Doliner and Maitenaz v. France (dec.)

Information Note on the Court’s case-law No. 98

June 2007

Doliner and Maitenaz v. France (dec.) - 24113/04

Decision 31.5.2007 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to plead appropriate grounds of appeal in proceedings before the Court of Cassation: inadmissible

The applicants were board members and owned all the capital of a firm of brokers authorised to trade on the Paris Stock Exchange. The Commission des Opérations de Bourse (COB, France's Financial Services Authority) required brokers to provide proof of the origin of orders, as well as of the times of their receipt and transmission. The COB opened an investigation into the firm's activities to prove that the clients were transmitting their orders directly. The COB's president reported the findings of the investigation, based on recordings of telephone conversations between brokers and clients, to the public prosecutor at the tribunal de grande instance. They revealed that the information leaflets distributed by the firm to future clients were misleading as to the existence and quality of its real resources, and that the firm had carried out numerous transactions without prior orders, in breach of the agreements signed with the clients. The COB posted the findings of its report on its web site and sent them to press agencies in a press release. Several outlets published the information and one was convicted of defamation. The applicants were placed under investigation and tried in the Criminal Court. An appeal was lodged, followed by an appeal on points of law against the appeal judgment. They based their defence on an alleged violation of Article 6 § 2 of the Convention, arguing that the trial and appeal courts had failed to apply the principle of the presumption of innocence by reversing the burden of proof to their detriment. The Court of Cassation rejected their appeal.

Inadmissible under Article 6 § 2 – The violation of the presumption of innocence, because of the terms used by the COB in its press release, was not among the grounds of nullity relied on before the Court of Appeal or among the points of law brought up in the case before the Court of Cassation. Article 6 § 2 of the Convention was relied on before the Court of Cassation, but only as an objection to the reversal of the burden of proof by the courts below, not to the terms of the impugned press release. Appealing to the highest court would have given the applicants an opportunity to have their grievance examined and, in the event of a finding of failure to comply with the presumption of innocence principle, to have the judgments rendered in violation of that principle set aside: non-exhaustion of domestic remedies.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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