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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> VACHER v. FRANCE - 20368/92 [1996] ECHR 67 (17 December 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/67.html
Cite as: [1996] ECHR 67, (1997) 24 EHRR 482

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In the case of Vacher v. France (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr J. De Meyer,

Mrs E. Palm,

Mr A.N. Loizou,

Mr A.B. Baka,

Mr J. Makarczyk,

Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 28 June 1996 and

29 November 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 64/1995/570/656. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the French Government

("the Government") on 7 August 1995, within the three-month period laid

down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,

art. 47). It originated in an application (no. 20368/92) against the

French Republic lodged with the European Commission of Human Rights

("the Commission") under Article 25 (art. 25) by a French national,

Mr Gérard Vacher, on 18 November 1991.

The Government's application referred to Articles 44 and 48

(art. 44, art. 48). The object of the application was to obtain a

decision as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1 of the

Convention (art. 6-1).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 5 September 1995, in the

presence of the Registrar, the President of the Court, Mr Ryssdal, drew

by lot the names of the other seven members, namely Mr C. Russo,

Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr A.B. Baka,

Mr J. Makarczyk and Mr E. Levits (Article 43 in fine of the Convention

and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

applicant's memorial on 11 March 1996 and the Government's memorial on

29 March 1996. On 30 April 1996 the Secretary to the Commission

informed the Registrar that the Delegate would submit his observations

at the hearing.

5. On 7 May 1996 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 June 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-F. Dobelle, Deputy Director of Legal

Affairs, Ministry of Foreign Affairs, Agent;

Mr B. Nedelec, magistrat, on secondment to

the Legal Affairs Department, Ministry

of Foreign Affairs,

Mr G. Bitti, member of the Human Rights Office,

European and International Affairs Department,

Ministry of Justice, Counsel;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicant

Mr M. Ricard, of the Paris Bar, Counsel.

The Court heard addresses by Mr Soyer, Mr Ricard and

Mr Dobelle, and also their replies to its questions.

AS TO THE FACTS

I. Circumstances of the case

7. Mr Gérard Vacher, a French national, is a company director and

lives at Neuilly-sur-Seine.

8. On 21 September 1988 the Public Works Department of the

département of Hauts-de-Seine lodged a criminal complaint against the

applicant alleging offences under the Town Planning Code and, more

particularly, that he had built a wall without first obtaining

planning permission.

9. On 9 February 1990 the Nanterre Criminal Court sentenced the

applicant to a fine of 8,000 French francs (FRF), payment of which was

suspended, and ordered him to alter the wall so that it complied with

regulations.

10. On 23 May 1991, following an appeal brought by Mr Vacher on

16 February 1990 and a subsequent cross-appeal by the prosecution, the

Versailles Court of Appeal upheld the judgment of the court below in

its entirety and further ordered that the wall should be altered to

comply with regulations within a period of four months from the date

of its judgment, on penalty of FRF 200 per day's delay starting at the

end of that period. It also ordered the applicant to pay the

civil party claiming damages FRF 3,000 in respect of the costs incurred

by that party.

11. On 28 May 1991 Mr Vacher lodged a notice of appeal on points

of law against the judgment of the Versailles Court of Appeal with that

court's registry (Article 576 of the Code of Criminal Procedure -

see paragraph 13 below).

On 19 June 1991 the case file for the appeal was registered by

the Court of Cassation registry. On 14 August 1991 the applicant filed

a pleading in support of his appeal.

12. On 3 September 1991 the chief registrar of the

Court of Cassation sent Mr Vacher the following letter:

"Further to your letter, I have to inform you that the

Criminal Division of the Court of Cassation delivered a

judgment on 6 August 1991 dismissing your appeal.

Consequently, the pleading received from you at the

criminal registry on 14 August 1991 will be disregarded as

being out of time."

The judgment in question, which was served on the applicant on

30 October 1995, was based on the following ground:

"No ground of appeal has been filed in support of the appeal;

the judgment appealed against is in the proper form and the

findings of fact, which cannot be appealed against, justify

both the classification of the offence and the sentence."

II. Relevant domestic law

13. The main provisions of the Code of Criminal Procedure referred

to in the present case are the following:

Article 568

"The prosecuting authority and all the parties shall have

five clear days in which to appeal to the Court of Cassation

after delivery of the judgment appealed against.

..."

Article 576

"Notice of appeal shall be given to the registrar of the court

which delivered the judgment appealed against.

