Resolution CM/ ResDH (2010)216 [1]

Execution of the judgment of the European Court of Human Rights

Farhi against France

(Application No. 17070/05 , judgment of 16/01/2007 , final on 23/05/2007 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the right to be tried by an impartial tribunal, due the refusal by an assisze court to take formal note, upon application of the applicant ’ s counsel, of an unlawful communication, within the meaning of Article 304 of the Code of Criminal Procedure, which had taken place between some members of the jury and the advocate-general during an adjournment of the hearing in the course of proceedings in June 2004 (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)216

Information about the measures to comply with the judgment

in the case of Farhi against France

Introductory case summary

The case concerns a breach of the applicant ’ s right to be tried by an impartial tribunal due to the refusal by an Assize Court to take formal note, upon application of the applicant ’ s counsel, of an unlawful communication, within the meaning of Article 304 of the Code of Criminal Procedure, between certain jurors and the advocate-general during an adjournment in the course of proceedings in June 2004 (violation of Article 6§1).

The European Court considered that the defendant and the public prosecutor, who have separate and competing interests, could be regarded as “opposing parties” in the proceedings. It considered that the allegation that the advocate-general had had contact with members of the jury was sufficiently serious for the President of the Assize Court to order an inquiry. According to the Court, only a hearing of the jurors would have been likely to shed light on the nature of the remarks exchanged and the influence they might have had, if any, on their opinions.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The European Court awarded no just satisfaction.

b) Individual measures

The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. In application of Article 626-1 of the Code of Criminal Procedure, the applicant might request reopening of the proceedings.

In these circumstances, no other individual measure seems necessary.

II. General measures

The legislative provisions are not called into question in this case. On the contrary it is the way in which Article 304 of the Code of Criminal Procedure was applied by the domestic courts which was criticised by the European Court . This is why measures have been taken by the French authorities to ensure broad publicity for the judgment of the European Court , so that the competent courts, through the direct application of the Convention, may take it into account in practice.

Thus t he judgment of the European Court has been published on the Legifrance website (public and free of charge) and disseminated to all domestic courts via the website of the European and International Affairs Department.

III. Conclusions of the respondent state

The government considers that no specific individual measure is required in this case, that the measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies