CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 27 mars 2008

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  Having regard to the judgment transmitted by the Court to the Committee once it had become final;   Recalling that the violation of the Convention found by the Court in this case concerns the criminal conviction in absentia of a person placed under legal protection ( curatelle ), his guardian ( curateur ) not having been informed of the prosecution (violation of Article 6, paragraph 1) (see details in Appendix);   Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with France's obligation under Article   46, paragraph 1, of the Convention to abide by the judgment;   Recalling Interim Resolution ResDH(2005)1 adopted on 7 February 2005 in this case, in which the Committee noted with great interest the preparation of a bill on the protection of vulnerable persons having attained their majority, including measures relevant with respect to the violation found in this case;   Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;   Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),   Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate: - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and   - of general measures, preventing similar violations;     DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and   DECIDES to close the examination of this case. Appendix to Resolution CM/ResDH(2008)14   Information about the measures taken to comply with the judgment in the case of Vaudelle against France     Introductory case summary   The case concerns the unfairness of criminal proceedings in which the applicant, who was placed under legal protection ( curatelle ) in March 1995, was convicted in absentia in October 1995: the applicant had not responded to the summons which had been duly delivered to him; his guardian ( curateur ), in the present case his son, had not been informed of the prosecution (violation of Article   6).   The European Court found that there was no reason why an individual who is acknowledged to be incapable of defending his civil interests and is entitled to assistance for that purpose should not also to be given assistance to defend himself against a criminal charge.     I.   Payment of just satisfaction and individual measures   a) Details of just satisfaction   Pecuniary damage Non-pecuniary damage Costs and expenses Total - 50   000 French francs (7   622,45 euros) - 50   000 French francs (7   622,45 euros) Paid on 21 June 2002, plus interest   b) Individual measures   In the criminal proceedings at issue, the applicant was sentenced in 1995, first, to twelve months'   imprisonment including a suspended sentence of eight months, and to eighteen months probation, and second, to the payment of damages.   The applicant served his prison sentence.   The applicant, who was represented by a lawyer for the proceedings before the European Court, requested no just satisfaction for the pecuniary damage sustained to get reimbursement of the damages he was ordered to pay following the unfair proceedings.   Furthermore, it was possible to request the re-examination of the criminal conviction at issue, following the judgment of the European Court (Article L626-1 ff of the Code of Criminal Procedure). According to Article L626-2, this possibility was open to “the convicted person, or in cases of incapacity, his legal representative”. Recourse to this procedure was however not properly conducted in this case; the applicant's son requested the re-examination but he was no longer the applicants guardian.   No other request has been made.     II.   General measures     1)   Legislative measures   Law No. 2007-308, modifying the legal protection of adults, was passed on 5/03/2007 ( Journal Officiel No.   56, 7/03/2007, p. 4325). It adds a new chapter to the Code of Criminal Procedure (Volume IV, Chapter XXVII), concerning the conduct of pre-trial investigations and the trial of adults who are subject to legal protection (wards). This section of the Code of Criminal Procedure is applicable to anyone who is of age, concerning whom it is established during the proceedings that he/she is a ward as defined in Volume I, Chapter XI of the Civil Code and includes, among others, those in a situation similar to the applicant's. Such people benefit from the following provisions (unofficial translation):   Article 706-113   Whenever proceedings are to be brought against a ward, the public prosecutor or investigating magistrate informs the guardian (in French: curateur for adults or tuteur for minors) as well as the judge in charge of legal protection. This also applies if the person is the object of alternative measures to such proceedings: compensation for damage caused, arbitration, conditional suspension of prosecution ( composition pénale ), preliminary guilty plea procedure ( comparution sur reconnaissance préalable de culpabilité ) - or if the person is heard as an “assisted witness” ( témoin assisté) .   The guardian may be informed of the whole file, under the same conditions as the accused.   If the accused is remanded in custody, the guardian is entitled to a visiting permit.   The public prosecutor or the investigating magistrate informs the guardian of any dismissal of charges, discharge, acquittal or conviction of his or her ward.   The guardian is informed of the hearing date, and when heard by the court, participates as a witness.   Article 706-114   If there are plausible reasons to presume that the guardian is complicit in the offence, and if there is no surrogate curator or guardian, the public prosecutor or the investigating magistrate asks the judge in charge of legal protection to appoint an ad hoc guardian. This also applies if the guardian is victim of the offence. In the absence of such appointment, the President of the High Court ( tribunal de grande instance ) appoints an ad hoc representative to assist the person in the criminal proceedings.   Article 706-115   Before a judgment is delivered on the merits, the defendant is examined medically to assess whether he/she is criminally responsible.   Article 706-116   The defendant is assisted by a lawyer.   If the defendant or his or her guardian fails to designate one, the public prosecutor or the investigating magistrate asks the President of the Bar to appoint a lawyer, the defendant being informed that he or she will have to bear the costs unless entitled to legal aid.   Article 706-117   The public prosecutor or the investigating magistrate informs the judge in charge of legal protection of the prosecution of a person placed under judicial supervision ( sauvegarde de justice ). The judge may then appoint a special representative who has, during proceedings, the same rights as those granted to the guardian under Article 706-113 . (...)     It may be noted that in the drafting of this law there is explicit reference to the Vaudelle judgment and to the necessity to avoid further similar findings of violations against France by the European Court of Human Rights.     2)   Transitional measures previously adopted   In anticipation of the adoption of this law, the Vaudelle judgment was published so that courts, through direct application of the Convention, are in a position to avoid new, similar violations. The judgment was published in several widely read law journals (including Le Dalloz No.   27-2002; and La Semaine Juridique, édition générale , No.19-2001).     III.   Conclusions of the respondent state   The government considers that in view of the measures taken, the applicant was in a position to have the consequences possibly remaining from the violation of Convention in this case fully remedied. It also considers that these measures will prevent new, similar violations. Consequently, it considers that France has complied with its obligations under Article   46, paragraph 1, of the Convention. [1] Adopted by the Committee of Ministers on 27 March 2008 at the 1020th meeting of the Ministers’   Deputies