Vacher v. France

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF VACHER v. FRANCE

(64/1995/570/656)

JUDGMENT

STRASBOURG

17 December 1996

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1996. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

List of Agents

Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare)

The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC 's-Gravenhage)

SUMMARY

Judgment delivered by a Chamber

France - convicted appellant hindered in presenting his appeal on points of law to the Court of Cassation by lack of time-limit for filing pleading

I. Scope of the case

Complaint of violation of Article 6 3 (a) of the Convention -outside scope of case as defined by Commission's decision on admissibility.

II. Article 6 1 and 3 (b) and (c) of the Convention

Applicant complained of lack of time-limit for filing a pleading in support of his appeal on points of law - Court did not have to assess French system for preparing criminal appeals on points of law for hearing.

Manner in which Article 6 applied depended upon special features of the proceedings involved - account had to taken of the role of the Court of Cassation.

Putting the onus on convicted appellants to find out when an allotted period of time started to run or expired was not compatible with the "diligence" which the Contracting States had to exercise to ensure that the rights guaranteed by Article 6 were enjoyed in an effective manner.

Since there had been no fixed date for filing a pleading and Court of Cassation took less time than usual to hear appeal, without applicant being either warned of the fact by the registry or able to foresee it, he had been deprived of possibility of putting his case in the Court of Cassation in a concrete and effective manner.

It was unnecessary for Court to rule on complaint of a violation of the principle of equality of arms between applicant and prosecution.

Conclusion: violation (six votes to three).

III. Article 40 of the Convention

(A) Damage: finding of a violation constituted sufficient reparation

(B) Other claims: Court had no power to grant remedies sought

(C) Costs and expenses: reimbursement of a sum assessed on an equitable basis

Conclusion: respondent State to pay the applicant specified sums for costs and expenses (unanimously).

Court's case-law referred to

17.1.1970, Delcourt v. Belgium; 12.2.85, Colozza v. Italy; 2.3.1987, Monnell and Morris v. the United Kingdom; 16.12.1992, Hadjianastassiou v. Greece; 2.6.1993, Melin v. France

In the case of Vacher v. France[fn1] ,

The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[fn2] , as a Chamber composed of the following judges:

Mr R. Bernhardt, President,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr J. De Meyer,

Mrs E. Palm,

Mr A.N. Loizou,

Mr A.B. Baka,

Mr J. Makarczyk,

Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 28 June 1996 and 29 November1996,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the Government of the French Republic ("the Government") on 7 August 1995, within the three-month period laid down by Article 32 1 and Article 47 of the Convention. It originated in an application (no. 20368/92) against France lodged with the European Commission of Human Rights ("the Commission") under Article 25 by a French national, Mr Gérard Vacher, on 18 November 1991.

The Government's application referred to Articles44 and 48. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 1 of the Convention.

2. In response to the enquiry made in accordance with Rule 33 3(d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule30).

3. The Chamber to be constituted included ex officio Mr L.-E.Pettiti, the elected judge of French nationality (Article 43 of the Convention), and Mr R. Bernhardt, Vice-President of the Court (Rule21 4(b)). On5 September 1995, in the presence of the Registrar, the President of the Court, Mr Ryssdal, drew by lot the names of the other seven members, namely Mr C.Russo, Mr J. De Meyer, Mrs E.Palm, Mr A.N. Loizou, Mr A.B. Baka, Mr J. Makarczyk and Mr E.Levits (Article 43 in fine of the Convention and Rule 21 5).

4. As President of the Chamber (Rule 21 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules37 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant's memorial on 11 March 1996 and the Government's memorial on 29 March 1996. On 30 April 1996 the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

5. On7 May 1996 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.

6. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 June 1996. The Court had held a preparatory meeting beforehand.

There appeared before the(a) for the Government

Mr J.-F. Dobelle, Deputy Director of Legal

Affairs, Ministry of Foreign Affairs, Agent;

Mr B. Nedelec, magistrat, on secondment to

the Legal Affairs Department, Ministry

of Foreign Affairs,

Mr G. Bitti, Special Adviser,

Ministry of Justice, Counsel;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicant

Mr M. Ricard, of the Paris Bar, Counsel.

The Court heard addresses by Mr Soyer, Mr Ricard and Mr Dobelle, and also their replies to its questions.

AS TO THE FACTS

I. The circumstances of the case

7. Mr Gérard Vacher, a French national, is a company director and lives at Neuilly-sur-Seine.

8. On 21 September 1988 the Public Works Department of the département of Hauts-de-Seine lodged a criminal complaint against the applicant alleging offences under the Town Planning Code and, more particularly, that he had built a wall without first obtaining planning permission.

