Final Resolution ResDH(2001)4 Human Rights Application No. 19033/91 Hakkar against France

(Adopted by the Committee of Ministers on 14 February 2001 at the 741 st meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to its decision, adopted on 15 December 1995, by which it concluded that there had been a violation of Article 6, paragraph 1, of the Convention on account of the excessive length of certain criminal proceedings against the applicant, and that there had also been a violation of Article 6, paragraphs 3 b) and c) taken together with Article 6, paragraph 1, of the Convention in that, in the context of the same proceedings before the Assize Court of Yonne, as a result of which he was sentenced to life imprisonment, the applicant had not been given the time or the facilities necessary to prepare his defence and was not represented at the trial;

Having regard to Interim Resolution DH (97) 475, adopted on 19 September 1997 authorising the publication of the report of the European Commission of Human Rights;

Whereas the Committee of Ministers, agreeing with the Commission's proposals, held by a decision adopted on 19 March 1997, in accordance with former Article 32, paragraph 2, of the Convention, that the Government of France was to pay the applicant as just satisfaction, within three months, 50 000 French francs in respect of non-pecuniary damage and 12 000 French francs in respect of costs and expenses, namely a total sum of 62 000 French francs, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay (in accordance with the decision adopted by the Committee of Ministers at its 599th meeting, on 17 September 1997, on the general principles regarding the payment of default interest) at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the Government of France to inform it of the measures taken following its decisions of 15 December 1995 and 19 March 1997, having regard to France's obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas it satisfied itself that the Government of the respondent State had paid the applicant, within the time-limit set, the total sum of 62 000 French francs as just satisfaction;

Whereas during the examination of the case the Government of France accordingly gave the Committee of Ministers information about the measures taken in consequence of the Committee's decisions (this information appears in the appendix to this resolution);

Having noted that, in view of the gravity of the violation of the right to a fair trial, which cast a serious doubt on the outcome of the domestic proceedings impugned, and the resulting very serious consequences for the applicant, specific measures were necessary in order to erase the consequences of the violation;

Having noted with satisfaction that, in the absence of any legal remedy permitting the re-opening of the impugned proceedings, the French Parliament adopted, on 15 June 2000, a new law making it possible to re-examine a criminal decision following the pronouncement of a judgment of the European Court of Human Rights, thus giving effect to Recommendation No. R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights;

Considering that the Re-examination Board established by this new law decided on 30 November 2000 that the merits of this case should be re-examined and referred the case to the Hauts de Seine Assize Court before which the new trial should take place during spring 2001;

Noting with satisfaction that this case, which has suffered a number of considerable delays at national level, will be re-tried very shortly;

Considering that, since the main violation concerned the fairness of the incriminated proceedings rather than their outcome, it was not necessary to await the outcome of the new trial at domestic level,

Declares, after having taken note of all the individual and general measures taken by the Government of France, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Resolution ResDH(2001)4

Information provided by the Government of France during the examination of the Hakkar case by the Committee of Ministers

As regards individual measures

Adoption of the provisions concerning “re-examination of criminal sentences following the pronouncement of a judgment of the European Court of Human Rights” during the examination of the Hakkar case

Act No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and the rights of victims, which entered into force upon its publication in the Official Journal of the French Republic on 16 June 2000 introduced a third chapter “on re-examination of criminal decisions following the pronouncement of a judgment of the European Court of Human Rights” into the Code of Criminal Procedure.

New Article 626-1 of the Code of Criminal Procedure provides that: “Review of a final criminal 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 conviction was in breach of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto, and where the violation found, by its nature and gravity, has injurious consequences for the convicted person which could not be remedied by the "just satisfaction" awarded under Article 41 of the Convention.”

The succeeding articles (626-2 to 626-7) set up a re-examination board composed of judges of the Cour de cassation and lay down the procedures to be followed before the board.

Article 626-5 provides that “Stay of execution of the sentence may be ordered by the board or the Cour de cassation itself at any stage of the review procedure.”

Finally, the transitional provisions of the Act provide that: “applications for review submitted in accordance with Article 626-1 et seq. of the Code of Criminal Procedure and founded on a judgment delivered by the European Court of Human Rights prior to publication of this Act in the Official Gazette of the French Republic may be made within one year after publication. For the purposes of the aforesaid articles, decisions taken by the Committee of Ministers of the Council of Europe following a decision by the European Commission of Human Rights under (former) Article 32 of the European Convention in Human Rights, or Article 5 (paragraph 6) of Protocol No. 11 to the Convention, shall be equated to European Court of Human Rights judgments.”

Application of the new provisions to the Hakkar case

On 18 July 2000, Mr Hakkar lodged an application to re-examine the judgment of the Yonne Assize Court of 8 December 1989 together with a request to suspend his conviction. These requests were considered by the Re-examination Board on 30 November 2000.

As regards the request for suspension of his sentence, the Board ordered the suspension of the life sentence pronounced by Yonne Assize Court on 8 December 1989 but ruled inadmissible the request to suspend an 8-year sentence pronounced by the Paris Appeal Court on 27 February 1992 for attempted escape with violence.

As regards the application for re-examination, the Board concluded that “the violations of the right to have the time and necessary facilities to prepare one's defence and the right to be assisted by counsel of one's choice resulted, by their nature and their gravity, in harmful consequences for the convicted person which can only be brought to an end by a re-examination of the case”. The Board thus accepted the application to re-examine the life sentence (with a minimum tariff of 18 years) pronounced by Yonne Assize Court on 8 December 1989, and referred the case to the Hauts de Seine Assize Court which will undertake the new trial as soon as possible during spring 2001. The French Government undertakes to ensure that the new trial will be treated with great diligence.

With regard to general measures

The French authorities recall that this case has its origin in the decisions of the President of the Assize Court to postpone the consideration of the case. This was a personal choice by the President, who might easily have granted the postponement of the case under the terms of Article 287 of the Code of Criminal Procedure which provides that “The President may, either of his own motion or at the request of the prosecution, order a postponement to a later session cases which, in his view, are not ready for judgment at the session for which they are placed on the roll”.

The full text of the Commission's report is available on the web site of the European Court of Human Rights (www.echr.coe.int/hudoc). The French authorities specify that copies of the Commission's report have been sent to the authorities directly concerned by this case. They consider, taking into account the specific circumstances of the case and the direct effect normally given to the Convention and to the case-law of the Strasbourg organs in domestic law (see, inter alia, Cass. Soc. 14 January 1999 Bozkurt, Cass. Civ. 28 April 1998 M. G. and Conseil d'Etat 14 February 1996 Maubleu), that these measures will prevent new violations similar to that found in this case.