PAPON v. FRANCE (No. 2)

[TRANSLATION - EXTRACTS]

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THE FACTS

The applicant [Mr Maurice Papon] is a French national, born in 1910 and currently in custody in the Santé Prison in Paris. He was represented before the Court by Mr L. Argand, of the Geneva Bar, and Mr J.-M. Varaut, of the Paris Bar. The Government were represented by Mrs M. Dubrocard, Deputy Head of the Human Rights Office at the Ministry of Foreign Affairs.

A.  The circumstances of the case

From May 1942 to August 1944 the applicant was the secretary-general of the Gironde prefecture under the authority of the prefect, Maurice Sabatier.

After the Liberation, according to figures provided by the applicant, more than 30,000 civil servants who had served under the Occupation were punished whilst several thousands of people were executed, both officially and unofficially.

In an opinion dated 6 December 1944 the Ministry of the Interior’s Committee for the Purge of Collaborators (comité d’épuration) proposed that the applicant should retain his post, taking the view that although he had held office under the Vichy regime he had shown a favourable attitude towards the Resistance. He was therefore allowed to continue serving as head of the private office of Gaston Cusin, the Bordeaux Commissioner of the Republic.

He was appointed to the rank of prefect and posted to Corsica in 1947, then served as Paris Metropolitan Police Commissioner from 1958 to 1966. He was a member of Parliament from 1968 to 1978 and mayor of Saint-Amand-Montrond from 1971 to 1988. He served as chairman of the Finance Committee of the National Assembly from 1972 to 1973 and then as the general rapporteur on the budget until 1978. He was Minister for the Budget from 1978 to 1981.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 May 1981, between the two rounds of the presidential election, the weekly newspaper Le Canard enchaîné published the first of a series of articles in which the applicant, who was Minister for the Budget at the time, was criticised for his behaviour during the Second World War.

The applicant asked the Action Committee of the Resistance to appoint a court of honour to assess his conduct under the German occupation. On 15 December 1981, having examined his immediate hierarchical superior, Maurice Sabatier, who said that he assumed “full responsibility for the anti-Jewish repression for which his prefecture was responsible”, the court of honour delivered a verdict in which it formally acknowledged that the applicant had been a member of the Resistance from January 1943 onwards but concluded “that in the very name of the principles which he believed he was defending, and not having been instructed to remain in his post by a competent authority of the Resistance, he should have resigned from his post as secretary-general of Gironde in July 1942”.

On 8 December 1981 a lawyer named Boulanger lodged a criminal complaint against the applicant together with a civil-party application for crimes against humanity, aiding and abetting murder and abuse of official authority in connection with the deportation of eight persons arrested by the French police in Bordeaux and held in Bordeaux and then in Drancy Camp before being deported to and exterminated at Auschwitz. Six other criminal complaints together with civil-party applications relating to seventeen other victims of deportations were lodged in March and April 1982 by another lawyer, Mr Serge Klarsfeld, who is also the chairman of the association “Sons and daughters of France’s Jewish deportees”. On 29 July 1982 the Bordeaux public prosecutor’s office asked for investigations to be opened in respect of all seven complaints.

1.  The investigation proceedings

On 19 January 1983 the applicant was charged with crimes against humanity by the chief investigating judge at the Bordeaux tribunal de grande instance.

On 22 February 1984 the investigating judge commissioned an expert historical report from three historians. The report was filed on 11 January 1985.

In the meantime, on 23 May 1983, the investigating judge had begun examining witnesses, including Maurice Sabatier, the prefect of Gironde at the material time. However, former Article 681 of the Code of Criminal Procedure [Repealed by the Law of 4 January 1993] provided that where a civil servant was likely to be charged with a serious crime (crime) or lesser serious offence (délit) committed in the performance of his duties, the public prosecutor had to begin by asking the Criminal Division of the Court of Cassation to designate the competent court for the investigation.

Since the failure to comply with that formal requirement made the proceedings absolutely null and void in accordance with Article 171 of the Code of Criminal Procedure, the Court of Cassation in a judgment of 11 February 1987 declared all the steps of the prosecution and investigation carried out after 5 January 1983, including the charging of the applicant, null and void as having been taken by a judge without jurisdiction and designated the Indictment Division of the Bordeaux Court of Appeal to proceed with the investigation.

In a judgment of 4 August 1987 the Indictment Division ordered the joinder of the seven sets of proceedings instituted following the complaints lodged before 5 January 1983 and ordered that the investigation be continued, appointing a judge of the Indictment Division to conduct the investigation. In judgments of 9 November and 8 December 1987 the Indictment Division noted that three fresh criminal complaints had been lodged by associations together with applications to join the pending proceedings as an intervening civil party and ordered that these be added to the file. A complaint by two civil parties in March 1982 gave rise to another judgment designating the competent court delivered by the Criminal Division of the Court of Cassation on 9 December 1987 and a judgment of 28 June 1988 in which the Indictment Division ordered the joinder of those proceedings and confirmed the appointment of the judge charged with the investigation. On 2 February 1988 the Indictment Division noted that a new complaint had been lodged on 24 July 1987 together with an application to join the pending proceedings as an intervening civil party and ordered that it be added to the file.

In a judgment of 5 January 1988 the Indictment Division dismissed an application by the prosecution for an expert historical report.

On 8 July and 20 October 1988 respectively the applicant and Maurice Sabatier were charged with crimes against humanity. Maurice Sabatier died on 19 April 1989 and so the Indictment Division noted on 6 February 1990 that the prosecution against him had lapsed.

In February, June, October and December 1988, more associations intervened in the proceedings by means of criminal complaints lodged together with civil-party applications, which were recorded in judgments of the Indictment Division in February, March, June and November 1988 and January 1989.

Another complaint together with a civil-party application was lodged on 18 November 1988 and 3 February 1989 by the association “Sons and daughters of France’s Jewish deportees”. It was lodged not only against the applicant and Maurice Sabatier but also against Jean Leguay and René Bousquet, both former senior officials with the rank of prefect under the Vichy regime, and Norbert Techoueyres, who at the material time was the detective superintendent nominated to act on the directions of the public prosecutor. In a judgment of 20 December 1988 the Indictment Division had declared that civil-party application admissible by way of intervention as to the matters of which it had already been properly seised and, as to the remainder, had ordered that the application be forwarded to the Principal Public Prosecutor.

Pursuant to Article 681 of the Code of Criminal Procedure, the above complaint gave rise to a fresh application to the Criminal Division of the Court of Cassation, which, in a judgment of 26 April 1989, once again designated the Indictment Division of the Bordeaux Court of Appeal as the competent authority to investigate the new facts, but the complaint was subsequently declared inadmissible because a sum to cover costs had not been paid into court within the specified time-limit.

Norbert Techoueyres and Jean Leguay died on 4 April 1989 and 3 July 1989 respectively, before being charged, and so the prosecution against them lapsed.

The applicant was questioned on four occasions between 31 May and 6 October 1989. On 6 February 1990 the Indictment Division appointed a new judge to continue the investigation.

