Information Note on the Court’s case-law 36

November 2001

Papon v. France (no. 2) (dec.) - 54210/00

Decision 15.11.2001 [Section I]

Article 6

Criminal proceedings

Article 6-1

Access to court

Dismissal of cassation appeal due to appellant's failure to surrender into custody: admissible

Fair hearing

Effects of a media campaign on the fairness of the jury trial of a former Minister: inadmissible

Absence of reasons for jury’s verdict in criminal trial: inadmissible

Article 7

Article 7-2

General principles of law recognised by civilised nations

Inapplicability of prescription to crimes against humanity: inadmissible

Article 2 of Protocol No. 7

Review of conviction

Refusal to examine cassation appeal against a criminal conviction: admissible

The applicant was Secretary-General of the Gironde Prefecture during the German Occupation which followed France’s defeat of 1940. After Liberation he carried on a career as a senior official and was a minister from 1978 to 1981. In May 1981 a weekly newsp aper published articles questioning his conduct during the Occupation. In December 1981 a criminal complaint, together with an application to join the proceedings as a civil party, was lodged against him for his role in the deportation of Jews. Six further complaints followed. In July 1982 the public prosecutor requested that a judicial investigation be commenced in respect of each of the seven complaints. In January 1983 the investigating judge dealing with the case charged the applicant with crimes agains t humanity. However, all the investigative measures and procedural steps carried out by the judge were set aside in February 1987 for failure to comply with an essential formality. The applicant was charged afresh in July 1988. During the investigation num erous individuals and associations applied to join the proceedings as civil parties. The applicant was committed for trial at the Assize Court in 1996. He lodged an appeal on points of law against the committal decision, but it was dismissed in 1997. The t rial at the Assize Court lasted almost six months. On 2 April 1998, in a 123-page judgment and after deliberations lasting nineteen hours, the Assize Court, replying to 768 questions, found the applicant guilty of aiding and abetting crimes against humanit y and sentenced him to ten years’ imprisonment. After lodging an appeal on points of law against that judgment, the applicant was informed that before his appeal could be considered, he had to comply with the legal obligation to “surrender to custody”. The relevant provision – now repealed – required persons sentenced to a term of imprisonment of more than one year to surrender to custody before the Court of Cassation would examine their appeal. Relying, among other things, on his advanced age (89 years) an d his state of health, the applicant applied to be dispensed from the duty to surrender to custody. His application was refused on the ground that his health did not appear incompatible with his detention in a hospital cardiology department. When the appli cant failed to surrender to custody, the Court of Cassation gave judgment on 21 October 1999 holding that he had forfeited his right of appeal.

Admissible under Article 6 § 1 (access to a tribunal) and Article 2 of Protocol No. 7.

Inadmissible under Artic le 6 § 1 (reasonable time): The Government’s objection on grounds of failure to exhaust domestic remedies was upheld: an appeal under Article L.781-1 of the Code of Judicial Organisation had by 20 September 1999 acquired a sufficient degree of certainty in domestic law to be able to be – and to require to be –used for the purposes of Article 35 of the Convention and could not have been unknown to the applicant on 14 January 2000, the date on which he lodged his application. He had failed to use that remedy, however.

Inadmissible under Article 6 § 1 (fair trial), 6 § 2 and 6 § 3 (a), (b) and (d).

Inadmissible under Article 7: paragraph 2 of that Article expressly provided that it did not prejudice the trial and punishment of any person for any act or omissio n which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations, which was the case of crimes against humanity. According to the Statute of the International Tribunal of Nuremberg and to a French Act of 1964 which made express reference thereto, crimes against humanity were not subject to statutory limitation: manifestly ill-founded.

[Confirmation of the Commission’s precedents.]

Inadmissible under Article 6: (a) In so far as the applicant complained of a media campaign, both in the written press and in the audiovisual media, he had not shown that there had been a media campaign against him of such virulence as to influence or be likely to influence the jury’s opinion or the outcome of the A ssize Court’s deliberations. On the contrary, the very length of those deliberations, and the verdict reached, tended to show that the jurors had voted in accordance with the personal conviction required by the most serious charges against him, that is, ai ding and abetting murder. Lastly, the applicant had himself given television interviews and his lawyer had published a historian’s expert report subsequently annulled by the Court of Cassation: manifestly ill-founded.

(b) In respect of the applicant’s comp laints relating to the alleged lack of independence and impartiality of the President of the Assize Court, there was no evidence to support the applicant’s suspicions of bias on the part of the President in his conduct of the proceedings or of an unfavoura ble influence of his conduct on the verdict. The conduct, or even the tactics or strategy, of the civil parties to attempt to influence the decision could not engage the State’s responsibility unless it was established that it had not taken the measures ne cessary to remedy a situation which was liable to undermine the authority and impartiality of the judiciary. That was not so in the instant case, however: manifestly ill-founded.

(c) With regard to the applicant’s allegation that the Assize Court had not g iven adequate reasons for its judgment, it was to be noted that the requirement that reasons had to be given for a decision for the purposes of Article 6 had to accommodate the special features of a set of proceedings, particularly in the assize courts, wh ere juries did not have to state why they were satisfied beyond reasonable doubt. In French law the public prosecutor and the accused could challenge questions framed and put to the jury by the President of the Assize Court and request leave to put others, mindful that, in the event of a dispute, the Assize Court would rule, giving reasons, as it had done in this case. In its judgment convicting the applicant, the Assize Court had referred to the replies given by the jury to each of the 768 questions put to them by the President and also to the account of the facts held to be established and the Articles of the Criminal Code which had been applied. While the jury had only been able to reply “yes” or “no” to each of the questions put to it by the President, t hose questions had formed a framework on which the decision had been based. The precision of those questions had adequately compensated the lack of reasons for the jury’s replies: manifestly ill-founded. [Reference to the Commission precedents.]

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

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