It must be signed by the registrar and by the appellant himself

or by a lawyer [avoué] at the court which gave judgment, or by

a specially authorised person ...

The appeal shall be recorded in a special public register and

any person shall be entitled to obtain a copy of it."

Article 584

"An appellant on points of law may lodge a pleading bearing his

signature and containing the grounds of his appeal with the

registry of the court against whose judgment he is appealing

either when he gives notice of appeal or within the following

ten days. The registrar shall issue him with a receipt."

Article 585

"After expiry of that time-limit, a convicted appellant may

send his pleading directly to the Court of Cassation; the other

parties may not avail themselves of this provision without

retaining a member of the Court of Cassation Bar.

..."

Law no. 93-1013 of 24 August 1993, which came into force on

2 September 1993, inserted Article 585-1, which provides:

"Save where the President of the Criminal Division decides

otherwise, a convicted appellant shall lodge his pleading with

the registry of the Court of Cassation no later than one month

from the date of the notice of appeal."

In his report of 23 June 1993 presented to the

National Assembly on behalf of the Committee on Constitutional Law,

Legislation and the General Administration of the Republic,

Mr Jean Tibéri justified the insertion of the new Article 585-1 as

follows:

"The new Article 585-1 is intended to resolve a difficulty

which has appeared in recent years. The Court of Cassation

frequently dismisses appeals on points of law because no

pleadings have been filed in support of them. As the Law does

not lay down a time-limit for filing a pleading, a convicted

appellant's pleading may reach the court a few days after his

appeal has been dismissed. Indeed, applications are pending

before the European Commission of Human Rights on this

question. So as to avoid such situations recurring, the new

Article 585-1 provides that convicted appellants shall have a

period of one month, which may be extended by the

President of the Criminal Division, in which to file their

pleadings."

Article 586

"On pain of a 50-franc civil fine imposed by the

Court of Cassation, the registrar shall, within a

maximum period of twenty days from the date of the notice of

appeal, number and initial the documents in the case file and

place in the case file an office copy of the judgment appealed

against, an office copy of the notice of appeal and, where

relevant, the appellant's pleading. He shall draw up a

schedule of the whole case file."

Article 587

"When the case file has been made ready in the manner described

above, the registrar shall deliver it to the representative of

the public prosecutor's office, who shall immediately send it

to the procureur général at the Court of Cassation, who shall,

in turn, forward it to the registry of the Criminal Division.

The President of that Division shall designate a judge to

report on the case."

Article 588

"Where one or more counsel have been instructed, the reporting

judge shall set a time-limit for pleadings to be filed with the

registrar of the Criminal Division."

Article 590

"The pleadings shall contain the grounds of appeal and cite the

legal provisions alleged to have been infringed.

...

They must be lodged within the prescribed time-limit. No

further pleadings may be added to them once the reporting judge

has filed his report. Any pleading setting out additional

grounds that is lodged out of time may be declared

inadmissible."

Article 604

"In cases concerning any category of criminal offence, the

Court of Cassation may give judgment on the appeal on points

of law as soon as ten days have elapsed after receipt of the

case file by the Court of Cassation.

..."

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Vacher applied to the Commission on 18 November 1991.

Relying on paragraphs 1 and 3 (b) and (c) of Article 6 of the

Convention (art. 6-1, art. 6-3-b, art. 6-3-c), he complained that he

had not had a fair hearing and that he had not been able to put his

case, in that the Court of Cassation, without having given him a

time-limit for lodging his pleading, dismissed his appeal approximately

two and a half months after it had been brought because he had not

filed grounds of appeal.

15. The Commission declared the application (no. 20368/92)

admissible on 17 May 1994. In its report of 5 April 1995 (Article 31)

(art. 31), it expressed the opinion by eight votes to four that there

had been a violation of Article 6 (art. 6). The full text of the

Commission's opinion and of the dissenting opinion contained in the

report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-VI), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

16. In their memorial the Government asked the Court "to dismiss

Mr Vacher's application".

17. The applicant requested the Court to hold "that he [had] not

had a fair hearing within the meaning of Article 6 paras. 1 and

3 (b) and (c) of the Convention (art. 6-1, art. 6-3-b, art. 6-3-c)".

AS TO THE LAW

I. SCOPE OF THE CASE

18. Before the Court the applicant alleged for the first time that

there had been a violation of Article 6 para. 3 (a) of the Convention

(art. 6-3-a) in that he had not been informed in detail of the nature

of the charge against him or the reason for it.

