Information Note on the Court’s case-law 67

August-September 2004

Eurofinacom v. France (dec.) - 58753/00

Decision 7.9.2004 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Alleged incitement by the police to commit an offence: inadmissible

Article 6-3-c

Legal assistance of own choosing

Accused represented at first instance by a lawyer he did not choose: inadmissible

Article 7

Article 7-1

Nullum crimen sine lege

Foreseeability of rules of criminal liability: inadmissible

The applicant company was a company which operated a publicly-accessible message service on a telecommunications network known as Minitel. Suspecting that this service was used by prostitutes to identify and establish contact with potential clients, the prosecution service ordered a preliminary investigation. As part of the investigation, police officers linked up to the message service run by the applicant company. They found offers from prostitutes on the message boards. Acting under pseudonyms, the police officers replied to certain messages, requesting more specific information about the charges for the services being offered. In reply, they received details of the rates charged by each of the prostitutes, again via the server. The suspicions were thus confirmed. Since aiding, abetting and profiting from another’s prostitution constituted the offence of benefiting from the earnings of prostitution, Eurofinacom’s criminal liability as a legal entity was incurred. Its manager, who was also the company’s legal representative, was prosecuted in person on that charge. The judicial authorities assigned a new lawyer to represent the applicant company (its titular representative being himself prosecuted), but the company’s shareholders appointed another person. The court held that the judicial authorities’ decision on which lawyer to appoint took precedence and confirmed the designee in post; the applicant company was thus represented at first instance by a lawyer who was not of its choosing. The court found the applicant company guilty, basing its decision essentially on statements from various prostitutes, who admitted making frequent use of the Minitel server operated by the applicant company to canvass clients and establish contact with them. The court then referred to the reports submitted by the police offers on the date they had prompted the prostitutes’ offers. The court held that, for a telematics service, acting as an intermediary between two persons, one of whom engaged in prostitution and was remunerated by the other, constituted benefiting from the earnings of prostitution. As operator of the Minitel server which enabled communication for the purpose of prostitution, the applicant company was found liable for the offence as a legal entity. It was ordered to pay fines and damages. The applicant company appealed. The representative appointed by the applicant company’s shareholders was authorised to represent it before the court of appeal. This representative chose a new lawyer to defend the applicant company. The criminal conviction was uph