Marchiani v. France

Information Note on the Court’s case-law No. 108

May 2008

Marchiani v. France - 30392/03

Decision 27.5.2008 [Section V]

Article 6

Article 6-2

Presumption of innocence

Specific remedies available in domestic law for violations of the presumption of innocence: inadmissible (non-exhaustion of domestic remedies)

Article 8

Article 8-1

Respect for correspondence

Respect for private life

Ruling by Court of Cassation that a special procedure that had to be followed before the telephone calls of a member of the national parliament could be monitored did not apply to the monitoring of calls of members of the European Parliament: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Specific remedies available in domestic law for violations of the presumption of innocence:inadmissible

Several sets of proceedings, all investigated by the same judge, have been opened against the applicant, a Member of the European Parliament (“MEP”), in which a number of procedural measures have been taken for offences including misuse of company assets. The French authorities sent the European Parliament a report of the Principal Public Prosecutor at the Court of Appeal, with a request to lift the applicant’s parliamentary immunity, stating that his detention pending trial was the only way to put a stop to the disturbance of public order, keep the applicant at the disposal of the judicial authorities, prevent him from entering into contact with various witnesses or accomplices and enable the investigators to carry out their investigations properly. A newspaper published an article on the request to lift the applicant’s parliamentary immunity, together with the content of two previous requests in which the judge spoke of the need to commit the MEP to prison. The European Parliament’s Committee on Legal Affairs and the Internal Market unanimously rejected the request to lift the applicant’s parliamentary immunity.

The applicant’s detention was ordered but he was released subject to court supervision.

The investigating judge authorised the interception and recording of telephone conversations on the applicant’s home line and his wife’s mobile phone. The resulting evidence was filed in court. The applicant lodged an application to have certain evidence declared null and void because the warrant for the tapping of his telephone had been signed while he was still an MEP. He wanted the documents containing transcripts of the telephone conversations disallowed in so far as the President of the European Parliament had not been notified of the telephone-tapping. He further submitted that the court could not disregard the provisions of the Code of Criminal Procedure as they affected MEPs without having first submitted a preliminary question to the Court of Justice of the European Communities, or the Minister of Foreign Affairs as the only person authorised to interpret treaties when their interpretation raised issues of public international law. The investigation division of the Court of Appeal declared certain items of evidence inadmissible and ordered other documents to be declared null and void. In the meantime the investigating judge filed copies of excerpts from the transcriptions of telephone conversations intercepted while the applicant was an MEP. The applicant lodged two applications to have procedural measures declared null and void. He appealed on points of law, as did the Principal Public Prosecutor at the Court of Appeal. The Court of Cassation quashed and annulled the judgments of the investigation division of the Court of Appeal in so far as they declared the procedural measures null and void, but without remitting the case.

The European Parliament adopted a decision to defend the immunity and privileges of the applicant, a former MEP, called for the judgment of the Court of Cassation to be annulled or revoked and in any event for all de facto or de jure effects of that judgment to cease, and instructed its President to send its decision and the relevant committee report immediately to the Court of Cassation, the Government and the French National Assembly and Senate. The European Parliament also adopted a resolution on a possible violation of the Protocol on privileges and immunities of the European Union by a member State, in which it decided to ask the Commission to initiate proceedings against France for violating EU law.

The applicant was committed to stand trial before the tribunal de grande instance on the charges against him. He asked the court to refer a preliminary question to the Court of Justice of the European Communities concerning the interpretation and application of the Protocol on privileges and immunities of the European Union. He said that he had lodged a complaint with the European Court of Human Rights under Article 8 of the Convention and explained that this was a necessary step in view of the incompatibility of the decisions of the Court of Cassation with the terms of the Protocol and the decision of the European Parliament. The court rejected the objection to admissibility. It considered a preliminary question unnecessary in so far as, in keeping with the judgment pronounced by the criminal division of the Court of Cassation – whose decision concerning the readmission of the impugned documents as evidence was binding – the application of the Protocol on privileges and immunities could not be considered to extend the provisions of the Code of Criminal Procedure to members of the European Parliament. The applicant was found guilty as charged.