In the Court's view, however, this complaint is outside the

scope of the case as defined by the Commission's decision on

admissibility (see, among other authorities, the Scollo v. Italy

judgment of 28 September 1995, Series A no. 315-C, p. 51, para. 24).

II. ALLEGED VIOLATION OF ARTICLE 6 PARAs. 1 AND 3 (b) AND (c) OF

THE CONVENTION (art. 6-1, art. 6-3-b, art. 6-3-c)

19. Mr Vacher complained that he had not had a fair trial as the

Court of Cassation had dismissed his appeal on points of law for

failure to lodge grounds of appeal, without informing him of the

time-limit for filing a pleading. He relied on paragraphs 1 and

3 (b) and (c) of Article 6 of the Convention (art. 6-1, art. 6-3-b,

art. 6-3-c), which provide:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

(b) to have adequate time and facilities for the preparation

of his defence;

(c) to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require;

..."

By not laying down a time-limit for lodging a personal

pleading - that is to say one that has not been drafted by a member of

the Conseil d'Etat and Court of Cassation Bar - the

Code of Criminal Procedure had prevented him from exercising his

defence rights. His pleading had been received by the registry after

his appeal on points of law had been dismissed and had therefore been

disregarded as being out of time. Yet his lawyer had lodged it within

a reasonable time, in this instance two and a half months after the

notice of appeal had been filed. On the Government's own admission,

the average time for preparing for hearing an appeal on points of law

in which the appellant was not represented by a member of the

Conseil d'Etat and Court of Cassation Bar was three months. The

Court of Cassation's registry could remedy this statutory shortcoming

by informing appellants who did not wish to be represented by a member

of the Conseil d'Etat and Court of Cassation Bar of the date on which

their appeal would be heard. It was not for convicted appellants to

take steps to find out that date. Indeed, the legislature had been

conscious of the perverse effects of this legal vacuum, because the new

Article 585-1 of the Code of Criminal Procedure now laid down a

one-month time-limit (see paragraph 13 above).

Furthermore, the French system for preparing criminal appeals

on points of law for hearing created an inequality of treatment between

those appellants who were represented by a member of the Conseil d'Etat

and Court of Cassation Bar and those who were not. A member of the

Conseil d'Etat and Court of Cassation Bar was given a time-limit that

enabled him not only to protect himself from forfeiture of the right

to proceed, but also to ensure that his written observations would in

fact be considered by the reporting judge. Neither of those safeguards

was provided in equivalent conditions to appellants who acted in person

or were assisted by a member of the ordinary Bar.

Lastly, there was inequality of arms between the defence and

the prosecution. The procureur général at the Court of Cassation was

personally advised of the progress of proceedings and of the hearing

date, and at the hearing he could make observations without the

appellant's being permitted to reply.

20. The Commission essentially agreed with the applicant.

21. In the Government's submission, an appeal to the

Court of Cassation was a special form of appeal. The

Court of Cassation was not therefore a third level of jurisdiction and

special rules applied to criminal proceedings before it. The

distinction made in the law between appellants who were represented by

a member of the Conseil d'Etat and Court of Cassation Bar and those who

were not was justified by the monopoly of representation in proceedings

before the Conseil d'Etat and the Court of Cassation. Not imposing a

time-limit on unrepresented appellants for filing pleadings gave an

advantage to appellants who were not legal practitioners and who

consequently were given more time than members of the Conseil d'Etat

and Court of Cassation Bar to prepare their case. However, even though

unrepresented appellants had more time, they should not remain

inactive. On the contrary, they had to be vigilant as, under

Article 604, first paragraph, of the Code of Criminal Procedure, the

Court of Cassation was entitled to rule on the appeal once ten days had

elapsed after the registry had received the case file. The 1993 reform

was designed to ensure equality between all appellants.

