CEDH · CASELAW;CLIN;ENG — 12 avril 2012

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France - 18851/07 Judgment 12.4.2012 [Section V] Article 6 Civil proceedings Article 6-1 Fair hearing Article 6-2 Presumption of innocence Posthumous finding of guilt engaging liability of heirs: violation   Facts – In December 1992 a company lodged a complaint against Jean-Luc Lagardère, the applicant’s father, for misappropriation of corporate assets, and applied to join the criminal proceedings as a civil party. In June 1999 the father was brought before the criminal court, which declared the prosecution time-barred. In January 2002 the Paris Court of Appeal upheld all the provisions of that judgment. The company appealed on points of law. Jean-Luc Lagardère died in March 2003. In October 2003, after declaring that the prosecution had lapsed as a result of the accused’s death, the Court of Cassation quashed and annulled the civil provisions of the judgment of the Paris Court of Appeal and fixed a new, later date at which time had started to run for the purposes of the limitation period. The Versailles Court of Appeal, to which the case was referred for fresh examination, found that the constituent elements of the offence of misappropriation of corporate assets were established and ordered Jean-Luc Lagardère’s heirs to pay approximately fourteen million euros to the civil party. The applicant appealed on points of law, arguing that there had been a violation of Article   6 of the Convention because the criminal court had no authority to judge the matter after his father’s death. The Court of Cassation rejected the appeal. Law – Article 6 § 1: The applicant complained that he had been ordered, as his father’s successor, to pay damages because of his father’s criminal conduct even though his father’s guilt had not been established prior to his death, but only posthumously, by the Versailles Court of Appeal, to which the case was referred in order to examine the civil case. First of all, the Court noted that the discussion between the parties had focused largely on whether a decision on the merits had been reached in the criminal proceedings while Jean-Luc Lagardère was still alive, which was a necessary condition under French law for the criminal court to be able to rule on the civil action. It was therefore the Court’s task to determine whether, on the whole, the proceedings in this case had been fair. Prior to the applicant’s father’s death the Criminal Court and the Paris Court of Appeal had declared the criminal prosecution time-barred. However, the Versailles Court of Appeal, after having expressly stated that criminal proceedings were extinguished by the death of the person against whom they had been brought, had considered that the two earlier decisions of the trial courts finding that the prosecution was time-barred – decisions reached prior to the applicant’s father’s death – concerned the merits of the case and permitted the civil proceedings to continue. The Versailles Court of Appeal had accordingly concluded that it had jurisdiction to determine whether the elements of the offence of misappropriation of corporate assets were established against the accused. It had expressly found the elements of the offence established and declared Jean-Luc Lagardère guilty, based on his conduct. That finding had been mentioned in the operative provisions of the judgment of the Court of Cassation. In finding, after his death, that the elements of the offence with which the accused was charged were established, the Versailles Court of Appeal had, in no uncertain terms, found him guilty posthumously. That first finding of guilt in the proceedings was made by that court when the case was referred to it for re-examination, with no respect for the adversarial principle or the rights of the defence, as the accused had died two years earlier. In that connection, the European Court noted that it had held on several occasions that a denial of justice occurred where a person convicted in absentia was unable subsequently to obtain a hearing for a fresh determination of the merits of the charge, in respect of both the legal and factual aspects of the case. There was no doubt that this jurisprudence applied with even greater relevance in cases involving a finding of guilt after death. The Court noted that the applicant’s civil liability as his father’s successor was the direct result of the father’s posthumous conviction. The applicant had therefore not been in a position to validly challenge the existence or the value of the sums he was ordered to pay. In the circumstances, the applicant had not been able to defend his case in keeping with the principle of a fair trial, having been deprived of any opportunity to challenge the merits of the case against him – which was based on his father’s posthumous conviction – and placed at a clear disadvantage compared with the opposing party. Conclusion : violation (unanimously). Article 6 § 2: The applicant had been ordered to pay damages in the civil proceedings not so much in recognition of his criminal liability but more in order to compensate the victims for their losses. Clearly, neither the purpose nor the amount of the compensation made the measure a criminal penalty for the purposes of Article 6 §   2. In this respect the claim for damages did not amount to a new “criminal charge” against the applicant’s father. The accused had died before his guilt had been lawfully established by a “tribunal”, so prior to his death he had been presumed innocent. Although the civil action was only accessory to the criminal prosecution, the Versailles Court of Appeal had nevertheless set out to establish the guilt of the late accused and the profit he had made, so that it could then rule on the civil action and order the applicant to pay compensation. That link between the criminal proceedings and the civil action was considered to justify extending the scope of Article 6 §   2 to the civil proceedings. Accordingly, in terms of both the language it had used and the reasoning it had given, the Versailles Court of Appeal had declared the applicant’s father guilty of the charges against him even though the prosecution had lapsed as a result of his death and no court had ever found him guilty during his lifetime. It had therefore violated his right to be presumed innocent. Conclusion : violation (five votes to two). Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes