CASE OF PEREZ v. FRANCE

( Application no. 47287/99 )

JUDGMENT

STRASBOURG

12 February 2004

In the case of Perez v. France ,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Mr L. Wildhaber , President , Mr C.L. Rozakis , Mr J.-P. Costa , Mr G. Ress , Sir Nicolas Bratza ,

Mr G . Bonello , Mr P. Kūris , Mr R. Türmen , Mrs F. Tulkens ,

M r C. Bîrsan , Mr P. Lorenzen, Mr K. Jungwiert, Mr B. Zupančič, Mrs N. Vajić, Mr K. Traja, Mr A. Kovler, M r J. Borrego Borrego , judges , and Mr P.J. Mahoney , Registrar ,

Having deliberated in private on 12 November 2003 and 21 January 2004 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

2 . The applicant, who had been granted legal aid, was represented by Mr P.-F. Divier, a lawyer practising in P aris . The French Government (“the Government”) were represented by their Agent, Mr R. Abraham , Director of Legal Affairs at the Ministry of Foreign Affairs .

6 . The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . The applicant was born in 1933 and lives in L a Plaine des Cafres ( Réunion , F rance ) .

9 . On 31 July 1995 she went to the gendarmerie in La Plaine des Cafres to file a complaint of having been assaulted by her two children. She said that her children had come to see her about a lawsuit between them concerning the non-payment of maintenance to which she was entitled because of her ill-health. While the applicant was in the front passenger seat of a motor car driven by her daughter, her son, who was in the back, had allegedly immobilised her and used a syringe to inject her twice with an unknown substance. She said she had quickly got out of the car and gone to hospital.

10 . The applicant was found to have marks of injections. Moreover, after a witness had come forward, the gendarmes found a syringe which when tested was found to bear traces of diazepam and benzoic acid, both of which also form part of the chemical make-up of v alium.

11 . An investigation was begun on the grounds of assault with an offensive weapon resulting in total unfitness for work for more than eight days (reduced to less than that during the investigation).

12 . During the investigation, the applicant joined the proceedings as a civil party.

13 . On 14 March 1997 the Saint-Pierre investigating judge ruled t hat there was no case to answer on the ground that there was insufficient evidence that anyone had committed the offence. He found that the applicant ' s son, “who had allegedly given her the injection, had left the d épartement to return to his dental practice abroad, in Gabon ”, that “ he had given his mother an injection of a substance which was medically harmless at that dosage ... ” and “that, in the absence of precise information as to his address , it did not [seem] p racticable to interview [the son] given the difficulty of enforcing any request for evidence to be taken on oath in Gabon”. The decision was apparently se rved on the applicant on the same day by registered post with acknowledgment of receipt.

14 . On 7 April 1997 the applicant went to the investigat ing judge ' s registry and, claiming that she had not received a copy of the decision , refused to sign the notice of appeal drafted by the registrar. She asserted that she had drafted a personal notice of appeal and lodged it at the registry on that same day . In her written observations to the court of appeal, the applicant requested , inter alia , that the investigating judge be made to st and down, that the investigation be resumed, that it be formally recorded that “her complaint [related to] premeditated assault with an offensive weapon resulting in thirty days ' total unfitness for work and, given the results of the tests on the syringe, with criminal intent” , and that her children be “ brought to the d épartement by force in order to explain themselves”.

15 . By a judgment o f 8 July 1997, the Indictment Division of the Court of A ppeal of Saint-Denis -de-la- Réunion found that the applicant had appealed “by letter addressed to and received on 7 April 1997 by the investigating judge ' s registry”, and that she had gone to the registry on the same day and refused to sign the notice of appeal. The Indictment Division therefore ruled that her appeal was inadmissible on the grounds that she had missed the legal deadline and had failed to sign the notice of appeal.

16 . On 11 July 1997 the applicant appealed on points of law. On 21 July 1997 she filed personal observations in which she submitted that the C ourt of A ppeal had, in its judgment of 8 July 1997, disregarded certain provisions of the Code of Criminal Procedure: firstly , “the judgment did not meet the essential conditions required for it to be lawful ”, having been given by “judges who had not attended all the hearings in the case” and, secondly , the grounds set out in the impugned judgment relating to service of the decision that there was no case to answer were “insufficient” because they did not address the arguments she had put forward at the hearing. She alleged that there had been a breach of Articles 592, 575-6, 593 and 646 of the Code of Criminal Procedure.