Mr Vacher had deliberately chosen not to be assisted by a

member of the Conseil d'Etat and Court of Cassation Bar. He should,

consequently, have shown a minimum of diligence. In the present case

the time available to him to draft his pleading - more than two months

(28 May 1991 - 6 August 1991) - should have allowed him to prepare his

case. Furthermore, he had been assisted by counsel who, though not a

member of the Conseil d'Etat and Court of Cassation Bar, could not

legitimately plead his ignorance of current practice in order to

complain that the procedure was unfair. He should have taken advice

from colleagues who specialised in Court of Cassation cases and taken

one of the following steps: asked the Court of Cassation's registry

when the Court of Appeal had forwarded the case file, that being when

the ten-day period laid down in Article 604 of the

Code of Criminal Procedure began to run; informed the reporting judge

of his client's intention to file a pleading and applied to that judge

for the case not to be listed for imminent hearing; or found out when

the appeal was to be heard. Neither the applicant nor his lawyer had

made use of the means available to them for ensuring that they actually

enjoyed the rights protected by Article 6 of the Convention (art. 6).

In their neglect, identical to that which the Court had found in

respect of Mr Melin (see the Melin v. France judgment of 22 June 1993,

Series A no. 261-A), they had betrayed a distinct lack of interest in

the outcome of the proceedings.

There could be no question in the instant case of the principle

of equality of arms between the prosecution and the defence having been

breached. In view of the special nature of appeals to the

Court of Cassation, only the judgment appealed against was being

impugned, irrespective of the appellant's status. Far from acting as

the prosecution, the role of the procureur général's office at the

Court of Cassation was that of an adviser on the law, providing the

court with a legal view of the case in the same way as the reporting

judge.

Lastly, procedure before the Court of Cassation was essentially

written, oral submissions being rare. In that respect there was no

objective difference between appellants represented by a member of the

Conseil d'Etat and Court of Cassation Bar and those who were not.

22. As the requirements of paragraph 3 (b) and (c) of Article 6 of

the Convention (art. 6-3-b, art. 6-3-c) constitute specific aspects of

the right to a fair trial, guaranteed under paragraph 1 (art. 6-1), the

Court will examine all the complaints under the three provisions taken

together (art. 6-1, art. 6-3-b, art. 6-3-c) (see, among other

authorities, the Hadjianastassiou v. Greece judgment of

16 December 1992, Series A no. 252, p. 16, para. 31).

23. In the instant case the Court does not have to assess the

French system for preparing criminal appeals on points of law for

hearing. It will confine itself to considering the problem raised by

the specific case before it. More particularly, it must ascertain

whether the rights relied on by Mr Vacher, which are inherent in the

concept of a fair trial, were violated in that - in accordance with the

statutory provisions in force at the time - he was not given a

time-limit for lodging a pleading, and consequently, not having been

informed of the date of the hearing, lodged his observations eight days

after the appeal had been dismissed.

24. The manner in which Article 6 (art. 6) applies clearly depends

upon the special features of the proceedings involved and, in order to

assess whether its requirements have been complied with, account must

be taken of the role of the Court of Cassation (see, among other

authorities, the Delcourt v. Belgium judgment of 17 January 1970,

Series A no. 11, pp. 14-15, paras. 25-26, and the Monnell and Morris

v. the United Kingdom judgment of 2 March 1987, Series A no. 115,

p. 22, para. 56).

25. Under Articles 585 and 588 of the Code of Criminal Procedure

(see paragraph 13 above), a convicted appellant has the choice between

instructing a member of the Conseil d'Etat and Court of Cassation Bar

or presenting his own case. However, the reporting judge will only

give a time-limit for filing a pleading in the first of those

eventualities. In the instant case Mr Vacher, assisted by Mr Ricard

(who is not a member of the Conseil d'Etat and Court of Cassation Bar),

had until the date of the hearing to file his pleading.

26. The Government submitted that the Court had already held in the

Melin case, which was identical to the present one, that the rules

applicable to criminal appeals on points of law "were sufficiently

coherent and clear" (see the Melin judgment cited above, p. 12,

para. 24).

The Court notes that, as is apparent from its judgment in the

Melin case, it reached the conclusion that there had been no violation

having regard to the very special circumstances of that case. Besides

the fact that the complaints primarily concerned a failure to serve a

copy of a court of appeal judgment in time, it notes, like the

Commission, two points. Firstly, in the Melin case there was a gap of

four months and ten days (17 January 1986 - 27 May 1986) between the

lodging of the appeal on points of law and its dismissal and no

pleading was received by the registry, whereas in the instant case the

Court of Cassation dismissed the appeal two months and nine days after

it was lodged (28 May 1991 - 6 August 1991) and the pleading was filed

on 14 August 1991, two and a half months after the appeal was lodged.

Secondly, Mr Melin had practised as a lawyer and had in addition worked

in the chambers of a member of the Conseil d'Etat and

Court of Cassation Bar.

