Information Note on the Court’s case-law 48

December 2002

Berger v. France - 48221/99

Judgment 3.12.2002 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Conditions of admissibility of appeal on points of law by civil party to criminal proceedings in absence of appeal by prosecution: no violation

Fair hearing

Adversarial trial

Non-disclosure to party’s lawyer of report of judge rapporteur at the Court of Cassation: violation

Facts : The applicant lodged a complaint, together with a claim for civil damages, for fraud, theft and fraudulent breach of trust.  The investigating judge made an order terminating the proceedings, in the absence of crim inal classifications of the facts reported.  The Indictments Chamber of the Court of Appeal upheld the order.  The applicant, represented by counsel, appealed on a point of law.  The two parts of the judge-rapporteur’s report (the first containing an accou nt of the facts, the procedure and the grounds of the appeal on a point of law and the second a legal analysis of the case and an opinion on the merits of the appeal) were transmitted to the avocat général before the hearing.  The applicant was not given a copy of the avocat général ’s submissions.  The Court of Cassation declared the appeal inadmissible.

Law : Article 6 § 1 (access to a tribunal) – As the prosecution did not appeal on a point of law, the applicant had to show that the judgment under appeal corresponded to one of the seven cases provided for in Article 575 of the Code of Criminal Procedure.  The applicant’s appeal was declared inadmissible on the ground that the pleas put forward did not correspond with any of the cases set out in that article.  From that article it was possible for the applicant to be aware of her obligations when lodging the appeal and it w as therefore possible for her to foresee that the appeal would be declared inadmissible.  An appeal on a point of law is a special remedy.  Although the admissibility of an appeal by a party claiming civil damages depends - except in a number of cases list ed restrictively - on an appeal being lodged by the prosecution, that restriction results from the nature of the judgments delivered by the Indictments Chambers and from the role accorded to civil actions within criminal trials.  The civil party cannot hav e an unlimited right to appeal on a point of law against judgments terminating the proceedings.  In addition, the proceedings before the Court of Cassation followed an examination of the applicant’s case by the investigating judge and then by the Indictmen ts Chamber.  Further, while declaring the applicant’s appeal on a point of law inadmissible, the Court of Cassation examined it in order to ensure that the contested decision was lawful.  Last, the applicant had the possibility of bringing proceedings in t he civil courts against the company against which she had lodged the complaint, a remedy which she used.  In conclusion, she did not suffer any impediment to her right of access to a court, as guaranteed by Article 6 § 1, as a result of the conditions gove rning the admissibility of her appeal on a point of law.

Conclusion : no violation (unanimously).

Article 6 § 1 (failure to communicate the two parts of the judge-rapporteur’s report to the applicant’s counsel) – The principles of adversarial proceedings an d of equality of arms were thus not observed, because the two parts of the judge-rapporteur’s report were not communicated to the applicant’s counsel before the hearing, whereas the entire file was communicated to the avocat g é n é ral .

Conclusion : violation (unanimously).

Article 41 – The Court awards the sum of € 300 in respect of costs and expenses.

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

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