Resolution CM/ResDH(2008) 11 [1]

Execution of the judgment of the European Court of Human Rights

Makhfi against France

(Application No. 59335/00 , judgment of 19 October 2004 , final on 19 January 2005)

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 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 unfairness of the trial which led to the criminal conviction of the applicant, because the rights of defence and the principle of equality of arms had not been respected ( violation of Article 6, paragraphs 3 and 1 taken together) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with France ' s 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 close the examination of this case.

Appendix to Resolution CM/ResDH(2008)11

Information about the measures taken to comply with the judgment in the case of Makhfi against France

Introductory case summary

In this case, the European Court found that the trial at which the applicant was sentenced in 1998 to 8 years ' imprisonment had not been not fair, because the rights of defence and the principle of equality of arms had not been respected, the applicant ' s lawyer having been required to give his address at 5.00 a.m., when the sitting had already lasted for a total of 15 hours and 45 minutes ( violation of Article 6, paragraphs 3 and 1 taken together ).

The European Court considered it essential that both accused and their counsel should be able to follow the proceedings, answer questions and make their submissions without suffering from excessive tiredness. Similarly, it was vital that judges and jurors should be in full possession of their faculties of concentration and attention in order to follow the proceedings and to be able to give an informed judgment.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4 000 euros

4 000 euros

8 000 euros

P aid on 26 February 2005, plus interests

b) Individual measures

The applicant ' s conviction became final in 2000.

Following the European Court ' s judgment, the applicant had the possibility to apply for re-examination of his case under Article L 626-1 ff. of the Code of Criminal P rocedure. He made use of this possibility and by decision of 24 November 2005, the “Commission for the re-examination of criminal decisions following judgments of the European Court of Human Rights” accepted his application.

II. General measures

The judgment of the European Court was sent to the Court concerned in this case (the Angers Court of Appeal) but also and above all to the Cour de cassation and to all magistrates who are “Human Rights correspondents” in the jurisdiction of all courts of appeal.

Considering that the violation found was not due to the legislation, and taking into account the direct effect of the Convention in French courts, new, similar violations may be avoided by sending this judgment out to the relevant courts.

Attention was also drawn to this judgment in legal circles through publication in several widely circulated legal journals. Furthermore, a summary of the judgment wass published by the Cour de cassation ' s European Law Observatory ( Observatoire de Droit Européen ), in “ La Cour européenne des droits de l ' Homme - 2006 - Arrêts concernant la France et leurs commentaires ” (available on the Internet site of the Cour de cassation ).

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, 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 27 March 2008 at the 1020th meeting of the Ministers’ Deputies