Information Note on the Court’s case-law 35

October 2001

G.B. v. France - 44069/98

Judgment 2.10.2001 [Section III]

Article 6

Article 6-1

Fair hearing

Refusal of Court of Assize to order counter-expertise requested by applicant following expert's unfavourable change of position: violation

Article 6-3-b

Adequate facilities

Adequate time

Refusal of Court of Assize to order counter-expertise requested by ap plicant following expert's unfavourable change of position: violation

Facts : The applicant was charged with rape and sexual assault of minors aged fifteen. A medical and psychological report was submitted during the investigation. The applicant was committ ed for trial at an assize court. At the start of the hearing in the Assize Court the Advocate-General stated that he wished to file a number of documents concerning events that had occurred when the accused had been a minor, as evidence of his character. C ounsel for the applicant objected and sought an adjournment of the hearing in order to file pleadings. After an adjournment of thirty-five minutes he filed pleadings to the effect that the documents should be excluded from the evidence. The Assize Court re jected his submissions and copies of the new documents were accordingly added to the file. On the evening of the first day of the trial one of the experts who had drawn up the report ordered during the investigation gave evidence, summarising the report. T he presiding judge then ordered an adjournment of fifteen minutes, during which the expert inspected the documents that had just been produced by the prosecution. When the examination of the expert resumed, the latter allegedly changed his opinion by stati ng, among other things, that the applicant was a “paedophile and that psychotherapy was necessary, but would be ineffective for the time being”. The following day counsel for the applicant contested the expert’s oral submissions and requested a second expe rt opinion. The Assize Court deferred its decision on that request until its inquiry into the facts had been completed. It duly rejected the request, holding that both parties had been able to discuss the documents that had just been filed and that after t he documents in question had been brought to the expert’s attention, the applicant and his counsel had had the opportunity to request any explanations or clarifications that might have been helpful, in accordance with the rights of the defence. The applica nt was convicted and sentenced to eighteen years’ imprisonment for raping his fifteen-year-old niece and sexually assaulting a fifteen-year-old girl and his own nephews. He appealed on points of law, alleging a violation of his right to a fair trial in tha t his counsel had only had half a day to inspect the documents which the prosecution had added to the file for the hearing in the Assize Court, and in that the Assize Court had refused to order a second expert opinion. The Court of Cassation dismissed his appeal in its entirety.

Law : Article 6 § 1 and § 3 (b) – (a) As regards the time available to the applicant’s lawyer for preparing his case after the prosecution had produced new evidence to the Assize Court, the documents in question had been produced entirely lawfully and had been communicated to the de fence and discussed in the presence of both parties; the principle of equality of arms had therefore not been infringed. In addition, the applicant’s submission that his lawyer had only had half a day to study the new documents was contradicted by the orde r in which the hearings had been held in the Assize Court. The applicant had therefore had adequate time and facilities for the preparation of his defence.

(b) As regards, firstly, the time available to the expert for inspecting the new documents in the f ile and, secondly, the Assize Court’s refusal to order a second expert opinion, the expert had been one of two people who had drawn up the psychiatric report ordered during the investigation. While the report had not been favourable to the applicant, it ha d at least been balanced in tone. In the applicant’s submission the expert, after examining the new evidence produced by the prosecution relating, among other things, to the applicant’s sexual conduct when he had been a minor, had expressed a different opi nion in the Assize Court, one that had been extremely hostile to him and had totally contradicted the report drawn up three and a half years earlier. Although it was impossible to ascertain the precise content of the psychiatric expert’s oral evidence, the respondent Government had not disputed the applicant’s allegations. In principle, neither the expression of a change in opinion by an expert in court nor a court’s refusal to order a second expert opinion was inherently unfair. In the instant case, a seco nd opinion had been requested after the expert, having quickly perused the new evidence, had changed his opinion in the course of a hearing to one that was extremely unfavourable to the applicant. Although it was difficult to speculate as to the influence that an expert opinion might have on the jury’s assessment, it was highly likely that such a sudden change had had the effect of conferring particular weight on the opinion. In the final analysis, the expert’s about-turn, coupled with the refusal to allow the request for a second opinion, had infringed the right to a fair trial and the rights of the defence.

Conclusion : violation (unanimously).

Article 41 – The Court did not find it unreasonable to regard the applicant as having suffered a loss of real oppo rtunities. Furthermore, the finding of a violation was not sufficient to make good the non-pecuniary damage suffered. It awarded 90,000 French francs on those grounds.

© Council of Europe/European Court of Human Rights This summary by the Registry does no t bind the Court.

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