CASE OF BERNARD v. FRANCE
Preliminary objection rejected;No violation of Art. 6-1;No violation of Art. 6-2
R. Pekkanen
10. In the course of a judicial investigation into a charge brought against Mr Bernard on a number of counts of armed robbery, an investigating judge at Nevers ordered two expert opinions on him: a psychiatric report from a Dr Guggiari and a medical and psychological report from a Dr Debitus. 11. On 13 July 1988 Dr Guggiari submitted his report, in which he concluded: “As the subject does not accept that he is either ill or guilty, he cannot be regarded as curable. From what illness should he be cured? His social and affective environment will play a far greater role in his rehabilitation than any medical or psychiatric treatment, which he refuses. All things considered, his chances of rehabilitation appear to be considerably compromised by both his criminal record and his personality.” 12. The applicant requested a second opinion, which the investigating judge commissioned on 19 May 1989 from a Dr Dumoulin. 13. On 24 June 1989 Dr Dumoulin filed his report, which contained the following passage: “Mr Bernard is a gangster (from the English word ‘gang’, which denotes the members of a criminal conspiracy). The conduct of the operation shows (see the case file) (a) that it was very well planned: - customers unaware that staff were being threatened (raiders not masked), - ‘remarkable calm’ of the raiders, who wore gloves and were armed, - booby-trapped bundles not stolen, - cash dispenser loaded for the weekend, - raiders checked that security camera was a dummy. (b) that it was the work of an experienced team: - numerous bank robberies committed according to the same pattern by the same men, - Mr Bernard is practically a weapons expert and has the advantage of the commando training he received when he did his national service in the marines. All Mr Bernard’s major offences (both past and present) fall into the category of organised crime, sharing the following features: - formation of a criminal organisation, - aggravated robberies committed by armed criminals, - targets chosen to bring immediate, large gains. Mr Bernard is not a casual offender, but a real professional. In addition to hold-ups, it seems that his criminal activities have spread into new fields (see the other charges). The back-up provided by his accomplices (the gang) is essential, as they provide both material support, in the form of vehicles, safe houses, alibis etc., and moral support, since the recklessness of each member makes the group bolder and incites the others to repeat their crimes while controlling the risks better. Mr Bernard’s responsibility is aggravated by many factors, for example: - he is a habitual reoffender, - he employs violence, threatening people with weapons, - he acts in association with accomplices… At no time did Article 64 of the Criminal Code apply to him. Mr Bernard is always highly dangerous because of his sang-froid and his criminal determination. He showed his astuteness throughout the investigation – as he did when committing the offences – and during our interview, constantly denying that he took part in them. He cannot be intimidated by the judiciary. His dangerousness even seems to be directed towards the judges investigating his cases. He claims that Mr Roussel and Miss C. Enfoux were appointed to persecute him and makes alarmingly virulent verbal attacks on them. This dangerousness is intensified by his habitual use of firearms. Mr Bernard’s extreme dangerousness makes the following special measures essential: - he must be permanently banned from carrying weapons of any kind, including those whose sale is not controlled, - he must be placed on permanent probation after his release from prison, - imprisonment in an open prison is unthinkable, - inside prison he must be kept under special surveillance, in view of the likelihood that he will attempt to escape (high-security wing or similar). Mr Bernard is liable to a criminal penalty, which must be directly proportionate to his extreme dangerousness. Mr Bernard is not curable by criminal treatment (he is not in any case a suitable case for medical treatment). A number of sentences have not been sufficient to attenuate his delinquent behaviour. On the contrary, he adopts an omnipotent and defiant attitude which is reinforced still further by his imprisonment. His sthenia (aggressive attitude) is unbounded. He feels invincible. Treatment by means of a criminal penalty is only a social-protection measure aimed at preventing the certain repetition of serious offences. Mr Bernard can never be rehabilitated. His allegiance to the world of organised crime seems irreversible. No sentence can be heavy enough to break his spirit; he will always try to escape from prison or strengthen his links with other criminals there. He is certain to reoffend, as is proved by his criminal record.” This report was served on the applicant on 18 July 1989. He requested a third opinion, but on 25 July 1989 the investigating judge refused this request. 14. In the course of a separate investigation concerning an attempted escape the same judge ordered a psychiatric report and once again appointed Dr Dumoulin. After this report had been filed Mr Bernard requested a second opinion, but this request was refused by the investigating judge on 15 September 1989. The applicant appealed on 25 September 1989 but, in an order of 3 October 1989, the President of the Indictment Division of the Bourges Court of Appeal refused him leave to appeal to that Division. 15. The applicant was committed for trial before the Rhône Assize Court in a judgment delivered by the Indictment Division of the Lyons Court of Appeal on 11 October 1991. The Indictment Division observed that Mr Bernard had initially admitted his involvement in an armed robbery in which 430,350 French francs (FRF) had been stolen on 5 June 1987 from a branch of Crédit Agricole in Nevers. It further noted that the applicant had been picked out by witnesses from a five-man identity parade as the person who had stood guard at the door during the robbery. The Indictment Division also found that the investigation had yielded sufficient evidence tending to establish that the applicant had robbed a branch of Crédit Agricole in Le Mans of FRF 190,000 on 26 November 1986, with the aggravating circumstance that the offence had been committed with the assistance or threatened use of a weapon. 