On 16 May 1990 twenty more criminal complaints together with civil‑party applications relating to deportations carried out in 1943 and 1944 not covered by the initial complaints were lodged against the applicant by Mr Boulanger on behalf of several individuals. Three of the civil‑party applications were declared admissible and added to the file on 3 July 1990. The other seventeen complaints, which related to new accusations against René Bousquet, among other matters, gave rise to seventeen judgments, delivered on 19 December 1990 by the Criminal Division of the Court of Cassation, designating the Indictment Division of the Bordeaux Court of Appeal as the investigating authority. After the complaints had been lodged again on 19 June 1991 and exemption from payment into court of a sum to cover costs had been granted, these complaints were joined to the main investigation proceedings by judgments of the Bordeaux Indictment Division of 14 April 1992.

In the meantime, on 12 December 1990 and 21 May 1991, another association had lodged an application to join the pending proceedings as an intervening civil party; that application was declared admissible in a judgment of 20 October 1991.

On 19 March 1992 the Principal Public Prosecutor made seventeen applications for a judicial investigation in respect of the applicant and René Bousquet.

On 19 April 1992 René Bousquet was charged with crimes against humanity. He was shot dead outside his home on 8 June 1993 and so the prosecution against him lapsed.

On 22 June 1992 an additional charge of crimes against humanity was brought against the applicant on account of the facts alleged in the complaints of 16 May 1990.

In a judgment of 20 October 1992 the Indictment Division declared admissible a complaint lodged by another association together with an application to join the pending proceedings as an intervening civil party. As some of the other legal persons who had already joined the proceedings had extended their complaints to cover the facts dealt with in the judgments of 14 April 1992, the Indictment Division recorded the filing of three of those complaints in a judgment of 28 June 1993, one more in a judgment of 7 June 1994 and two further ones in a judgment of 20 June 1995.

Between June 1992 and July 1995 the investigating judge took evidence from the civil parties (in the course of some thirty-three interviews) and the witnesses (in the course of around thirty-six) and made over thirty journeys to archive offices to seize evidence.

On 3 May 1994 the Indictment Division dismissed the prosecution’s application for the removal from the case file of the booklet “Civil servants under the Occupation” (Fonctionnaire sous l’Occupation), which reproduced in extenso the expert historical report set aside by the Court of Cassation on 11 February 1987, and which had been published by the applicant’s lawyer, Mr Varaut, with a view to exculpating his client in the eyes of the public. The publication in question had been distributed to members of Parliament in 1987 and produced as evidence during libel proceedings brought by the applicant against the magazine Le Nouvel Observateur.

An appeal on points of law was lodged against that judgment but an application by the prosecution for its appeal on points of law to be declared immediately admissible was dismissed by the President of the Criminal Division of the Court of Cassation on 10 June 1994.

On 28 July 1995, at the end of the investigation, the case file was sent to the Principal Public Prosecutor at the Bordeaux Court of Appeal, who filed his final application on 19 December 1995. In that application, which ran to 185 pages, the Principal Public Prosecutor submitted that the applicant had no case to answer in respect of his involvement in the organisation of the transports of September 1942, November and December 1943 and May 1944, that the prosecution against René Bousquet had lapsed, that the remaining charges should be altered to aiding and abetting abduction and false imprisonment and that the applicant should be committed for trial at the Assize Court for the transports of July, August and October 1942 and January 1944. He did not prefer a charge for the crime of aiding and abetting murder.

On 1 and 5 March 1996 five more associations applied to have their civil-party applications formally noted; that was done in the judgment of 18 September 1996 committing the applicant for trial.

The proceedings in the Indictment Division of the Bordeaux Court of Appeal against the applicant and three other persons on the charge of crimes against humanity following criminal complaints lodged together with civil‑party applications by thirty-five individuals and twenty associations ended with a judgment delivered by the Indictment Division on 18 September 1996 in which it committed the applicant for trial at the Assize Court.

It appears from that 169-page judgment that between June 1942 and August 1944 1,560 persons of Jewish origin, including a large number of children, were deported in ten trainloads to Auschwitz Camp, where most of them died, either as the result of inhuman treatment or because they were exterminated. Some of the transports were dispatched after mass arrests among the Jewish population.

The Indictment Division noted, inter alia, that the unlawful arrests and imprisonment ordered by the German authorities had allegedly been carried out with the active assistance of the applicant, who was at the time the secretary-general of the Gironde prefecture and who, by virtue of the extensive powers delegated to him by the regional prefect, had authority not only over the administrative departments of the prefecture but also over the police and gendarmerie, the governing authorities of Mérignac Camp and the departments set up as a result of the war, such as the Jewish Affairs Department. It further noted that the applicant had allegedly been fully aware of the anti-Jewish policy conducted by the Vichy government and that, as soon as he took office, he had apparently been “convinced that the arrest and imprisonment of Jews and their deportation to the East were leading them inescapably to their deaths ..., even though he might have remained unaware of the ... circumstances ... and the technical methods used ...”.

The Indictment Division concluded that the active contribution that the applicant was said to have knowingly made through his personal actions to the commission of criminal acts by units of the SIPO-SD (Sicherheitspolizei-Sicherheitsdienst), an organisation declared criminal by the Nuremberg International Military Tribunal on 1 October 1946, had formed part of a concerted plan carried out on behalf of Nazi Germany, an Axis country pursuing a policy of ideological hegemony. It held that the applicant could not rely on the instructions given on 8 January 1942 by the French authorities in London [Message by Lieutenant Colonel Tissier broadcast by the BBC on 8 January 1942, urging civil servants working in metropolitan France to stay at their posts, to do the work that they were asked to do and to sabotage it only if it was at odds with the interests of the Nation and such sabotage could be carried out without risk. It was also recommended that civil servants should act alone and not even confide in their best friends], nor on duress, the requirements of the law, the orders of his hierarchical superiors or the responsibility of his own subordinates to absolve himself of his own responsibility. It also considered that his membership of the Resistance, on which he relied, did not mean that he could not have assisted the acts perpetrated by the Nazis against the Jews.

Consequently, the Indictment Division ordered the applicant’s indictment for the offences of aiding and abetting unlawful arrest, false imprisonment, murder and attempted murder amounting to crimes against humanity in respect of four police raids and eight transports of deportees, and committed him for trial at the Gironde Assize Court.

The applicant appealed on points of law against the above judgment. He pleaded in particular that the proceedings had been null and void, complaining that they had been unfair primarily because of their excessive length, the result of which had been that documents that would have been in his favour had disappeared and witnesses for the defence had died. He also objected to the Indictment Division’s decision to commit him for trial for aiding and abetting crimes against humanity when, in his opinion, individual complicity in the case of such a crime, which was mainly attributable to an institution or an organisation, presupposed that the individual concerned subscribed to the hegemonic and racial ideology of the criminal institution. The applicant maintained that he had never belonged to the Nazi organisations condemned by the Nuremberg Tribunal and that the acts of which he stood accused had been committed in the performance of his duties as the secretary-general of the Gironde prefecture, an organ of the Vichy State, which in his view did not have a hegemonic ideology with the goal of racial extermination. He submitted that for the purposes of the Nuremberg law, which formed the basis of his prosecution, the German State and the Nazi organisations should be regarded as separate entities from the Vichy State, to which crimes against humanity could not therefore be attributed retrospectively. Consequently, he considered that neither could such crimes be attributed to persons who had performed purely administrative duties in the departments for which he was responsible. He also maintained that, contrary to what the Indictment Division had asserted, the fact that he had belonged to the Resistance was sufficient to rule out his participation in a concerted plan.