17 . In a judgment o f 21 April 1998 , the C riminal D ivision of the Court of Cassation dismissed her appeal in the following terms:

“ ...

Given the personal written observations filed;

On the sole ground of appeal, based on a breach of A rticles 485 and 183 of the Code of Criminal Procedure;

Whereas, firstly , the particulars of the judgment under appeal establish that it was given in the conditions prescribed by A rticle 485 , third paragraph, of the Code of Criminal Procedure ;

Whereas, secondly , the C ourt of A ppeal was correct in finding that the appeal of 7 April 1997 against the decision that there was no case to answer served on 14 March 1997 was out of time in accordance with the conditions laid down in A rticle 183 of the Code of Criminal Procedure;

... ”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . The Civil Code

18 . The relevant provisions are as follows:

Article 1382

“Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it .”

Article 1383

“Everyone shall be liable for the damage he ha s caused not only by his own acts , but also by hi s negligence or carelessness .”

Article 1384 , first paragraph

“ Everyone shall be liable not only for the damage caused by his own act but also for that caused by persons for whom he is responsible or by things he has in his keeping.”

B. The Code of Criminal Procedure

19 . The relevant provisions are as follows:

Preliminary Article

“ I. – Criminal proce edings shall be fair and provide for all parties to be heard and shall maintain a balance between the rights of the parties .

...

II. – The courts shall ensure that victims are kept informed and their rights safeguarded during any criminal proceedings.

... ”

Article 1

“ Public prosecutions for the punishment of offenders shall be brought and conducted by officers of the State legal service or by those public officials empowered to do so by law.

Such pro se c utions may also be brought by the injured party , under the conditions laid down in this Code .”

Article 2

“Anyone who has personally suffered damage directly caused by a criminal offence may bring civil-party proceedings to seek compensation for such damage.

Discontinuance of such proceedings shall neither terminate nor stay the public prosecution ... ”

Article 3

“Civil-party proceedings may be conducted simultaneously with the public pro se c ution and before the same court.

Civil-party proceedings may be brought for any head of damage, whether pecuniary or physical or non-pecuniary , caused by the acts under prosecution. ”

Article 4

“Civil - party proceedings may also be conducted separately from the public prosecution .

However , judgment in civil-party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution .”

Article 5

“A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecut i o n has preferred charges in that court before the civil court has ruled on the merits .”

Article 81 - 1

“ An investigating judge may, of his own motion, on the instructions of the prosecutin g authorities or at the request of the civil party, do anything lawful to enable him to assess the nature and extent of the damage suffered by the victim or to gather information about the victim ' s personality.”

Article 82 -1

“ The parties may, during the investigation, submit a written and reasoned request to the investigating judge that they be interviewed or questioned, that a witness be heard, that a confrontation be arranged or that they be taken to the scene of the crime, that one of them be ordered to produce an item relevant to the investigation, or that any other action be taken which they believe is necessary for uncovering the truth. In order to be valid, such a request must comply with the provisions of the tenth paragraph of Article 81; it must relate to specific actions and, where it relates to an interview , must identify the person sought to be interview e d .”

Article 85

“Anyone who claims to have suffered damage as a result of a serious crime [ crime ] or other serious offence [ délit ] may , by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the appropriate investigating judge.”

Article 87 , first paragraph

“A civil - party application may be made at any time during the investigation.”

Article 88

“ The investigating judge shall record in an order the lodging of the complaint . According to the civil party ' s means, he shall determine the amount of security for costs which that party must, if he has not obtained legal aid, deposit at the registry and the time-limit for doing so if the complaint is not to be declared inadmissible. He may exempt the civil party from paying security.”

Article 186 , second paragraph

“ A civil party may appeal against decisions not to begin or to disc ontinue the investigation and against orders that harm his civil interests . ... ”

Article 418

“Anyone who, in accordance with Article 2, claims to have suffered damage caused by a criminal offence may, if he has not already done so, lodge a civil - party complaint at the hearing itself.

Representation by a lawyer is not mandatory .

A civil party may, in support of his c omplaint , file a claim for damages in the amount of the loss he has suffered . ”

Article 419

“ A civil party shall lodge his c omplaint either prior to the hearing at the registry or during the hearing itself by making a declaration recorded by the registrar or by filing pleadings.”

Article 420-1

“ ...

With the consent of the p ublic p rosecutor, the victim may also file a claim during the police investigation for restitution or damages by making a formal statement recorded by a police officer. Such a claim shall count as a civil - party c omplaint if it is decided to prosecute and the case is referred directly to a criminal or police court.

...

In the event of a dispute over the ownership of the objects whose restitution is requested or where the court does not find sufficient reasons for a decision in the claim itself , the supporting documents or the file, the decision on the civil claim shall be adjourned to a later hearing to which all parties shall be summoned by the prosecution.”

20 . Articles 2-1 to 2-19 concern the exercise of civil - party rights by associations or public - law entities.

C. Other elements of d omestic law

21 . In order for a civil-party complaint to be admissible, it is sufficient if the circumstances on which it is based permit the investigating judge to accept the possibility that the alleged damage may have occurred and that there may be a direct link between th at damage and the commission of an offence (see, inter alia: j udgment s of the Court of Cassation, Criminal Division (“ Cass. crim. ”) , 9 February 1961 , Dalloz, 1961, p. 306; 5 March 1990 , Bulletin criminel (“ Bull . crim. ”) n o. 103; 11 January 1996, Bull. c rim. n o. 16; 8 June 1999, Bull . c rim. n o. 123; 6 September 2000, Bull. c rim. n o. 263). The investigating judge must determine whether the c omplainant can establish a “possible” interest in lodging the complaint , and not find a civil-party application inadmissible on purely abstract grounds for lack of such an interest ( Cass. crim. , 6 February 1996 , Bull. c rim . n o. 60). A decision by the investigating judge that a civil-party application is inadmissible does not prevent the party in question from lodging a further complaint with the trial court ( Cass. c rim. , 15 M ay 1997, Bull. c rim. n o. 185).

22 . The Court of Cassation considers that a civil party is free not to exercise his right to claim compensation for his losses ( Cass. c rim. , 10 October 1968, Bull. c rim. n o. 248; 19 October 1982, Bull. c rim. n o. 222).

23 . Even where compensation for losses falls outside the competence of the criminal courts, a civil - party application is admissible in so far as it assists in proving the offence ( Cass. crim. , 10 February 1987, Bull. c rim. n o. 64) .

24 . “ C ivil proceedings must await the outcome of criminal proceedings ” (Article 4 § 2 of the Code of Criminal Procedure) . The civil court must suspend judgment until the criminal court has issued a final ruling in the prosecution. The prosecution must be brought before or during the civil trial. The two sets of proceedings must be based on the same facts, even though the purpose, case and parties do not have to be identical. An application for a suspension must be made to the civil judge , and may be made for the first time at the appeal stage or before the Court of Cassation. Once ordered, a stay is binding on both the civil court and the parties until a final decision has been made in the prosecution, failing which the civil proceedings are null and void.

D. R ecommendations of the Committee of Ministers

26 . Recommendation No. R (83) 7 on participation of the public in crime p olicy , adopted by the Committee of Ministers on 23 June 1983 , advocates the establishment of an efficient system of legal aid for victims so that they may have access to justice in all circumstances.

27 . Recommendation No. R (85) 11 on the position of the victim in the framework of criminal l aw a nd p rocedure , adopted by the Committee of Ministers on 28 June 1985 , provides:

“ ...

9. The victim should be informed of

– the date and place of a hearing concerning an offence which caused him suffering;

– his opportunities of obtaining restitution and compensation within the criminal justice process, legal assistance and advice;

– how he can find out the outcome of the case;

10. It should be possible for a criminal court to order compensation by the offender to the victim. To that end, existing limitations, restrictions or technical impediments which prevent such a possibility from being generally realised should be abolished;

11. Legislation should provide that compensation may either be a penal sanction, or a substitute for a penal sanction or be awarded in addition to a penal sanction;

12. All relevant information concerning the injuries and losses suffered by the victim should be made available to the court in order that it may, when deciding up on the form and the quantum of the sentence, take into account:

– the victim ' s need for compensation;

– any compensation or restitution made by the offender or any genuine effort to that end;

... ”

28 . Recommendation No. R (87) 21 on assistance to victims and the prevention of v ictimisation , adopted by the Committee of Ministers on 17 September 1987 , “recommends that the g overnment s of member S tates take the following measures”:

“ ...