16. At the trial on 9 June 1992, after the experts had given evidence, Mr Bernard’s lawyer requested in his submissions that a formal note be entered in the record to the effect that the experts had stated an opinion on the question of the applicant’s guilt. 17. In an interlocutory decision of 12 June 1992 the Assize Court dismissed the applicant’s lawyer’s request for the evidence of two experts examined during the trial to be ruled inadmissible, on the following grounds: “Whereas one of the lawyers of the defendant Bernard Jean-Paul requested in his submissions that a formal note be entered in the record to the effect that the expert Dumoulin had stated: ‘The facts themselves prove that he is dangerous’ and that the the expert Guggiari had stated: ‘As he does not accept that he is either ill or guilty, he cannot be regarded as curable’ and that those experts had therefore stated an opinion at the trial on the question of Bernard Jean-Paul’s guilt; And whereas it was submitted that the evidence given by those experts should be ruled inadmissible; Whereas, while the experts were giving evidence, Bernard Jean-Paul’s lawyer noted down certain statements or isolated phrases which they are alleged to have made and which, it is submitted, prove that they stated an opinion on the question of Bernard Jean-Paul’s guilt; But whereas these statements or isolated phrases, even if they were spoken, have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant’s guilt, especially as, while giving their evidence, they were always careful to specify that they were stating their conclusions concerning offences which Bernard Jean-Paul denied committing; …” 18. On 12 June 1992 the Assize Court sentenced the applicant to ten years’ imprisonment for armed robbery. 19. Mr Bernard appealed on points of law. He submitted in his appeal, among other arguments, that the experts’ comments had infringed the principle of the presumption of innocence, according to which they were under a duty not to express their opinion as to a defendant’s guilt. 20. On 31 March 1993 the Court of Cassation dismissed the appeal, holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience, as provided for in Article 168 of the Code of Criminal Procedure. 21. The appointment of experts is governed by the following provisions of the Code of Criminal Procedure: “Where a technical question arises, any investigating judicial authority or court of trial may, at the request of the prosecuting authorities, or of its own motion, or at the request of any party, order an expert report. Where an investigating judge decides not to grant a request for an expert report, he shall make an order stating his reasons. Experts shall undertake their assignment under the supervision of the investigating judge or other judge duly appointed by the court ordering the expert report.” “Experts shall be chosen from the natural or legal persons appearing either in a national list drawn up by the Council of the Court of Cassation or in one of the lists drawn up by the Courts of Appeal, with the advice of the principal state prosecutor. The terms and conditions of inclusion in and removal from these lists shall be determined by a regulation of the Prime Minister. In exceptional circumstances the courts may, by means of a decision stating reasons, choose an expert who does not appear in any of these lists.” “Upon their inclusion in one of the lists referred to in Article 157, experts shall take an oath, before the Court of Appeal for the district in which they reside or have their registered office, to assist the courts on their honour and according to their conscience. They are not required to renew that oath before each assignment.” “Experts shall, if necessary, give evidence in court on the results of their technical investigations, after swearing to assist the court on their honour and according to their conscience...” 22. The preparation of expert reports is governed by the following provisions of the same code: “The terms of an expert’s assignment, which is confined to examining technical matters, shall be specified in the decision ordering the expert report.” “... In carrying out their assignment, experts shall liaise with the investigating judge or other judge; they must keep him informed of the progress of their assignment so that at any time he can take any measures that may be necessary.” “During the course of the expert’s assignment, any party may ask the court which has ordered the report to instruct the experts to make particular enquiries or to interview any named person who is likely to be able to provide them with technical information.” “The investigating judge shall inform the parties and their counsel of the experts’ conclusions ... In all cases, the investigating judge shall stipulate a period within which the parties must submit any observations or requests, particularly for a supplementary report or second opinion. During that period the case file shall be made available to the parties’ counsel. Where the investigating judge refuses a request, he shall do so in a decision stating reasons which must be made within one month of receipt of the request...” “The accused or a civil party may also appeal against the orders provided for in ... the fourth paragraph of Article 167.” 23. Psychiatric reports are the subject of the following provisions: “... Where they [the experts] consider it necessary to question the accused ... the interview shall be conducted in their presence by the investigating judge or judge appointed by the court and shall in all cases comply with the formalities and conditions provided for in Articles 118 and 119.” “An investigating judge may prescribe a medical examination, instruct a doctor to carry out a medical and psychological examination or order any other necessary measures. If the investigating judge decides to refuse a request for such an examination by the accused or his counsel, he must do so by means of an order stating his reasons.”