CEDH · PRESS;GCJUDGMENTS;ENG — 26 avril 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s560DCDD3 { margin-left:10.52pt; padding-left:7.48pt; font-family:serif } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s18215599 { margin-top:12pt; margin-left:41.7pt; margin-bottom:6pt; text-indent:-20.15pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .sCB27B9E { width:16.66pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     393   26.7.2002   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT IN THE CASE OF MEFTAH AND OTHERS v. FRANCE   The European Court of Human Rights has today notified in writing a judgment in the case of Meftah and Others v. France (application nos. 32911/96, 35237/97 and 34595/97). The Court held:   by twelve votes to five that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights on account of the fact that the tenor of the advocate-general’s submissions had not been communicated to the applicants and they had been unable to reply to those submissions in writing; by sixteen votes to one that there had been no violation of Article 6 §§ 1 and 3 (c) as regards the fact that it had been impossible for the applicants to make oral representations to the Court of Cassation at the hearing.   Under Article 41 (just satisfaction) of the Convention it held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and awarded 500 euros (EUR) to Mr Meftah, EUR 3,000 to Mr Adoud and EUR 3,000 to Mr Bosoni for costs and expenses.   In its Chamber judgment of 26 April 2001 in the Meftah case, the Court held unanimously that there had been a violation of Article 6 § 1 and granted the applicant 2,398 French francs (FRF) for pecuniary damage (being the costs and expenses he had incurred before the Court of Cassation). In its Chamber judgment of 27 February 2001 in the case of Adoud and Bosoni , the Court held unanimously that there had been a violation of Article 6 § 1 and granted each applicant FRF 10,000 for costs and expenses.     1.     Principal facts   The case concerns applications brought by French nationals: Nouredine Meftah, who was born in 1960 and lives in Irigny (France), Alain Adoud, who was born in 1950 and lives in Colombes (France), and Michel Bosoni, who was born in 1938 and lives in Paris.   Mr Meftah was convicted for using a vehicle registration document that had been obtained illegally and handling a stolen vehicle. He represented himself before the Criminal Division of the Court of Cassation. Mr Adoud and Mr Bosoni were both convicted of traffic offences and sentenced to a fine and a temporary ban on driving. They were represented before the Court of Cassation by a member of the ordinary bar.   2.     Procedure and composition of the Court   Mr Meftah’s application was lodged with the European Commission of Human Rights on 10   July 1996 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 23 November 1999. The Third Chamber delivered a judgment on 26 April 2001.   Mr Adoud’s application was lodged with the European Commission of Human Rights on 28   January 1997 and Mr Bosoni’s on 19 November 1996. Both applications were transmitted to the Court on 1 November 1998. They were joined and declared admissible on 12   September 2000. The Third Chamber delivered a judgment on 27 February 2001.   The applicants and the Government requested that both cases be referred to the Grand Chamber under Article 43 (referral to the Grand Chamber) and on 5 September 2001 a panel of five judges of the Grand Chamber accepted that request. On 18 January 2002 the Grand Chamber ordered the joinder of the two cases.   A hearing took place on 27 February 2002. Judgment was given by a Grand Chamber of 17   judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Antonio Pastor Ridruejo (Spanish), Giovanni Bonello (Maltese), Elisabeth Palm (Swedish), Lucius Caflisch [1] (Swiss), Loukis Loucaides (Cypriot), Peer Lorenzen (Danish), Boštjan Zupančič (Slovenian), John Hedigan (Irish), András Baka (Hungarian), Egils Levits (Latvian), Snejana Botoucharova (Bulgarian), Anatoly Kovler (Russian), Vladimiro Zagrebelsky (Italian), judges , and also Paul Mahoney , Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that, on an appeal to the Criminal Division of the Court of Cassation, the Advocate General’s submissions were not communicated to them and they had not been able to reply. They also complained that they had not been informed of the date of the hearing or permitted to address the court at the hearing. They relied on their right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention.   Decision of the Court   Article 6 § 1 of the Convention 1.     The fact that the applicants had had no opportunity of making oral representations at the hearing before the Court of Cassation After reiterating that the guarantees contained in paragraph 3 of Article 6 were specific aspects of the general concept of a fair trial set forth in paragraph 1 and that a “criminal charge” was an autonomous notion, the Court said that the applicants could not be deprived of the right to benefit from the guarantees of paragraph 3 of Article 6 on the ground that, for the purposes of their appeal to the Court of Cassation, they were considered by French law to be “convicted persons” and no longer “persons charged with a criminal offence”.   The Court also reiterated that Article 6 of the Convention did not compel the Contracting States to set up courts of appeal or of cassation and that the manner in which Article 6 § 1 applied depended on the special features of the proceedings concerned.   The special features of the procedure before the Criminal Division of the Court of Cassation had therefore to be taken into account in determining whether the applicants’ right to a fair trial had been infringed. Under French law, the Court of Cassation carried out limited supervision of compliance with the law, including jurisdictional and procedural rules, to the exclusion of any examination of the facts in the strict sense, such examination being within the sole province of the courts below. Save for exceptions, the procedure before the Court of Cassation was essentially written, that rule applying also when a party was represented by a member of the Conseil d’État and Court of Cassation Bar. Members of the Conseil d’État and Court of Cassation Bar did not enjoy an absolute right to make oral observations: any member wishing to do so at the hearing had first to contact the President of the Criminal Division in order to inform him or her of the points of law which they intended to raise and to determine by agreement the arrangements under which they would be allowed to do so.   In the case before it, the Court noted that the appeals to the Court of Cassation had been lodged after the applicants’ arguments had been examined by both the trial courts and the courts of appeal, which had had full jurisdiction and, in compliance with the rules laid down by Article 6, had held hearings at which the applicants or their lawyers had appeared and presented their cases.   