On 23 January 1997 the Criminal Division of the Court of Cassation dismissed the appeal on points of law. Noting that it was the first authority before which the complaint that the proceedings had been unfair had been raised, it declared that complaint inadmissible. It further ruled “that the appellant [had] no interest in criticising the reasons given in the judgment for dismissing the complaint of a violation of Article 6 § 1 of the European Convention on Human Rights because the validity of criminal proceedings [was] not affected by their excessive length”. The Court of Cassation also considered that there was nothing inadequate or contradictory about the reasons the Indictment Division gave for classifying the offences as aiding and abetting unlawful arrest, false imprisonment and murder or attempted murder, constituting crimes against humanity. It pointed out that indictment divisions had the ultimate authority to assess whether facts amounted to an offence, the role of the Court of Cassation being merely to “verify, supposing those facts to be established, whether their classification [justified] sending the case for trial”. It considered that that had been so in the instant case and that “consequently, the grounds of appeal [had] to be rejected, particularly in so far as they refer[red] to the last paragraph of Article 6 of the Statute of the International Military Tribunal, which [required] neither that a person aiding and abetting crimes against humanity should have subscribed to the policy of ideological hegemony of the principal perpetrators nor that he should have belonged to one of the organisations declared criminal by the Nuremberg Tribunal”.

In an application of 25 July 1997 the Principal Public Prosecutor asked for the applicant to be placed under judicial supervision.

In a judgment of 7 August 1997 the Indictment Division placed the applicant under judicial supervision, with certain obligations. On 18 November 1997 the Criminal Division of the Court of Cassation noted that the applicant had withdrawn his appeal on points of law against that judgment.

2.  The trial proceedings

On 7 October 1997 the applicant was taken into custody in Bordeaux Prison, pursuant to the arrest warrant included in the judgment of the Indictment Division committing him for trial.

The trial in the Gironde Assize Court opened on 8 October 1997. The applicant’s lawyer immediately applied for his client’s release, pleading his extreme old age (87 years) and his poor state of health following a triple heart bypass operation in 1996. The Assize Court ordered an expert medical report, which was delivered to it on 9 October 1997 and from which it appeared that the applicant’s state permitted imprisonment but only in a specialist cardiology unit. That very evening, the applicant had to be admitted to hospital for the night.

In a judgment of 10 October 1997, in the light of the expert report, the Assize Court ordered the applicant’s release. That decision triggered off protests from the civil parties, some of whom threatened to withdraw from the proceedings, and their protests were given extensive press coverage. The prosecution appealed on points of law against the judgment ordering the applicant’s release.

The trial, which was initially expected to last two and a half months, lasted nearly six months (from 8 October 1997 to 2 April 1998). The proceedings were interrupted on a number of occasions, mostly because of the applicant’s state of health. During the trial, which had a case file containing over 3,000 folders, 6,300 documents were produced in evidence. There were hearings on 94 days, during which 85 witnesses were heard, 12 hours were given over to the public prosecutor’s address, 40 hours to the civil parties’ submissions and 20 hours to the defence submissions. The deliberations lasted 19 hours.

At the hearing on 9 October 1997, that is on the day following the opening of the trial, the applicant’s lawyer filed written submissions in which he argued that the trial should be declared incompatible with the requirements of a fair hearing, particularly as the excessive length of the proceedings had made it impossible to hear certain witnesses; sought to have the proceedings declared null and void and sought a ruling that the prosecution was barred. When arguing against the application for the proceedings to be declared null and void; the public prosecutor referred in particular to the work carried out by the most recent investigating judges, who had made 164 journeys to consult archives, seized and analysed 6,354 documents, taken evidence from 95 witnesses and held 85 interviews with civil parties.

In an interlocutory judgment of 15 October 1997 the Assize Court dismissed the application for the proceedings against the applicant to be halted on the following grounds:

“While it is true that many of the defence witnesses have now died or are incapable of travelling, it must be recognised that the same applies to the prosecution witnesses and that from this viewpoint and in general the parties are on an equal footing.

The exceptional length of the proceedings which brought Maurice Papon before the Gironde Assize Court is not excessive when it is considered that the complexity of the case, linked for the most part to the long time that has elapsed since the commission of the offences of which the defendant is accused, the number of those offences, the broad time-span over which they were reported, the age of the witnesses and the fact that they were so scattered, required the investigating judges to carry out a very large number of investigations, which they were often forced to conduct themselves because of the very nature of the facts. Added to these problems were others stemming from the widely dispersed documentary sources and the obstacles sometimes encountered in gaining access to them.

Contrary to what has been alleged, the trial at the Gironde Assize Court is not that of a State or an administrative authority but that of a man entitled to rely on the presumption of innocence – a principle with constitutional status which cannot be impaired in the judges’ minds by the media excesses denounced by the defence – a man accused of having personally committed acts which, in the words of the indictment, constituted the serious crime of ‘aiding and abetting crimes against humanity’.

Lastly, in reply to the argument put forward by Maurice Papon’s defence counsel that the judgment delivered on 23 January 1997 by the Criminal Division of the Court of Cassation was ‘in complete contradiction not only with Article 6 of the Nuremberg Statute ... but also with Article 123-1 of the Criminal Code’, it should be pointed out that it is not for an assize court to assess whether a decision of the Court of Cassation is in conformity with the applicable rules of law.”

From 23 to 31 October 1997 the proceedings were adjourned because the applicant was hospitalised for infectious bronchitis.

In another interlocutory judgment of 3 November 1997 (not produced) the Assize Court dismissed the applicant’s application for it be formally noted in the record that an American historian, who was an expert on the Vichy regime, had in his witness statement of 31 October expounded political and historical ideas not directly connected with the facts of which the applicant was accused. The applicant considered that there had been a violation of the principle that hearings in the Assize Court must be oral, as the person concerned was not a “witness”, not having witnessed any of the offences of which he stood accused.

On 14 November 1997 the applicant’s lawyer applied to have the correspondence between the occupying German authorities and the prefecture between 1942 and 1944 admitted in evidence.

From 17 November to 4 December 1997 the trial had to be adjourned once again on account of the applicant’s poor state of health, which had been confirmed by a medical report.

When the proceedings resumed on 5 December 1997 the applicant’s lawyer filed written submissions in which he applied for further inquiries into the facts to be made with a view to producing in court the whole of the police intendant’s archives held by the Gironde archive office instead of the results of incomplete and selective seizures which did not make it possible to assess exactly what powers had been exercised by the various persons involved in running the prefecture between 1942 and 1944. In a judgment of 11 December 1997 the Assize Court decided to defer its examination of that application.

From 23 December 1997 to 5 January 1998 the trial was adjourned.

On 7 January 1998 the President of the Assize Court authorised the projection of two video recordings of witness evidence given during the trial of Klaus Barbie in Lyons in 1987, that of the writer André Frossard on the conditions of detention in Montluc Prison in Lyons and that of Yves Jouffa, former President of the Ligue des droits de l’Homme (Human Rights League), on the conditions in Drancy Camp, near Paris.

