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Resolution CM/ ResDH (2008)71 [1]

Execution of the judgments of the European Court of Human Rights

Meftah and others and 25 other cases against France regarding the right to a fair trial before the Cour de cassation

(see list in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the right to a fair trial before the Cour de cassation due to the failure to communicate, in whole or in part, the report of the reporting judge ( conseiller rapporteur ) and/or the conclusions of the Advocate-General to parties not represented by counsel, who as a consequence could not reply, as well as well as the presence of the advocate-general at the deliberations of the Cour de cassation (violations of Article 6§1);

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

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 plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2008)71

Information about the measures taken to comply with the judgments in the case of Meftah and others and 2 5 other cases against France regarding the right to a fair trial before the Cour de cassation

Introductory case summary

These cases concern a breach to the right to a fair trial before the criminal chamber or the social chambers of the Cour de cassation due to the failure to communicate, in whole or in part, the report of the reporting judge ( conseiller rapporteur ) and/or the conclusions of the Advocate-General to parties not represented by counsel, who as a consequence could not reply (violation of Article 6§1).

Some of these cases also concern the presence of the advocate-general at the deliberations before the Cour de Cassation (violation of Article 6§1) .

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number, judgment of ... , final on ...

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Meftah and others

No. 32911/66

26/07/2002, 26/07/2002

6 500 EUR

P aid on 6/12/2002 and on 24 January 2004, interest paid

Bach No. 64460/01

28/06/2005, 28/09/2005

1 196 EUR

P aid on 02/01/2006

Bertin No. 55917/00

24/05/2006, 13/09/2006

No JS

Cholet No. 10033/02,

29/03/2007, 29/06/2007

No JS

De Sousa No. 61328/00

08/11/2005, 08/02/2006

1 000 EUR

P aid on 18/08/2006, interest paid

Domah and others

No. 3447/02

16/1/2007, 16/4/2007

No JS

Duriez-Costes No. 50638/99

07/10/2003, 07/01/2004

1 000 EUR

P aid on 09/04/2004

Fabre No. 69225/01

02/11/2004, 30/03/2005

No JS

Gaucher No. 51406/99

09/10/2003, 09/01/2004

1 500 EUR

P aid on 09/04/2004

Golinelli and Freymuth

No. 65823/01 and 65273/01

22/11/2005, 12/04/2006

No JS

Name and application number, judgment of ... , final on ...

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Gouget and others

No. 61059/00

24/01/2006, 24/04/2006

No JS

Joye No. 5949/02

20/06/2006, 20/09/2006

No JS

Lacas No. 74587/01

08/02/2005, 06/07/2005

400 EUR

P aid on 18/07/2005

Lafaysse No. 63059/00

12/10/2004, 12/01/2005

1 000€

P aid on 12/09/2005, interest paid

Le Duigou No. 61139/00

19/05/2005, 19/08/2005

300 EUR

P aid on 02/11/2005

Marion No. 30408/02

20/12/2005, 20/03/2006

No JS

M.B. No. 65935/01

13/09/2005, 13/12/2005

500 EUR

P aid on 13/11/2008

Menher No. 60546/00,

03/02/2004, 03/05/2004

No JS

Mourgues No. 18592/03

19/12/2006, 19/03/2007

400 EUR

P aid on 17/09/2007

Nesme No. 72783/01

14/12/2004, 14/03/2005

No JS

P ause No. 61092/00

14/12/2004, 14/03/2005

No JS

P hilippe P ause No. 58742/00

15/02/2005, 15/05/2005

No JS

Richen and Gaucher

No. 31520/96 and 34359/97

23/01/2003, 23/04/2003

2 400 EUR

P aid on 07/08/2003, interest paid

Sibaud No. 51069/99

18/01/2005, 18/04/2005

No JS

Vesque No. 3774/02

07/03/2006, 03/07/2006

1 000 EUR

P aid on 08/12/2006, interest paid

Voisine No. 27362/95

08/02/2000, 08/02/2000

10 000 FRF

P aid on 23/08/2000, interest paid

b) Individual measures

Cases concerning proceedings before the criminal chamber of the Cour de cassation

Article 626-1 of the Code of Criminal P rocedure provides that “review of a final criminal court decision may be requested on behalf of any person found guilty of an offence where it emerges from a judgment delivered by the European Court of Human Rights that the sentence was passed in a manner violating the provisions of the Convention for the P rotection of Human Rights and Fundamental Freedoms or of the protocols thereto, if the nature and the gravity of the violation found are such as to subject the sentenced person to prejudicial consequences that could not be remedied by the just satisfaction awarded on the basis of Article 41 of the Convention”.

The applicants might have availed themselves of this possibility, had they so wished.

Cases concerning proceedings before the social chamber of the Cour de cassation

In the cases relevant to the civil proceedings before the social chamber of the Cour de cassation ( Joye application No. 5949/02, M.B. application No. 65935/01, Mourgues application No. 18592/03, Marion application No. 30408/02 and Menher application No. 60546/00), the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.

As regards pecuniary damage, in the cases of Joye , M.B. and Mourgues the Court found no causal relationship between the finding of a violation and any pecuniary damage. In the case of Menher , the applicant presented no request in respect of pecuniary damage.

Finally, in the Marion case, the Court held that it could not speculate on the conclusions the social chamber of the Court of cassation would have came to, had Article 6 paragraph 1 not been infringed. During the examination of his case before the Committee of Ministers, the applicant made no request; therefore, no other individual measure was deemed necessary.

II. General measures

The Cour de cassation has changed the way in which it investigates and determines matters submitted to it.

Advisory reports drafted by the judge rapporteur ( conseiller rapporteur ) , which set out the legal questions raised by the case, are communicated with the file to both the public prosecutor and the parties.

Opinions on decisions and draft judgments drawn up for consideration by the Bench are communicated neither to the advocates-general nor to the parties.

Advocates General no longer take part in preparatory conferences or in the deliberations of the Bench.

Since 1 February 2003, in cases in which legal representation is not compulsory, the principle is that the parties not represented by counsel, can access to information on the basis of a procedure that sets them on equal terms with represented parties.

A consultation service was set up within the Cour de cassation enabling parties and/or their counsel to consult documents concerning the proceedings (reports or briefs prepared by the designated reporting judge for their case by appointment). Appointments may be made by telephone and the reception service has been instructed to inform parties without counsel how to consult the documents either in person or through a representative.

This system has recently been developed in order to respond to the requirements of parties, particularly those not resident in the vicinity of the capital. Since 1 December 2006, appellants submitting personal memorials receive written acknowledgement of receipt, indicating in addition that they will be informed of the date of deposit of the reporting judge ’ s report. When the report is deposited, appellants are informed by letter that they may receive a copy by post upon request to the registry.

Finally, parties not represented by counsel are informed of the meaning of the conclusions of the Attorney General by the p rosecution before the hearing. In the same letter, they are informed that they may send supplementary observations to the registrar of the Cour de cassation .

The procedure is organised so as to allow applicants not represented by counsel to receive the information they wish, irrespective of their place of residence, thus eliminating the imbalance found by the Court relating to investigation and judgment procedure before the Cour de cassation.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies

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CASE OF MEFTAH & OTHERS AND TWENTY FIVE OTHER CASES AGAINST FRANCE

CASE OF MEFTAH & OTHERS AND TWENTY FIVE OTHER CASES AGAINST FRANCE