As regards the right for appellants in the Court of Cassation to make oral representations at the hearing, it had to be noted that any legal argument at a hearing before the Criminal Division of the Court of Cassation would be particularly technical and concern only points of law, as no further submissions could be made on the facts beyond the court of appeal stage, unless the case was remitted by the Court of Cassation. Thus, in the Court’s view, it would have been unduly formalistic to interpret the procedural requirements as meaning that the applicants should have been permitted to make oral representations at the hearing before the Court of Cassation. It was clear that in addition to entailing a risk of negative repercussions in terms of increased litigation, such an approach would not assist in resolving issues that were essentially in written form and technical, and largely inaccessible to someone without legal training.   As regards Mr Adoud’s and Mr Bosoni’s challenge of the monopoly enjoyed by members of the Conseil d’État and Court of Cassation Bar, the Court reiterated that the right for everyone charged with a criminal offence to be defended by counsel of his own choosing could not be considered to be absolute and, consequently the national courts could override that person’s choice when there were relevant and sufficient grounds for holding that it was necessary in the interests of justice. Furthermore, account had to be taken of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 and to the case-law of the Court of Justice of the European Communities on that Directive. In any event, like lawyers from the ordinary bar, members of the Conseil d’État and Court of Cassation Bar were members of a regulated legal profession who were independent of the courts. Litigants were therefore at liberty to choose their counsel as appropriate from among the members of one or other of the bars.   The Court noted in passing that the French system offered litigants a choice: namely whether or not to be represented by a member of the Conseil d’État and Court of Cassation Bar. But even in the former case the written submissions crystallised all the arguments against the impugned decision. Oral submissions were optional under Article 602 of the Code of Criminal Procedure and, in practice, members of the Conseil d’Etat and the Court of Cassation Bar did not attend hearings, save in very rare cases. It had to be acknowledged that some Contracting High Parties to the Convention operated a similar system, whereas others required appellants to be represented by a lawyer. In the Court’s view, such an option was undoubtedly sufficient to justify a difference in procedure, since whether or not the appellant was represented depended not on a rule of automatic application but on the appellant’s own choice. Self-evidently, the fact that the appellant had made that choice and, consequently, waived the advantages to be gained from having the assistance of a member of the Conseil d’État and Court of Cassation Bar, had to be established in an unequivocal manner. The Court considered that French law afforded sufficient guarantees in that connection. In any event, Mr Adoud and Mr Bosoni had been assisted by a member of the ordinary bar who was fully competent to inform them of the consequences of their choice which, in the circumstances of the case before it, had therefore been freely given and conscious. The same applied to Mr Meftah, who had been advised by a citizens advice bureau during the proceedings before the domestic courts.   Consequently, in the light of the foregoing, it was clear that the special nature of proceedings before the Court of Cassation, considered as a whole, could justify specialist lawyers being reserved a monopoly on making oral representations and that such a reservation did not deny applicants a reasonable opportunity to present their cases under conditions that did not place them at a substantial disadvantage.   In conclusion, having regard to the Court of Cassation’s role and to the proceedings taken as a whole, the Court considered that the fact that the applicants had not been given an opportunity to plead their cases orally, either in person or through a member of the ordinary bar, had not infringed their right to a fair trial within the meaning of Article 6. Consequently, there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention on that account. 2.     The failure to communicate to the applicants the tenor of the advocate-general’s submissions and the lack of any opportunity to reply to them in writing Since the procedure before the Court of Cassation was essentially written, the Court considered that the applicable rules for ensuring adversarial process were those set out in its Reinhardt and Slimane-Kaïd judgment of 31 March 1998, in which it had already had occasion to examine a complaint of a failure to communicate the submissions of the advocate-general to an appellant in the Criminal Division of the Court of Cassation.   The Court had also dealt with the case of an applicant who had chosen to defend himself in person without representation by a member of the Conseil d’État and Court of Cassation Bar. In such circumstances, the applicant did not benefit from the practice – reserved to members of the Conseil d’État and Court of Cassation Bar – which the Court had noted “afford[ed] parties an opportunity of apprising themselves of the advocate-general’s submissions and commenting on them in a satisfactory manner”. The right to adversarial process for the purposes of Article 6 § 1, as interpreted by the case-law, meant in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision.   In the case before the Court, the applicants had not had access to the advocate-general’s submissions. Accordingly, regard being had to what had been at stake for the applicants in the proceedings and to the nature of the advisory opinion of the advocate-general, the fact that it had been impossible for the applicants to reply to that opinion before the Court of Cassation dismissed their appeals had infringed their right to adversarial proceedings.   While it was true that the applicants had not applied for legal aid to enable them to be represented by specialist lawyers, that did not mean that they had waived the right to the guarantees of adversarial process.   The Court notes that in the case before it the applicants had been unable to establish the tenor of the advocate-general’s submissions before the hearing in the Court of Cassation and, consequently, to reply thereto by a note to the court in deliberations, whereas they had been entitled to lodge before the hearing a pleading bearing their signature. In addition, notification of the tenor of the advocate-general’s submissions could prove desirable to assist appellants in the Court of Cassation to determine their procedural options.   Thus, there had been a violation of Article 6 § 1 owing to the failure to ensure that the applicants’ cases before the Court of Cassation were examined fairly through adversarial process, which required that the tenor of the advocate-general’s submissions should be communicated and the applicants given an opportunity to reply to them in writing.     Judges Lorenzen, Costa, Loucaides and Zagrebelsky expressed a separate opinions, which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)     Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Judge elected in respect of Liechtenstein. [2] .     This summary by the Registry does not bind the Court.