At the hearing on 26 January 1998, which focused on the transport of 25 November 1943, the applicant was questioned by the public prosecutor, with the President’s authorisation and on the basis of the documents in the file, about events preceding that transport, in particular those connected with the organisation of the transport of 2 February 1943 mentioned in the judgment whereby the applicant was committed for trial but not in the indictment. The applicant’s lawyer immediately filed written submissions seeking to have a formal note added to the record in this connection.

On 28 January 1998 Mr Arno Klarsfeld, one of the civil parties’ lawyers, published a press release revealing a distant family tie between the President of the Gironde Assize Court and some of the persons whom the applicant was accused of deporting. He criticised the President for failing to report the fact that the mother and two sisters of his aunt by marriage had been on the December 1943 transport.

No application for the judge to withdraw was filed, however, either by the civil parties or by the defence, because the Code of Criminal Procedure only provides for that possibility if the judge is a blood relative or a relative by marriage of one of the parties up to the degree of second cousin inclusive, which was not so in the instant case. The President of the Assize Court announced that he could not even remember the name of his uncle’s wife, and that his uncle had died when he was a child. He did not consider it necessary to withdraw from the proceedings of his own motion.

On 2 February 1998 the Assize Court took formal note at the applicant’s request that the public prosecutor had questioned him on 26 January 1998, with the authorisation of the President of the Court, about events preceding the transport of 25 November 1943 in respect of which the applicant had been indicted in the Indictment Division’s judgment and, in particular, about the organisation of the transport of 2 February 1943, which had not been mentioned in the indictment.

In another interlocutory judgment delivered the same day (not produced), it refused on the other hand to allow an application by some of the civil parties for a formal note to be made in the record that those questions were directly connected with the facts relating to the applicant’s powers mentioned in the indictment. It noted that it was not its task, “if it wished to avoid prejudging the merits of the case and infringing thereby the provisions of Article 316 of the Code of Criminal Procedure, to rule on any direct relationship that might exist between these facts and those referred to in the indictment with regard to Maurice Papon’s powers”.

In an interlocutory judgment of 5 March 1998 (not produced) the Assize Court dismissed the applicant’s application of 5 December 1997 for further inquiries into the facts to be made with a view to producing the whole of the police intendant’s archives in court, on the ground that, in view of the evidence taken at the hearing, the requested measure did not appear necessary for establishing the truth.

On the same day the applicant’s lawyer applied to have added to the file a copy of the criminal complaint that he had just lodged against Mr Serge Klarsfeld, the chairman of one of the civil-party associations, on the basis of Article 434-16 of the Criminal Code, which prohibited the publication before any final judicial decision had been delivered of comments intended to exert pressure with a view to swaying a trial court’s decision. He criticised Mr Klarsfeld for the content of a number of interviews he had given concerning the revelation of the family tie between some of the victims and the President of the Assize Court, to whom Mr Klarsfeld had imputed bias in the defendant’s favour, and objected to the fact that only disciplinary proceedings had been brought by the public prosecutor’s office against Mr Klarsfeld’s son, who had made the revelation in January 1998.

The proceedings were adjourned from 25 to 30 March 1998, following the death of the applicant’s wife.

In a further interlocutory judgment of 1 April 1998 (not produced) the Assize Court dismissed an application by the applicant for a question to be put as to whether he knew of a concerted Nazi plan to exterminate the Jews and whether he was prepared to participate in such a plan, on the ground that such a question was included among those intended to establish whether he was guilty of aiding and abetting crimes against humanity.

It also refused to allow a subsidiary question to be put as to whether the applicant’s resignation, which would have curtailed his Resistance activities, would have changed the system for the extermination of Jews in Bordeaux, on the ground that as it was not possible to assert a legal interest there was no reason to raise the question of his resignation.

On 2 April 1998, in a 123-page judgment delivered after deliberations lasting 19 hours, the Assize Court, replying to 768 questions, found the applicant guilty of aiding and abetting the unlawful arrest and false imprisonment of Jews deported in the transports of July, August, and October 1942 and January 1944, offences that constituted crimes against humanity. He was acquitted of the charges of aiding and abetting murder and attempted murder.

The applicant was sentenced to ten years’ imprisonment and stripped of his civil, civic and family rights for ten years. In a judgment of 3 April 1998 (not produced) the Assize Court ruled on the civil claims.

3.  The proceedings in the Court of Cassation

On 3 April 1998 the applicant appealed on points of law against his conviction and on 14 December 1998 he filed further pleadings containing ten grounds of appeal, six of which referred expressly to Article 6 of the Convention:

In his first ground, relying in particular on Article 6 §§ 1 and 3 (d) of the Convention, the applicant asserted that in its interlocutory judgment of 15 October 1997 the Assize Court had infringed the principle that proceedings must be oral by refusing to stay the proceedings and thus prejudging, in the judgment by which it dismissed the application, what was going to emerge from the proceedings. He complained that it was impossible to try a man fairly fifty-six years after the facts, that the fact that the prosecution of crimes against humanity could not be time-barred was incompatible with the holding of a fair trial and that the element of intent had been removed from aiding and abetting by eliminating the need for an accessory to show the special intent required of a principal.

In his fourth ground, relying in particular on Article 6 § 3 (a) and (b) of the Convention, he complained of the unfair nature of the proceedings and the breaches of his right to due process apparent from the judgment of 2 February 1998 allowing his application for a formal note to be made in the record of his complaint that he had been questioned by the public prosecutor at the hearing of 26 January 1998 about facts for which he had not been indicted (namely the organisation of the transport of February 1943) and about documents which had not been communicated to him.

In his fifth ground, relying in particular on Article 6 of the Convention, he complained that by refusing in its interlocutory judgment of 5 March 1998 to order that the whole of the police intendant’s archives be produced in court, the Assize Court had infringed the principle of equality of arms.

In his sixth ground, based on Article 6 § 1 of the Convention, he complained about the pressure and intimidating tactics applied to the court and the jury by the lawyer of one of the civil parties, particularly by informing the press of the distant family tie between the President of the Assize Court and some of the victims.

In his ninth ground he complained of the inconsistency and inadequacy of the reasons given for his conviction, resulting, in his view, from the Assize Court’s refusal in its interlocutory judgment of 1 April 1998 to put a subsidiary question on whether he knew about a concerted plan aimed, inter alia, at persecuting and exterminating the Jews.

Furthermore, in his third ground the applicant maintained that the projection of the video recording of the witness evidence given by André Frossard and Yves Jouffa during the trial of Klaus Barbie in Lyons had been contrary to Articles 310 and 379 of the Code of Criminal Procedure because the projection of such material was subject to the approval of the President of the tribunal de grande instance, and contrary to the Law of 11 July 1985 on the establishment of audiovisual judicial archives.

In a telegram of 8 September 1999 the Principal Public Prosecutor at the Court of Cassation requested that the applicant be notified of his obligation to surrender to custody prior to the hearing in the Court of Cassation scheduled for 21 October 1999. Notice thereof was served on the applicant on 16 September 1999.