4. ensure that victims and their families, especially those who are most vulnerable, receive in particular:

...

– assistance during the criminal process, with due respect to the defence ;

... ”

29 . Rec ommendation Rec(2000)19 on the role of public prosecution in the criminal justice s ystem , adopted by the Committee of Ministers on 6 October 2000 , provides:

“ ...

34. Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.”

THE LAW

30 . The applicant , who was joined as a civil party during the investigation, complain ed of the unfairness of the procedure before, and about the judgment given by , the Court of Cassation. She relied on Article 6 § 1 of the Convention, the relevant provisions of which are as follows:

“In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing by [ a ] ... tribunal ... ”

31 . The Court must consider whether Article 6 is applicable , the question having been joined to the merits in the admissibility decision. The applicant argue d that it was , the Government that it was not .

I. THE GOVERNMENT ' S PRELIMINARY OBJECTION

A. The p arties ' submissions

1. The G overnment

32 . After not ing certain facts relating to the relevant domestic law, the Government observe d that, by making a civil - party complaint, a victim may seek not only compensation, but also the punishment of the offender , and the benefit of the rights of a party to the criminal proce e d ings (access to the file, applications for decisions , etc . ) and of the powers of an investigating judge in gathering evidence of the facts and the damage suffered.

33 . The y observe d that significant legal consequences flow ed from the distinction between civil - party complaints aimed at punishing the offender on the one hand and those seeking compensation or also seeking compensation o n the other: to be joined as a civil party d id not mean that the

claim for compensation wa s also admissible, nor d id it dispense the civil party from the need to claim compensation before the trial court; the claim for compensation had to be made at the latest before the criminal court of first instance; finally , a civil party who fail ed to make such a claim could subsequently apply to a civil court within the limitation period applicable to civil actions.

34 . Turning to the applicability of Article 6 in general terms, the Government submitted first of all that only the civil limb of Article 6 § 1 wa s involved , the victim not being a defendant but a c omplainant . The question to be determined wa s therefore whether civil - party proce edings required the courts to determin e a “dispute” ( contestation ) concerning a “civil right or obligation”.

35 . The Government submitted that the right to claim compensation, aris ing from the civil wrong committed by the offender, wa s a civil right to which Article 6 § 1 of the Convention applie d . They observe d , however , that victims d id not always exercise th at right and m ight have as their sole purpose to trigger or be joined in a prosecution. I n those two cases , the Government argued that victims we re not exercising a civil right ( see Hamer v . France , judgment of 7 August 1996 , Reports of Judgments and Dec isions 1996-III).

36 . Accordingly , the Government t oo k the view that a civil - party complaint wa s not, without more, sufficient to bring the related proceedings “ a priori within the ambit of Article 6”. They argued that such a broad interpretation would encompass rights as yet excluded , such as the right to launch or be associated with a prosecution, or even to uphold one ' s honour without claiming anything other than non-pecuniary redress.

37 . The Government s ought to define a criterion that would enable a distinction to be made between those proce e d ings which c a me under Article 6 and those which d id not, while observing that the criteria adopted by the Court in the past we re not satisfactory, particularly the criterion of the “decisive outcome of the proceedings”. T he making of a “claim for compensation” wa s the only criterion capable of applying to all proce e d ings , provided of course that it c ould be rigorously defined and that its legal consequences were clearly determined. A victim who ma d e a civil ‑ party application assert ed a civil right only from the time when he ma d e a claim for compensation for the damage caused by the offence.

38 . Drawing an analogy with the Court ' s case - law on summary civil proceedings, to which Article 6 does not apply, the Government contended that a victim must unequivocally state his intention to claim compensation for the damage suffered, thus setting the starting - point of the “dispute” and making Article 6 applicable .

39 . Such a criterion could be appl ied equally to concluded and to continuing proceedings, because it would suffice to check whether the victim had made such an “unequivocal” claim or not. The Article 6 safeguards would apply as from the making of the claim for compensation. Lastly , the claim, which could be made at any stage in the proce e d ings (and even at the beginning if appropriate) , w ould not have to be detailed, a distinction being made between the making and the quantification of a claim for compensation.

