Resolution CM/ResDH(2008) 13 [1]

Execution of the judgments of the European Court of Human Rights

Slimane- Kaïd against France and 5 other cases regarding the right to a fair trial before the Cour de cassation

Slimane-Kaid (application No. 29507/95, judgment of 25 January 2000)

Slimane-Kaid II (application No. 48943/99, judgment of 27 November 2003, final on 27 February 2004)

Berger (application No. 48221/99, judgment of 3 December 2002, final on 3 March 2002)

Mac Gee (application No. 46802/99, judgment of 7 January 2003, final on 7 April 2003)

P ascolini (application No. 45019/98, judgment of 26 June 2003, final on 26 September 2003)

Weil (application No. 49843/99, judgment of 5 February 2004, final on 5 May 2004)

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 failure to communicate to the parties part or all the report of the judge rapporteur ( conseiller rapporteur) or of the conclusions of the advocate-general with the result that the parties could not reply to them (violation of Article 6§1), that the case of Slimane-Kaïd II concerns the presence of the advocate-general at the deliberations of the criminal chamber of the Court of Cassation (violation of Article 6§1) and, finally, that the cases of Weil and Slimane-Kaïd II also concern the excessive length of certain criminal proceedings (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, within the time-limit set, 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) and considering the decision taken at the 819th meeting of the Ministers ' Deputies ( 17 December 2002 ) for the case of Slimane-Kaïd , the 879th meeting ( 22 April 2000 ) in the case of P ascolini , the 891st meeting ( 20 July 2004 ) in the cases of Gaucher, Berger, Mac Gee and Slimane-Kaïd II and the 906th meeting ( 22 December 2004 ) in the case of Weil 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)13

Information about the measures taken to comply with the judgments in the cases of Slimane- Kaïd against France and in 5 other cases 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 trail before the Cour de cassation due to the failure to communicate to the parties part or all the report of the judge rapporteur ( conseiller rapporteur) or the conclusions of the advocate-general with the result that the parties could not reply to them (violation of Article 6§1).

The case of Slimane-Kaïd II also concerns the presence of the advocate-general at the deliberations of the criminal chamber of the Court of Cassation (violation of Article 6§1).

Furthermore, the cases of Weil and Slimane-Kaïd II concern the excessive length of a criminal procedure (violations of Article 6§1).

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Slimane-Kaid n o 29507/95

20 000 FF

20 000 FF

P aid on 19/06/2000

Weil n o 49843/99

10 000 Euros

10 000 Euros

P aid on 23/07/2004

Berger n o 48221/99

300 Euros

300 Euros

P aid on 05/11/2003, interest paid on 25/03/2004

Mac Gee n o 46802/99

3712,44 Euros

3712,44 Euros

P aid on 14/10/2003, interest paid on 21/05/2004

P ascolini n o 45019/98

1 500 Euros

1 500 Euros

P aid on 12/01/2004

The Court did not award just satisfaction in the case of Slimane-Kaid II (application n o 48943/99), since the applicant claimed none in the form prescribed by the Rules of Court.

b) Individual measures

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, if they so wished.

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 cases, 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.

In addition, it may be recalled that parties ' Counsel are informed before the hearing of the general tenor of the Advocate General ' s conclusions and may reply orally or by memorandum, and that this practice has been stated by the European Court of Human Rights, in its judgments in Reinhardt and Slimane-Kaïd (31 March 1998) and Slimane-Kaïd (25 January 2000) to be of a nature to provide the parties with the opportunity to be duly informed of these conclusions and to comment upon them under adequate conditions.

These measures have made it possible to end the disequilibrium found by the European Court in respect of the investigation and decision procedures followed before the Cour de cassation.

III. Conclusion 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 27 March 2008 at the 1020th meeting of the Ministers’ Deputies