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THE FACTS
The applicant, Eurofinacom, is a company formed under French law whose registered office is in Paris. It was represented before the Court by Mr P. de Fontbressin, a member of the Paris Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Justice.
A. The circumstances of the case
The applicant company provided a data-communications service that was accessible by a dedicated terminal (Minitel), under an agreement with France Télécom. The service could be accessed by typing in the code “36-15 ALINE”. It provided messaging and a mailbox system enabling online users to communicate with one another; users would choose a pseudonym (referred to as a “pseudo”) and could also supply a brief description of themselves (“CV”) for consultation by others.
The public prosecutor's office suspected that the service was being used by prostitutes to contact potential clients and ordered a preliminary investigation. The police reported on 30 December 1996 that in the course of their inquiries officers had accessed 36-15 ALINE using the pseudo “AAA”. After consulting the CVs of “Lola massage”, “Claire 37 years old”, “Katy”, “Spanker”, “Bunny rabbit” , “Helena 38 years old”, “YW black s[eeks]”, “Almond eyes”, “Student”, “Katy the First”, “Elodye” and “Male slave” (the report did not state whether the CVs related to prostitution) they sent the following message to some of the correspondents: “terms”. “Lola massage” replied: “My rate is 1,000 francs for a RDV with sublime massage of the entire body Paris 16 Foch for further info your tel? thank you or write to me at Mbx Lola massage”. “Spanker” replied: “1,000”. “Helena 38 years old” replied: “1,200”. In response to a second message enquiring “How much?” “YW black s[eeks]”, replied: “tel dst 1,500”.
On 17 April 1997 the Principal Public Prosecutor's Office lodged an application with the President of the Paris tribunal de grande instance for the appointment of a representative ad litem (mandataire de justice) to represent the company in criminal proceedings (Article 706-43 of the Code of Criminal Procedure). The application was worded as follows:
“The Principal Public Prosecutor ... informs the court of the following:
Eurofinacom S.A.R.L. ... operates a data-communications service called '36-15 ALINE'.
Inquiries into this data-communications service have revealed that it acts as an intermediary between persons engaged in prostitution and their potential clients.
This constitutes the offence of living on immoral earnings with the aggravating circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o) and 225-7 (3o) of the Criminal Code.
Mr Valéry Sourieau, the manager of Eurofinacom S.A.R.L. has therefore been summoned by the public prosecutor's office under the direct committal procedure.
Eurofinacom ... has for the past eighteen months achieved a monthly turnover of approximately 1,720,000 francs from '36-15 ALINE' alone.
It would therefore appear that the offence of living on immoral earnings of which Mr Valéry Sourieau stands accused in his capacity as the de jure representative was committed on behalf of Eurofinacom.
Criminal proceedings may therefore be brought against the company Eurofinacom in accordance with Article 121-2 of the Criminal Code.
However, since the company's de jure representative is himself charged with the same offence, a representative ad litem will need to be appointed to represent Eurofinacom.
For this reason, the President of the Paris tribunal de grande instance is asked to make an order under Articles 121-2 and 225-12 of the Criminal Code and Article 706-43 of the Code of Criminal Procedure appointing a representative ad litem to represent the Eurofinacom company in criminal proceedings in which it will be charged with:
Having in Paris and on the national territory in 1995, 1996 and 1997, in particular on 30 December 1996, and 2, 3 and 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service called '36-15 ALINE' which it provided, with the [aggravating] circumstance that it was committed against several people,
contrary to Articles 225-5, 225-6 (1o), 225-7 (3o) and 225-12 of the Criminal Code.”
By an order of 17 April 1997, the President of the Paris tribunal de grande instance appointed Ms “Hélène Da Camara, judicial administrator, to represent Eurofinacom S.A.R.L. in criminal proceedings instituted on a summons by the public prosecutor's office under the direct committal procedure.”
On 28 April and 12 May 1997 the public prosecutor's office summoned the applicant company and its manager, Mr Sourieau, to appear under the direct committal procedure at a hearing before the Criminal Division of the Paris tribunal de grande instance (“the Paris Criminal Court”) on 26 June 1997. They were accused of having, from 1995 to 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service 36-15 ALINE which it provided with the [aggravating] circumstance that it was committed against several people.
On 20 May 1997 the applicant company's shareholders resolved at an ordinary general meeting convened on special notice to appoint Mr Jean-Claude Rossignol to represent it in the proceedings and to instruct a lawyer. Mr Rossignol informed the Principal Public Prosecutor of this in a letter of 12 June 1997.
At the hearing on 26 June 1997 counsel for the applicant company informed the Paris Criminal Court that, pursuant to Article 706-43 of the Code of Criminal Procedure, the company had appointed Mr Rossignol to represent it and had duly informed the court. He submitted that the appointment of a representative ad litem to represent the company was “superfluous” and invited the court to accept Mr Rossignol as the sole representative. Noting that the representative ad litem's appointment under Article 706-43 of the Code of Criminal Procedure was “prior in time and valid”, the Paris Criminal Court found that the company was lawfully represented by Ms Da Camara and that it was Mr Rossignol's appointment that was superfluous.
