Resolution CM/ ResDH (2010)5 [1]

Execution of the judgment of the European Court of Human Rights

Vetter against France

(Application No. 59842/00, judgment of 31 May 2005, final on 31 August 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, whic h 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 violations of the Convention found by the Court in this case concern the infringement of the right to respect for private life (use of listening devices in an apartment by the criminal police, in 1997, which was not “in accordance with the law”) (violation of Article 8) and the unfairness of proceedings before the criminal chamber of the Court of Cassation (failure to communicate the report of the reporting judge to the applicant or to his lawyer, whereas this report had been submitted to the advocate-general) (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;

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)5

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

Vetter against France

Introductory case summary

This case concerns an interference in the applicant ’ s right to respect for his private life. The applicant was suspected of intentional murder and the police, acting on the instructions of the examining magistrate had in 1997 bugged the apartment of a third person regularly visited by the applicant. The proceedings resulted in 2002 in a final judgment sentencing the applicant to 20 years ’ imprisonment.

The European Court found in particular that as French law with regard to the planting of microphones did not set out clearly enough the extent of the authorities ’ discretion or how this discretion should be exercised, the audio surveillance at issue was not “in accordance with the law” (violation of Article 8).

The case also concerns the unfairness of the proceedings before the criminal chamber of the Court of Cassation , due to the failure to communicate the report of the reporting judge to the applicant or to his lawyer, whereas this report had been submitted to the advocate-general (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1 500 euros

-

1 500 euros

Paid on 18/01/2006, including default interests.

b) Individual measures

The European Court awarded the applicant just satisfaction for the non-pecuniary damage sustained.

Concerning the violation of Article 6§1, the applicant had the possibility to apply for the re-opening of his cassation appeal on the basis of Articles L 626-1 ff of the Code of Criminal Procedure.

Concerning Article 8, the authorities indicated that, following the request of the State Prosecutor, the evidence (including the recordings) was destroyed on 09/12/2004.

II. General measures

1) Violation of Article 8 : The European Court considered that eavesdropping on conversations using planted microphones must be based on a “law” which is particularly precise (see §26 of the judgment of the European Court ).

1) Law No. 2004-204 of 09/03/2004 : on 01/10/2004, subsequent to the facts of the case, a new law entered into force, adapting justice to the changes in crimes. This law includes measures relating to the use of listening devices in proceedings relating to organised crime (Article 706-96 of the Code of Criminal Procedure (CCP) :

As regards the categories of people who might be subjected to such measures and the nature of the offences which might warrant them , Article 706-96 of the CCP refers to Article 706-73 of the same Code for the definition of crimes and offences for which the use of technical operations aiming at recording of sound and pictures is allowed. The Article also defines the scope in relation to persons against whom such measures may be directed by laying down, first, that the technical operations set up are for listening, transcription, transmission and recording of words spoken privately or confidentially, in private or public premises or vehicles or of the image of one or more persons whilst in private premises and, secondly, that such operations are allowed in a vehicle or private premises without the knowledge or consent of the owner of the premises or vehicle or the person residing in the premises or any other person that has a right over the premises or the vehicle. Moreover, Article 706-96 specifies that sound recording or video operations cannot concern places/premises specified in Article 56-1, 56-2 and 56-3 (lawyers ’ offices, press or broadcasting companies, doctors ’ surgeries, notary ’ s, solicitors or bailiffs ’ offices) or take place in the vehicle, office or home of persons specified in Article 100-7, which concerns, in specific circumstances, clearly defined persons (lawyers ’ offices, parliamentarians, magistrates). It appears that this law applies to visiting rooms in detention centres (public places) in proceedings relating to organised crime. Finally, the law provides for a limit to the duration of those operations, the conditions for drawing up summaries of conversations overheard, as well as the circumstances in which recordings are erased or destroyed .

2) Case-law of the Cour de cassation : The authorities submitted two judgments of the Cour de cassation dated 01/03/2006 and 21/03/2007, which demonstrate the due control exercised by this court of this new legislative framework, referring to Article 8 of the Convention as well as to the European Court ’ s case-law.

3) Decision of the Conseil constitutionnel ( Decision n o 2004-492 DC of 2/03/2004) : Seised of the law adapting justice to the changes in crimes, the Conseil constitutionnel found that different offences relating to organised crime enumerated in the new Article 706-73 of the CPP were defined precisely enough and presented sufficiently serious and complex character to justify exceptional procedures in the framework of the investigation or prosecution. The Conseil constitutionnel verified that contested operations (including the recording of images and sounds in private or public premises) would be submitted to a decision of the judge of investigation and liberties or the investigating judge.

4) Publication and dissemination : The judgment of the European Court has been published on the Legifrance website and disseminated to all domestic courts via the website of the Service of European and International Affairs.

2) Violation of Article 6§1 : This aspect of the case presents similarities to those of Reinhardt and Slimane-Kaïd (n o 22921/93, Resolution DH(98)306) and Slimane-Kaïd No. 2 (No. 48943/99, Resolution CM/ ResDH (2008)13). The Cour de Cassation has changed the way in which cases submitted to it are investigated and judged. The report of the reporting judge fixing the legal content of the case is now communicated with the file to the prosecution and to the parties.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures 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 4 March 2010 at the 1078 th meeting of the Ministers’ Deputies .