On 17 September 1999 the applicant lodged with the Indictment Division of the Bordeaux Court of Appeal an application for exemption from the obligation to surrender to custody, which he withdrew on 27 September 1999 to lodge a new application with the Assize Court. On 4 October 1999 the Assize Court ruled that it did not have jurisdiction. The applicant appealed on points of law. On the same day the applicant again applied to the Indictment Division for exemption from the obligation to surrender to custody. He relied on Article 6 of the Convention, his age (89 years) and his state of health.

In a judgment of 12 October 1999 the Indictment Division first replied in the following terms to an application by the applicant for a declaration that Article 583 of the Code of Criminal Procedure should be deemed null and void, by virtue of Article 6 § 1 of the Convention:

“Although the provisions of [the Convention] have been incorporated into the French legal system in accordance with Article 55 of the Constitution and although the courts have jurisdiction to determine, in an individual case, whether a statutory provision is in conformity with the requirements of the Convention, it is still necessary for that provision to serve as the basis on which the case is submitted to them.

In the instant case Article 583 of the Code of Criminal Procedure gives the Indictment Division jurisdiction only to deal with a specific matter of judicial administration, namely applications for exemption from the obligation to surrender to custody.

The task of enforcing the obligation to surrender to custody lies exclusively with the Court of Cassation, as it alone can decide what consequences shall flow from a failure to surrender to custody. It is therefore the Court of Cassation’s task to rule on applications for Article 583 not to be applied to cases submitted to it and, where it has allowed such an application, to decide not to declare that the applicant has forfeited his right of appeal.”

The Indictment Division also dismissed the application for exemption from the obligation to surrender to custody, taking the view that, having regard to the length of the sentence imposed, the security provided by the applicant seemed inadequate; that the medical certificate he had produced did not indicate a significant deterioration in his state of health since the expert opinion of October 1997; and that his state of health did not appear to preclude detention in a hospital unit, the organisation of which was a matter for the prison authorities.

The applicant failed to surrender to custody and left France to take refuge in Switzerland. However, the Swiss authorities ordered him to leave Switzerland, on a date not indicated in the case file.

In a judgment of 21 October 1999, following a public hearing during which the applicant’s lawyers submitted their observations on his grounds of appeal, the Criminal Division of the Court of Cassation held that the applicant had forfeited his right to appeal against the Assize Court’s judgment of 2 April 1998, pursuant to Article 583 of the Code of Criminal Procedure, on the ground that “the appellant, who [had been] sentenced to a term of imprisonment of more than one year, [had] not surrendered to custody and [had] not been exempted from that obligation”.

In two judgments of 20 December 2000 the Court of Cassation dismissed the appeals lodged by the applicant against the judgments delivered by the Assize Court and the Indictment Division on 4 and 12 October 1999 on his applications to be exempted from the obligation to surrender to custody, on the ground that they were devoid of purpose since in the meantime the applicant had forfeited his right to appeal on points of law against his conviction by the Assize Court.

B.  Relevant domestic law and practice

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2.  Domestic remedies in cases relating to the length of proceedings

Article L. 781-1 of the Code of Judicial Organisation

“The State shall be under an obligation to compensate for the damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice.”

In a judgment of 5 November 1997 the Paris tribunal de grande instance awarded an employee in a pending employment dispute (Gauthier c. Agent judiciaire du Trésor) 50,000 French francs (FRF) for non-pecuniary damage; the employee had been notified by the registry of the Aix‑en-Provence Court of Appeal that his appeal could not be examined until forty months after it had been lodged with the court. The following grounds were given:

“By denial of justice is meant not only a refusal to determine an application or a failure to try a case which is ready for trial, but also, more broadly, any breach by the State of its duty to provide judicial protection to the individual, which includes the right of any litigant to have his or her claims decided within a reasonable time; moreover, the provisions of Article 6 of the ECHR require national courts to determine cases within a reasonable time. ...”

That judgment, against which the State representative appealed, was upheld for the most part in a judgment of the Paris Court of Appeal of 20 January 1999, but the sum awarded was reduced to FRF 20,000. As there was no appeal on points of law against that judgment, it became final on 20 March 1999.

The domestic courts have broadly followed this leading decision. The Paris tribunal de grande instance confirmed this case-law on 9 June and 22 September 1999, the Aix-en-Provence and Lyons Courts of Appeal gave similar judgments on 14 June and 27 October 1999 and a number of other courts have done likewise in recent decisions. The Paris Court of Appeal itself reiterated its position in a judgment of 10 November 1999.

More recent first-instance decisions have not been appealed against by the State’s representative (Paris tribunal de grande instance, 14 June 1999, Krempff, and 22 September 1999, Le Grix de la Salle).

COMPLAINTS

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3.  Relying on Article 6 § 1 of the Convention, [the applicant] complained that he had not had a hearing within a reasonable time as defined in the Court’s case-law. In his opinion the proceedings had lasted nearly eighteen years. He considered their starting-point to be 8 December 1981, the date on which the first complaints together with civil-party applications had been filed, and the end to be 21 October 1999, the date of the Court of Cassation’s judgment in which it was held that he had forfeited his right of appeal. In his observations in reply, he submitted that the proceedings had ended on 20 December 2000, the date of the Court of Cassation’s two judgments on his application for exemption from the obligation to surrender to custody.

4.  Relying on Article 6 § 1 and the principle of equality of arms, he complained about the judgment of 5 January 1988 in which the Indictment Division had refused to allow the prosecuting authorities’ application for a further expert historical report to be prepared, the previous one having been set aside by the Indictment Division on 11 February 1987. He claimed that this had deprived him of the opportunity to counterbalance the civil parties’ allegations by shedding a different light on the historical and political circumstances of the time.

5.  Reiterating the complaint that he had raised in substance in support of his appeal on points of law against the Indictment Division’s judgment of 18 September 1996 (dismissed by the Criminal Division of the Court of Cassation on 23 January 1997), he complained of a breach of Article 7 § 1 of the Convention. He considered that in its judgment of 23 January 1997 the Criminal Division of the Court of Cassation had made an unforeseeable reversal of its case-law in breach of the principle that the criminal law must not be applied retroactively. He asserted that, through its broad interpretation of Article 6 of the Nuremberg Statute, it had eliminated one of the elements that constituted a crime against humanity as it had been defined formerly, namely the intent on the part of an accessory to such an offence to serve as an instrument of the Nazis’ totalitarian policy.

6.  Relying on Article 6 § 3 (d) of the Convention, he complained that the unreasonable length of the proceedings had prevented him from having defence witnesses heard, as they had died or were incapable of giving evidence fifty-six years after the facts.

7.  He also considered that the principle of equality of arms laid down in Article 6 § 1 had been infringed throughout the proceedings, particularly because the civil parties had persuaded the court to show video recordings of witness evidence given during the trial of Klaus Barbie in 1987, in respect of which it had been impossible for him to carry out any cross-examinations.

8.   Relying on Article 6 § 3 (a) and (b) of the Convention, he complained that at the hearing on 26 January 1998 the President had allowed the public prosecutor to question him about the organisation of the transport of 2 February 1943 – which had not been mentioned in the indictment – citing documents that had not been communicated to him beforehand. He considered therefore that it had been impossible for him to prepare his defence.

