violation of Article 7(2) of the American Convention since it was not carried out pursuant to law. In other words her detention w/o being charged violated the provisions of Ecuadorian law which establish that such a period may not exceed 24 hours.

40. Lastly, the Commission wishes to point out that the evidence produced by the parties shows that Mrs. Levoyer Jiménez remained in incommunicado detention in police stations. The Inter-American Court of Human Rights has ruled that a police station cannot be considered a suitable facility for persons in pre-trial detention.^[8]

41. According to the documentation provided by the parties, Mrs. Levoyer Jiménez was detained on June 21, 1992, and remained in temporary detention until June 1998. Also, when she was initially detained, she was held for 51 days without being brought before a judicial authority. The petitioner alleges that these events constitute a violation of Article 7(5) of the American Convention.

Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

43. This provision reflects the State’s duty to guarantee the rule of law and the determination of criminal responsibility through the judiciary consistent with the obligation to guarantee the fundamental rights of individuals accused of breaking the law. It is the State’s task to strike a balance between the general interest of preventing a crime and of giving victims effective access to justice, and the interest, also general, of ensuring that the guarantees that the law itself provides in favor of those accused of crimes are safeguarded.

44. In fact, the principle of innocence implies that if it is necessary to deprive an accused person of personal liberty in the course of judicial proceedings, the legal position of the accused continues to be one of innocence. It is understood that Article 7(5) of the American Convention requires that once a trial has begun and the accused has been detained, if it is necessary to deprive him of his liberty, the public trial should take place, if not immediately, at least within a very short time…^[9] After this brief interlude, the State has the right to continue the proceedings but the provision in this Article calls for the accused to be released.

45. This principle is more evident still in a case where a dismissal of the proceedings comes into play, although this is not carved in stone when a consultation is pending. In fact, the principle of innocence requires that the temporary deprivation of a person's liberty “assumes that it is highly probable that there exists a punishable act attributable to the accused or, put in another way, the likelihood of a conviction…”^[10]Obviously, the existence of a dismissal distances the State from the certainty of guilt that justifies the maintenance of a measure of preventive detention.

46. As a general principle, individuals accused of a criminal offense may have their liberty restricted only after judgment has been rendered in a trial during which they have had the opportunity to defend themselves. The proceedings for determining the innocence or guilt of the accused must be substantiated within a reasonable period so as not to disregard their right to security and liberty. The restriction of such rights beyond the parameters established by law and the margin of what is reasonable on the pretext of ensuring an allegedly efficient investigation implies a presumption that the persons who are in detention as a result of such investigation are guilty.^[11]

47. A presumption of this kind runs contrary not only to the letter of the American Convention, but also to the general principles of law that the Treaty has codified and which are also contained in Ecuador’s domestic legislation. The obligation of the judiciary to make every effort to comply with these provisions and to strike a balance in protecting the different interests involved, which only appear to be opposed, is an essential part of the rule of law: the effective functioning of a judicial system that all individuals can trust, regardless of the circumstances.

48. In the present case, the State has not provided any evidence to justify that the deprivation of liberty was imposed based on the possibility of flight or the severity of the offense or penalty.

49. Article 7(5) of the Convention requires that the trial in the context of criminal proceedings take place within a reasonable time as a guideline for restricting personal liberty. Determining until when this restriction can be reasonably extended calls for a case-by-case analysis.^[12] To this end, the Commission has adopted a test, whereby it must be determined, first, whether the deprivation of liberty without a conviction is justified in the light of relevant and sufficient criteria, determined objectively and reasonably by preexisting legislation; and second, whether the judicial authorities have acted with due diligence in the advancement of the judicial proceedings. Should it be found that the detention and the duration of the proceedings are not justified, the accused must be set free, at least provisionally^[13] and that is why measures may be adopted to guarantee his appearance in court.

50. As to the content of the criteria of relevance and sufficiency, it is important to reiterate that, in principle, the provisional loss of personal liberty is justified only with respect to the possibility that the person will escape or will disregard other measures restricting his or her personal liberty that may be adopted to ensure his or her appearance in court or with regard to the danger he or she poses.