9. On 9 February 1990 the Nanterre Criminal Court sentenced the applicant to a fine of 8,000 French francs (FRF), payment of which was suspended, and ordered him to alter the wall so that it complied with regulations.

10. On 23 May 1991, following an appeal brought by Mr Vacher on 16 February 1990 and a subsequent cross-appeal by the prosecution, the Versailles Court of Appeal upheld the judgment of the court below in its entirety and further ordered that the wall should be altered to comply with regulations within a period of four months from the date of its judgment, on penalty of FRF 200 per day's delay starting at the end of that period. It also ordered the applicant to pay the civil party claiming damages FRF 3,000 in respect of the costs incurred by that party.

11. On 28 May 1991 Mr Vacher lodged a notice of appeal on points of law against the judgment of the Versailles Court of Appeal with that court's registry (Article 576 of the Code of Criminal Procedure - see paragraph13 below).

On 19 June 1991 the case file for the appeal was registered by the Court of Cassation registry. On 14 August 1991 the applicant filed a pleading in support of his appeal.

12. On 3 September 1991 the Chief Registrar of the Court of Cassation sent Mr Vacher the following letter:

"Further to your letter, I have to inform you that the Criminal Division of the Court of Cassation delivered a judgment on 6August 1991 dismissing your appeal.

Consequently, the pleading received from you at the criminal registry on 14 August 1991 will be disregarded as being out of time."

The judgment in question, which was served on the applicant on 30October 1995, was based on the following ground:

"No ground of appeal has been filed in support of the appeal; the judgment appealed against is in the proper form and the findings of fact, which cannot be appealed against, justify both the classification of the offence and the sentence."

II. Relevant domestic law

13. The main provisions of the Code of Criminal Procedure referred to in the present case are the following:

Article 568

"The prosecuting authority and all the parties shall have five clear days in which to appeal to the Court of Cassation after delivery of the judgment appealed against.

..."

Article 576

"Notice of appeal shall be given to the registrar of the court which delivered the judgment appealed against.

It must be signed by the registrar and by the appellant himself or by a lawyer (avoué) at the court which gave judgment, or by a specially authorised person...

The appeal shall be recorded in a special public register and any person shall be entitled to obtain a copy of it."

Article 584

"An appellant on points of law may lodge a pleading bearing his signature and containing the grounds of his appeal with the registry of the court against whose judgment he is appealing either when he gives notice of appeal or within the following ten days. The registrar shall issue him with a receipt."

Article 585

"After expiry of that time-limit, a convicted appellant may send his pleading directly to the Court of Cassation; the other parties may not avail themselves of this provision without retaining a member of the Court of Cassation Bar.

..."

Law no. 93-1013 of 24 August 1993, which came into force on 2September 1993, inserted Article 585-1, which provides:

"Save where the President of the Criminal Division decides otherwise, a convicted appellant shall lodge his pleading with the registry of the Court of Cassation no later than one month from the date of the notice of appeal."

In his report of 23 June 1993 presented to the National Assembly on behalf of the Committee on Constitutional Law, Legislation and the General Administration of the Republic, Mr Jean Tibéri justified the insertion of the new Article 585-1 as follows:

"The new Article 585-1 is intended to resolve a difficulty which has appeared in recent years. The Court of Cassation frequently dismisses appeals on points of law because no pleadings have been filed in support of them. As the law does not lay down a time-limit for filing a pleading, a convicted appellant's pleading may reach the court a few days after his appeal has been dismissed. Indeed, applications are pending before the European Commission of Human Rights on this question. So as to avoid such situations recurring, the new Article 585-1 provides that convicted appellants shall have a period of one month, which may be extended by the President of the Criminal Division, in which to file their pleadings."

Article 586

"On pain of a 50-franc civil fine imposed by the Court of Cassation, the registrar shall, within a maximum period of twenty days from the date of the notice of appeal, number and initial the documents in the case file and place in the case file an office copy of the judgment appealed against, an office copy of the notice of appeal and, where relevant, the appellant's pleading. He shall draw up a schedule of the whole case file."

Article 587

"When the case file has been made ready in the manner described above, the registrar shall deliver it to the representative of the public prosecutor's office, who shall immediately send it to the procureur général at the Court of Cassation, who shall, in turn, forward it to the registry of the Criminal Division.

The President of that Division shall designate a judge to report on the case."

Article 588

"Where one or more counsel have been instructed, the reporting judge shall set a time-limit for pleadings to be filed with the registrar of the Criminal Division."

