CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 juin 2007

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Zupančič, president,   Mr   C. Bîrsan ,   Mr   J.-P. Costa ,   Ms   A. Gyulumyan,   Mr   David Thór Björgvinsson ,   Mrs   I. Ziemele,   Mrs   I. Berro-Lefèvre , judges , and Mr S. Quesada , Section Registrar, Having regard to the above application lodged on 10 April 2006, Having deliberated, decides as follows: THE FACTS The applicant, Mr Claude Tamburini, is a French national who was born in 1959 and lives in Metz. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. By an order of 28 May 2002, an investigating judge of the Metz tribunal de grande instance indicted the applicant and committed him for trial in the Moselle Assize Court, for having “in Metz, from 1994 to 17 July 1997, committed acts of sexual penetration, by violence, constraint, threat or surprise, on the person of [Samia D.], with the aggravating circumstances that [Samia D.] was under fifteen years of age, having been born on 13   August 1983, and that he had authority over her as the husband of her mother, with whom he lived.” In a judgment of 18 December 2003 the Moselle Assize Court sentenced the applicant to twenty years’ imprisonment for aggravated rape of a person under 15 by a person in a position of authority, and suspended his civic, civil and family rights for ten years. By a judgment of 27 May 2005 the Meurthe-et-Moselle Assize Court of Appeal sitting in Nancy, having heard the parties and their representatives in private, upheld the earlier judgment in full. It also found that the delivery into custody order issued against the applicant on 28   May   2002 was equivalent to a detention order, but nevertheless issued a detention order against the applicant that same day. Appealing on points of law, the applicant complained in particular that the proceedings before the Assize Court of Appeal had been held in private at the victim’s request, in conformity with Article 306 of the Code of Criminal Procedure, whereas he had not freely and expressly waived his entitlement to public proceedings; he also submitted that there had been no separate decision or mention in the record of the proceedings concerning his placement in detention following the delivery of the judgment. By a judgment of 18 January 2006 the Court of Cassation dismissed the applicant’s appeal. On the matter of the private hearing, it explained its decision in the following terms: “Article 6 § 1 of the Convention ... provides for the possibility of excluding the press and the public from all or part of the trial ... where ... the protection of the private life of the parties so require[s]. In allowing the party claiming damages, a rape victim, to decide whether the protection of her private life requires all or part of the trial not to be public, Article 306 § 3 of the Code of Criminal Procedure simply establishes a principle in keeping with the provisions of [Article 6 § 1 of   the Convention].” On the subject of the applicant’s committal to prison, the Court of Cassation held: “The claim cannot be allowed in so far as the court’s decision to commit the accused to prison, taken by the court alone following the vote on the sentence and in the secrecy of the deliberations, does not require an interlocutory decision or any special mention in the record of the proceedings”. B.   Relevant domestic law Article 306 of the Code of Criminal Procedure stipulates, concerning proceedings before the Assize Court: “The hearing shall be public unless publicity would be dangerous for order or morality. In such a case, the court shall so declare by a ruling made in open court.        The president may nevertheless prohibit access to the courtroom for minors, or for certain minors.        In the case of a prosecution for the offences of rape or torture and acts of barbarity accompanied by sexual aggression, a hearing in camera is granted as of right where the civil party victim or one of the civil party victims so requests; in other cases a hearing in camera may be ordered only where the civil party victim or one of the civil party victims does not oppose it.        Where a hearing in camera has been ordered, this applies to the reading of any judgments that may be made in respect of any procedural objections …        The judgment on the merits must always be read in open court.   ...” COMPLAINTS 1. Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been given a public hearing before the Assize Court of Appeal, and objected to the automatic nature of the practice of hearing cases involving charges of rape in private. 2. Relying on the same provision, the applicant also complained that he had not been served with the detention order delivered on appeal, without further explanation. THE LAW 1. The applicant complained that he had not been given a public hearing before the Assize Court of Appeal, and objected to the automatic nature of the practice of hearing in private cases involving charges of rape.   He relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” The Court points out, first of all, that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it. Accordingly, the sole task of the Court is to determine whether the manner in which the contested legislation was applied to the applicant was consonant with Article 6 § 1 of the Convention. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. It protects litigants against the secret administration of justice with no public scrutiny and is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see, among other authorities, Ernst and Others v. Belgium , no. 33400/96, § 65, 15 July 2003, and the Axen v. Germany judgment of 8 December 1983, Series A no. 72, p. 12, § 25). However, this fundamental principle is not absolute, the requirement to hold a public hearing being subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the proviso that “the press and public may be excluded from all or part of the trial ... where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” Moreover, it is established in the Court’s case-law that, even in a criminal-law context where there is a high expectation of publicity, it may on occasion be necessary to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice (see, among other authorities, Doorson v. the Netherlands , judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, §   70; Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February 2000; Z v. Finland , judgment of 25 February 1997, Reports 1997-I, p. 348, § 99; and T. v. the United Kingdom [GC], no. 24724/94, §§ 83-89, 16   December 1999). The Court has also ruled that civil proceedings concerning the placement of children in special environments in an educational assistance context, or those concerning parental custody of and access to children “are prime examples of cases where the exclusion of the press and the public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice.” (see Piss v. France (dec.), 46026/99, 6   July 2004, and B. and P.   v. the United Kingdom , nos. 36337/97 and 35974/97, §   38, ECHR 2001 ‑ III). In the Court’s view, nevertheless, the need to derogate from the   principle of a public hearing and hear a case in private must always be closely examined and justified by the particular circumstances of the case (see Lielpeteris v. Latvia (dec.), no.   63219/00, 18 April 2002). In the instant case the applicant emphasised the automatic application of Article 306 of the Code of Criminal Procedure and complained of the total lack of discretion left to the domestic courts. The Court is not convinced by this argument. First of all, contrary to what the applicant alleges and unlike the position in the case of Diennet v. France (judgment of 26   September 1995, series   A no. 325 ‑ A, §   34 – in which it found a violation of the principle of a public hearing for various reasons, the last of which was that “At all events, the public was excluded because of the automatic prior application of the Decree of 26 October 1948 [providing for proceedings before the disciplinary section of the National Council of the ordre des médecins to be held in private]”), Article 306 of the Code of Criminal Procedure applies only if the civil party victim expressly requests it and the charges are serious, which rules out the automatic prior application of the contested measure. Secondly, the Court notes that the charge at the origin of the criminal proceedings against the applicant was aggravated rape of a person under 15, and therefore concerned a most intimate aspect of the parties’ private life, especially that of the civil party victim – his partner’s daughter – which had to be protected. Accordingly, the Court considers that the hearing before the Assize Court was held in private precisely because the victim had requested a private hearing and because such privacy was manifestly necessary in the circumstances to protect her private life, and therefore falls within the scope of the restrictions on publicity listed in Article 6 § 1 de la Convention. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. 2. Relying on the same provision, the applicant also complained that he had not been served with the detention order delivered on appeal, without further explanation. The complaint thus formulated exposes no violation of the applicant’s right to a fair hearing guaranteed by Article 6 § 1 of the Convention. In any event, having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Boštjan M. Zupančič   Registrar   President