CASE OF G.B. v. FRANCE
Violation of Art. 6-1;Violation of Art. 6-3-b;Non-pecuniary damage - financial award
Nicolas Bratza
10. In the course of a judicial investigation concerning the applicant, his wife, his former brother-in-law and one of his nephews, the applicant was remanded in custody on 16 June 1993 and charged with rape of a child under 15 (his niece), sexual assaults on children under 15 (his nephews) and a number of further counts of sexual assault. On 16 September 1993 the investigating judge at the Lorient tribunal de grande instance ordered medico-psychological examinations of the applicant’s niece and all the persons under investigation. He appointed two doctors, named Gautier and Daumer, for that purpose. 11. The two doctors were informed of the applicant’s criminal record. In addition to a number of prison sentences, this included an investigation opened in 1989 into charges against the applicant of sexual interference with the daughter of his brother-in-law’s sister. 12. On 29 October 1993 the experts filed their report on the applicant. They stated, among other things, that although the applicant, by his own admission, did have fantasist and even mythomaniac tendencies, these were not obviously pathological in nature, as had been shown two years previously by his statements regarding the relations between P.H. and K.S, two of the victims. 13. The doctors concluded as follows: “1. Our examination of G.B. has revealed psychopathic traits and signs of sexual perversion for which objective evidence is provided by his statements regarding P.H. and C.H. 2. The offence of which he stands accused with respect to C.H. and P.H. is linked to a state of sexual perversion. It is difficult to assess the extent or the nature of this state in so far as the accused presents the facts as isolated incidents. He denies raping K.S. and so it is not possible to address that issue from a clinical viewpoint. 3. The subject is not in a dangerous state in the psychiatric sense. 4. It would not be inappropriate to impose a criminal penalty on him. 5. Rehabilitation will not pose a problem, but a cure will depend on clearer identification of the subject’s underlying sexual problem. 6. The subject was not insane within the meaning of (former) Article 64 of the Criminal Code when committing the offences of which he stands accused. 7. His state is not such as to require confinement or psychotherapeutic assistance.” 14. In November 1993 the experts’ conclusions were served on the applicant. The applicant’s detention pending trial was extended several times during the investigation of the case. 15. On 19 October 1995 the applicant and his co-defendants (J.C.H., C.H. and S.C., the applicant’s wife) were committed for trial at the Morbihan Assize Court by a judgment delivered by the Indictment Division of the Rennes Court of Appeal. The Indictment Division pointed out, in particular, that the applicant had initially denied any sexual abuse of his niece and nephews and then admitted to the conduct of which he was accused only to retract that admission. It related what had been said during the examination of the applicant’s niece on the one hand and his nephews on the other, the latter having also been accused of rape and sexual abuse by the niece. The Indictment Division also mentioned the previous convictions on the applicant’s criminal record, namely driving under the influence of alcohol, insulting a member of the police force in the performance of his duties, a hit-and-run offence and a further conviction for driving under the influence of alcohol. 16. The applicant appealed on points of law against the decision to commit him for trial, drawing attention to the vagueness of the terms used in the operative provisions of that decision. In a judgment of 26 February 1996 the Court of Cassation rejected that appeal. 17. The trial at the Assize Court began on 13 March 1997. The registrar read out the decision of the Indictment Division committing the applicant for trial. At that point the advocate-general stated that he wished to file certain documents regarding the personality of the defendants, including the applicant, and relating primarily to offences reported in 1979 and 1980. 18. The documents in question were records of evidence taken from witnesses, a procedural report by a police superintendent, a psychiatric report on the applicant at the age of 17 and a judgment relating to educational assistance. They comprised mainly a description of the applicant’s sexual conduct when he was a minor and information about his family background. They related firstly to a charge of indecent assault on a girl under 15 brought against him in 1979 in proceedings during which the applicant had said that he had done the same thing “at least a dozen times both with little girls and with little boys aged between 7 and 9” and, secondly, to several counts of indecent assault without violence on three children under the age of 15. The proceedings concerning these offences, brought in 1979, and those mentioned above were discontinued. 