Resolution CM /ResDH(2007)46 [1]

Execution of the judgment of the European Court of Human Rights

Mayali against France

(Application No. 69116/01, judgment of 14 June 2005, final on 14 September 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 referred to as “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 certain criminal proceedings, in particular the lack of a sufficient opportunity to challenge the victim ' s assertions on which the applicant ' s conviction had been based (violation of Article 6, paragraphs 1 and 3 d) (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, within the time-limit set, 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 in the judgment, 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;

Having examined the measures taken by the respondent state (see Appendix),

DECLARES, 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(2007)46

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

Mayali against France

Introductory case summary

This case concerns the unfairness of criminal proceedings brought against the applicant for indecent assault with violence against one of his cellmates (violation of Article 6, paragraphs 1 and 3d).

The European Court noted that the applicant had been convicted on the sole basis of statements made by the civil party to the police and the findings of a psychiatrist who had examined the applicant and the victim separately. The Court of Appeal considered it necessary to take evidence from the civil party and the other cellmate, but convicted the applicant without hearing their testimony because it had not been possible to trace them. In the Court ' s view, the fact that it was impossible to examine them in court was attributable to the authorities, as they could have sought police assistance to locate them or hear their evidence at first instance, especially as their appearance in court could have been decisive, the whole case hinging on the question of whether or not the complainant had consented, as the applicant maintained. The Court thus concluded that the applicant had not had a sufficient and appropriate opportunity to challenge the victim ' s assertions on which his conviction, and subsequent sentencing to three years ' imprisonment, had been based.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

300 euros

-

300 euros

P aid on 2 November 2005

b) Individual measures

The applicant made use of the possibility to apply for reconsideration of the final criminal decision on the basis of Articles L 626-1 ff of the Code of Criminal P rocedure.

His application was accepted by the Cour de cassation on 24 November 2005. The case was referred back to the Rennes Court of appeal for retrial.

II. General measures

In order to ensure that the present judgment will be taken into account in practice, and in view of the direct effect that the French criminal courts give to the Convention and to the Court ' s case-law, the judgment of the European Court has been sent out to all competent courts.

III. Conclusions of the respondent state

The government considers that the measures adopted 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 20 April 2007 at the 992nd meeting of the Ministers’ Deputies