PAPON v. FRANCE (No. 2)". Click here. Crimes against humanity at Bordeaux.
"PAPON v. FRANCE (No. 2)" https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-24071%22]}
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THE FACTS
The applicant [Mr Maurice Papon] is a French national, born in 1910 and currently in custody in the Santé Prison in Paris. He was represented before the Court by Mr L. Argand, of the Geneva Bar, and Mr J.-M. Varaut, of the Paris Bar. The Government were represented by Mrs M. Dubrocard, Deputy Head of the Human Rights Office at the Ministry of Foreign Affairs.
A. The circumstances of the case
From May 1942 to August 1944 the applicant was the secretary-general of the Gironde prefecture under the authority of the prefect, Maurice Sabatier.
After the Liberation, according to figures provided by the applicant, more than 30,000 civil servants who had served under the Occupation were punished whilst several thousands of people were executed, both officially and unofficially.
In an opinion dated 6 December 1944 the Ministry of the Interior’s Committee for the Purge of Collaborators (comité d’épuration) proposed that the applicant should retain his post, taking the view that although he had held office under the Vichy regime he had shown a favourable attitude towards the Resistance. He was therefore allowed to continue serving as head of the private office of Gaston Cusin, the Bordeaux Commissioner of the Republic.
He was appointed to the rank of prefect and posted to Corsica in 1947, then served as Paris Metropolitan Police Commissioner from 1958 to 1966. He was a member of Parliament from 1968 to 1978 and mayor of Saint-Amand-Montrond from 1971 to 1988. He served as chairman of the Finance Committee of the National Assembly from 1972 to 1973 and then as the general rapporteur on the budget until 1978. He was Minister for the Budget from 1978 to 1981.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 May 1981, between the two rounds of the presidential election, the weekly newspaper Le Canard enchaîné published the first of a series of articles in which the applicant, who was Minister for the Budget at the time, was criticised for his behaviour during the Second World War.
The applicant asked the Action Committee of the Resistance to appoint a court of honour to assess his conduct under the German occupation. On 15 December 1981, having examined his immediate hierarchical superior, Maurice Sabatier, who said that he assumed “full responsibility for the anti-Jewish repression for which his prefecture was responsible”, the court of honour delivered a verdict in which it formally acknowledged that the applicant had been a member of the Resistance from January 1943 onwards but concluded “that in the very name of the principles which he believed he was defending, and not having been instructed to remain in his post by a competent authority of the Resistance, he should have resigned from his post as secretary-general of Gironde in July 1942”.
On 8 December 1981 a lawyer named Boulanger lodged a criminal complaint against the applicant together with a civil-party application for crimes against humanity, aiding and abetting murder and abuse of official authority in connection with the deportation of eight persons arrested by the French police in Bordeaux and held in Bordeaux and then in Drancy Camp before being deported to and exterminated at Auschwitz. Six other criminal complaints together with civil-party applications relating to seventeen other victims of deportations were lodged in March and April 1982 by another lawyer, Mr Serge Klarsfeld, who is also the chairman of the association “Sons and daughters of France’s Jewish deportees”. On 29 July 1982 the Bordeaux public prosecutor’s office asked for investigations to be opened in respect of all seven complaints.
1. The investigation proceedings
On 19 January 1983 the applicant was charged with crimes against humanity by the chief investigating judge at the Bordeaux tribunal de grande instance.
On 22 February 1984 the investigating judge commissioned an expert historical report from three historians. The report was filed on 11 January 1985.
In the meantime, on 23 May 1983, the investigating judge had begun examining witnesses, including Maurice Sabatier, the prefect of Gironde at the material time. However, former Article 681 of the Code of Criminal Procedure [Repealed by the Law of 4 January 1993] provided that where a civil servant was likely to be charged with a serious crime (crime) or lesser serious offence (délit) committed in the performance of his duties, the public prosecutor had to begin by asking the Criminal Division of the Court of Cassation to designate the competent court for the investigation.
Since the failure to comply with that formal requirement made the proceedings absolutely null and void in accordance with Article 171 of the Code of Criminal Procedure, the Court of Cassation in a judgment of 11 February 1987 declared all the steps of the prosecution and investigation carried out after 5 January 1983, including the charging of the applicant, null and void as having been taken by a judge without jurisdiction and designated the Indictment Division of the Bordeaux Court of Appeal to proceed with the investigation.
In a judgment of 4 August 1987 the Indictment Division ordered the joinder of the seven sets of proceedings instituted following the complaints lodged before 5 January 1983 and ordered that the investigation be continued, appointing a judge of the Indictment Division to conduct the investigation. In judgments of 9 November and 8 December 1987 the Indictment Division noted that three fresh criminal complaints had been lodged by associations together with applications to join the pending proceedings as an intervening civil party and ordered that these be added to the file. A complaint by two civil parties in March 1982 gave rise to another judgment designating the competent court delivered by the Criminal Division of the Court of Cassation on 9 December 1987 and a judgment of 28 June 1988 in which the Indictment Division ordered the joinder of those proceedings and confirmed the appointment of the judge charged with the investigation. On 2 February 1988 the Indictment Division noted that a new complaint had been lodged on 24 July 1987 together with an application to join the pending proceedings as an intervening civil party and ordered that it be added to the file.
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