19. The applicant’s lawyer objected to the filing of those documents and requested an adjournment to prepare a pleading to that effect. The hearing was adjourned for thirty-five minutes. The applicant’s lawyer lodged an application for all the documents to be rejected on the ground that they related to offences that were subject to limitation and had occurred prior to various amnesty laws which could apply to them. According to the defence, the documents were so old that they contravened the principle that a defendant’s antecedents were inadmissible in evidence against him. 20. In an interlocutory judgment delivered on the same day the Assize Court rejected that application on the following grounds: “... The prosecution, like every other party to a criminal trial, is entitled to produce at the hearing any documents that appear to be helpful in establishing the truth provided that they relate to the offences of which the defendants stand accused and shed light on their personality. Provided that they are communicated to all the parties and can thus be examined adversarially, the production of such documents cannot have any adverse effect on the rights of the defence. ...” 21. Copies of the documents filed by the prosecution were distributed to each of the civil parties’ lawyers and the defence lawyers but the case was not adjourned. 22. When the examination of the defendants began as to their backgrounds, the applicant’s hearing was deliberately put back until the end of the afternoon. Exercising his discretionary powers, the President of the Assize Court called a teacher of children with special needs as a witness to be heard for information purposes only. Following that hearing, the respective lawyers of C.H., who stood accused along with the applicant, and of P.H. declared that they were bringing civil-party proceedings on their clients’ behalf and made a written application. The trial was adjourned. 23. At the beginning of the afternoon the lawyer representing the applicant’s wife in turn applied for the investigation to be reopened to take account of the documents relating to her that had been filed by the prosecution. Those documents included a judgment delivered by the Lorient tribunal de grande instance in 1996, records of the hearing by that court’s registrar and written statements by S.C. The applicant’s wife’s lawyer requested that in the course of the reopened investigation the statements on the proceedings made by Mr and Mrs B. in the documents filed by the prosecution be added to the file. Failing that, the trial would have to be adjourned to a subsequent session. In support of his requests, the lawyer relied on the requirement of a fair trial. 24. In an interlocutory judgment the Assize Court deferred its decision on the above application pending completion of the hearing of evidence. The President continued his examination of the defendants until 6 p.m. with one short adjournment of fifteen minutes. At 6.20 p.m. the examination of the defendants resumed and thereafter a witness was heard. 25. Lastly, on the evening of the first day of the trial, that is on 13 March 1997, the Court heard one of the experts who had been appointed to prepare an opinion during the pre-trial investigation. He made an oral presentation of the report he had submitted on 29 October 1993 during the investigation proceedings (see paragraph 13 above). 26. The President then adjourned the proceedings for fifteen minutes during which the expert studied the new documents produced by the prosecution. 27. As soon as the hearing of the expert resumed, the latter allegedly changed his opinion, stating, among other things, that the applicant was a “paedophile” and that “psychotherapy [was] necessary, but would be ineffective for the time being”. 28. The examination of the expert lasted about two hours, at the end of which the President authorised him to withdraw permanently, a decision on which he had consulted the parties and to which none of them had raised any objection. 29. On the following day, 14 March 1997, the applicant’s lawyer disputed the expert’s oral submissions and applied for a second opinion, on the following grounds: “After ... one of the two experts appointed by the investigating judge had made his statement before the Assize Court, he was informed of the two discontinued sets of proceedings that had been brought against G.B., who is now 34, when he was 16 years old. The depositions made by G.B. at that time were read out to the expert. Immediately after being informed of those facts, of which he had been unaware when preparing his expert opinion, the expert radically altered his submissions, stating that: – in his view G.B. is unquestionably a paedophile; – psychotherapeutic treatment is necessary, but, given G.B.’s current state of mind, would be totally ineffective because he has no feelings of guilt; – the length of a prison sentence has no effect on an individual of that type as the potential to be cured depends solely on a feeling of guilt, which G.B. lacks; – in the absence of a feeling of guilt, there is a major risk that G.B. will reoffend even after a long sentence, meaning that imprisonment can only serve as a means of protecting society. ... G.B. formally disputes the expert’s oral submissions. A second opinion is indispensable. If it had considered it necessary, it was during the investigation that the prosecution should have filed the documents it produced at the beginning of the trial relating to proceedings brought over fifteen years ago. In that case the expert would have drawn up his report in the light of the evidence contained therein and G.B. would undoubtedly have requested a second opinion, prepared by two experts. The Assize Court therefore heard an oral report that differed radically from the written report by the two experts. Respect for the rights of the defence requires that a new expert opinion be ordered in the context of an application for the investigation to be reopened. Everyone has the right to a fair trial.” 