TAMBURINI v. FRANCE
Inadmissible
David Thór Björgvinsson
The applicant, Mr Claude Tamburini, is a French national who was born in 1959 and lives in Metz. By an order of 28 May 2002, an investigating judge of the Metz tribunal de grande instance indicted the applicant and committed him for trial in the Moselle Assize Court, for having “in Metz, from 1994 to 17 July 1997, committed acts of sexual penetration, by violence, constraint, threat or surprise, on the person of [Samia D.], with the aggravating circumstances that [Samia D.] was under fifteen years of age, having been born on 13 August 1983, and that he had authority over her as the husband of her mother, with whom he lived.” In a judgment of 18 December 2003 the Moselle Assize Court sentenced the applicant to twenty years’ imprisonment for aggravated rape of a person under 15 by a person in a position of authority, and suspended his civic, civil and family rights for ten years. By a judgment of 27 May 2005 the Meurthe-et-Moselle Assize Court of Appeal sitting in Nancy, having heard the parties and their representatives in private, upheld the earlier judgment in full. It also found that the delivery into custody order issued against the applicant on 28 May 2002 was equivalent to a detention order, but nevertheless issued a detention order against the applicant that same day. Appealing on points of law, the applicant complained in particular that the proceedings before the Assize Court of Appeal had been held in private at the victim’s request, in conformity with Article 306 of the Code of Criminal Procedure, whereas he had not freely and expressly waived his entitlement to public proceedings; he also submitted that there had been no separate decision or mention in the record of the proceedings concerning his placement in detention following the delivery of the judgment. By a judgment of 18 January 2006 the Court of Cassation dismissed the applicant’s appeal. On the matter of the private hearing, it explained its decision in the following terms: “Article 6 § 1 of the Convention ... provides for the possibility of excluding the press and the public from all or part of the trial ... where ... the protection of the private life of the parties so require[s]. In allowing the party claiming damages, a rape victim, to decide whether the protection of her private life requires all or part of the trial not to be public, Article 306 § 3 of the Code of Criminal Procedure simply establishes a principle in keeping with the provisions of [Article 6 § 1 of the Convention].” On the subject of the applicant’s committal to prison, the Court of Cassation held: “The claim cannot be allowed in so far as the court’s decision to commit the accused to prison, taken by the court alone following the vote on the sentence and in the secrecy of the deliberations, does not require an interlocutory decision or any special mention in the record of the proceedings”. Article 306 of the Code of Criminal Procedure stipulates, concerning proceedings before the Assize Court: “The hearing shall be public unless publicity would be dangerous for order or morality. In such a case, the court shall so declare by a ruling made in open court. The president may nevertheless prohibit access to the courtroom for minors, or for certain minors. In the case of a prosecution for the offences of rape or torture and acts of barbarity accompanied by sexual aggression, a hearing in camera is granted as of right where the civil party victim or one of the civil party victims so requests; in other cases a hearing in camera may be ordered only where the civil party victim or one of the civil party victims does not oppose it. Where a hearing in camera has been ordered, this applies to the reading of any judgments that may be made in respect of any procedural objections … The judgment on the merits must always be read in open court. ...”