The applicant company was represented in court by a lawyer chosen by Ms Da Camara.
In a judgment of 9 October 1997 the Paris Criminal Court found Mr Sourieau and the applicant company guilty of the following offences: “living on immoral earnings: acting as an intermediary between a person engaged in prostitution and the person employing him or her” and “living on immoral earnings aggravated by the fact that the offence was committed against several people”. It imposed a fine of 300,000 French francs (FRF) on Mr Sourieau and FRF 5,000,000 on the applicant company and ordered them jointly to pay damages of FRF 200,000 to an association that had joined the proceedings as a civil party. It stated in its judgment:
“...
The investigation and in particular the photographs of the connection to the Minitel server 36-15 ALINE and the pages that followed show that, although it is stated that 'pseudos and CVs that are accessible to all users are constantly monitored and those containing a telephone number or messages relating to pornography, prostitution or the incitement of minors to immorality or illegal practices will be immediately disconnected', prostitutes are nevertheless put directly in touch with anyone wishing to reply to the messages.
The subscribers with the telephone numbers which appeared on the 36-15 ALINE server were traced and interviewed by police officers.
[E.S.] stated that she had been engaged in prostitution for more than two years under the pseudonym 'EVA 93' through the intermediary of 36-15 ALINE and posted the message: 'Pretty blonde 38 years old, naughty underwear, 1m 65 – 57 kg – 95 bust'. She said that she had never been disconnected from the server and had noticed that pseudos such as 'WHORE' were not disconnected either.
[C.L.], whose pseudonym is COCO, stated that she posted the same type of message with a view to prostitution and that while she was not permitted to say in her CV that she received customers, 'this was nevertheless understood, as people are not stupid'.
[N.B.], whose pseudonym is LINDA, was working as a prostitute in avenue Victor Hugo when she was told of the Minitel by prostitute friends who said that it could help her to find clients from the comfort of her home. She stated that she had then learnt how to go online, to engage in conversation on 36-15 ALINE and to provide a description of herself: 'brunette, 1m 70, long hair, bust 95 B, 38 waist and 55 kg'. She said that it was 'more comfortable than being on the game in the street'.
[M.B.] (alias CHRISTINA or LYDIA), [N.K.] (alias MATHILDE or ORNELLA), [L.G.], [J.D.] (alias VANESSA, CELIA or JOY) referred to their financial difficulties and their desire to earn money by meeting men through the server. They said that they engaged in occasional prostitution.
Police officers from the Vice Squad discovered a number of wholly unambiguous messages on 36-15 ALINE:
'CV of Lola massage': rate 1,000 francs;
'CV of Bunny rabbit': brunette – long hair, 170 cm, 55 kg, 85 bust, 30 years old, cuddly, mischievous, for moments of togetherness;
'CV of Spanker': exquisite and arousing, spanking for Mr Motivated, 115E bust, tall, brunette, 40 years old, Parisian;
'CV of HELENA' very pretty Italian redhead 38 years old, shaven, sensual and refined, very sexy;
'CV of male slave': 40 year old genuine male slave trained by mistresses and CPL very good practice of submission either alone or with other male or female submissives for an evening or for sessions; genuine, not fantasist PARIS or Paris area.
All these connections indicate that the CVs and messages are manifestly prostitution-related.
Persons wishing to offer their services as prostitutes use a pseudonym, post a CV on the 36-15 ALINE network, open a data-communications mail account in which they receive messages to which they respond with a rate and telephone number and arrange meetings with interested clients.
Evidence of this modus operandi exists in the form of photographs taken by police officers.
Further, a review of previous cases handled by the Vice Squad has revealed that both male and female prostitutes have said that they used the 36-15 ALINE server to offer their services as prostitutes.
In sum, there is ample proof that the 36-15 ALINE server was used in connection with prostitution.
At the hearing Valéry Sourieau did not dispute that he was responsible for monitoring the messaging service to ensure the proper functioning of the service; he said that he supervised the teams of monitors and the pseudos registered on the server and had no hesitation in disconnecting non-compliant CVs. He said in the course of the investigation that he was no fool and was aware that many of the exchanges that took place on 36-15 ALINE involved men and women offering services as prostitutes.
The defendants point to precautionary measures that had been taken, essentially monitoring, as evidence of their good faith and of the lack of mens rea to commit the offence charged.
However, that argument does not stand up to examination when the facts uncovered by the investigation are considered. No warning was issued or account disconnected in response to the simultaneous posting of numerous and, for the most part, wholly unambiguous pseudos, to the detailed CVs indicating measurements and the services on offer, or to the replies to messages setting out rates and telephone numbers.
