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THE FACTS

The applicants, Mr Jean-Marie Schreiber and Mr Jean-Claude Boetsch, are French nationals, born in 1942 and 1946 respectively, who live in Lautenbach and Raedersheim (France). They were represented before the Court by Mr S. Thomann, of the Mulhouse Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are victims of the Airbus A320 accident which occurred in Habsheim on 26 June 1988, causing the deaths of three people and injuring about a hundred others. The first applicant is also the chairperson of the accident victims' association.

The vice-president responsible for investigations at the Colmar tribunal de grande instance conducted the judicial investigation into the accident. In a judgment of 9 April 1998, the Colmar Court of Appeal convicted various individuals, including the pilots of the aircraft, of unintentionally causing death and injury. An appeal on points of law was lodged against that judgment.

One of the pilots personally filed a complaint with the Mulhouse investigating judge and applied to join the proceedings as a civil party, alleging “breaking of seals and destruction, unlawful removal, concealment, dissimulation or alteration of public or private documents likely to facilitate the investigation of serious crimes and other major offences, the discovery of evidence, or the punishment of their perpetrator”, on the ground that the aircraft's flight recorders had been deliberately tampered with. This investigation was subsequently entrusted to the Colmar investigating judge and was closed by an order of 19 March 1996 finding that there was no case to answer, which was upheld by a judgment of 13 June 1996 of the Indictment Division.

The investigation of five complaints, including four in which the applicants, inter alios, applied to join the proceedings as a civil party, was referred to the Colmar investigating judge, either directly or as a result of the relinquishment of jurisdiction by the Mulhouse investigating judge, which was confirmed by a judgment of the Indictment Division of 29 April 1999.

On 29 July 1999 the applicants personally applied to the President of the Colmar Court of Appeal to challenge the Colmar investigating judge. They claimed that fraudulent acts of manipulation and substitution had been carried out at the outset or during the proceedings, and expressed doubts regarding the judge's impartiality and objectivity. Their application was based, inter alia, on Article 6 of the Convention.

By an order of 2 November 1999 that was not subject to appeal, the President dismissed the challenge and ordered the applicants jointly and severally to pay a civil fine of 1,000 French francs (about 150 euros). He held, in particular:

“A judge does not infringe the requirement of impartiality by the mere fact of intervening in the same case twice, provided that he has not previously evaluated the facts referred to him on the second occasion; short of impugning his motives, there are no objective reasons in the present case to doubt the impartiality of Mr G., whose investigative activities will be carried out under the Indictment Division's supervision.

The fact that, in the exercise of the powers legally conferred on him, he had previously refused to conduct the investigations or hearings requested by those placed under examination or by the victims, in decisions which were approved by the Court of Appeal when this matter was referred to it, does not provide grounds for finding that the applicants' concerns are objectively justified.”

He also directed that the claimants, the Principal Public Prosecutor and the judge concerned were to be notified of this order.

B.  Relevant domestic law

The relevant Articles of the Code of Criminal Procedure applicable at the material time read as follows:

Article 669

“A person under investigation, defendant, accused and any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the criminal court, the court of appeal or the assize court must, if the request is to be valid, submit an application to the president of the court of appeal.

Members of State Counsel's Office cannot be challenged.

The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence.

A party who has willingly proceeded in a court or before an investigating judge shall be entitled to challenge a judge only on the basis of circumstances that have arisen since, where they are such as to constitute a ground for challenge.”

Article 671

“The president shall receive the applicant's supplementary memorial, if necessary, and that of the judge being challenged; he shall obtain the opinion of the Principal Public Prosecutor and shall rule on the application.

No appeal shall lie against the order ruling on the challenge. It shall have full legal force.”

Article 673

“Any order dismissing a challenge shall sentence the applicant to a civil fine of 500 to 5,000 francs.”

COMPLAINT

Relying on Article 6 § 1 of the Convention, the applicants complained that the examination of their application to challenge the investigating judge had not been fair. They complained that the proceedings had not been adversarial, that no appeal lay against the order dismissing their application and that the decision had been notified to the President of the tribunal de grande instance, who was not a party to the proceedings, and to the civil parties' lawyers, but not directly to the parties themselves.

THE LAW

The applicants complained that the examination of their application to challenge the investigating judge had not been fair. They relied on Article 6 § 1 of the Convention, the relevant provisions of which read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”

The Government considered, firstly, that Article 6 § 1 of the Convention was not applicable in the instant case under its criminal head, as the applicants had not faced charges either in the challenge procedure before the President of the Colmar Court of Appeal or in the main proceedings brought in 1998 following their complaints and applications to join the proceedings as civil parties.

They further considered that this Article was not applicable under its civil head either. They explained, firstly, that a challenge procedure did not in itself concern civil rights and obligations. They accepted that such a procedure related to a dispute, but emphasised that it did not concern an economic dispute. Its aim was to challenge a judge, and it did not make provision for compensation. In addition, the applicants did not claim to have suffered financial loss.

Secondly, they argued that since the complaints and applications to join the proceedings as civil parties did not fall within the ambit of Article 6 of the Convention, given that the applicants had not claimed any financial loss, the challenge procedure could not come under this Article “through association”.