9.  Relying on Article 6 § 2 of the Convention, he submitted that the principle of the presumption of innocence had been infringed, since the media had repeated the accusations of the civil parties and their lawyers as to his guilt, and just before the opening of the trial the civil parties or their lawyers had published works presenting him as guilty in advance and, moreover, reproducing selective and truncated extracts from documents in the case file. According to the applicant, those publications had been likely to cause public prejudice against him even before the jury was appointed. He also complained that the civil parties had staged an exhibition and debates on the “Days of the police raids” next to the Bordeaux law courts and had held hostile protests in front of the law courts throughout the trial. He submitted that the prejudice against him had been the consequence of a media campaign against him for over fifteen years, the duration of which had been the State’s responsibility.

10.  He further maintained that media influence had been exerted with a view to affecting the independence and impartiality of the court, in breach of Article 6 § 1. He asserted for instance that, following the publication by one of the civil parties’ lawyers of a communiqué revealing a family tie between the President of the Assize Court and some of the people whom the accused had been charged with deporting, the civil parties had repeatedly raised doubts about the President’s impartiality in the media, forcing him to be more severe with the applicant in this conduct of the proceedings.

11.  He considered that the Assize Court’s replies to the 768 questions posed were contradictory. He pointed out that in an interlocutory judgment of 1 April 1998 the Assize Court had considered that the questions whether he knew about a concerted plan to exterminate the Jews and whether he had intended to take part therein had been covered by the questions relating to his aiding and abetting crimes against humanity. He submitted that by finding that he was guilty of aiding and abetting arrest and imprisonment but not guilty of aiding and abetting murder, and then finding him guilty of aiding and abetting crimes against humanity, the Assize Court had delivered a contradictory judgment. In his view the Assize Court could not simultaneously assert that he had wanted the victims to be arrested and imprisoned as part of a concerted plan to persecute and exterminate Jews which he had known about but that he had not wanted them to die as part of that plan. He also complained that the reasoning in the judgment was inadequate in terms of the requirements of Article 6 § 1.

THE LAW

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3.  Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been tried within a reasonable time.

The Government’s main submission was that the applicant had failed to exhaust domestic remedies, because he had not made use of the remedy provided by Article L. 781-1 of the Code of Judicial Organisation. They asserted that the case-law on that Article had been given renewed impetus by the Paris Court of Appeal’s judgment of 20 January 1999 in Gauthier, and that this development had continued with other decisions delivered by various national courts such as the Paris tribunal de grande instance and the Lyons, Aix-en-Provence and Paris Courts of Appeal. The Government argued on that basis that Article L. 781-1 did indeed provide a remedy capable of affording redress for complaints that judicial proceedings had been excessively lengthy.

According to the Government, the Court had taken account of that development and, although it had not yet declared a complaint inadmissible on that ground, that was because none of the applications that it had had to deal with had been lodged after the recent change in the case-law, as was apparent from the Court’s decision in Van der Kar and Lissaur van West v. France ((dec.), nos. 44952/98 and 44953/98, 7 November 2000, unreported). In the instant case the application had been lodged on 14 January 2000, after the domestic case-law had confirmed the effectiveness of remedies based on the above-mentioned Article L. 781-1, and the Government therefore submitted that the complaint was inadmissible for failure to exhaust domestic remedies.

In the alternative, the Government submitted that the complaint was unfounded. Its first argument was that as, legally speaking, the applicant was no longer charged with an offence after all the steps in the prosecution and investigation had been declared null and void by the Court of Cassation on 11 February 1987, the new charge, brought against the applicant on 8 July 1988, marked the beginning of the proceedings. The proceedings had therefore lasted eleven years, eight months and two days. Referring to the Court’s case-law, the Government pointed out that the case was highly complex in terms both of the law and of the facts, and that the applicant had contributed to the prolongation of the proceedings by making systematic use of the remedies available to him and applying for further investigations while, for their part, the national authorities had been very active and prompt, bearing in mind the exceptional nature of the case.

In reply to the Government’s objection, the applicant argued that it was impossible to go along with their reasoning, as the reason why he had not used the remedy provided by Article L. 781-1 of the Code of Judicial Organisation was that he had relied on the Court’s established case-law on that issue and that the unforeseeable change in the Court’s case-law had occurred in August 2000 (Charles v. France (dec.), no. 41145/98, 29 August 2000, unreported) and November 2000 (Van der Kar and Lissaur van West, cited above), ten months after he had lodged his application on 14 January 2000. He could not therefore be blamed for being unaware of case-law that had not yet been established and which, moreover, represented a complete reversal of the Court’s position over the previous ten years. The applicant added that while it was commendable that such an internal procedure existed, a penalty of that type could not be considered equivalent to the finding of a violation by the Court, because of the Court’s detachment from the domestic judicial system, which eliminated any risk of bias. Furthermore, it would amount to an even more intolerable prolongation of the proceedings if he had to wait for a domestic decision before bringing a case before the Court.

On the merits, the applicant disputed the starting date put forward by the Government. In his opinion the proceedings had begun on 8 December 1981, the date of the first criminal complaint against him, which had immediately had major repercussions on his situation and set the prosecution in motion. Furthermore, the Court of Cassation’s decision to declare all the proceedings since 5 January 1983 null and void had been the responsibility of the authorities alone and had had the effect of prolonging the overall length of the proceedings by at least four years. In the alternative, the applicant considered that the Court should take as the starting-point 19 March 1983, the date on which he had been charged.

The applicant considered that at all events, irrespective of the starting date, the proceedings had been excessively lengthy. He asserted that the complexity of the case had been due solely to the slowness of the national authorities, because crucial witnesses had died one after another. If the investigation had been conducted within a reasonable time, it would have been easier to collect the information required for an understanding of the case from the main people involved and the case would have been far less complex. Furthermore, the applicant argued that he could not be criticised for having defended his rights by making use of remedies or applying for further investigations. Lastly, he insisted on his extreme old age, which he felt should be taken into account.

For the purposes of Article 35 § 1 of the Convention, all applicants must provide the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States by that provision, namely the opportunity of preventing or putting right the violations alleged against them (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36, and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). Nevertheless, the only remedies which the provisions of Article 35 of the Convention require to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 87-88, § 38).

The Court points out that in its decision in Giummarra and Others v. France ((dec.), no. 61166/00, 12 June 2001, unreported), ruling on an application lodged in August 2000, it found that in view of recent developments in domestic case-law the remedy based on Article L. 781-1 of the Code of Judicial Organisation had acquired a sufficient degree of legal certainty by 20 September 1999 to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention. It therefore declared the application inadmissible on the ground that on the date when they lodged their application the applicants could not have been unaware of the possibility of obtaining compensation for the excessive length of the proceedings by those means.