On the contrary, these facilities enabled clients to find and speak to prostitutes, who in this instance were women.
The second argument advanced by the defendants is that it was impossible for them to intervene directly in the private sphere, the online discussions, without infringing the right to freedom to communicate in private.
... Eurofinacom S.A.R.L., the service provider, undertook to ensure constant monitoring of the service in accordance with Article 5-2 and Appendices 1 and 2 [of its] agreement. Appendix 1 contains a reminder of the main legislative provisions applicable to data communications including those concerning living on immoral earnings.
The interactive data-communications service 36-15 ALINE is governed by Law no. 86‑1067 of 30 September 1986, section 43 of which requires prior notice to be given to the Principal Public Prosecutor's Office of an intention to provide audiovisual-communication services.
The circular issued on 17 February 1988 pursuant to the said section 43 adopts the definition of the notion of audiovisual-communication service.
Thus, audiovisual communication means a message intended for either the public generally or sections of the public, that is to say a group of undifferentiated people whose membership does not depend on considerations based on personal attributes.
Private correspondence means a message solely intended for one or more specific, identifiable individuals or legal entities.
The court notes that in the present case prostitutes use the 36-15 ALINE service to make non-exclusive offers open to anyone wishing to respond who is then given a rate which is uniform at this stage of the exchange.
The exchange or discussion on the server does not acquire the character of private correspondence, owing to the fact that the advertisements and rates are available to all users of the service.
On the other hand, the finalisation of the agreement leads to a private telephone conversation between specific individuals which is covered by the rules of confidentiality.
In these circumstances, it is established that Valéry Sourieau and Eurofinacom S.A.R.L. allowed advertisements to be published without any proper supervision.
A prostitution service involving a number of people developed through the intermediary of the 36-15 ALINE service.
It follows that all the constituent elements of the offence of living on immoral earnings with aggravating circumstances are present and that the charges against the defendants have been made out.
...”
Following a request dated 2 June 1998 by the person the applicant company had named as its representative, the President of the Paris Criminal Court directed on 9 June 1998 that Ms Da Camara's appointment under the order of 17 April 1997 would cease, as “Eurofinacom is now duly represented in the criminal proceedings by Mr Jean-Claude Rossignol”.
The judgment of 9 October 1997 was upheld in its entirety by the Paris Court of Appeal in a judgment of 24 September 1998. The applicant company was represented in the Court of Appeal by a lawyer instructed by Mr Rossignol.
The Court of Appeal dismissed an initial objection by the applicant company that the proceedings were a nullity owing to Mr Rossignol's exclusion from the proceedings in the Criminal Court. The Court of Appeal found that, since the Criminal Court had duly heard the submissions and arguments of counsel chosen by the judicial administrator, the applicant company had been properly represented and had had a fair trial at first instance. An objection by Mr Sourieau that the interception of private communications by the investigators was null and void was dismissed on the grounds that it had not been raised at first instance and could not be raised for the first time on appeal. On the merits, the Court of Appeal held, inter alia:
“...
Mr Sourieau's and Eurofinacom's guilt ... is established by the fact that the relevant messages related to prostitution ... and by the evidence of several female prostitutes who confirmed that they frequently used the '36-15 ALINE' server, as it was a well-known and habitual part of the prostitution network. They even said that it enabled them to avoid soliciting on the street and to select clients more easily.
Mr Sourieau's affirmation that a team working twenty-four hours a day and seven days a week was assigned to monitor messages in order to eliminate those which were contra bonos mores is not accepted. Such affirmations are in total contradiction with the results of the investigation.
Inquiries made by the police services who accessed the server on 12 December 1996, and 2, 3 and 7 January 1997 confirmed that none of the large number of prostitution-related messages were removed. Similarly, none of the prostitutes who used the server said in evidence that they had been 'disconnected' after posting their advertisements and some ... even categorically stated that they had not been. Accordingly, Mr Sourieau has not established good faith on this point.
Likewise, it is not possible to accept Mr Sourieau's argument that he was prevented from directly intervening in online discussions because they were private communications. Referring to the impugned judgment, the Court of Appeal finds, like the court below, that the '36-15 ALINE' server did not constitute a messaging service intended for one or more specific, identifiable persons but a means of audiovisual communication offered to a non-specific and unidentifiable public. The server was accordingly governed by the Law of 30 September 1986, and in particular the provisions relating to the dignity of the human being and the preservation of law and order.
In particular, it was established that the police accessed the server by following the standard procedure available to the public at large and that the connection ended when the two correspondents decided to transform the non-specific audiovisual communication into a personalised exchange on a private telephone line. Accordingly, despite the defendant's denials, it is established that Mr Sourieau knowingly supported an extensive prostitution network from which he made considerable profit.