27. On the basis of the information supplied by the Government, the

average time taken by the Court of Cassation to consider a case is

approximately three months from the date of the appeal - two months for

the case file to reach the Court of Cassation and one month for the

court to deliver judgment. In the instant case the appeal was

dismissed within a shorter period without the applicant being informed

of the date of the hearing. Mr Vacher may have been taken by surprise

by the fact that the proceedings took less time than average and,

consequently, believing himself to be within the usual time for filing

a pleading, may have seen no reason to worry about the hearing date.

28. The Court emphasises that States must ensure that everyone

charged with a criminal offence benefits from the safeguards provided

by Article 6 para. 3 (art. 6-3). Putting the onus on convicted

appellants to find out when an allotted period of time starts to run

or expires is not compatible with the "diligence" which the

Contracting States must exercise to ensure that the rights guaranteed

by Article 6 (art. 6) are enjoyed in an effective manner (see the

Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 15,

para. 28).

29. Furthermore, it is apparent from the explanatory memorandum of

the Law of 24 August 1993 that the provision of the

Code of Criminal Procedure criticised by the applicant was amended by

the French legislature on account of the difficulties caused by the

frequent dismissal of appeals on points of law for want of grounds of

appeal, and in order to avoid such situations recurring. The new

Article 585-1 now requires convicted appellants to file their pleadings

within a period of one month, which may be extended (see paragraph 13

above).

30. In conclusion, since there was no fixed date for filing a

pleading and the Court of Cassation took less time than usual to hear

the appeal, without Mr Vacher being either warned of the fact by the

registry or able to foresee it, he was deprived of the possibility of

putting his case in the Court of Cassation in a concrete and effective

manner.

There has therefore been a violation of Article 6 (art. 6).

31. In view of that conclusion, it is unnecessary for the Court to

rule on the complaint of a violation of the principle of equality of

arms between the applicant and the prosecution.

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

32. Article 50 of the Convention (art. 50) provides:

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

33. Mr Vacher firstly sought pecuniary compensation in the form of

a State guarantee to repay the sums paid in penalties for delay, fines

or damages (see paragraphs 9 and 10 above). For the non-pecuniary

damage caused by having his conviction entered in his record he claimed

one franc.

34. The Government and the Delegate of the Commission rightly

pointed to the lack of any causal link between the violation complained

of and the alleged pecuniary damage; it was not possible to speculate

on what the outcome would have been had the proceedings complied with

Article 6 (art. 6).

With respect to non-pecuniary damage, the Court considers that

the present judgment affords the applicant sufficient reparation.

B. Other claims

35. The applicant also requested publication of the Court's

judgment in a national daily newspaper. In the alternative, he

indicated that he would be ready to withdraw the preceding claims if

the Minister of Justice instructed the procureur général at the

Court of Cassation to bring an appeal on points of law against the

judgment of the Court of Appeal.

The Government and the Delegate of the Commission considered

those claims inadmissible as just satisfaction could only take the form

of compensation.

36. The Court notes that it is not empowered under the Convention

to require the French State to take the measures sought by Mr Vacher.

C. Costs and expenses

37. Lastly, the applicant claimed reimbursement of the costs and

expenses incurred before the Convention institutions. He assessed them

at FRF 110,000 net of taxes; of this sum, approximately FRF 10,000

represented travel and subsistence expenses.

In addition to the fact that no vouchers for the disbursements

had been produced, the Government and the Delegate of the Commission

noted that the sum claimed exceeded the procedural costs generally

awarded in similar cases.

38. Making its assessment on an equitable basis and with reference

to its relevant case-law, the Court awards Mr Vacher a total sum of

FRF 50,000.

D. Default interest

39. According to the information available to the Court, the

statutory rate of interest applicable in France at the date of adoption

of the present judgment is 6.65% per annum.

FOR THESE REASONS, THE COURT

1. Holds by six votes to three that there has been a violation of

Article 6 of the Convention (art. 6);

2. Holds unanimously with respect to the non-pecuniary damage

alleged by the applicant that the present judgment in itself

constitutes sufficient just satisfaction for the purposes of

Article 50 of the Convention (art. 50);

3. Holds unanimously that the respondent State is to pay to the

applicant, within three months,

50,000 (fifty thousand) French francs for costs and expenses,

on which sum simple interest at an annual rate of 6.65% shall

be payable from the expiry of the above-mentioned three months

until settlement;

4. Dismisses unanimously the remainder of the applicant's claim.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 17 December 1996.

