Thiam v. France

Information Note on the Court’s case-law 222

October 2018

Thiam v. France - 80018/12

Judgment 18.10.2018 [Section V]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Impartial tribunal

Independent tribunal

Fact of serving President of the Republic applying as civil party to join proceedings which led to conviction of bank-card fraudster: no violation

Facts – Following a complaint lodged by the director of a bank and the instigation of criminal proceedings by the public prosecutor, Mr Nicolas Sarkozy, then serving President of the Republic (hereafter, “the President”), applied to join those proceedings as a civil party; the ensuring proceedings, which concerned bank-card fraud, resulted in the applicant’s conviction. The applicant complained to the European Court that the fact that the President had joined the proceedings as a civil party had breached the principle of equality of arms and had infringed the right to an independent and impartial court.

Law – Article 6 § 1

(a) Equality of arms – In so far as the applicant complained of the imbalance created in relation to the President in that the latter was protected under Article 67 of the Constitution from any legal proceedings to punish abuse of his involvement as a civil party, the conditions for bringing such proceedings had not been met, and, assuming they had been met, the applicant could have brought proceedings within one month after the end of the President’s term of office, in application of Article 67 § 3 of the Constitution.

The absence of the President from the trial, given that he could not be required to give evidence on account of his protected status, had been based on serious legal grounds, provided for in Article 67 § 2 of the Constitution, and on objective considerations of the protection applicable to the function of members of Governments, which did not as such contravene Article 6 of the Convention. Thus, in convicting the applicant, the national courts had not referred to any evidence against him adduced by the civil party that required them to test its credibility and reliability in an interview or hearing. Thus, the nature of the case, the evidence available and the non-conflicting versions of the defendant (the applicant) and the civil party did not in any event require that the latter party be questioned.

There was no indication in the case file that the President’s involvement had encouraged the public prosecutor’s office to act in a way that would have unduly influenced the criminal court or prevented the applicant from bringing an effective defence. Lastly, there was nothing to indicate that the applicant had been denied adversarial proceedings.

It followed that the President’s intervention in the proceedings as a civil party had not had the effect of creating an imbalance in the parties’ rights and the conduct of the proceedings.

Conclusion: no violation (unanimously).

(b) Independence and impartiality of the court

(i) As to the prosecutor’s office – The prosecutor, as the prosecuting party, was not called upon “to determine a criminal charge” within the meaning of Article 6 § 1. Thus, the public prosecutor’s office could not be bound by the obligations of independence and impartiality that Article 6 imposed on a “court”, a judicial body “called on to determine matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner”.

(ii) As to the “court” called upon to judge the applicant’s case  – As to the allegation of bias on the part of the judges, the applicant’s guilt had been established by evidence that was separate from the President’s civil action. Furthermore, the applicant had not alleged that the trial courts and the Court of Cassation had acted on instructions from the President or demonstrated other bias. Thus, there was nothing in the conduct of the applicant’s trial to indicate that it had not been impartial.

With regard to the independence of the “court”, judges’ tenure was constitutionally guaranteed and it protected them from possible attacks on their independence. It was a guarantee of the fundamental independence of the members of a court against arbitrariness on the part of the executive.

In addition, sitting judges were not subordinate to the Ministry of Justice and were not subject to any pressure or instructions in the exercise of their judicial functions.

Lastly, decisions affecting the appointment of members of the judiciary and their career progress, transfer and promotions were taken following the intervention of the National Legal Service Commission (Conseil supérieur de la magistrature – “the CSM”) and after adversarial proceedings. In disciplinary matters, the CSM ruled as a disciplinary board and imposed any penalty directly, so its decisions in this area had a judicial character.

With regard to the independence of a court in view of the President’s power to appoint judges, the mere appointment of judges by a member of the executive did not in itself render them subordinate if, once appointed, those judges received no pressure or instructions in the performance of their judicial duties.

The fact that the President signed the decrees appointing new judges or ordering their promotion or appointment to a new post marked the formal completion of the decision-making process and did not, as such, undermine the independence of the persons concerned. Furthermore, the collegial exercise of the CSM’s powers to “propose” and to submit an “opinion” provided an essential safeguard against the risk of pressure on judges from the executive. This was also the position of the Venice Commission.

Nevertheless, and although the CSM’s powers were such as to dissipate the fears expressed with regard to the judges’ functional independence, the President, a party to the dispute, had still been president of the CSM when the judges of the criminal court and the appeal court had decided on the applicant’s case. At the relevant time, therefore, the President was both president of the CSM and a civil party to the proceedings. The President’s intervention in the proceedings could thus have led the applicant to query his influence on the professional future of judges whom he had helped to appoint and who were required to rule on a claim relating to his private interests. However, such an impression was not sufficient to establish a lack of independence.

The applicant, who had been ordered to pay the President only one euro in respect of non-pecuniary damage, plus the costs of the proceedings, had not submitted any concrete evidence capable of showing that he could objectively have feared that the judges from the tribunal de grande instance and the appeal court were under the President’s influence. The case submitted to the judges had borne no connection with the President’s political functions and he had neither instituted the proceedings nor provided evidence intended to establish the applicant’s guilt. Furthermore, the Court of Cassation had delivered its judgment, in which it examined the applicant’s complaints concerning equality of arms and the independence and impartiality of the court, on a date when the President no longer chaired the CSM. Subsequently to the appeal court’s judgment, the revision of the French Constitution had entered into force and had transferred the chairmanship of the CSM from the President of the Republic to the First President of the Court of Cassation, with the aim of strengthening the independence of the judiciary.

The participation, as a claimant in proceedings, of a public figure who played an institutional role in the career development of judges was capable of casting a legitimate doubt on the latter’s independence and impartiality. In the present case, however, there was no reason to conclude that the trial courts called upon to rule in the applicant’s case had not been independent within the meaning of Article 6 § 1 of the Convention.

Conclusion: no violation (unanimously).

(See also Sramek v. Austria, 8790/79, 22 October 1984; Sacilors Lormines v. France, 65411/01, 9 November 2006, Information Note 91; Moulin v. France, 37104/06, 23 November 2010, Information Note 135; Henryk Urban and Ryszard Urban v. Poland, 23614/08, 30 November 2010, Information Note 135; and Urechean and Pavlicenco v. the Republic of Moldova, 27756/05 and 41219/07, 2 December 2014, Information Note 180)

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This summary by the Registry does not bind the Court.

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