Resolution CM/ ResDH (2008) 85 [1]

Execution of the judgments of the European Court of Human Rights

16 cases against France regarding the right to

a fair trial before the Cour de Cassation

(see 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 referred to as “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, who as a consequence could not reply, as well as the presence of the advocate-general at the deliberations of the criminal chamber of the Cour de Cassation (violation of Article 6§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 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)84

Information about the measures taken to comply with the judgments in 1 6 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, civil or commercial chambers of the Cour de Cassation due to failure to communicate, in whole or in part, the report of the reporting judge ( conseiller rapporteur ) and/or the conclusions of the Advocate- Feneral to parties who as a consequence could not reply (violation of Article 6§1).

Some cases also concern the presence of the Advocate-General at the deliberations of the Cour de Cassation (violation of Article 6§1) ( Bozon application No. 71224/01 and Geniteau application No. 4069/02) .

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

Andr é No. 63313/00,

No JS

Authouart No. 45338/99, 08/11/2005, 08/02/2006

6 000€

2 357,42

8 357,42 EUR

P aid on 27/09/2006, interest paid on 21/06/2007

Bozon No. 71244/01,

08/11/2005, 08/02/2006

3 000 EUR

3 000 EUR

P aid on 22/09/06, interest paid on 24/05/2007

Breniere No. 62118/00

28/02/2006, 28/05/2006

500 EUR

500 EUR

P aid on 22/09/2006

Casalta No. 58906/00, 12/10/2004, 30/03/2005

No JS

Chesnay No. 56588/00, 12/10/2004, 12/01/2005

1 500 EUR

1 500 EUR

P aid on 18/08/2005, late payment interest too

Coulaud No. 69680/01, 02/11/2004, 02/02/2005

No JS

Fernandez-Rodriguez No. 69507/01,

25/10/2005, 25/01/2006

1 000 EUR

1 000 EUR

P aid on 27/09/2006, interest paid on 02/11/2007

Fourchon No. 60145/00, 28/06/2005, 28/09/2005

No JS

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

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Geni teau ( No. 1) 49572/9 9, 07/12/2004, 07/03/2005

300 EUR

300 EUR

P aid on 14/10/2005

Geniteau ( No. 2) 4069/02,

08/11/2005, 08/02/2006

300 EUR

300 EUR

P aid on 22/08/2006, interest paid on 17/09/2007

Lebegue No. 57742/00, 22/12/2004, 06/06/2005

300 EUR

300 EUR

P aid on 30/08/2005

Louis No. 44301/02,

14/11/2006, 14/02/2007

No JS

Quesne No. 65110/01,

01/04/2004, 01/07/2004

1 000 EUR

1 000 EUR

P aid on 27/10/2004

Sassi No. 19617/02,

1 500 EUR

1 500 EUR

P aid on 13/11/2006

SC P Huglo , Lepage & Associes Conseil No. 59477/00,

01/02/2005, 01/05/2005

1 000 EUR

1 000 EUR

P aid on 18/08/2005, interest paid on 02/11/2005

b) Individual measures

Cases concerning proceedings before the criminal chamber of the Cour de cassation in which the applicants were convicted

Section 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 criminal chamber of the Cour de cassation in which the applicants had lodged a civil action

In cases concerning proceedings before the criminal chamber of the Cour de cassation in which the applicants had lodge a civil action ( Chesnay application No. 56588/00 and Geniteau application No. 49572/99) the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage ; in the case of Geniteau application No. 49572/99, the Court did not find any causal relationship between any pecuniary damage and the finding of a violation .

Cases concerning civil proceedings before the civil or commercial chamber of the Cour de cassation

In the case of André (application No. 63313/00), the applicant did not present any request in respect of pecuniary or non-pecuniary damage.

In cases where the applicants presented a request for non-pecuniary damage , ( Casalta application No. 58906/00, Fernandez-Rodriguez application No. 69507/01, Lebègue application No. 57742/00, SC P Huglo , Lepage & Associes Conseil application No. 59477/00 and Geniteau application No. 4069/02) the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.

In cases where the applicants presented a request for pecuniary damage , the Court did not find any causal relationship between any pecuniary damage and the finding of a violation ( Casalta application No. 58906/00, SC P Huglo , Lepage & Associes Conseil application No. 59477/00 and Geniteau application No. 4069/02).

Therefore, no other individual measure was deemed necessary.

II. General measures

Measures have already been adopted. 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 ) are communicated with the file to both the prosecution 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; Finally, parties ’ counsel are informed before the hearing of the general tenor of the Advocate General ’ s conclusions and may reply orally or by memorandum (see CM/ ResDH (2008)13 Slimane ‑ Kaïd against France and 5 other cases regarding the right to a fair trial before the Cour de cassation).

Moreover, specific measures have been adopted so that parties not represented by counsel can access the same information that they would have if they had a counsel and irrespective of their place of residence (see CM/ ResDH (2008)71 in the case of Meftah and others and 25 other cases against France regarding the right to a fair trial 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 Fr ance 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