AS TO THE ADMISSIBILITY OF
Application no. 45019/98
by René PASCOLINI
The European Court of Human Rights (First Section), sitting on 25 April 2002 as a Chamber composed of:
Mr C.L. Rozakis, President,
Ms F. Tulkens
Mr J.-P. Costa
Mr P. Lorenzen,
Mr E. Levits,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 14 October 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
A. The circumstances of the case
The applicant Mr René Pascolini is a French national who was born in 1948 and lives at Aussonne.
The facts of the case, as presented by the parties, can be summarised as follows.
The applicant was summoned to appear before Toulouse Criminal Court on 18 January 1993 on charges of misleading advertising. At the hearing his counsel applied to have the proceedings struck out on grounds of nullity.
In a judgment of 27 January 1993 the Criminal Court dismissed that application and adjourned the case to 14 April 1993. On that date the applicant requested photocopies of the case file, his lawyer having refused to provide him with photocopies on the instructions of the public prosecutor. The Criminal Court refused that request and adjourned the case to 23 April 1993. The applicant appealed against that decision.
In a judgment of 9 February 1994 the Toulouse Criminal Court found the applicant guilty of the offences charged and sentenced him to a day-fine, calculated on the basis of 200 French francs (FRF) per day for two hundred days. Both the applicant and the prosecution appealed.
In a judgment of 6 April 1995, on appeal against the judgments of 14 April 1993 and 9 February 1994, the Toulouse Court of Appeal dismissed the application for the case to be struck out on grounds of nullity as a result of the failure to provide copies of the documents, upheld the finding of guilt and replaced the day-fine with a suspended prison sentence of one month. The applicant appealed to the Court of Cassation on points of law.
In a judgment of 12 June 1996, the Criminal Division of the Court of Cassation, relying on Article 6 § 3 of the European Convention on Human Rights, allowed the applicant's appeal against the Court of Appeal's decision and remitted the case to a different court of appeal.
In a judgment of 29 April 1997, the Bordeaux Court of Appeal quashed the impugned judgments, found the applicant guilty of misleading advertising and imposed a fine of FRF 10,000.
The applicant appealed on points of law. He was represented by a member of the Conseil d'État and Court of Cassation Bar, who lodged written pleadings in support of the appeal. The applicant also lodged his own pleading.
In a judgment of 6 May 1998 the Criminal Division of the Court of Cassation dismissed his appeal.
B. Relevant domestic law and practice
Judgment of 18 December 1996 of the Criminal Division of the Court of Cassation:
“The appellant, who relies on Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has applied for disclosure prior to the hearing of the written submissions of the advocate-general.
That application is devoid of purpose and cannot be granted.
In accordance with Article 602 of the Code of Criminal Procedure, the submissions of the advocate-general (whose role in the Criminal Division is not to uphold the criminal charge, within the meaning of the Convention provisions relied on, but to oversee, entirely independently, the proper application of the criminal law) are made – in oral form only – at the hearing, once the members of the Court of Cassation Bar representing the parties have made their observations, if they have so requested. In order to ensure due adversarial process, counsel for the parties are subsequently invited by the President to make further oral submissions after the advocate-general's speech...”
The applicant complains under Article 6 § 1 of the Convention that the advocate-general's submissions and the report of the reporting judge at the Court of Cassation were not communicated to him.
The applicant complains that the Advocate General's submissions and the report of the reporting judge at the Court of Cassation were not communicated to him. He relies on Article 6 § 1 of the Convention, the relevant provisions of which read as follows:
“1. “In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing by [a] tribunal...”
The Government point out with respect to the complaint concerning communication of the advocate-general's submissions that a similar complaint has already been examined by the Court in the case of Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II). They reiterate that it is the practice for members of the Conseil d'État and Court of Cassation Bar to be given an opportunity to reply to the advocate-general's submissions. That practice was introduced by the Criminal Division of the Court of Cassation at the end of the 1980s and formally recognised as valid in a judgment of 18 December 1996. The Government note that the Court has ruled that the practice complies with the requirements of a fair hearing and submit, inter alia, that the applicant benefited from it in the instant case and that his specialist counsel in the Court of Cassation could have apprised himself of the advocate-general's submissions and replied to them. Consequently, they submit that this complaint is manifestly ill-founded.
As regards the reporting judge's report, the Government note that the Court has ruled that communicating it to the advocate-general without communicating it to the applicant is inconsistent with the requirements of a fair hearing. While leaving this issue to the Court's discretion, the Government nevertheless point out that the tenor of the report is indicated in a note endorsed on the list of cases for hearing that is lodged with the Conseil d'État and Court of Cassation Bar ten days before the hearing.
