Information Note on the Court’s case-law 67

August-September 2004

Eurofinacom v. France (dec.) - 58753/00

Decision 7.9.2004 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Alleged incitement by the police to commit an offence: inadmissible

Article 6-3-c

Legal assistance of own choosing

Accused represented at first instance by a lawyer he did not choose: inadmissible

Article 7

Article 7-1

Nullum crimen sine lege

Foreseeability of rules of criminal liability: inadmissible

The applicant company was a company which operated a publicly-accessible message service on a telecommunications network known as Minitel. Suspecting that this service was used by prostitutes to identify and establish contact with potential clients, the prosecution service ordered a preliminary investigation. As part of the investigation, police officers linked up to the message service run by the applicant company. They fou nd offers from prostitutes on the message boards. Acting under pseudonyms, the police officers replied to certain messages, requesting more specific information about the charges for the services being offered. In reply, they received details of the rates charged by each of the prostitutes, again via the server. The suspicions were thus confirmed. Since aiding, abetting and profiting from another’s prostitution constituted the offence of benefiting from the earnings of prostitution, Eurofinacom’s criminal l iability as a legal entity was incurred. Its manager, who was also the company’s legal representative, was prosecuted in person on that charge. The judicial authorities assigned a new lawyer to represent the applicant company (its titular representative be ing himself prosecuted), but the company’s shareholders appointed another person. The court held that the judicial authorities’ decision on which lawyer to appoint took precedence and confirmed the designee in post; the applicant company was thus represent ed at first instance by a lawyer who was not of its choosing. The court found the applicant company guilty, basing its decision essentially on statements from various prostitutes, who admitted making frequent use of the Minitel server operated by the appli cant company to canvass clients and establish contact with them. The court then referred to the reports submitted by the police offers on the date they had prompted the prostitutes’ offers. The court held that, for a telematics service, acting as an interm ediary between two persons, one of whom engaged in prostitution and was remunerated by the other, constituted benefiting from the earnings of prostitution. As operator of the Minitel server which enabled communication for the purpose of prostitution, the a pplicant company was found liable for the offence as a legal entity. It was ordered to pay fines and damages. The applicant company appealed. The representative appointed by the applicant company’s shareholders was authorised to represent it before the cou rt of appeal. This representative chose a new lawyer to defend the applicant company. The criminal conviction was upheld. An appeal on points of law was unsuccessful.

Inadmissible under Article 6 § 3 (c) – The right of every person to defend himself throu gh legal assistance of his own choosing was not absolute: “relevant and sufficient grounds” related to the interests of justice could authorise the appointment of counsel contrary to the defendant’s wishes. The prime consideration was that the defendant en joyed a “practical and effective” defence. Although the applicant company had been unable to be represented by a lawyer of its choice at first instance, it did not claim that the counsel who was appointed had not duly performed his functions and there was nothing to suggest that designation of that counsel had adversely affected its defence. The applicant company was subsequently represented by the lawyer of its choice before the court of appeal – a sovereign court which examined the case as a whole, i.e. t he facts as well as the law – and before the Court of Cassation. In short, in view of the proceedings as a whole, there had been no breach of Article 6.

Inadmissible under Article 6 § 1 (police officers acting under pseudonyms who, through a telematics se rver, had contacted prostitutes and elicited an offer of prostitution with a view to demonstrating the existence of the offence of benefiting from the earnings of prostitution) – It was true that the police investigators had to some extent contributed to t he commission of the offences in question in that they had connected to the Minitel server and in that those actions had then, at least in part, been used as the basis for the proceedings brought against the applicant company for benefiting from the earnin gs of prostitution. However, it remained the case that, prior to those actions, the police already had information permitting them to suppose that prostitutes were using the applicant company’s server to establish contact with potential clients. In additio n, the police officers were acting in the context of a preliminary investigation ordered by the prosecution service and under the latter’s supervision. Finally, and this was an essential element, the applicant company’s conviction was based mainly on state ments from prostitutes who admitted having used the server to meet their clients, and this had carried more weight than the offers of prostitution elicted by the police officers during their investigation. In short, while it was true that the police office rs had elicited an offer of prostitution, they had not, strictly speaking, incited to commission of the offence, since the action of benefiting from the earnings of prostitution with which the applicant company was charged was long-standing in nature and t herefore already existed, and was imputable not to the prostitutes who had offered their services to the police officers in the course of the investigation but rather to the applicant company: manifestly ill-founded.

Inadmissible under Article 7 – The applicant company complained that, at the time when the alleged offence was committed, domestic law did not expressly make it an offence to use a telecommunications network to commit the offence of living on the earnings of prostituti on. This provision having been inserted in the Criminal Code at a later date, the applicant company considered that the court had applied this text retroactively to its case. Article 7 did not outlaw gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen”. Firstly, it was apparent from the wording of the Criminal Code in force at the ma terial time that Parliament had wished to prohibit all forms of intervention between persons engaged in prostitution and their clients. The fact that Parliament had subsequently provided for aggravation of the penalty when the offence was committed “throug h the use of a telecommunications network” did not mean that no prosecution was possible with regard to a previous situation if the alleged intermediary had used such a technique. Secondly, it was to have been expected that the applicant company, professio nally involved in the telecommunications sector, would have made particular efforts to assess the risks entailed by its activity, especially since, in the context of the contract that it had concluded with its telephone operator, it had undertaken to carry out ongoing supervision of the information made available to the public in order to remove, prior to dissemination, any messages likely to be contrary to the laws and regulations in force; the provisions of the Criminal Code which prohibited the offence o f benefiting from the earnings of prostitution were cited in extenso in the contract signed by the applicant company under the heading “benefiting from the earnings of prostitution”. Accordingly, the applicant company, the manager of which was aware that p ersons engaging in prostitution used the server to make contact with potential clients, ought to have known at the material time that it was running the risk of being prosecuted for benefiting from the earnings of prostitution: manifestly ill-founded.

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

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