Article 590

"The pleadings shall contain the grounds of appeal and cite the legal provisions alleged to have been infringed.

...

They must be lodged within the prescribed time-limit. No further pleadings may be added to them once the reporting judge has filed his report. Any pleading setting out additional grounds that is lodged out of time may be declared inadmissible."

Article 604

"In cases concerning any category of criminal offence, the Court of Cassation may give judgment on the appeal on points of law as soon as ten days have elapsed after receipt of the case file by the Court of Cassation.

..."

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Vacher applied to the Commission on 18 November 1991. Relying on paragraphs 1 and 3 (b) and (c) of Article6 of the Convention, he complained that he had not had a fair hearing and that he had not been able to put his case, in that the Court of Cassation, without having given him a time-limit for lodging his pleading, dismissed his appeal approximately two and a half months after it had been brought because he had not filed grounds of appeal.

15. The Commission declared the application (no.20368/92) admissible on 17 May 1994. In its report of 5 April 1995 (Article 31), it expressed the opinion by eight votes to four that there had been a violation of Article 6. The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[fn3] .

FINAL SUBMISSIONS TO THE COURT

16. In their memorial the Government asked the Court "to dismiss MrVacher's application".

17. The applicant requested the Court to hold "that he [had] not had a fair hearing within the meaning of Article 6§1 and 3 (b) and (c) of the Convention".

AS TO THE LAW

I. SCOPE OF THE CASE

18. Before the Court the applicant alleged for the first time that there had been a violation of Article 6 3 (a) of the Convention in that he had not been informed in detail of the nature of the charge against him or the reason for it.

In the Court's view, however, this complaint is outside the scope of the case as defined by the Commission's decision on admissibility (see, among other authorities, the Scollo v. Italy judgment of 28September 1995, Series A no. 315-C, p. 51, 24).

II. ALLEGED VIOLATION OF ARTICLE 6 1 AND 3 (b) AND (c) OF THE CONVENTION

19. Mr Vacher complained that he had not had a fair trial as the Court of Cassation had dismissed his appeal on points of law for failure to lodge grounds of appeal, without informing him of the time-limit for filing a pleading. He relied on paragraphs 1 and 3 (b) and (c) of Article 6 of the Convention, which provide:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

..."

By not laying down a time-limit for lodging a personal pleading- that is to say one that has not been drafted by a member of theConseil d'Etat and Court of Cassation Bar - the Code of Criminal

Procedure had prevented him from exercising his defence rights. His pleading had been received by the registry after his appeal on points of law had been dismissed and had therefore been disregarded as being out of time. Yet his lawyer had lodged it within a reasonable time, in this instance two and a half months after the notice of appeal had been filed. On the Government's own admission, the average time for preparing for hearing an appeal on points of law in which the appellant was not represented by a member of the Conseil d'Etat and Court of Cassation Bar was three months. The Court of Cassation's registry could remedy this statutory shortcoming by informing appellants who did not wish to be represented by a member of the Conseil d'Etat and Court of Cassation Bar of the date on which their appeal would be heard. It was not for convicted appellants to take steps to find out that date. Indeed, the legislature had been conscious of the perverse effects of this legal vacuum, because the new Article 585-1 of the Code of Criminal Procedure now laid down a one-month time-limit (see paragraph13 above).

Furthermore, the French system for preparing criminal appeals on points of law for hearing created an inequality of treatment between those appellants who were represented by a member of the Conseil d'Etat and Court of Cassation Bar and those who were not. A member of the Conseil d'Etat and Court of Cassation Bar was given a time-limit that enabled him not only to protect himself from forfeiture of the right to proceed, but also to ensure that his written observations would in fact be considered by the reporting judge. Neither of those safeguards was provided in equivalent conditions to appellants who acted in person or were assisted by a member of the ordinary Bar.

Lastly, there was inequality of arms between the defence and the prosecution. The procureur généralat the Court of Cassation was personally advised of the progress of proceedings and of the hearing date, and at the hearing he could make observations without the appellant's being permitted to reply.

20. The Commission essentially agreed with the applicant.

21. In the Government's submission, an appeal to the Court of Cassation was a special form of appeal. The Court of Cassation was not therefore a third level of jurisdiction and special rules applied to criminal proceedings before it. The distinction made in the law between appellants who were represented by a member of the Conseil d'Etat and Court of Cassation Bar and those who were not was justified by the monopoly of representation in proceedings before the Conseil d'Etat and the Court of Cassation. Not imposing a time-limit on unr>