30. The lawyer also applied for the applicant’s release on the ground that his client should not have to suffer the consequences of the prosecution’s having taken three years and nine months to file documents that it considered indispensable. 31. In an interlocutory judgment of 14 March the Assize Court deferred its decision on the application for further investigative measures pending completion of the hearing of evidence and rejected the application for release on the ground that detention was “necessary to ensure that the defendant remain[ed] at the disposal of the judicial authorities”. 32. The President continued to examine the defendants and obtained their statements. After that he took evidence from the applicant’s mother, from a person sentenced for a serious crime and from eight witnesses. 33. The applicant’s lawyer then reiterated his previous submissions while his wife’s lawyer withdrew the interlocutory application he had lodged with the Assize Court. 34. On 15 March 1997 the Assize Court took formal note of the withdrawal by S.C.’s lawyer. On 15 March 1997, after a procedural defect vitiating the interlocutory application made by the applicant’s lawyer had in the meantime been cured, the Assize Court nevertheless refused it. It made the following points regarding the complaint of an infringement of the rights of the defence: “Firstly, the new documents produced by the prosecution and duly communicated to each of the parties to the proceedings could have been contested, particularly by G.B., whether directly or through the intermediary of his counsel. Secondly, once the above documents had been brought to the notice of the expert ... and he had completed the presentation of his report, G.B. and his counsel were in a position to request any further information or explanations from him that they required. Thus it cannot legitimately be argued that the production of new documents and their consideration by the psychiatric expert were capable of infringing the rights of the defence. At all events, in view of the outcome of the oral examination at the hearing, it does not seem essential for the establishment of the truth to seek a second psychiatric opinion. Consequently, there is no cause for the proceedings to be adjourned ...” 35. The Assize Court also rejected the applicant’s application for release. 36. On 15 March 1997 the Assize Court sentenced the applicant to eighteen years’ imprisonment for a number of counts of raping his niece, a child under 15, sexually assaulting a girl under 15 and sexually assaulting his nephews. The sentences imposed on the three other co-defendants were less severe (ten years’ imprisonment, a fully suspended five-year prison sentence with probation, and a five-year prison sentence, one year of which was suspended with probation). 37. The applicant appealed on points of law. In his first ground of appeal he argued that the Assize Court’s consenting to file the documents produced by the prosecution amounted to a violation of his right to a fair trial, particularly the principle of equality of arms, since his lawyer had only had half a day to study the documents in issue whereas the prosecution had had them for some time. Relying also on Article 6 of the Convention, the applicant submitted another plea regarding the Assize Court’s refusal to order a second opinion. He argued that the examination by the expert of the new documents that had been produced at the hearing, which had made him radically change his initial submissions, required an effective second opinion for the sentence imposed to satisfy the legal requirement that it must be suited to the personality of the defendant. 38. In a judgment of 11 February 1998 the Criminal Division of the Court of Cassation rejected the appeal in its entirety. Regarding the grounds of appeal based on an infringement of the right to a fair trial, the Court of Cassation stated as follows: “When, after the decision committing the defendant for trial had been read out, the advocate-general produced various documents including the records of a number of discontinued proceedings relating to the defendant, the defence objected and requested that those documents should not be filed. As justification for its rejection of that request, the Assize Court stated that the prosecution, like every other party to criminal proceedings, is entitled to produce at the trial any documents that appear to afford assistance in establishing the truth in so far as they relate to the offences of which the defendants stand accused and shed light on their personality. If they have been communicated to all the parties so that there has been an opportunity for adversarial argument about them, the production of such documents cannot legitimately be said to have any adverse effect on the rights of the defence. In ruling to that effect, the Assize Court provided a legal basis for its decision without laying itself open to the objection raised in the ground of appeal because, the adversarial principle having been respected, no statutory or treaty provision prevented documents relating to offences subject to limitation but not covered by an amnesty being filed in that way. ... As justification for its refusal to order the second expert opinion sought by the defence, the Court, having deferred its decision on the examination of that application, held, after taking evidence, that the requested measure was not indispensable for the establishment of the truth. In ruling to that effect, the Assize Court, which was not obliged to respond to mere arguments in submissions, determined a matter over which it alone had jurisdiction, deciding that there was no reason to allow the application.” 