The applicant alleges that he was not able to benefit from the practice referred to by the Government affording his specialist counsel an opportunity to apprise himself of the advocate-general's submissions and to reply to them. He complains that the principle of adversarial process is not observed in the procedure followed in the Criminal Division of the Court of Cassation. With regard to the reporting judge's report, he notes, inter alia, that the Government have not produced the note setting out the tenor of the reporting judge's report in his case and disputes its existence.
The Court notes that in its aforementioned Reinhardt and Slimane-Kaïd judgments, it found a violation of Article 6 § 1, for the following reasons:
105. It was common ground that well before the hearing the advocate-general had received the report and draft judgment that had been prepared by the reporting judge. As the Government said, the report was in two parts: the first contained a description of the facts, procedure and grounds of appeal and the second a legal analysis of the case and an opinion on the merits of the appeal.
Those documents were not communicated to either the applicants or their lawyers. Currently, parties' lawyers are informed of the recommendation in the report (whether an appeal is to be declared inadmissible, to be dismissed, or to be allowed in whole or in part – see paragraph 73 above) by a note in the list of cases that is distributed a week before the hearing to lawyers practising in the Conseil d'État and Court of Cassation.
Mrs Reinhardt's and Mr Slimane-Kaïd's lawyers could have made oral submissions if they had so requested; at the hearing they would have had the right to address the court after the reporting judge, which would have meant that they would have been able to hear the first part of his report and to comment on it. The second part of the report and the draft judgment – which were legitimately privileged from disclosure as forming part of the deliberations – could not in any event be communicated to them; at best, they would thus have learnt of the recommendation in the reporting judge's report a few days before the hearing.
Conversely, the entire report and the draft judgment were communicated to the advocate-general. The advocate-general is not a member of the court hearing the appeal. His role is to ensure that the law is correctly applied when it is clear and correctly construed when ambiguous. He “advises” the judges on the solution in each individual case and, through the authority of his office, he may influence their decision in a way that is either favourable or runs counter to the case put forward by appellants (see paragraphs 74 and 75 above).
Given the importance of the reporting judge's report (and in particular the second part thereof), the advocate-general's role and the consequences of the outcome of the proceedings for Mrs Reinhardt and Mr Slimane-Kaïd, the imbalance thus created by the failure to give like disclosure of the report to the applicants' advisers is not reconcilable with the requirements of a fair trial.
106. The fact that the advocate-general's submissions were not communicated to the applicants is likewise questionable.
Admittedly, current practice is for the advocate-general to inform the parties' lawyers no later than the day preceding the hearing of the tenor of his submissions and in cases where, at the request of the lawyers, there is an oral hearing, they are entitled to reply to his submissions orally and by a note sent to the court in deliberations (see paragraph 79 above). In the light of the fact that only questions of pure law are argued before the Court of Cassation and that the parties are represented in that court by highly specialised lawyers, that practice affords parties an opportunity of apprising themselves of the advocate-general's submissions and commenting on them in a satisfactory manner. It has not, however, been shown that such a practice existed at the material time.”
As regards the failure to communicate the advocate-general's submissions, the Court therfore found that a practice existed that met the requirements of Article 6 § 1 of the Convention. Although it was not established that such a practice existed at the material time in the case of Reinhardt and Slimane-Kaïd, the Court's use of the expression “currently” necessarily covers the period subsequent to the delivery of that judgment on 31 March 1998. Furthermore, the Court notes that the existence of a practice intended to ensure adversarial process was confirmed in the judgment of the Criminal Division of the Court of Cassation of 18 December 1996.
In the present case, after the applicant's appeal to the Court of Cassation was dismissed by a judgment of 6 May 1998, the Court notes that the applicant's specialist lawyer was entitled under the practice to apprise himself of the advocate-general's submissions and to comment on them in a satisfactory manner.
It follows that this complaint must therefore be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
As to the failure to communicate the reporting judge's report, the Court considers, in the light of all the parties' arguments, that it raises important issues of law and fact which cannot be resolved at this stage of the examination and require an examination of the merits. It follows that this complaint cannot be considered manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
Declares admissible, without prejudging the merits, the applicant's complaint concerning the failure to communicate the reporting judge's report;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
Deputy Registrar President
PASCOLINI v. FRANCE DECISION
PASCOLINI v. FRANCE DECISION