In addition, they explained that, in any event, the challenge procedure had to be regarded as autonomous proceedings, the nature of which was independent of the litigation which had given rise to it. Although the judge's removal could have influenced the conduct of the investigations, it would not have changed the outcome of the case, unless one were to speculate on the investigations which would then have been carried out. Whatever the outcome of the challenge procedure, the applicants could have continued to apply to the investigating judge for other measures, and then to appeal against any orders dismissing those applications. They added that, at every stage of the proceedings, the applicants had enjoyed access to the necessary means to ensure that the measures they sought were obtained, at least on appeal.

The Government claimed that those parallel proceedings were completely separate from each other. They explained, firstly, that the application to challenge the judge did not have suspensive effect and did not remove jurisdiction from the judge in question and, secondly, that the challenge procedure included no investigation into the facts that the investigating judge was required to examine, and was restricted to the question of his or her removal. Finally, they emphasised that there was no identity of parties, subject matter, issue or cause of action in these sets of proceedings. Thus, the nature of the challenge procedure could not depend on the nature of the litigation during which it was initiated. Such a procedure was part of the administration of justice, governed by its own legal system, which was neither civil nor criminal.

The Government pointed out that the civil fine imposed on the applicants had been handed down only as an ancillary measure, as a result of the dismissal of their application, and that this did not confer the nature of a civil dispute on the proceedings as a whole.

Finally, arguing that the applicants' complaints and applications to join the proceedings as civil parties which were at the origin of the challenge procedure had been indirect attempts to obtain in the main proceedings what they had been unable to obtain previously, the Government stated that the application to challenge the judge did not concern the determination of the applicants' civil rights and obligations.

Consequently, they submitted that Article 6 § 1 of the Convention was inapplicable to the procedure to challenge the investigating judge.

The applicants contested this line of reasoning. They further stated that they were not complaining about the challenge procedure in general, but about the fact that, as victims, they had been sentenced to a fine without the adversarial principle being complied with, without a hearing and without an opportunity to appeal.

They also explained that the challenge was distinct from any previous proceedings, since the main criminal complaint had been validated by other victims of the accident and was still under investigation.

The Court notes that the sole purpose of the proceedings in issue was to challenge the judge responsible for investigating the case to which the applicants had been joined as civil parties. Accordingly, it considers that the challenge procedure was an ancillary action, independent of the main proceedings which gave rise to it.

The question arises whether this procedure involved the determination of “civil rights” within the meaning of Article 6 § 1 of the Convention. According to the Court's established case-law, Article 6 § 1 of the Convention is applicable only if three conditions are met: there must be, at least on arguable grounds, a right in issue; the right in issue must have been the object of a “contestation” (dispute); and it must be civil (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 34, § 78).

The Court notes that the President of the Colmar Court of Appeal was not called upon to “determine” the merits of the applicants' civil-party application. His role did not in any sense consist in settling a dispute, but in ruling on the ancillary question of the challenge to the investigating judge (see, among other authorities, Maino v. Switzerland, no. 19231/91, Commission decision of 9 January 1995, unreported).

The Court also points out that the question of whether a right is to be regarded as civil within the meaning of this provision must be determined by reference to the substantive content and effects of the right under the domestic law of the State concerned, and not its legal classification (see König v. Germany, judgment of 28 June 1978, Series A no. 27, p. 30, § 89).

In the Court's opinion, the right to obtain a judicial decision on the composition of a court is not a civil right. At most, it is a procedural right which does not entail the determination of the applicants' civil rights (see Maino, cited above; Ocelot S.A. v. Switzerland, no. 20873/92, Commission decision of 21 May 1997, unreported; and, mutatis mutandis, Courtet v. France, no. 18873/91, Commission decision of 2 March 1994, Decisions and Reports (DR) 76-B, p. 37). This is particularly the case where the application does not relate to the composition of a trial court, but to the replacement of an investigating judge.

In so far as the ancillary proceedings could have an influence on the main proceedings regarding the complaint and application to join the proceedings as a civil party, and even supposing that Article 6 § 1 of the Convention were to be applicable to the main proceedings, the Court reiterates that a tenuous connection or remote consequences are not sufficient to bring Article 6 § 1 of the Convention into play: the outcome of the proceedings must be directly decisive for private rights and obligations (see Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 39, § 94). Consequently, the Court considers that the possible applicability of Article 6 § 1 to the principal proceedings would not bring the challenge procedure within the ambit of this Article through association.

Finally, the question arises whether, in imposing a civil fine on the applicants, the President of the Colmar Court of Appeal determined a civil right or obligation of the applicants or a criminal charge within the meaning of Article 6 § 1 of the Convention.

The Court points out that a measure of this sort is a procedural sanction not involving the determination of a “civil” right or obligation (see Association des amis de Saint-Raphaël et de Fréjus and Others v. France (dec.), no. 45053/98, 29 February 2000, and Veriter v. France, no. 25308/94, Commission decision of 2 September 1996, DR 86-B, p. 96); in addition, such a sanction cannot raise an issue of access to “civil” justice within the meaning of Article 6 § 1 where, as in the instant case, the proceedings in which it was imposed fall outside the ambit of this provision (ibid.). Finally, in principle, by imposing a fine for abuse of process, a court is not determining a “criminal charge” within the meaning of that Article (ibid.).

Accordingly, the Court concludes that the proceedings in issue did not concern the determination either of a criminal charge or of the applicants' civil rights and obligations within the meaning of Article 6 § 1 of the Convention.

It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

SCHREIBER AND BOETSCH v. FRANCE DECISION


SCHREIBER AND BOETSCH v. FRANCE DECISION