Signed: Rudolf BERNHARDT

Vice-President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following

dissenting opinions are annexed to this judgment:

(a) dissenting opinion of Mr Pettiti, joined by Mr Russo;

(b) dissenting opinion of Mr Baka.

Initialled: R.B.

Initialled: H.P.

DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGE RUSSO

(Translation)

I have not voted with the majority in favour of finding a

violation of Article 6 (art. 6). The analysis which led them to their

decision seems to me to be contrary to the Court's case-law and to

introduce a difference in the appraisal of the procedural systems of

the member States.

The European Court has accepted that in proceedings at a

third level of jurisdiction strict time-limits for bringing appeals and

lodging pleadings could be imposed by the codes. It did not require

a public hearing where the written procedure was adversarial or where

the possibility of adversarial process was available to the parties.

The European Court has accepted, as indeed it is obliged to by the

Convention, the legalism and formalism which have been the essence of

the codes of procedure in Continental-law countries since the

beginnings of Romano-Germanic law, and under the subsequent influence

of Jhering. In those systems, time-limits are necessarily laid down

for bringing appeals and for lodging pleadings.

The requirement laid down by Article 6 (art. 6) is that those

time-limits should be known. In the present case they were set out in

the Code, and clarified in the standard case-law.

In comparison with court systems in which there is a

third level of jurisdiction, the purpose of the French system of

appeals on points of law is to have judgments set aside where the

courts below have erred in law, but not to have the facts of the case

retried (Article 591 of the Code of Criminal Procedure).

Admittedly, there was some ambiguity in the provisions of the

Code of Criminal Procedure. In criminal proceedings the legislature

had sought to give an advantage to appellants on points of law who were

not represented by a member of the Conseil d'Etat and

Court of Cassation Bar (exemption from the requirement that they be

represented by a member of that Bar). In practice, appellants in

criminal proceedings were allowed to file pleadings in support of their

appeals on points of law up to the date of the hearing, in other words

beyond the expiry of the time-limits laid down by Articles 584 and 585

of the Code of Criminal Procedure, whereas an appellant represented by

a member of the Conseil d'Etat and Court of Cassation Bar must file his

pleadings within the time set by the reporting judge. The time-limit

for appealing on points of law is specified and the time-limit for

filing a pleading follows from those provisions.

However, an appellant who is not represented by a member of the

Conseil d'Etat and Court of Cassation Bar does not receive notice of

the hearing from the registry and thus remains unaware of the hearing

date. On this point the former legislation was open to criticism in

that such appellants were unassisted. The Code had not made express

provision for cases where the appellant was a practising lawyer or was

represented by a member of the ordinary Bar. That is why the

European Court held that there had been no violation of Article 6

(art. 6) in the Melin judgment, Mr Melin having previously been a

lawyer and having worked in the chambers of a member of the

Conseil d'Etat and Court of Cassation Bar. In Mr Vacher's case, the

applicant had been assisted by a lawyer who had represented him and had

prepared the pleading.

In this case the Court should, in my opinion, have adopted the

same reasoning as in the Melin judgment, even though that judgment also

dealt with other complaints made by Mr Melin under Article 6 (art. 6)

(see paragraph 26 of the Vacher judgment).

Because of that assistance, Mr Vacher was in a better position

to take all appropriate steps to file his pleading. The member of the

ordinary Bar was not entitled to rely on the fact that judgments of the

Court of Cassation are often delivered three months after the appeal

in criminal proceedings. He could not have been unaware that judgments

may be given within a month or two. Yet the pleading was not filed

until 14 August 1991, that is to say seventy days after the appeal was

lodged (28 May), the Court of Cassation having delivered judgment on

6 August 1991.

The reasoning of the European Court should, in my opinion, have

taken into account the difference between the situation of an

unrepresented appellant and that of an appellant advised by a legal

practitioner.

Admittedly, the practice of not giving notice of the hearing

date to an appellant not assisted by a member of the Conseil d'Etat and

Court of Cassation Bar may be regretted. But that fact was not

sufficient in the present case, and in the circumstances referred to

above, either to entail a finding of a violation of Article 6 (art. 6)

or for adopting a different conclusion from the one reached in the

Melin case.

The argument as to foreseeability and legal certainty turns

upon whether or not the party is advised by a lawyer.