There is also no doubt that there was a community of interest between Mr Sourieau, Eurofinacom's manager, and the company he ran, as the investigation revealed that Eurofinacom's activity was in fact the alleged criminal activity and that it achieved an estimated turnover between July 1995 and December 1996 of 30,941,878 francs.
...”
The applicant company and Mr Sourieau appealed to the Court of Cassation. They submitted, firstly, that there had been a violation of Article 6 of the Convention in that the trial court had ruled that the applicant company was represented in the proceedings by the representative ad litem appointed by the President of the Paris Criminal Court instead of the person it had appointed to that end. Relying, inter alia, on the same provision, they argued, secondly, that the alleged offence had been “the result of provocation and subterfuge”. Thirdly, they submitted that the offence of living on immoral earnings with aggravating circumstances had not, in the absence of a positive act, been made out in law, as a failure to act or acquiescence did not suffice.
The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 12 January 2000. With regard to the first ground of appeal, it held:
“...
In dismissing Eurofinacom's application to set aside the proceedings at first instance on the grounds that it should not have been represented by Hélène Da Camara, the Court of Appeal noted that Article 706-43 of the Code of Criminal Procedure had been complied with and that the lawyer chosen by the company's representative had been able to present his observations and arguments at the hearing.
In so doing, the Court of Appeal, which found that the company had been properly represented and assisted in the Criminal Court, applied the law correctly, notwithstanding the superfluous reasoning criticised in the second limb of the ground of appeal.
The first subparagraph of Article 706-43 of the Code of Criminal Procedure provides that when criminal proceedings are brought against a legal entity and its de jure representative is also prosecuted for the same or a related offence, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings in accordance with the final subparagraph of that Article.
...”
The second ground of appeal was dismissed for the following reasons:
“According to the judgment of the Court of Appeal and the judgment of the court below which it upheld, the investigation essentially took the form of questions to persons engaged in prostitution who used the Eurofinacom Minitel server to find clients and the retrieval by the police officers themselves of information from the data communications network.
The Court of Appeal declared Valéry Sourieau's objection that evidence obtained by the police through the interception of data communications should be excluded under Articles 100 et seq. of the Code of Criminal Procedure on the grounds that that provision had not been pleaded in the Criminal Court.
In so doing, the Court of Appeal correctly applied the final subparagraph of Article 385 of the Code of Criminal Procedure.
...”
Lastly, the Criminal Division dismissed the third ground of appeal, holding that that it merely contested the facts and circumstances of the case and evidence that had been the subject of adversarial argument, all of which were within the unfettered discretion of the courts below.
B. Relevant domestic law
1. Criminal liability and the representation of legal entities in the criminal courts
Article 121-2 of the Criminal Code lays down that legal entities may be held criminally liable for offences committed on their behalf by their organs or representatives. Such a finding will not preclude criminal liability on the part of individuals who commit the offence or act as accomplices.
As regards the representation of a legal entity that is a defendant in criminal proceedings, Article 706-43 of the Code of Criminal Procedure provides:
“The criminal proceedings shall be instituted against the legal entity acting through its de jure representative at the time the prosecution was brought. The de jure representative shall represent the legal entity at all stages of the proceedings. However, when criminal proceedings are brought against the de jure representative for the same or related offences, he or she may make an application to the president of the tribunal de grande instance for the appointment of a representative ad litem to represent the legal entity.
The legal entity may also be represented by any person who, in accordance with law or the memorandum and articles of association, holds a delegated power to that end.
A person who has been assigned the task of representing the legal entity under the second subparagraph shall inform the court before which the proceedings are pending of his or her identity by registered letter with recorded delivery.
The same rule shall also apply if there is a change of de jure representative while the proceedings are pending.
If there is no one qualified to represent the legal entity in accordance with the conditions set out in this Article, the president of the tribunal de grande instance shall, on an application by the public prosecutor's office, the investigating judge or the civil party, appoint a representative ad litem to represent it.”
In a judgment of 9 December 1997 (Bulletin criminel no. 420), the Criminal Division of the Court of Cassation held: “By virtue of the first subparagraph of Article 706-43 of the Code of Criminal Procedure, if criminal proceedings have been instituted against a legal entity and its de jure representative or the person to whom power has been delegated under subparagraph 2 of the aforementioned provision has also been prosecuted for the same or related offences, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings, in accordance with the procedure set out in the final subparagraph”.
2. The offence of living on immoral earnings
Article 225-5 of the Criminal Code provides:
“Living on immoral earnings shall mean using any means whatsoever:
1º To aid or assist another to engage in prostitution or to protect a person so engaged;
2º To profit from or share the proceeds of another's engagement in prostitution, or to receive an allowance from a person who habitually engages in prostitution;
3º To recruit or procure a person for prostitution, to lead a person into prostitution or to exert pressure to make a person engage in prostitution or continue to do so.
Anyone living on immoral earnings shall be liable to seven years' imprisonment and a fine of 150,000 euros.”
