Resolution CM/ResDH(2010)51[1]
Execution of the judgment of the European Court of Human Rights
Flandin against France
(Application No. 77773/01, judgment of 28 November 2006, final on 28 February 2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violations of the Convention found by the Court in this case concern the unfairness of criminal proceedings in that the applicant’s right to free legal assistance was not respected and he did not have adequate facilities for the preparation of the defence (violations of Article 6, paragraphs 1, 3 b) and c)) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
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;
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(2010)51
Information about the measures to comply with the judgment in the case of
Flandin against France
Introductory case summary
This case concerns the unfairness of criminal proceedings against the applicant, in that his right to free legal aid by a court-appointed lawyer was not respected and thus he did not have adequate facilities for the preparation of his defence (violations of Article 6, paragraphs 1 and 3 b) and c)).
The applicant had been granted legal aid by a decision of 21/03/2000, but this decision was notified to him and to the counsel designated more than three weeks after the hearing before the court of appeal which substantially increased the fine imposed on him. The Cour de cassation did nothing to remedy the violation, rejecting the applicant’s appeal on points on law in May 2001 on the grounds that as he had been able to defend himself in person at the hearing at issue, he had renounced assistance by counsel. On this point, the European Court noted that on the contrary the applicant had constantly expressed the wish to be defended by counsel before the court of appeal. Thus, the European Court considered that the fact that the applicant had not reiterated his request for legal aid at the hearing at issue could not lead to the conclusion that he had waived his right to be assisted by a court-appointed lawyer.
I.Individual measures
The applicant made no application to the European Court for just satisfaction. He had the possibility to request the re-examination of his conviction under Articles L 626-1 ff. of the Code of Criminal Procedure. Consequently, no other individual measure was considered necessary.
II.General measures
In the case in point, the shortcoming at the origin of the violation is the long time taken by the Legal Aid Office to communicate the decision granting legal aid to the applicant and to his lawyer, a shortcoming which was not rectified by the Court of Cassation. Given the direct effect of the Convention and the case-law of the European Court in domestic law, the dissemination of the judgment constituted a sufficient measure. Consequently, the judgment was sent out to the prosecution offices of the Cour de cassation and of the Paris Court of Appeal on 28/01/2008. It was also published by l’Observatoire de droit européen of the Cour de cassation on its intranet site (accessible to all courts, and in particular to legal aid offices) in its bulletin of November-December 2006. Moreover the judgment is accessible on the Legifrance website.
III.Conclusions of the respondent state
The government considers that the measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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