Resolution CM/ResDH(2008)85[1]
Execution of the judgments of the European Court of Human Rights
16 cases against France regarding the right to
a fair trial before the Cour de Cassation
(see Appendix)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern the right to a fair trial before the Cour de Cassation due to the failure to communicate, in whole or in part, the report of the reporting judge (conseiller rapporteur) and/or the conclusions of the Advocate-General to parties, who as a consequence could not reply, as well as the presence of the advocate-general at the deliberations of the criminal chamber of the Cour de Cassation (violation of Article 6§1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with France’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing, similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2008)84
Information about the measures taken to comply with the judgments
in 16 cases against France regarding the right to a fair trial
before the Cour de Cassation
Introductory case summary
These cases concern a breach to the right to a fair trial before the criminal, civil or commercial chambers of the Cour de Cassation due to failure to communicate, in whole or in part, the report of the reporting judge (conseiller rapporteur) and/or the conclusions of the Advocate-Feneral to parties who as a consequence could not reply (violation of Article 6§1).
Some cases also concern the presence of the Advocate-General at the deliberations of the Cour de Cassation (violation of Article 6§1) ( Bozon application No. 71224/01 and Geniteau application No. 4069/02).
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number, judgment of ..., final on ...
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
André No. 63313/00,
28/02/2006, 28/05/2006
No JS
Authouart No. 45338/99, 08/11/2005, 08/02/2006
6 000€
2 357,42
8 357,42 EUR
Paid on 27/09/2006, interest paid on 21/06/2007
Bozon No. 71244/01,
08/11/2005, 08/02/2006
3 000 EUR
3 000 EUR
Paid on 22/09/06, interest paid on 24/05/2007
Breniere No. 62118/00
28/02/2006, 28/05/2006
500 EUR
500 EUR
Paid on 22/09/2006
Casalta No. 58906/00, 12/10/2004, 30/03/2005
No JS
Chesnay No. 56588/00, 12/10/2004, 12/01/2005
1 500 EUR
1 500 EUR
Paid on 18/08/2005, late payment interest too
Coulaud No. 69680/01, 02/11/2004, 02/02/2005
No JS
Fernandez-Rodriguez
No. 69507/01,
25/10/2005, 25/01/2006
1 000 EUR
1 000 EUR
Paid on 27/09/2006, interest paid on 02/11/2007
Fourchon No. 60145/00, 28/06/2005, 28/09/2005
No JS
Name and application number, judgment of ..., final on ...
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Geniteau (No. 1) 49572/99, 07/12/2004, 07/03/2005
300 EUR
300 EUR
Paid on 14/10/2005
Geniteau (No. 2) 4069/02,
08/11/2005, 08/02/2006
300 EUR
300 EUR
Paid on 22/08/2006, interest paid on 17/09/2007
Lebegue No. 57742/00, 22/12/2004, 06/06/2005
300 EUR
300 EUR
Paid on 30/08/2005
Louis No. 44301/02,
14/11/2006, 14/02/2007
No JS
Quesne No. 65110/01,
01/04/2004, 01/07/2004
1 000 EUR
1 000 EUR
Paid on 27/10/2004
Sassi No. 19617/02,
27/06/2006, 27/09/2006
1 500 EUR
1 500 EUR
Paid on 13/11/2006
SCP Huglo, Lepage & Associes Conseil No. 59477/00,
01/02/2005, 01/05/2005
1 000 EUR
1 000 EUR
Paid on 18/08/2005, interest paid on 02/11/2005
b) Individual measures
Cases concerning proceedings before the criminal chamber of the Cour de cassation in which the applicants were convicted
Section 626-1 of the Code of Criminal Procedure provides that “review of a final criminal court decision may be requested on behalf of any person found guilty of an offence where it emerges from a judgment delivered by the European Court of Human Rights that the sentence was passed in a manner violating the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms or of the protocols thereto, if the nature and the gravity of the violation found are such as to subject the sentenced person to prejudicial consequences that could not be remedied by the just satisfaction awarded on the basis of Article 41 of the Convention”.
The applicants might have availed themselves of this possibility, had they so wished.
Cases concerning proceedings before the criminal chamber of the Cour de cassation in which the applicants had lodged a civil action
In cases concerning proceedings before the criminal chamber of the Cour de cassation in which the applicants had lodge a civil action (Chesnay application No. 56588/00 and Geniteau application No. 49572/99) the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage; in the case of Geniteau application No. 49572/99, the Court did not find any causal relationship between any pecuniary damage and the finding of a violation.
Cases concerning civil proceedings before the civil or commercial chamber of the Cour de cassation
In the case of André (application No. 63313/00), the applicant did not present any request in respect of pecuniary or non-pecuniary damage.
In cases where the applicants presented a request for non-pecuniary damage, (Casalta application No. 58906/00, Fernandez-Rodriguez application No. 69507/01, Lebègue application No. 57742/00, SCP Huglo, Lepage & Associes Conseil application No. 59477/00 and Geniteau application No. 4069/02) the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.
In cases where the applicants presented a request for pecuniary damage, the Court did not find any causal relationship between any pecuniary damage and the finding of a violation (Casalta application No. 58906/00, SCP Huglo, Lepage & Associes Conseil application No. 59477/00 and Geniteau application No. 4069/02).
Therefore, no other individual measure was deemed necessary.
II.General measures
Measures have already been adopted. The Cour de cassation has changed the way in which it investigates and determines matters submitted to it: advisory reports drafted by the judge rapporteur (conseiller rapporteur) are communicated with the file to both the prosecution and the parties; opinions on decisions and draft judgments drawn up for consideration by the Bench are communicated neither to the Advocates General nor to the parties; Advocates General no longer take part in preparatory conferences or in the deliberations of the Bench; Finally, parties’ counsel are informed before the hearing of the general tenor of the Advocate General’s conclusions and may reply orally or by memorandum (see CM/ResDH(2008)13 Slimane‑Kaïd against France and 5 other cases regarding the right to a fair trial before the Cour de cassation).
Moreover, specific measures have been adopted so that parties not represented by counsel can access the same information that they would have if they had a counsel and irrespective of their place of residence (see CM/ResDH(2008)71 in the case of Meftah and others and 25 other cases against France regarding the right to a fair trial before the Cour de cassation).
III.Conclusions of the respondent state
The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 8 October 2008 at the 1035th meeting of the Ministers’ Deputies
Full & Egal Universal Law Academy