Article 225-6, subparagraph 1o, of the Criminal Code lays down that “anyone who by any means whatsoever ... acts as an intermediary between two persons, one of whom engages in prostitution and the other of whom uses or pays for his or her services” shall be assimilated to a person living on immoral earnings and liable to the penalties laid down by Article 225-5.
Article 225-7, subparagraph 3o, of the Criminal Code adds that the maximum sentence shall be ten years' imprisonment and a fine of 1,500,000 euros for anyone living on the immoral earnings where the offence is committed against several people. Law no. 98-468 of 17 June 1998 (published in the Official Gazette of 18 June 1998) inserted a tenth subparagraph which provides that the same maximum sentence shall apply when the offence of living on immoral earnings has been committed “with the help of a telecommunications network to disseminate messages to a non-specific public”.
COMPLAINTS
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2. The applicant company complained under Article 6 § 1 of the Convention that evidence obtained as a result of police “instigation” had been ruled admissible in the proceedings, in violation of its right to a fair trial. It submitted that the police officers had only come across messages offering prostitution-related services on “36-15 ALINE” because they had solicited them from the users of certain pseudos, and, in particular, had requested rates while concealing the fact that they were police officers. As no offer for sex in exchange for payment had appeared on their screens without being solicited, the offence the company had been convicted of had to be the result of instigation or a ruse perpetrated through individual discussions with certain persons. The applicant company referred in that connection to the Teixeira de Castro v. Portugal judgment of 9 June 1998 (Reports of Judgments and Decisions 1998-IV, p. 1463, § 36).
3. Relying on Article 7 of the Convention, the applicant company complained of a breach of the principle that only the law can define a crime and prescribe a penalty. It argued that, as defined at the material time, the offence of living on immoral earnings did not include the acts for which it had been prosecuted and convicted. It added that at a later date the Act of 17 June 1998 had inserted a tenth subparagraph into Article 225-7 of the Criminal Code which expressly laid down that it was an aggravating circumstance for the offence to be committed “with the help of a telecommunications network to disseminate messages to a non-specific public”. It considered that to be an “implicit acknowledgement by France” that the legislation was not of the “requisite quality”.
THE LAW
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1. The applicant company complained that evidence that was the result of police “instigation” had been ruled admissible in the proceedings, in violation of its right to a fair trial. It submitted that the police officers had only come across messages offering prostitution-related services on “36-15 ALINE” because they had solicited them from the users of certain pseudos, and, in particular, had requested rates while concealing the fact that they were police officers. As no offer for sex in exchange for payment had appeared on their screens without being solicited, the offence it had been convicted of had to be the result of instigation or a ruse arising out of individual discussions with certain persons. Referring in that connection to the Teixeira de Castro v. Portugal judgment of 9 June 1998 (Reports of Judgments and Decisions 1998-IV, p. 1463, § 36), the applicant company relied on Article 6 § 1 of the Convention, which provides:
“In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal...”
The Government submitted that under the Court's case-law, there was “instigation” when there existed a direct, immediate causal link between the police officers' conduct and the commission of the offence. Instigation might thus be found when the case disclosed no evidence to suggest that the suspect had any propensity to offend or a criminal record and the offence did not go beyond what the police officers had set in motion. Conversely, there would be no “instigation” when the offender had previously demonstrated by his or her conduct an intention to commit the offence and had already taken steps to that end by the time the investigators “intervened” in his or her dealings.
The Government said that in the instant case the decision to host the “pseudos” and “CV” concerned on “36-15 ALINE” had been the applicant company's alone: the police had not in any way encouraged it to do so. Furthermore, the case file showed that the applicant company was already engaged in the conduct for which it was prosecuted before the police officers began their investigation or accessed the Minitel server. An article on the subject had appeared in the 107th edition of the magazine VSD on 25 July 1996 (that is, before the police investigation) under the headline “36-15 ALINE, prostitution on the Minitel”. In addition, evidence obtained in previous investigations by the Vice Squad suggested that it was possible that prostitutes were using 36-15 ALINE to contact clients. The police investigations had, from the outset, been conducted under the supervision of the Public Prosecutor's Office at the Paris Criminal Court. Against that background, the police's primary purpose in accessing the server appeared to have been to carry out an ordinary fact-finding mission, and they had neither instigated an offence nor had any intention to do so. Anyone accessing the server could read the CVs, so that the investigators' action was akin to passively browsing a publication containing advertisements by prostitutes. In addition, it was apparent merely from reading the CVs of, in particular, “Bunny rabbit”, “Spanker”, “Helena” and “Male slave” that they were clearly prostitution-related. The Government said in that connection that such advertisements constituted a sufficient basis for a conviction of living on immoral earnings in domestic law, as it was not necessary for the price to be stated for an advertisement to be found to relate to prostitution. It followed that the message the police officers had sent to the authors of the CVs concerned on 30 December 1996 requesting “terms” was of limited importance. More significantly, sending that message was not the instigative act the applicant company had suggested, as, firstly, the police officers had acted lawfully and within their powers and, secondly, a distinction had to be drawn between inciting a person to act as an intermediary and – as in the instant case – using an available, permanently accessible, pre-existing system that anyone could access to contact prostitutes. The Government noted in that connection that the applicant company had been charged with having “acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service”: the message requesting the “terms” had not in itself incited the applicant company to make the service available to prostitutes. It was to be noted also that the manager of the company had made a “partial confession” by stating to the investigators on 3 March 1997 that he was aware that many exchanges on 36-15 ALINE were initiated by persons offering prostitution services. In sum, the police officers' investigations on 30 December 1996 were not “the main, [still less] the exclusive, factor behind the commission of the offence and the applicant company's conviction”. Their action had merely served to obtain additional evidence of an offence that had been continuing for a considerable period. Lastly, the conviction, following proceedings in which the applicant company had been able to present its case at public hearings in three different courts, was not based solely on the replies to the message requesting “terms”. For instance, the criminal court had taken into account, inter alia, evidence obtained by the Vice Squad during previous investigations, as also the wording of the CVs and choice of pseudos, oral evidence from witnesses who had used the server to offer their services as prostitutes and statements obtained from the applicant company's manager.