40 . In view of the foregoing, the Government submitted that Article 6 § 1 was not applicable, because the applicant had failed to ma ke a claim during the proceedings for compensation for the damage directly caused by the offence .

2. The applicant

41 . Part of the applicant ' s observations took the form of a broader description of the French preliminary investigation procedure. While noting that in theory the possibility of being join ed to the proceedings as a civil party br ought with it considerable benefits by virtue of its hybrid punitive and compensatory character, she asserted that the investigation stage wa s “in the actual practice of French criminal procedure a peculiar world of its own where any manner of violation of Article 6 § 1 of the Convention may occur out of reach of a ny form of scrutiny and virtually beyond all supervision ” (pre-judgment of the merits, role of the prosecution, confidentiality of the investigation , etc . ).

42 . In the applicant ' s submission, civil - party proceedings constitute d nothing less than an obstacle course of devices designed to discourage or even prevent someone from making a c omplaint : the setting of prior payments into court at prohibitive levels, refusal to launch an investigation, refusal to widen its scope , conduct of the police investigation and other ploys. With regard to civil compensation, she consider ed that a finding of no case to answer le ft the complainant to fac e the civil court in the worst possible conditions. Moreover , a victim who was restricted to purely civil proceedings would thereby be deprived of a form of “private revenge”.

43 . For t he applicant , it was imperative for Article 6 to apply as soon as the civil party joined the proceedings , whether the case wa s pending or concluded.

44 . On the question of the applicability of Article 6 in the instant case , she observe d that she had gone to the gendarmerie in July 1995 to lodge a simple complaint. That complaint had first led to preliminary enquiries , then to a decision by the public prosecutor to open a judicial investigation. Accordingly , she lodged a civil-party complaint with the investigating judge when the prosecution had already begun.

45 . I n so doing she had clearly shown her intention to seek redress for the specific da mage resulting from the assault she had reported to the gendarmes and which was under investigation. The mention during the investigation of the problem of the non-payment of her maintenance was irrelevant to her intentions, particularly as she was without the assistance of a lawyer at that stage in the proceedings.

46 . By analogy with Moreira de Azevedo , the applicant submitted that , in lodging a civil - party c omplaint , she had demonstrated her interest not only in criminal sanctions against the offenders but also in pecuniary compensation for the damage she had suffered, and that her failure to submit a formal claim for damages could not be held against her ( Moreira de Azevedo v. Portugal , judgment of 23 October 1990, Series A n o. 189, pp . 16-17, §§ 63-68). She further cite d Tomasi , in which the investigation had likewise been concluded with a finding of no case to answer ( Tomasi v. France , judgment of 27 August 1992, Series A n o. 241 ‑ A).

B. The Court ' s a ssessment

1 . Case - l aw

47 . The Court has delivered a number of judgments about civil - party proceedings. In Tomasi ( cited above ), it ruled as follows (p. 43, § 121) :

“Article 85 of the Code of Criminal Procedure provides for the filing of a complaint with an application to join the proceedings as a civil party. According to the case - law of the Court of Cassation (Crim. 9 February 1961, Dalloz 1961, p . 306), that provision simply applies Article 2 of that Code ...

...

The investigating judge will find the civil application admissible – as he did in this instance – provided that, in the light of the facts relied upon, he can presume the existence of the damage alleged and a direct link with an offence (ibid.).

The right to compensation claimed by Mr Tomasi therefore depended on the outcome of his complaint, in other words on the conviction of the perpetrators of the treatment complained of. It was a civil right, notwithstanding the fact that the criminal courts had jurisdiction (see, mutatis mutandis , the Moreira de Azevedo v. Portugal judgment of 23 October 1990, Series A n o. 189, p . 17, § 67) . ”

48 . Thus , the Court inferred that Article 6 of the Convention was applicable from a combination of domestic law, namely Articles 2 and 85 of the Code of Criminal Procedure, and the admissibility of civil - party proceedings at the domestic level. In fact, unless the complaint was found inadmissible by the appropriate judge, domestic law appeared to entail ipso facto the applicability of Article 6 .

49 . However , in Acquaviva , whereas the Commission had applied Article 6 on the basis of Tomasi , the Court considered it necessary to ascertain whether the proceedings in issue concerned a dispute over the applicants ' “civil rights and obligations” ( Acquaviva v . France , judgment of 21 November 1995, Series A no. 333-A, p. 14, § 45).

