CASE OF VAUDELLE v. FRANCE
Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award
8. By an order of 17 November 1994 the guardianship judge of the District Court of the 16th Administrative District of Paris granted the applicant's son a special power of attorney to deal with the applicant's affairs. The order stipulated that the special power of attorney would remain effective until the judge had decided whether or not to make a guardianship order (tutelle) or a supervision order (curatelle). The order conferred power on the attorney, inter alia, to: “... receive all correspondence, including registered letters, addressed to the protected person regarding his administrative or financial affairs. The special attorney shall give the protected person his personal correspondence within forty-eight hours ...” 9. On 16 February 1995 a complaint was lodged against the applicant for several alleged offences of indecent assault on minors. 10. The applicant was questioned by the gendarmerie on 20 February 1995 and admitted some of the allegations. The investigating officers noted in their report that the applicant's son had a special power of attorney to deal with his affairs and that the applicant lived in Paris; they also made reference to the order made on 7 November 1994 by the guardianship judge of the District Court of the 16th Administrative District of Paris. 11. On 1 March 1995, in view of the pending criminal investigation, the guardianship judge adjourned the decision whether or not to make an order for the applicant's supervision and heard the applicant's son in chambers in order to elicit further information. 12. By a judgment of 29 March 1995 the guardianship judge at the District Court of the 16th Administrative District of Paris made a supervision order in respect of the applicant. The applicant's son was appointed as the supervisor. The judge referred to a written opinion dated 14 February 1995 of State Counsel's Office, which concluded that the applicant should be placed under supervision. The judge said, inter alia: “The Court has had regard to (i) the expert report dated 16 September 1994 of Dr L., a specialist medical practitioner on the list of experts compiled by State Counsel; (ii) the medical certificate issued by Dr M., the patient's doctor, on 16 September 1994; (iii) the record of evidence taken from the person requiring protection on 1 February 1995; (iv) the record of evidence taken from Mr Alain Vaudelle and Mrs N. on 1 February 1995; (v) the written opinion dated 14 February 1995 of the representative of State Counsel's Office, concluding that Mr Marcel Vaudelle should be placed under supervision. The Court notes that the expert medical practitioner's report and the information before it show that, owing to the impairment of his faculties, Mr Marcel Vaudelle requires representation and assistance in the conduct of his civil affairs. Consequently, he must be placed under supervision ... The Court reminds those concerned that the protected adult may not, without the assistance of his supervisor, perform any act for which permission from the guardianship council would be required under the regime applicable to the guardianship of minors [sic], in particular he may not without his supervisor's assistance divide up any part of his estate, receive or use any capital, let or rent property, take part in court proceedings, make gifts ...” 13. State Counsel's Office in Paris was notified of the supervision order. 14. On 30 March 1995 the public prosecutor's office at the Tours tribunal de grande instance made an order for the applicant's examination by a psychiatrist. The applicant was given two appointments by the psychiatrist – on 20 April and 11 May 1995 – but did not attend either. 15. On 19 October 1995, after a hearing earlier that day, the Tours Criminal Court found the applicant guilty of sexual assault by violence, coercion, threats and taking the victim unawares on minors aged under 15, holding: “... the case alleged against the accused has been substantiated both by the evidence in the case file and the evidence heard at the hearing. The Court must find the accused guilty and apply the criminal law to him. The offences are particularly serious as they concern repeated acts of indecent assault on minors aged under 15. In these circumstances, a partly immediate custodial sentence is called for ...” The Criminal Court sentenced the applicant to twelve months' imprisonment, of which eight months were suspended for eighteen months, the applicant being on probation during the latter period. It also ordered him to pay damages. 16. It found that the applicant had been duly summoned to attend the hearing and that the form of acknowledgment of receipt of the registered letter sent by bailiff (which the applicant had signed on 7 October 1995) showed that the applicant had received the summons and had therefore been aware that he was required to appear before it. However, he had not appeared in person, been represented or shown due cause for failing to appear. His case was therefore decided by a judgment delivered in proceedings that were deemed to have been adversarial. 17. On 8 November 1995 the guardianship judge took further evidence from the applicant's son, in his capacity as supervisor, regarding the applicants' change of address and the criminal proceedings. At the hearing, the judge directed the applicant's son to forward the applicant his correspondence. The applicant's son said that he had received no news from his father about the criminal proceedings since March 1995. 18. On 10 November 1995, after the applicant had changed address, the guardianship judge at the District Court of the 16th Administrative District of Paris made an order relinquishing jurisdiction in favour of the Loches guardianship judge. 19. The judgment of 19 October 1995 was served on the applicant on 5 December 1995. He served his prison sentence from 16 April to 19 July 1996. 20. The applicant affirms that his son, in his capacity as supervisor, was not informed of his arrest or of his conviction on 19 October 1995 until 16 April 1996, as all the summonses and notices of appointment in the criminal proceedings were sent to him directly. His son had subsequently contacted the guardianship judge, informing him of his father's arrest and explaining that he knew nothing about the criminal proceedings against him. On 20 April 1996 his son had also complained to the public prosecutor at the Tours tribunal de grande instance about not being informed of the proceedings against the applicant. According to the son, on becoming aware of the complaint against his father, he had made enquiries at the gendarmerie in order to obtain additional information, but had been advised that no proceedings had been brought and that there had merely been a request for a psychiatric report. 