The Government submitted, in conclusion, that this part of the application was manifestly ill-founded.
The applicant company said in reply that the summons issued by the Paris Criminal Court to appear on the charge of living on immoral earnings referred “in particular” to the date of 30 December 1996, and that the judgment stated: “it has been established that Valéry Sourieau and Eurofinacom S.A.R.L. allowed advertisements to be published without any proper supervision”. That showed that there was no positive evidence that an intermediary had facilitated prostitution while the description of the two stages of the public discussion sufficed to show that the discussion could not be characterised at the outset as having been indicative of prostitution-related activities. Since the actus reus of the offence with which the applicant company was charged could not have existed before the police entered into the non-public phase of “online discussion” with their request for “terms” from persons who – despite the licentious nature of their messages – had not previously offered any prostitution services, it could not be argued that the applicant company had clearly engaged in the impugned conduct before the police began their investigation and accessed the Minitel server concerned. To argue otherwise would have meant that the police ruse served no purpose, when its aim must have been to procure the commission of an offence in place of what had previously been a licentious – but lawful – expression of fantasy.
The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 50; and Teixeira de Castro, judgment cited above, p. 1462, § 34; and the decisions in the cases of Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003-VI and Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV).
More particularly, the Convention does not preclude reliance, at the investigation stage of criminal proceedings and when the nature of the offence warrants it, on sources such as anonymous informants. However, the subsequent use of such sources by the trial court to found a conviction poses a different problem.
The Court has said in this connection that, while the use of undercover agents is acceptable provided it is restricted and there are safeguards in place, the public interest cannot justify using evidence obtained as a result of police incitement, as to do so would expose the “accused” to the risk of being definitively deprived of a fair trial from the outset (see, among other authorities, Teixeira de Castro, judgment cited above, pp. 1462-1464, §§ 35-36 and 39).
Action will amount to “instigation” when the “officers” involved do not confine themselves to “investigating the criminal activity in an essentially passive manner”, but exercise an “influence such as to incite” the commission of the offence (Teixeira de Castro, cited above, p. 1463, § 38). The Court will also check whether there is evidence indicating that, without such intervention, the offence would not have been committed (see ibid., p. 1464, § 39; and Sequeira, decision cited above).
In order to show that the applicant company had acted as an “intermediary between a prostitute and the person using his or her services”, it was necessary to check whether prostitutes used 36-15 ALINE to offer their services to other people online through the use of CVs or messages with a prostitution-related content. On accessing the server on 30 December 1996 the investigating officers were not directly contacted by persons offering their charms in return for payment and it appears highly likely that they took the view that the CVs they had consulted were not manifestly “related to prostitution”. They therefore deemed it necessary to send messages to certain correspondents requesting the “terms” and “cost” in order to obtain a positive identification of any prostitutes from among the replies received. Thus, the police officers themselves incited the offers of prostitution that were made to them personally and 36-15 ALINE acted as the “meeting” point between their spurious requests and the genuine “offer” of services as a prostitute.
On the other hand, the fact that the authorities have “good reason to suspect” the defendant of having a propensity to commit an offence would tend to suggest that an operation – such as the one in the instant case – was more akin to “infiltration” than “instigation” (Teixeira de Castro, judgment cited above, p. 1463, § 38; Sequeira, decision cited above). The Sequeira decision indicates in that connection that suspicion must be based on concrete evidence showing that initial steps have been taken to commit the acts constituting the offence for which the “defendant” is subsequently prosecuted. In that case, criminal elements, who already had dealings with the “defendant” preparatory to drug trafficking, were subsequently used by the police to assist in the investigation. The Court held that they had acted only as “undercover agents”, since significant steps preparatory to the commission of the offence had been taken before their participation in the investigation.