50 . Applying case - law on specific situations unconnected with the issue of civil - party proceedings ( Zander v. Sweden , judgment of 25 November 1993, Series A no. 279-B , and Kerojärvi v. Finland , judgment of 19 July 1995, Series A no. 322) , the Court sought to ascertain “whether there was a dispute ( ' contestation ' ) over a ' right ' which [could] be said, at least on arguable grounds, to be recognised under domestic law”. The “dispute”, which should be genuine and serious, could relate not only to the existence of a right but also to its scope and the manner of its exercise. Moreover the Court considered that the outcome of the proceedings should be directly decisive for the right in question ( Acquaviva , cited above , p. 14, § 46 ) . It found that Article 6 § 1 was applicable, for the following reasons ( ibid ., pp. 14-15, § 47) :

“By choosing the avenue of criminal procedure, the applicants set in motion judicial criminal proceedings with a view to securing a conviction, which was a prior condition for obtaining compensation, and retained the right to submit a claim for damages up to and during the trial.

The finding of self-defence – which excluded any criminal or civil liability – made by the Indictment Division of the Versailles Court of Appeal ... deprived them of any right to sue for compensation. The outcome of the proceedings was therefore, for the purposes of Article 6 § 1, directly decisive for establishin g their right to compensation.”

51 . In Hamer ( cited above ) , which, unlike Tomasi and Acquaviva , did not concern a finding of no case to answer but a decision on the merits made by the trial court, t he Court referred to the fact that in Acquaviva it had considered that the finding of self ‑ defence reached by the Indictment Division of the Versailles Court of Appeal deprived the civil parties of any right to claim compensation ( Acquaviva , cited above , p. 1 5 , § 47). Having noted that Mrs Hamer had not made any claim for compensation during the preliminary investigation or in the assize court and that she could subsequently file a claim in the civil courts, the Court found that, unlike the position in Acquaviva , the proceedings were not decisive for the purposes of Article 6 § 1 of the Convention.

52 . The C ourt confirmed this case - law in Aït-Mouhoub v. France , ( judgment of 28 October 1998 , Reports 1998-VIII). It h eld that the second applicant ' s complaint concerned a civil right, because he had expressly mentioned the financial loss caused by the alleged offences. Moreover , it inferred the “decisive” nature of the proceedings for establishing his right to compensation from the text of Article 85 of the Code of Criminal Procedure under which the complaint had been made : the complaint was “designed to ... secure a conviction that would have enabled him to exercise his civil rights in regard to the alleged offences and, in particular, to obtain compensation for the financial loss”. For the Court, it was irrelevant that he had not quantified his loss at the time of lodging his complaint, since in French law it was open to him to submit a claim for damages up to and during the trial ( p. 3226, § 44; see also Acquaviva , cited above, pp. 14-15, § 47).

53 . In 1999 the judgment in Maini v. France was delivered on the basis of similar reasoning (no. 31801/96, §§ 28-29 , 26 October 1999 ). In that case, which concerned a finding of no case to answer, the Court stated that proceedings turning on the liability of the police officers were bound to fail and constituted a nugatory remedy in so far as the applicant, having failed to prove his allegations in the criminal courts, stood no chance of succeeding in the civil courts (ibid . , § 30).

2 . The l imits of th e above c ase -l aw

3 . A n ew a pproach

58 . The Court considers it necessary to examine the domestic legislation on civil - party applications in the French criminal courts.

60 . French law thus gives the victim of an offence the option of choosing between civil and criminal proce edings . Under the civil option, the fact that the damage is caused by a criminal offence means that civil procedure is only applied subject to certain rules: the irrevocability of the choice (Article 5 of the Code of Criminal P rocedure – see paragraph 19 above) ; the principle whereby “civil proceedings must await the outcome of criminal proceedings ” ( see paragraph 24 above) ; and the principle that “a final criminal judgment prevails over a civil claim” ( see paragraph 25 a b ove).