Familiarity with the time-limits is one of the elementary

requisites of practice at the Conseil d'Etat and

Court of Cassation Bar, whose members have a monopoly.

Where a party forgoes the assistance of a member of the

Court of Cassation Bar and retains a member of the ordinary Bar

instead, that lawyer is able to find out what the relevant time-limits

are.

The European Court cannot, therefore, reason by speculating on

the litigant's ignorance, for that would be to affirm a dangerous

principle, namely that not being assisted by a lawyer would make it

possible subsequently to rely on the unforeseeability of the rule; what

an invitation that would be to dishonest litigants! Either the

procedural system is clear to professional advisers and complies with

Article 6 (art. 6), or the system of time-limits is "unascertainable"

even by practitioners. Only in the latter case can the eventuality of

a violation of Article 6 (art. 6) arise.

The second reason for this dissenting opinion relates to the

consequences for legal theory. The Court would be creating the risk

of having different procedural requirements for:

(i) the appeal systems of States which make appeals - whether

on facts and law or on points of law only - subject to judicial leave

or even do not allow an appeal on points of law after an initial

ordinary appeal or provide an imprecisely defined remedy of "judicial

review"; and

(ii) systems in which appeals - whether on facts and law or on

points of law only - can be brought freely, subject only to compliance

with formal requirements and time-limits.

The former would be less vulnerable to review by the Court,

whereas the latter would always be vulnerable in the eyes of legal

writers who challenge the formalistic procedural machinery of

Continental law. To my mind, there is nothing in the

European Convention on Human Rights to authorise such a divergence in

the interpretation of Article 6 (art. 6).

In my view, the Chamber is wrong to say in paragraph 28 of the

judgment that putting the onus on convicted appellants to find out when

an allotted period of time expires is not compatible with the

"diligence" required of the Contracting States. In the French system

the point at which the time allowed for filing an appeal on points of

law starts to run is clearly set out. Thereafter, it is for the

convicted appellant to find out the details of procedure, the main

provisions of which are already contained in the procedural code.

Such difficulties have ceased to arise since the

Law of 24 August 1993, which supplements Article 585-1 by providing a

time-limit of one month after the date of the appeal on points of law

for a pleading to be filed. However, that progress could not form the

basis for finding a violation as States, in the spirit of the

Convention, can always improve their national systems even beyond the

requirements of the Convention. As Jhering stated, procedural

formalism is a safeguard for the citizen.

DISSENTING OPINION OF JUDGE BAKA

I maintain the view expressed in the dissenting opinion in the

Melin case that "in criminal matters, the State must ensure that the

accused is officially informed of the essential and decisive steps and

elements also in cassation procedures, and it cannot put the burden in

this respect entirely on the accused or convicted person". In the

present case, however, I am unable to share the opinion of the majority

that there has been a violation of Article 6 of the Convention

(art. 6).

This case is clearly distinguishable from Melin. In the

Melin case the judgment which the applicant sought to have challenged

before the Court of Cassation had not been served at all. Without it

Mr Melin, who was not represented by a lawyer, was not in a position

to prepare his memorial setting out the grounds for his appeal. That

was my main reason for dissenting from the majority of the Chamber in

that case.

In the instant case, on the other hand, Mr Vacher was assisted

by a lawyer during the whole legal procedure. His lawyer should have

been aware of the procedural requirements. A lawyer cannot

legitimately plead ignorance of such important rules.

Furthermore, French law, as far as the time-limit for filing

pleadings in support of an appeal to the Court of Cassation is

concerned, formerly made a clear distinction between parties who were

represented by a certain limited number of lawyers having the exclusive

right to plead before that court and those who were not so assisted.

The first category of appellants had a time-limit for filing pleadings,

while no precise time-limit was set for those who were not assisted by

this special body of lawyers.

However, although the former French rules gave certain

appellants some procedural advantage, this could not justify complete

inactivity on the part of the appellants. In the present case,

Mr Vacher did not show the necessary diligence during the appeal

procedure, even though the period available to him for filing a

pleading was significantly longer than for appellants with

legal representatives qualified to represent them before the

Court of Cassation. If Mr Vacher was aware of the average time taken

by the Court of Cassation to hear an appeal, as suggested by the

majority (see paragraph 27 of the judgment), he would - with a little

diligence - also have known the starting-point of the prescribed

ten-day period after which the court could rule on the appeal or at

least how to find out when the appeal would be heard.

Accordingly, I find no violation in the present case.



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