Resolution CM/ ResDH (2010)46 [1]

Execution of the judgment of the European Court of Human Rights

Guilloury against France

(Application No. 62236/00, judgment of 22 June 2006, final on 22 September 2006)

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 u nfairness of certain criminal proceedings in that the applicant had an opportunity to examine or have examined the prosecution and defence witnesses (violation of Article 6, paragraphs 1 and 3(d)) (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;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

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)46

Information about the measures to comply with the judgment in the case of

Guilloury against France

Introductory case summary

The case concerns a breach of the applicant ’ s right to a fair trial in criminal proceedings which resulted in his conviction in 2000 for aggravated sexual assault.

The European Court noted that to establish the use of force and abuse of authority, which had been decisive elements in the characterisation of the offence, the courts had essentially relied on the statements of the victims and witnesses, without the applicant having ever been given the opportunity to examine the prosecution witnesses or to have them examined in relation to that issue. As regards the defence witnesses, some of which had been present at the hearing, the appellate court had declined to hear evidence from them.

The European Court concluded that these facts resulted in a violation of Article 6§§1 et 3(d) of the Convention.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

2 982,25 EUR

2 982,25 EUR

Paid on 13/04/2007

b) Individual measures

By virtue of Articles L 626-1 ff of the Code of Criminal Procedure, it was open to the applicant to apply for reconsideration of the criminal verdict at issue (in this respect, see also §69 of the judgment).

II. General measures

According to the legislation in force at the material time, appellate judges could order the hearing of new prosecution witnesses who had not testified at first instance (as in the present case). Such hearing was, however, optional and judges could decline it provided that they gave reasons for their decision (in this regard, see in particular former Article 513 of the Code of Criminal Procedure and the judgment of principle of the Cour de cassation dated 12/01/1989, summarised in §§43-44 of the European Court ’ s judgment). As regards defence witnesses, no such limitation was provided by the legislation. In the present case, the European Court noted (§61) that the appellate court had not heard them even though at least two of them had been present at the hearing and it had thus the material possibility to do so.

Subsequent to the facts in this case, former Article 513 was amended by Law No. 2000-516 of 15/06/2000 (see § 45 of the judgment). This article provides that witnesses called by the accused shall be heard in conformity with the rules provided in Articles 435-437. The prosecution may object to such witnesses ’ testifying if they have already been heard by the court. It is for the court to determine such issues before considering the merits. Thus, the hearing of the defence witnesses by the judge is guaranteed.

A summary of the judgment of the European Court was published in La Cour européenne des droits de l ’ Homme 2002-2006 - Arrêts concernant la France et leurs commentaires - a publication of the European Law Observatory ( Observatoire de Droit Européen ) available on the website of the Court of Cassation : http://www.courdecassation.fr/IMG/File/pdf_2007/observatoire_droit_europeen/cedh_2002_2006%20_internet.pdf .

III. Conclusions of the respondent state

The government considers 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 3 June 2010 at the 1086th meeting of the Ministers’ Deputies