Information Note on the Court’s case-law 69

November 2004

Fabre v. France - 69225/01

Judgment 2.11.2004 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Manner of disclosure of judge rapporteur’s report in criminal proceedings in the Court of Cassation

The application concerned proceedings before the Criminal Division of the Court of Cassation, and specifically the appellant’s position compare d to that of the advocate-general as concerned communication of the reporting judge’s report. A new practice had been introduced as a follow-up to the judgments in Reinhardt and Slimane-Kaïd v. France , of 31 March 1998, and Slimane-Kaïd v. France of 25 Jan uary 2000 (see Case-Law Report No. 14), which had found a violation of Article 6 § 1 on account of the fact that the report and draft judgment drawn up by the reporting judge were communicated only to the advocate-general, and not to the applicant.

The re porting judge’s report was now made up of two sections. The first, which contained an analysis of the case, namely the statement of facts, the procedure and the grounds of appeal, an objective analysis of the legal question, the texts and case-law relevant to the resolution of the appeal and the reference doctrine, was communicated both to the parties and to the public prosecutor’s office. The second, which contained the reporting judge’s personal opinion and the draft judgment, was communicated neither to the parties nor to the advocate-general.

The Court considered that “this new practice corrects the imbalance found in the judgment in Reinhardt and Slimane-Kaïd . Accordingly, it sees no reason in principle to conclude that there has been a violation of Ar ticle 6 § 1 of the Convention on account of this procedure. In addition, it points out that, in the same judgment, it held that the reporting judge’s personal opinion and the draft judgment, which were ‘legitimately privileged from disclosure as forming pa rt of the deliberations, remained in any case confidential’ from the parties. The new practice is therefore also compatible with the Court’s case-law in this matter, in that it maintains the desired confidentiality with regard to the reporting judge’s pers onal view and the confidentiality of the deliberations…”

With regard to the particular circumstances of this case, the applicant alleged that, contrary to the new procedure, the analytical part of the reporting judge’s report had not been communicated to h im, although it had been sent to the advocate-general. The Government had not denied the applicant’s allegations. The Court considered that this had created an imbalance, in violation of the right to a fair trial (six votes to one).

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

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