39. The relevant provisions of the Code of Criminal Procedure on hearings before assize courts provide as follows: “If the investigation appears to him to be incomplete or if new evidence has emerged since its closure, the president may order any further inquiries he deems necessary. ...” “The president may, of his own motion or on an application by the public prosecutor, order cases which do not seem to him to be ready to be tried during the session in which they have been listed for hearing to be adjourned to a subsequent session.” “The president shall be responsible for the proper management of the trial and shall direct the proceedings. He shall reject anything that is calculated to undermine their dignity or prolong them without creating the hope of more certain results.” “The president is vested with a discretionary power under which he may, on his honour and according to his conscience, take any steps that he believes may assist in establishing the truth. He may, if he deems it appropriate, place the matter before the court, which shall rule in accordance with the conditions set out in Article 316. During the trial he may summon any person, where necessary by means of a warrant, and examine him, or demand to see any new evidence which he considers likely, in the light of argument at the trial, to assist in establishing the truth. Witnesses called in this way shall not be required to take an oath and their statements shall be regarded as being solely for information purposes.” “All interlocutory issues shall be decided by the court, after the prosecution, the parties or their lawyers have been heard. Interlocutory judgments may not prejudge the merits. They may be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits.” “Once the evidence has been heard, civil parties or their lawyers shall be heard. The prosecution shall make its submissions. The defendant and his lawyer shall submit their defence pleadings. Civil parties and the prosecution have the right to reply but the defendant or his lawyer shall always speak last.” 40. According to the established case-law of the Criminal Division of the Court of Cassation (Cass. crim.) (see, in particular, Cass. crim. 13 May 1976, Bulletin criminel (Bull. crim.) no. 157, and Cass. crim. 4 May 1988, Bull. crim. no. 193): “The prosecution shall be free to decide the content of its submissions. It shall be entitled to produce any documents and provide any explanations that it considers necessary, subject to the right of the parties concerned to reply.” 41. According to other established precedents of the Criminal Division of the Court of Cassation (see, in particular, Cass. crim. 19 April 1972, Bull. crim. no. 132, and Cass. crim. 5 February 1992, Bull. crim. no. 51): “Under Article 287 of the Code of Criminal Procedure, defendants are not entitled before the opening of the trial to file an application for the case relating to them to be adjourned to a subsequent session.” 42. Evidence given by experts is governed by the following provisions of the Code of Criminal Procedure: “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. When giving evidence, they may consult their report and its annexes. The president may, of his own motion or at the request of the prosecution, the parties or their counsel, ask experts any questions falling within the sphere of the task assigned to them. Following their statement, experts shall attend the hearing unless the president authorises them to withdraw.” “If at the hearing of a trial court a person heard as a witness or for information purposes contradicts the conclusions of an expert report or provides new technical insights, the president shall ask the experts, the prosecution, the defence and, if the case arises, the civil party, to submit their observations. The court shall declare in a reasoned decision either that the contradiction shall be disregarded or that the case shall be adjourned to a subsequent date. In the latter case, the court may order any measure it deems necessary with regard to the expert opinion.” 43. The provisions of the Code of Criminal Procedure relating to such records provide as follows: “To ensure that the required formalities have been carried out, the registrar shall draw up a record which shall be signed by the president and the registrar. The record shall be drawn up and signed within three days at the latest of the delivery of judgment.” “Unless the president orders otherwise, of his own motion or at the request of the prosecution or the parties, the record shall include neither the defendants’ replies nor the content of depositions, subject nonetheless to the implementation of Article 333 regarding additions, changes or variations in witnesses’ statements.”