The Court would emphasise that in a number of decisions it delivered in 1999 before Charles and Van der Kar and Lissaur van West cited by the parties (see, inter alia, Cloez v. France (dec.), no. 41861/98, 27 April 1999, unreported; Castell v. France (dec.), no. 38783/97, 27 April 1999, unreported; Delgado v. France (dec.), no. 38437/97, 29 June 1999, unreported; and Perié v. France (dec.), no. 38701/97, 24 August 1999, unreported), it referred to the developments in the domestic case-law on the above-mentioned Article L. 781-1, taking the view that that remedy could, where the proceedings had ended, be taken into account for the purposes of Article 35 § 1. The main reason why it did not allow the Government’s objection in the cases in question was that it did not consider that the above-mentioned remedy had acquired a sufficient degree of legal certainty, bearing in mind that the State had appealed in Gauthier and there was the subsequent possibility of an appeal on points of law.

That being so, the Court cannot see any reason to depart from the approach it adopted in Giummarra and Others (cited above). It finds that on the date on which the application was lodged, namely 14 January 2000, the applicant could not have been unaware of the possibility of seeking relief under Article L. 781-1 of the Code of Judicial Organisation.

The Government’s objection must consequently be allowed.

It follows that this part of the application is inadmissible under the terms of Article 35 §§ 1 and 4 of the Convention.

4.  Relying on Article 6 § 1 of the Convention, the applicant complained that in a judgment of 5 January 1988 the Indictment Division had dismissed the prosecution’s application for an expert historical report.

The Court notes that on the date on which that judgment was delivered – 5 January 1988 – the applicant was no longer a party to the proceedings, because he was not charged again until 8 July 1988, and that was the date from which he could have applied for a further expert report to be ordered. Even if the applicant were to be considered a victim within the meaning of Article 34 of the Convention, the Court notes that the final domestic decision on this point was the Indictment Division’s judgment of 5 January 1988, over six months before the application was lodged. In addition, the Court considers that the applicant failed to prove that the fact that no expert report was prepared had the slightest influence on the fairness of the proceedings.

It follows that this complaint must at all events be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

5.  Relying on Article 7 of the Convention, the applicant complained that he had been convicted on account of an act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Article 7 of the Convention provides:

“1.  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.

2.  This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court points out that paragraph 2 of the above-mentioned Article 7 expressly provides that that Article must not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. This is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Statute of the Nuremberg International Tribunal annexed to the Inter-Allied Agreement of 8 August 1945 and a French law of 26 December 1964, referring expressly to that agreement when providing that the prosecution of crimes against humanity cannot be time-barred (see Touvier v. France, no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports (DR) 88-B, pp. 148, 161).

Furthermore, the Court points out that the application and interpretation of domestic law falls in principle within the jurisdiction of the national courts. It is not therefore for it to examine whether the Court of Cassation was right or wrong to consider, in the judgment of 23 January 1997 in which it rejected the applicant’s appeal on points of law against the Indictment Division’s judgment of 18 September 1996 committing him for trial, that for the offence of aiding and abetting crimes against humanity to be made out it was not necessary for the accessory, like the principal, to have subscribed to the Axis countries’ policy of ideological hegemony.

It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

6.  Regarding the conduct of the proceedings in the Assize Court, the applicant raised a number of other complaints based on breaches of Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention, which provide as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

Firstly, the Court notes that because the applicant had forfeited his right to appeal on points of law against his conviction, having failed to surrender to custody, the Court of Cassation did not examine the grounds of appeal that he had intended to submit to it. However, having regard to the conclusion it reached in section 1 above, the Court considers that the applicant cannot be accused of having failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention in respect of the grounds raised in his appeal on points of law.

(a)  The applicant complained that such a long time had passed since the acts he was accused of and the investigation proceedings had lasted so long that it had been impossible to have defence witnesses examined under the same conditions as the witnesses for the prosecution; more generally, he complained of the infringement of the principle of equality of arms resulting from that situation.

The Court notes, as the Assize Court also noted in its interlocutory judgment of 15 October 1997, that death, age or illness had prevented the hearing of witnesses both for the prosecution and for the defence and that it does not appear from the daily transcript of the trial reproduced in works published afterwards and produced by the applicant (inter alia, Jean-Michel Dumay’s column in the newspaper Le Monde and Eric Conan’s contemporary account in L’Express) that the applicant was not able to have major witnesses for the defence examined under the same conditions as witnesses for the prosecution.

In the instant case the Court observes that the prosecution evidence was adduced and discussed in adversarial proceedings in the trial and appeal courts and that the applicant, in person or through his lawyers, had been able to put forward all the arguments he considered it necessary to raise to defend his interests and present the evidence in his favour. In particular, he did have the opportunity to give his own version of the facts.

Consequently, the Court cannot discern any appearance of a violation of Article 6 § 1 of the Convention under this head. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(b)  Regarding the fact that the President of the Assize Court authorised the projection at the hearing of 7 January 1998 of two video recordings of witness evidence given during the trial of Klaus Barbie in 1987, the Court finds that the applicant has not exhausted domestic remedies on this point because, in his appeal on points of law against his conviction, he did not complain, either expressly or in substance, of a violation of Article 6 of the Convention and relied only on Articles 310 and 379 of the Code of Criminal Procedure and section 8 of the Law of 11 July 1985 on the establishment of audiovisual judicial archives.

It follows that this complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

(c)  Regarding the fact that at the hearing of 26 January 1998 the President gave the public prosecutor permission to put questions to the accused about the organisation of the transport of February 1943 not mentioned in the indictment, referring to documents which had not been communicated to the applicant beforehand, the Court notes first of all that, at the defence’s request, in a judgment of 2 February 1998 making a formal note in that connection, the Assize Court recorded that the applicant had been questioned on facts which were not the subject of the proceedings before it.

In so doing, the Assize Court had drawn the jurors’ attention to an event likely to infringe the rights of the defence (see, a contrario, Remli v. France, judgment of 23 April 1996, Reports 1996-II, pp. 567-68, § 21, and p. 574, § 47), thus enabling the applicant to complain about it in his appeal on points of law.

The Court would also point out that the Convention does not lay down rules on evidence as such. The Court therefore cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted. It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced. The Court has nevertheless to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair as required by Article 6 § 1 (see Mantovanelli v. France, 18 March 1997, Reports 1997-II, pp. 436-37, § 34, and, mutatis mutandis, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 46).

In the instant case the Court considers that the applicant’s explanations do not show in what way this incident was likely to deprive him of a fair trial in which the rights of the defence were respected, especially as the Assize Court did not convict him of any illegal act connected with the transport of February 1943.

It follows that this complaint must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(d)  Relying on Article 6 § 2 of the Convention, the applicant complained of the hostile media campaign to which he had been subjected and the attitude of the civil parties before and during the trial.

With regard to the applicant’s criticism of the civil parties’ behaviour, the Court considers that the complaint of infringement of the presumption of innocence must be rejected, firstly on grounds of incompatibility ratione personae with the provisions of the Convention, because the State authorities cannot in principle be held responsible for the actions of private persons, and secondly for failure to exhaust domestic remedies, because the applicant did not bring proceedings in the courts under Article 434-16 of the Criminal Code.

It follows that this part of the complaint is inadmissible under the terms of Article 35 § 4 of the Convention.

Regarding the media campaign, both in the press and on radio and television, and assuming that the applicant exhausted domestic remedies in that respect, the Court points out that there is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the only forum for the determination of a person’s guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large (see, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 40, § 65).

Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (ibid.). This is all the more so where a public figure is involved, such as, in the present case, a former member of the government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large (see, among other authorities, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42). Accordingly, the limits of acceptable comment are wider as regards a politician as such than as regards a private individual (ibid.).

However, public figures are entitled to the enjoyment of the guarantees of a fair trial set out in Article 6 § 1 of the Convention, which include the right to an impartial tribunal, on the same basis as every other person. This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice (see Worm v. Austria, judgment of 29 August 1997, Reports 1997-V, p. 1552, § 50, and, more recently, Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000, unreported).

The Court notes that the applicant’s trial had its roots in events (the appraisal of the French authorities’ conduct under the Vichy regime) which had long been a matter of intense controversy, and that it could not be expected that the trial itself would be conducted in a dispassionate atmosphere. In the Court’s opinion, however, the applicant has not shown that a media campaign was waged against him of such virulence as to sway or be likely to sway the jurors’ opinion and the outcome of the Assize Court’s deliberations.

On the contrary, the very length of those deliberations, which took nineteen hours, and the verdict reached by the Assize Court would suggest that the jurors voted in accordance with their convictions and consciences and the requirement of being satisfied beyond reasonable doubt which they had sworn to discharge. The Court also considers that it must take account of the fact that the applicant was acquitted of the most serious charge against him, namely aiding and abetting murder (see Pullicino, cited above).

Furthermore, the Court observes that the applicant also gave television interviews himself, for example in December 1996 after the judgment committing him for trial at the Assize Court [An interview conducted by Paul Amar on TF1], and that as early as 1993 his lawyer published the expert historical report set aside by the Court of Cassation in 1987.

Having regard to the above considerations, it follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(e)  As to the complaint that the civil parties attempted to question the independence and impartiality of the President of the Assize Court by revealing on 28 January 1998 a distant family tie between the latter and some of the victims of the deportations of which the applicant was accused, the Court points out that where impartiality is concerned, a distinction has to be made between a subjective approach, attempting to ascertain a judge’s personal conviction, and an objective approach, determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.

Subjective impartiality is to be presumed until there is proof to the contrary. On the other hand, even appearances may be of a certain importance where objective impartiality is concerned. In this case the defendant’s standpoint is important but not decisive. What is determinant is whether the defendant’s fears can be held to be objectively justified (see Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73; and Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45).

In the instant case, the applicant seems to assume that the President of the Assize Court showed bias in his favour right from the beginning of the trial, particularly when he decided to release him for health reasons on 10 October 1997. It was only after a civil party had revealed a family tie between the President and some of the victims, which could not in any case have given rise to an application by the civil parties for the President to withdraw, that the President had felt as it were compelled to be stricter towards the applicant in his conduct of the proceedings. The applicant inferred from the above that the President might as a result have felt obliged to emphasise the argument in favour of a conviction during the deliberations, as an acquittal would have exposed him to criticism.

The Court considers that nothing in the case file supports the applicant’s suspicions in that connection, either as regards the conduct of the proceedings by the President after that incident or as regards the verdict.

It reiterates that neither the behaviour of the civil parties nor the tactics or strategy they used to try to sway the impending decision could have engaged the responsibility of the State unless it was established that the latter had not taken the requisite measures to remedy a situation that was likely to undermine the authority and impartiality of the courts. The Court notes that in the instant case the public prosecutor brought disciplinary proceedings against the lawyer who had made the revelation. The fact that he did not consider it necessary to press charges under Article 434-16 of the Criminal Code does not appear to the Court to be a decisive factor since the applicant could have set the prosecution in motion himself, and indeed subsequently did so by lodging a complaint together with a civil-party application on 5 March 1998.

The Court cannot discern in the particular circumstances of the case any evidence that the President of the Assize Court showed any bias or that his conduct swayed the verdict in a direction that was unfavourable to the applicant.

This complaint must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(f)  Lastly, the applicant complained that, as a result of the way in which the Assize Court had replied to the 768 questions that had been put to it concerning his guilt, the reasons that it had given for his conviction had been contradictory and inadequate, in breach of Article 6 § 1 of the Convention.

The Court notes firstly that this complaint essentially reiterates, albeit in another form, that already made under Article 7 of the Convention in that it amounts to criticism of the Assize Court for failing to take account of the element of intent in its definition of the offence of aiding and abetting crimes against humanity.

At all events, the Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, judgments of 9 December 1994, Series A no. 303-A, p. 12, § 29, and no. 303-B, pp. 29-30, § 27, and Higgins and Others v. France, judgment of 19 February 1998, Reports 1998-I, p. 60, § 42). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 20, § 61). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, mutatis mutandis, Helle v. Finland, judgment of 19 December 1997, Reports 1997-VIII, p. 2930, §§ 59-60, and, more recently, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I).

The requirement that reasons must be given must also accommodate any unusual procedural features, particularly in assize courts, where the jurors are not required to give reasons for their personal convictions.

The Court observes that in French law the president of the assize court, at the close of the oral proceedings, must draw up and put to the jury the questions concerning the facts of the case which the jury must answer in order to determine whether or not the accused is guilty as charged. The president is also empowered to put questions to the jury on all the circumstances which might have a bearing on the facts which served as the basis for the indictment, provided that these circumstances were discussed during the oral proceedings. The principal question concerns the constituent elements of the offence, while there must be a separate question in respect of each count. Separate questions regarding other facts, such as aggravating circumstances or the existence of any justification or mitigating factor, may also be put.

The Court further observes that the prosecution and the accused can challenge the questions put and have the opportunity to ask the president to put one or more additional questions to the jury. In the event of a dispute regarding these questions, the assize court must decide by a reasoned judgment. This is what it did in the instant case when on 1 April 1998 it dismissed the applicant’s application for an additional question on whether he knew of a concerted plan to persecute and exterminate the Jews.

The Court points out that the Convention institutions have already had to decide whether systems similar to the French one are compatible with the Convention (see R. v. Belgium, no. 15957/90, Commission decision of 30 March 1992, DR 72, pp. 195, 199, and Zarouali v. Belgium, no. 20664/92, Commission decision of 29 June 1994, DR 78-B, pp. 97, 109).

It is not in any case for the Court to decide in the abstract whether the French system satisfies the requirement arising from Article 6 § 1 that reasons must be given for judgments.

The Court notes that in the instant case the Assize Court referred in its judgment to the answers which the jury had given to each of the 768 questions put by the President of the Assize Court and also to the description of the facts declared to have been established and to the Articles of the Criminal Code which had been applied. Although the jury could answer only “yes” or “no” to each of the questions put by the President, those questions formed a framework on which the jury’s decision was based. The Court considers that the precision of those questions sufficiently offsets the fact that no reasons are given for the jury’s answers.

The Court accordingly considers that sufficient reasons were given for the Assize Court’s judgment for the purposes of Article 6 § 1 of the Convention.

As to the alleged contradiction in the reasons given, in so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings in the Assize Court, the Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz, cited above, § 28).

In the light of the above considerations, the Court considers that, taken as a whole, the proceedings in issue were fair within the meaning of Article 6 § 1 of the Convention.

This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

...

Declares the remainder of the application inadmissible.

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