Inadmissible under Article 6 § 2 – The report the Principal Public Prosecutor submitted to the President of the European Parliament had merely singled out those items in the case file that might serve to justify pre-trial detention. That being so, the declarations made by the Principal Public Prosecutor had in no way affected the applicant’s right to be presumed innocent. Furthermore, the applicant complained that a newspaper had published passages from the above-mentioned report and that the domestic courts had had a hand in their publication. However, a matter could be brought before the Court only once the domestic remedies had been exhausted. In this particular case there were specific remedies in French law of which the applicant could have availed himself to have the alleged violation set right. It had been up to him to use those remedies, the respondent State being under no obligation to apply them of its own motion: non-exhaustion of domestic remedies.

Inadmissible under Article 8 – The interception of telephone communications amounted to an interference with the applicant’s right to respect for his private life and his correspondence. The telephone tapping had been ordered by an investigating judge based on provisions of the Code of Criminal Procedure – to which reference was also made in the law on the confidentiality of telecommunications – and had therefore been in accordance with the law. The law was also accessible. As to whether it was foreseeable, the applicant complained essentially that the telephone-tapping measures had been unlawful because the Court of Cassation had decided that the provisions of the Code of Criminal Procedure reserving special treatment for certain social groups were not applicable to members of the European Parliament like himself. However, the Code of Criminal Procedure laid down clear and detailed rules and explained in sufficiently clear terms the scope and manner of the authorities’ margin of appreciation in that area. Furthermore, as to the applicability of the Code of Criminal Procedure to MEPs, it was for the national authorities first and foremost, and in particular the courts, to interpret and apply the domestic law, even when it referred to international law or international agreements. Just as the judicial organs of the European Union were best placed to interpret and apply Community law. The role of the Court consisted in verifying the compatibility of the effects of such decisions with the Convention. It was not, in principle, for the Court to disagree with the Court of Cassation as to the scope of the Code of Criminal Procedure or the nature of the measures provided for therein, except in the event of a manifestly arbitrary interpretation, which was not the case here. Furthermore, the Protocol on privileges and immunities of the European Union, in the absence of any independent and uniform legal framework governing the immunity of members of the European Parliament, expressly referred to domestic law regarding the substantive content of members’ immunity when proceedings were brought against them in their own countries. That being so, the rules governing parliamentary immunity in French law, which covered the notions of freedom from liability and immunity from prosecution, laid down no obstacles to criminal proceedings against, or investigations of, MPs except in connection with opinions expressed or votes cast in the exercise of their duties. The relevant Article of the Code of Criminal Procedure concerned only members of the lower and upper houses of the French Parliament and, in the absence of any provision to the contrary, could not be considered to apply, or even to be transposable, to MEPs. Failure to fulfil the requisite conditions rendered the measures concerned null and void. Such nullity should generally be understood restrictively, but there were no decisions in Community law or judgments of the Court of Justice which interpreted the Article concerned in the extensive manner suggested by the applicant. It followed that its non-application to the applicant did not challenge the lawfulness of the monitoring of his telephone conversations or the requisite quality of the corresponding law. The impugned measures were therefore in accordance with the law. Lastly, the purpose of the interference was to establish the truth in criminal proceedings intended to protect law and order. The applicant had had every opportunity to present his arguments to the competent courts, as he had been able to apply to the investigation division of the Court of Appeal and to the Court of Cassation to have certain evidence obtained through telephone-tapping disallowed. Not only had the telephone-tapping been ordered by a judge and carried out under his supervision, but the provisions of the law governing telephone-tapping were in keeping with the requirements of Article 8 of the Convention. The applicant had therefore not been deprived of the effective protection of the relevant domestic law and he had had access to an effective remedy to challenge the telephone-tapping measures. The interference in question was therefore not disproportionate to the legitimate aim pursued: manifestly ill-founded.

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

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