It is true that in the instant case the investigating officers action was taken on their own initiative and was entirely spurious, so that by pretending to request the services of a “prostitute” they to some extent contributed to the commission of the offences on 30 December 1996, which, at least in part, subsequently led to the applicant company's prosecution for living on immoral earnings. Nevertheless, as the Government have shown, the police were already in possession prior to 30 December 1996 of information that suggested that 36-15 ALINE was being used by prostitutes to contact potential clients: namely, an article published in the VSD magazine on 25 July 1996 under the headline “36-15 ALINE, prostitution on the Minitel”, and evidence that had previously been obtained in that and other investigations by the Vice Squad. It should be noted, too, that the applicant company was not charged solely with the offence committed on 30 December 1996 but also with having acted as an intermediary between prostitutes and their clients since 1995.
In addition, the police officers were acting in connection with a preliminary investigation that had been ordered by the public prosecutor's office and was being conducted under its supervision (see the section under the heading “The facts – A. The circumstances of the case” above). The case therefore has more in common with Lüdi v. Switzerland (see judgment of 15 June 1992, Series A no. 238) than with Teixeira de Castro,
Finally and crucially, the judgments of the Paris Criminal Court of 9 October 1997 and of the Paris Court of Appeal of 24 September 1998 show that the applicant company's conviction was based mainly on the content of some of the CVs discovered during the investigation and the evidence of prostitutes who had used 36-15 ALINE, rather than on the correspondents' online replies to the investigating officers' requests for information on 30 December 1996. Thus, in any event, the verdicts of the tribunals of fact cannot be said to have been based on the evidence obtained through the operation which the applicant company alleged amounted to instigation.
In sum, while it is true that the investigating officers instigated the offers of prostitution-related services which were made to them personally on 36-15 ALINE on 30 December 1996, they did not in the true sense incite the commission of the offence of living on immoral earnings of which the applicant company was convicted; that offence was a continuing offence which was necessarily committed by the applicant company, not the prostitutes. The applicant company cannot therefore complain of a violation of Article 6 § 1 of the Convention on that account.
The Court accordingly concludes that this part of the application is manifestly ill-founded and rejects it pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant company argued that, as defined at the material time, the offence of living on immoral earnings did not include the acts for which it had been prosecuted and convicted. It added that at a later date the Act of 17 June 1998 had inserted a tenth subparagraph into Article 225-7 of the Criminal Code which expressly laid down that it was an aggravating circumstance for the offence to be committed “with the help of a telecommunications network to disseminate messages to a non-specific public”. It considered that to be an “implicit acknowledgement by France” that the legislation was not of the “requisite quality”. The applicant company complained of a breach of the principle that only the law can define a crime and prescribe a penalty and relied on Article 7 of the Convention, the first paragraph of which provides:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The Government submitted that the applicant company had failed to draw a distinction between creating an aggravating circumstance and modifying a material element of the offence: the fact that the use of telecommunications had been made an aggravating circumstance of the offence of living on immoral earnings showed only that the legislature intended to impose stiffer penalties when the offence involved the use of data-communications services. That did not mean to say that a prosecution would not previously have been possible under Article 285-6 of the Criminal Code. The Government added that that provision clearly prohibited – without any limitations or conditions – any “agency” of any kind, and that the possibility that Article 285-6 would be applied in the instant case had been perfectly foreseeable, as the French courts had applied it in similar circumstances. In that connection, the Government referred to (but did not provide copies of) two judgments of the Paris Court of Appeal: a judgment of 13 September 1994, in which they said that the Court of Appeal had held that the publishing director of a magazine in which prostitution-related advertisements had appeared was guilty of an offence under Article 285-6, and a judgment of 7 February 1995, which concerned notices in an advertising journal under the heading “relaxation” that left no room for doubt as to the nature of the activities on offer. Those decisions should have alerted the applicant company to the risks it was running, especially since, as with the CVs in the instant case, the advertisements in those cases did not contain any indication of the rates being charged. The Government further argued that as professionals in the communications sector, the applicant company should have taken special care to evaluate the risks entailed by its activity and to keep abreast of the legislation and leading cases in that sphere, for which advice from specialist counsel was available. In view in particular of the nature of its data-communications service, which was geared to “conviviality”, it would necessarily have been aware that its activity could render it liable to prosecution and was in a position to evaluate the risks (the Government cited Cantoni v. France, judgment of 15 November 1996, Reports 1996-V, p. 1629, § 35; Chauvy and Others v. France, decision no. 64915/01, 23 September 2003; Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, p. 7172, § 37; and Grigoriades v. Greece, judgment of 25 November 1997, Reports 1997‑VII, p. 2587, § 37). Lastly, the Government noted that the manager of the applicant company had admitted to the investigators on 3 March 1997 that he knew that certain Parisian free advertising journals had been convicted for publishing advertisements offering relaxing massages.