51. The seriousness of the offense and the severity of the sentence are factors that may be taken into account in evaluating the possible risk that the accused may try to evade justice. The deprivation of liberty without a conviction, however, should not be based exclusively on the fact that the detainee has been accused of a particularly objectionable offense from the standpoint of society. The adoption of a precautionary measure in the form of deprivation of liberty should not became a substitute for incarceration.^[14]

52. In the present case, it has not been expressly alleged nor has evidence been produced to demonstrate that Mrs. Levoyer Jimenez resorted to procedural mechanisms established by law for the purpose of obstructing the proceedings.

53. The conduct of the judicial authorities will be examined in light of the procedural norms in force, in analyzing whether the right to a fair trial within a reasonable period, as established in Article 8(1) of the Convention, has been violated.

54. Over and above the reasonableness of the preventive detention, in this case domestic law sets objective parameters as regards duration. In fact, Ecuador is one of those countries that establishes a maximum period of preventive detention in its domestic legislation.

continued...

[ Table of Contents | Previous | Next ]

* A member of the Commission, Mr. Julio Prado Vallejo, who is an Ecuadorian national, did not take part in the discussion and did not take part in the voting in the present case, in accordance with Article 17(2)(a) of the Regulations of the Commission.

^[1] Mr. Jorge Hugo Reyes Torres was also detained in what was known as "Operación Ciclón" (Operation Cyclone).

^[2] Article 5.5 of the Code of Criminal Procedure of Ecuador establishes that "when, any member of a group charged with an offense is subject to special jurisdiction, all members of the group shall be tried by the same special court...” In addition, Article 11 of the same Code provides: "The President of the Supreme Court and the Presidents of the Superior Courts shall be the investigative judge in those cases of special jurisdiction which, by law, it falls to them to hear." One of the persons investigated with Mrs. Levoyer was a Major General in the Ecuadorian Army. Charges against officers in the Armed Forces must be tried in another court, that is special jurisdiction, and, therefore, according to the above-noted provision, determine that the President of the Superior Court shall have exclusive jurisdiction over them (see Law on Armed Forces Personnel, Organic Law of the Judicial Function, and Code of Criminal Procedure.

^[3] A motion of fact is provided for in Article 395 of the Code of Criminal Procedure as follows: “The motion will be granted when magistrate or criminal court has denied a motion filed by the deadlines established and as specified in this Code”. Accordingly, in denying the motion for reversal, a motion of fact must be filed so that the superior court, the Supreme Court in the present case, can rule on the merits of the motion.

^[4] Article 373 of the Code of Criminal Procedure provides: "The motion for reversal shall be admissible before the Supreme Court of Justice when the law has been violated in a judgment, either because it rules expressly contrary to the wording of the law; or it has been falsely applied; or, because it has been wrongly interpreted."

^[5] Article 93 of the Constitution of Ecuador provides that habeas corpus be filed "... with the mayor of the jurisdiction in which the person is charged, or before an individual acting in his stead...."

^[6] Law 04 amended the Criminal Code, adding Article 114(1), which establishes: "Persons who, having been kept in detention for a time equal to or greater than one third of the period established in the Criminal Code as the maximum sentence for the offense with which they are charged, have neither had their case discontinued nor been committed to trial, shall be immediately released by the judge hearing the case. Persons who, having been kept in detention for a time equal to or greater than one half of the period established in the Criminal Code as the maximum sentence for the offense with which they are charged, have not been sentenced, shall be released immediately by the criminal court hearing the case."

^[7] The Government’s response of January 26, 2000, received by the Commission on April 6, 2000.

^[8] Suárez Rosero Case, Judgment of November 12, 1997, paragraph 46.

^[9] Maier, Julio B., Derecho Procesal Penal. Volume I. Editores Del Puerto, Buenos Aires, 2^nd edition, 1996, page 537.

^[10] Maier, op. cit. page 523.

^[11] Report 12/96, Giménez Case, Argentina, IACHR Annual Report 1995. Paragraphs 76, 77, and 78.

^[12] Id., paragraph 70. See also European Court of Human Rights. Stogmuller vs. Austria, Series A 9 (1969).

^[13] Report 12/96, op. cit. paragraph 218 (1991). European Court of Human Rights. Neumeister vs. Austria, Series A 8 (1968).

^[14] Report 12/96, op. cit. paragraph 83. See also European Court of Human Rights. Kenmache vs. France, Series A, paragraphs 86 and 89.