Resolution CM/ResDH(2008)71[1]
Execution of the judgments of the European Court of Human Rights
Meftah and others and 25 other cases against France regarding the right to a fair trial before the Cour de cassation
(see list in Appendix)
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 judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern the right to a fair trial before the Cour de cassation due to the failure to communicate, in whole or in part, the report of the reporting judge (conseiller rapporteur) and/or the conclusions of the Advocate-General to parties not represented by counsel, who as a consequence could not reply, as well as well as the presence of the advocate-general at the deliberations of the Cour de cassation (violations of Article 6§1);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with France’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
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;
Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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
- 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 these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2008)71
Information about the measures taken to comply with the judgments
in the case of Meftah and others and 25 other cases against France regarding the right to a fair trial before the Cour de cassation
Introductory case summary
These cases concern a breach to the right to a fair trial before the criminal chamber or the social chambers of the Cour de cassation due to the failure to communicate, in whole or in part, the report of the reporting judge (conseiller rapporteur) and/or the conclusions of the Advocate-General to parties not represented by counsel, who as a consequence could not reply (violation of Article 6§1).
Some of these cases also concern the presence of the advocate-general at the deliberations before the Cour de Cassation (violation of Article 6§1).
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number, judgment of ..., final on ...
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Meftah and others
No. 32911/66
26/07/2002, 26/07/2002
6 500 EUR
6 500 EUR
Paid on 6/12/2002 and on 24 January 2004, interest paid
Bach No. 64460/01
28/06/2005, 28/09/2005
1 196 EUR
1 196 EUR
Paid on 02/01/2006
Bertin No. 55917/00
24/05/2006, 13/09/2006
No JS
Cholet No. 10033/02,
29/03/2007, 29/06/2007
No JS
De Sousa No. 61328/00
08/11/2005, 08/02/2006
1 000 EUR
1 000 EUR
Paid on 18/08/2006, interest paid
Domah and others
No. 3447/02
16/1/2007, 16/4/2007
No JS
Duriez-Costes No. 50638/99
07/10/2003, 07/01/2004
1 000 EUR
1 000 EUR
Paid on 09/04/2004
Fabre No. 69225/01
02/11/2004, 30/03/2005
No JS
Gaucher No. 51406/99
09/10/2003, 09/01/2004
1 500 EUR
1 500 EUR
Paid on 09/04/2004
Golinelli and Freymuth
No. 65823/01 and 65273/01
22/11/2005, 12/04/2006
No JS
Name and application number, judgment of ..., final on ...
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Gouget and others
No. 61059/00
24/01/2006, 24/04/2006
No JS
Joye No. 5949/02
20/06/2006, 20/09/2006
No JS
Lacas No. 74587/01
08/02/2005, 06/07/2005
400 EUR
400 EUR
Paid on 18/07/2005
Lafaysse No. 63059/00
12/10/2004, 12/01/2005
1 000€
1 000€
Paid on 12/09/2005, interest paid
Le Duigou No. 61139/00
19/05/2005, 19/08/2005
300 EUR
300 EUR
Paid on 02/11/2005
Marion No. 30408/02
20/12/2005, 20/03/2006
No JS
M.B. No. 65935/01
13/09/2005, 13/12/2005
500 EUR
500 EUR
Paid on 13/11/2008
Menher No. 60546/00,
03/02/2004, 03/05/2004
No JS
Mourgues No. 18592/03
19/12/2006, 19/03/2007
400 EUR
400 EUR
Paid on 17/09/2007
Nesme No. 72783/01
14/12/2004, 14/03/2005
No JS
Pause No. 61092/00
14/12/2004, 14/03/2005
No JS
Philippe Pause No. 58742/00
15/02/2005, 15/05/2005
No JS
Richen and Gaucher
No. 31520/96 and 34359/97
23/01/2003, 23/04/2003
2 400 EUR
2 400 EUR
Paid on 07/08/2003, interest paid
Sibaud No. 51069/99
18/01/2005, 18/04/2005
No JS
Vesque No. 3774/02
07/03/2006, 03/07/2006
1 000 EUR
1 000 EUR
Paid on 08/12/2006, interest paid
Voisine No. 27362/95
08/02/2000, 08/02/2000
10 000 FRF
10 000 FRF
Paid on 23/08/2000, interest paid
b) Individual measures
Cases concerning proceedings before the criminal chamber of the Cour de cassation
Article 626-1 of the Code of Criminal Procedure provides that “review of a final criminal court decision may be requested on behalf of any person found guilty of an offence where it emerges from a judgment delivered by the European Court of Human Rights that the sentence was passed in a manner violating the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms or of the protocols thereto, if the nature and the gravity of the violation found are such as to subject the sentenced person to prejudicial consequences that could not be remedied by the just satisfaction awarded on the basis of Article 41 of the Convention”.
The applicants might have availed themselves of this possibility, had they so wished.
Cases concerning proceedings before the social chamber of the Cour de cassation
In the cases relevant to the civil proceedings before the social chamber of the Cour de cassation (Joye application No. 5949/02, M.B. application No. 65935/01, Mourgues application No. 18592/03, Marion application No. 30408/02 and Menher application No. 60546/00), the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.
As regards pecuniary damage, in the cases of Joye, M.B. and Mourgues the Court found no causal relationship between the finding of a violation and any pecuniary damage. In the case of Menher, the applicant presented no request in respect of pecuniary damage.
Finally, in the Marion case, the Court held that it could not speculate on the conclusions the social chamber of the Court of cassation would have came to, had Article 6 paragraph 1 not been infringed. During the examination of his case before the Committee of Ministers, the applicant made no request; therefore, no other individual measure was deemed necessary.
II.General measures
The Cour de cassation has changed the way in which it investigates and determines matters submitted to it.
Advisory reports drafted by the judge rapporteur (conseiller rapporteur), which set out the legal questions raised by the case, are communicated with the file to both the public prosecutor and the parties.
Opinions on decisions and draft judgments drawn up for consideration by the Bench are communicated neither to the advocates-general nor to the parties.
Advocates General no longer take part in preparatory conferences or in the deliberations of the Bench.
Since 1 February 2003, in cases in which legal representation is not compulsory, the principle is that the parties not represented by counsel, can access to information on the basis of a procedure that sets them on equal terms with represented parties.
A consultation service was set up within the Cour de cassation enabling parties and/or their counsel to consult documents concerning the proceedings (reports or briefs prepared by the designated reporting judge for their case by appointment). Appointments may be made by telephone and the reception service has been instructed to inform parties without counsel how to consult the documents either in person or through a representative.
This system has recently been developed in order to respond to the requirements of parties, particularly those not resident in the vicinity of the capital. Since 1 December 2006, appellants submitting personal memorials receive written acknowledgement of receipt, indicating in addition that they will be informed of the date of deposit of the reporting judge’s report. When the report is deposited, appellants are informed by letter that they may receive a copy by post upon request to the registry.
Finally, parties not represented by counsel are informed of the meaning of the conclusions of the Attorney General by the prosecution before the hearing. In the same letter, they are informed that they may send supplementary observations to the registrar of the Cour de cassation.
The procedure is organised so as to allow applicants not represented by counsel to receive the information they wish, irrespective of their place of residence, thus eliminating the imbalance found by the Court relating to investigation and judgment procedure before the Cour de cassation.
III.Conclusions of the respondent state
The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies
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