63 . While the Government highlight ed the distinction between a civil ‑ party application to join proceedings (intervention in the trial) and a civil a c tion ( claim for compensation), the Court does not believe that this distinction rules out the applicability of Article 6. On the contrary, all joined civil parties are in their own right both part ies to the proceedings for the defence of their civil interests and entitled to claim compensation at any stage in those proceedings. The fact that they may choose not to claim compensation at a particular stage in the proceedings does not detract from the civil nature of their claim, nor does it take away their right to make such a claim at a later stage, which they cannot in any case be shown not to have exercised until the end of the trial of the merits. Moreover, contrary to the Government ' s assertion , French law does not necessarily create a dichotomy between “civil - party proceedings ” and a “civil claim” ; the former is in reality only a type of the latter which is commenced by instigation or intervention.

69 . Nonetheless, the fact is that the Court of Cassation accepts the principle of civil proceedings for purely puni tive purposes, which may explain why legal theory refers indiscriminately to “civil proceedings for puni tive purposes” and to “civil - party complaint s for puni tive purposes”.

71 . T he Court concludes that a civil - party complaint comes within the scope of Article 6 § 1 of the Convention , except in the cases referred to in the pre vious paragraph .

4 . Application of the above criterion to the facts of the case

73 . The Court considers that this new approach should be adopted and, in accordance with the object and purpose of the Convention, the derogations from the safeguards embodied in Article 6 § 1 should be interpreted restrictively ( see Pellegrin v. France [GC], no. 28541/95, § 64, ECHR 1999-VII I ).

II . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. The p arties ' submissions

1. The applicant

76 . The applicant maintain ed that the decision that there was no case to answer was not only disput able , but moreover had never duly been served on her. A lthough she had refused to sign the notice of appeal drafted by the registrar, she had herself drafted and lodged a signed notice of appeal within the requisite time-limit. T he Indictment Division had failed to reach a clear decision about her allegation that the discontinuation order had not been validly served and the Court of Cassation, in declining to annul the appeal ruling , had misdirected itself, had not give n sufficient reasons for its decision and had failed to address some of the grounds of appeal.

77 . She also criticise d the fact that the Court of Cassation had s ingled out a breach of Articles 485 and 183 of the Code of Criminal Procedure as the sole ground of appeal whereas, in her statement of appeal, she had listed breaches of Articles 592, 575-6, 593 and 646 of that Code. She infer red that the Court of Cassation had declined to issue a ruling based on the applicable law. Finally , she allege d that her right to a fair trial had been infringed and criticise d the Court of Cassation for having failed to censure the judgment of the Indictment Division on the ground of its composition at the time when the judgment was made.

2. The Government

78 . The Government submitted that the applicant had had a fair hearing . They note d that the Court of Cassation, asked to rule on a judgment to the effect that the applicant ' s appeal was inadmissible because it was out of time, had fully addressed the ground criticising the presence , during the reading of the judgment , of a judge who had not attended the deliberations. The Court of Cassation considered that the reading of the judgment complied with Article 485 , third paragraph, of the Code of Criminal Procedure , which provides that the judgment shall be read by the p resident or by one of the judges. The Government asserted that according to case - law the judgment may be read in the absence of the other judges ( Cass. c rim. , 17 June 1992, Bull. c rim. n o. 243). They note d moreover that Article 592, cited by the applicant, was inapplicable because it only covered a situation where the deciding judges had not attended the deliberations, which was not the case here.

79 . With regard to the allegation that the reasons were insufficient, the Government submitted that the Indictment Division had give n reasons and that its decision had later been endorsed by the Court of Cassation. Finally , they t ook the view that the Court of Cassation was not obliged to deal expressly with all the A rticles of the Code of Criminal Procedure cited by the applicant, because the duty to give reasons did not require a detailed answer to be given to each argument.

B. The Court ' s a ssessment

Accordingly , there was no basis for the applicant ' s purely technical challenge to the effect that the Court of Cassation had neglected to mention all the domestic legislative provisions she had relied on . Besides, the Court agrees with the Government that some of those provisions were plainly inapplicable.

The Court further finds that the Court of Cassation took due account of and effectively addressed all of the applicant ' s grounds of appeal. The applicant ' s allegation that the Court of Cassation had not given sufficient reasons for its decision was therefore misconceived .

84 . In conclusion, there has been no violation of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government ' s preliminary objection that the application is incompatible ratione materiae with the provisions of the Convention ;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English and in French , and delivered at a public hearing in the Human Rights Building, Strasbourg , on 12 February 2004 .

Luzius Wildhaber President Paul Mahoney Registrar