21. The Government said that the judgment of the guardianship judge of the District Court of the 16th Administrative District of Paris dated 1 March 1995 showed that the judge had decided to adjourn hearing the application for a supervision order because of the criminal proceedings pending against the applicant and had required the applicant's son to attend court to give information about those proceedings. 22. In a letter of 24 April 1996 the guardianship judge of Loches District Court informed the applicant's son that there was no recourse against the judgment of 19 October 1995, since, in the absence of an appeal, it had become final. The judge explained that the applicant's supervisory regime entitled him only to assistance: it did not entail an obligation for the supervisor to be informed that criminal proceedings had been brought against the person supervised. 23. In a letter of 25 April 1996 the public prosecutor at the Tours tribunal de grande instance observed in reply to a letter from the applicant's son dated 20 April 1996 that the applicant had failed to attend the court hearing even though he had received the summons by registered letter and had signed an acknowledgment of receipt of it on 7 October 1995. He had not seen fit to attend the court's hearing just as he had not seen fit to attend his appointments on 20 April and 11 May 1995 with the psychiatrist who had been instructed by the public prosecutor's office to examine him. The public prosecutor also pointed out that the applicant had given no indication that he was subject to a supervision order. Lastly, he repeated that the applicant had received notification of the judgment. 24. On 10 May 1996 the lawyer acting for the applicant's son wrote to the judge responsible for the execution of sentences to enquire what measures were to be taken in favour of the applicant in view of the fact that it was “unusual” for a person in respect of whom a supervision order had been made to be convicted without being afforded an opportunity to receive assistance at the hearing from his supervisor. He explained in his letter: “... Marcel Vaudelle personally received the summonses which were sent to him both by the registries and the gendarmerie, but his son, Alain Vaudelle, was never informed of the existence of any of that correspondence although he had informed the gendarmerie concerned that his father was subject to a supervision order ...” 25. On 24 June 1996 the applicant's supervisor lodged an appeal against the judgment of 19 October 1995 on the ground that the applicant “[had been] ill at the time of the hearing and unable to comply with the court's summons or to appeal”. On 28 June 1996 he received a reply informing him that he did not have standing to appeal and that, in any event, the applicant's conviction had become final owing to his failure to appeal. On 30 May 1997 the supervisor wrote a further letter to the public prosecutor contesting the judgment of 19 October 1995. 26. The applicant was examined by a psychiatrist following a direction issued by the Loches guardianship judge on 22 August 1996. The expert concluded that the consultation: “[did] not reveal any intellectual deficit. There [was] no major impairment of the memory, the powers of concentration or the ability to reason logically”. 27. On 27 August 1996 the guardianship judge heard the applicant, who complained that his supervisor had been taking his money without accounting to him for it and requested a change of supervisor. On 29 August 1996 the applicant's son was heard by the guardianship judge. He accepted that relations with his father were perturbed and requested that his father be made subject to a guardianship order. 28. By an order of 25 September 1996 Loches District Court discharged the applicant from his role as supervisor. That decision was upheld by a judgment of 9 January 1997. 29. The relevant provisions of the Civil Code are the following: “When the mental faculties are impaired by illness, infirmity or decline due to age, the interests of the person concerned shall be provided for by one of the protective regimes laid down in the following chapters. The same protective regimes shall be applicable in the event of impairment of the physical faculties if the person concerned is thereby prevented from expressing his or her will. Impairment of the mental or physical faculties must be established by medical evidence.” “A guardianship order shall be made if, for one of the reasons set out in Article 490, an adult requires continual representation in the conduct of his or her civil affairs.” “When, for any of the reasons set out in Article 490, an adult, though not incapable of acting, requires advice or supervision in the conduct of his or her civil affairs, he or she shall be placed under a supervisory regime.” “An adult subject to supervision may not, without the assistance of his or her supervisor, perform any act for which permission from the guardianship council would be required under the guardianship of adults regime. Nor may he or she receive or use capital sums without such assistance.” “Any service of judicial process on an adult subject to a supervision order must also be made on his or her supervisor, on pain of nullity.” “When making a supervision order or in a subsequent judgment the judge may, on the advice of the patient's doctor, enumerate certain acts which the person subject to the order shall have capacity to perform alone as an exception to Article 510 or, conversely, add other acts to the list of those for which assistance from the supervisor is required under that Article.” 30. Extracts from the relevant case-law: The Court of Cassation overturned a judgment of a court of appeal in a case in which there was no indication from the written annotations, the procedural documents or any other item of evidence that the supervisor had been notified of a notice of appeal against a divorce decree lodged by the person subject to the supervision order (Court of Cassation, First Civil Division, 17 December 1991, Dalloz 1992, p. 373). Conversely, the Court of Cassation declared admissible an appeal on points of law that had been served on the supervisor after being served on the person subject to the supervision order (Court of Cassation, First Civil Division, 6 January 1988, Bull. civ. [Civil Bulletin] I, no. 3).