The Government said in conclusion that the domestic courts had not violated Article 7 § 1 of the Convention in applying Article 225-6 of the Criminal Code and that that part of the application was consequently manifestly ill-founded.
The applicant company replied that criminal statutes had to be strictly construed: poenalia sunt restringenda. If aggravating circumstances were dissociated from the principle that only the law could define a crime and prescribe a penalty, the principle would become meaningless, as defendants could be given heavier sentences for the commission of criminal offences that had not been foreseeable at the material time.
The Court points out that Article 7 § 1 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law (see, among other authorities, Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable (ibid.).
In that connection, although the applicant company's submission that the tenth subparagraph of Article 225-7 of the Criminal Code (which did not serve as a basis for either the prosecution or the convictions) was applied retrospectively is incorrect, and although it is likewise wrong to consider the introduction of that provision (through the Act of 17 June 1998) as evidence that the earlier legislation was not sufficiently clear, the Court must nevertheless examine the quality of the legislative provision under which the applicant company was convicted.
In the instant case, the applicant company was convicted of “having in Paris and on the national territory in 1995, 1996 and 1997, in particular on 30 December 1996, and 2, 3 and 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service called '36-15 ALINE' which it provided, with the aggravating circumstance that it was committed against several people” (extract from the Paris Court of Appeal's judgment of 24 September 1998). That conviction was based on Article 225-6, subparagraph 1o, of the Criminal Code, whereby “anyone who by any means whatsoever ... acts as an intermediary between two persons, one of whom engages in prostitution and the other uses or pays for his or her services” is assimilated to a person living on immoral earnings and is liable to the penalties set out in Article 225-5.
The Court finds that there is no doubt that, without necessarily pursuing such an aim, the applicant company provided technical assistance that facilitated contact between prostitutes and their clients by making the 36-15 ALINE service available to the general public. It considers that the question that arises under Article 7 of the Convention in the present case boils down to determining whether the applicant company could “know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it” that “facilitating” contact between prostitutes and potential clients in that way by passively providing a means of communication open to the general public was capable of being assimilated to acting as an “intermediary” between them, within the meaning of Article 225-6, subparagraph 1o, of the Criminal Code.
The Court is not persuaded by the Government's argument that there was an established line of case-law to that effect at the material time, as they did not produce the judgment to which they refer, or show that the relevant decision of the Paris Court of Appeal was upheld by the Court of Cassation. This, however, is not decisive, as Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Streletz and Others v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II).
The Court considers that that was the position in the instant case. Firstly, it is apparent from the wording of Articles 225-5 and 225-6, sub-paragraph 1o, of the Criminal Code that the legislature's intention was to outlaw all forms of acting as an intermediary between persons engaged in prostitution and their clients. The fact that the legislation introduced in 1998 provided for increased penalties when the offence of living on immoral earnings was committed “with the help of a telecommunications network to disseminate messages to a non-specific public” is irrelevant here, for, as the Government pointed out, it does not mean that no prosecution could have been brought previously under Article 225-6 of the Criminal Code against an intermediary resorting to such methods. In addition, the aggravating circumstance found by the courts in convicting the applicant company of living on immoral earnings was not its use of a “telecommunications network”, but the fact that the offence was committed several people, which has a very different statutory basis. Moreover, as a professional operating in the communications sector, the applicant company could reasonably have been expected to take special care to evaluate the risks its activity entailed (see, among other authorities, Cantoni, judgment cited above, p. 1629, § 35), especially since, as the Paris Criminal Court noted in its judgment of 9 October 1997, it had undertaken in its contract with France Télécom (Article 5-2) to monitor the service at all times “to prevent the continued display of [information, messages etc. available to users online] if they contravened the provisions of the [said] agreement, and in particular, Appendix 2”. The Appendix (which contains “a recommended code of conduct for data-communications services”) stipulates that the service provider undertakes among other things to “to ensure constant monitoring of the information made available to the general public so as to prevent messages liable to contravene the law and regulations in force being released”. Furthermore, Appendix 1 to the contract (which contains a “reminder of the main legislative provisions applicable to data communications”) cites in extenso Articles 225-5 and 225-6 of the Criminal Code under the heading “Living on immoral earnings”. The Court therefore considers that with the benefit of appropriate advice where necessary (Cantoni, cited above, p. 1629, § 35) the applicant company, whose manager, as the case file clearly shows, was aware that 36-15 ALINE was being used by persons engaged in prostitution to contact potential clients, must have known at the material time that it was liable to prosecution under Article 225-6 of the Criminal Code for living on immoral earnings.
The Court accordingly concludes that this part of the application is manifestly ill-founded and rejects it pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
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