CASE OF ACQUAVIVA v. FRANCE
No violation of Art. 6-1
C. Russo
6. On 15 November 1987 at approximately 8 p.m. the officers of the Vescovato brigade of gendarmerie received a telephone call from Mrs R. informing them that an attack had just been carried out at her and her husband's farm at Querciolo, Sorbo Ocagnano (Haute-Corse). The perpetrator of the attack had been fatally wounded. When the officers arrived at the scene of the incident, they found the body of a man, identified at the morgue as being that of Jean-Baptiste Acquaviva, the applicants' son and brother. The deceased had been a militant nationalist on the run, whose photograph had appeared on police posters offering a reward for information leading to his arrest. R. was immediately placed in police custody, but was released at 1.30 a.m. on 16 November 1987. His wife was also questioned. A post-mortem report was drawn up on 17 November 1987. The following day the Bastia public prosecutor sought ballistic and toxicological reports, which were submitted on 4 December 1987 and 4 January 1988. 7. In two communiqués issued the day after the killing, the Corsican National Liberation Front (FLNC) - an organisation that had been dissolved in January 1983 - described the deceased as a "brother in arms" and a "martyr for the nationalist cause", deliberately assassinated by R. On 18 November 1987 Mr and Mrs R. left Corsica under false identities as the local police commander (capitaine de gendarmerie) had advised them that he could not guarantee their safety. The furniture disappeared from the R.s' farm on 20 November. 8. On 3 December 1987 the police investigation concluded that there was sufficient serious and consistent evidence to justify charging R. with fatal wounding, but that he had apparently been acting in self-defence. On 11 December 1987 the deceased's parents laid a complaint against R. for intentional homicide and filed an application to join the proceedings as civil parties. They wished to discover the circumstances of their son's death and requested a reconstruction of the events; they did not seek damages. On 14 January 1988 they lodged security for costs of 5,000 French francs (FRF) fixed by an order of 14 December 1987. 9. On 19 December 1987 the R.s' farm, which had been under police surveillance, was partly destroyed by a bomb attack. The investigation opened into this incident was closed on 2 January 1990 under the amnesty of 10 July 1989. 10. On 25 January 1988 an investigation was opened into an offence of fatal wounding by persons unknown. On the same day Judge Catalano was assigned to the investigation and the prosecutor's office requested an inquiry and a reconstruction of the events. 11. The applicants were interviewed on 8 April 1988. On 13 June 1988 the prosecutor's office called for evidence to be taken from the doctor who had signed the death certificate and the senior officer of the gendarmerie. These two persons were questioned on 25 August 1988. The civil parties were summoned to appear on 4 July 1988, but did not do so because their lawyer was unable to be present. On 2 September 1988 the investigating judge sought the opinion of the doctors who had carried out the post-mortem examination. They submitted their report on 23 September. On 20 September evidence was taken from the police officers concerned, as witnesses. 12. On 27 September 1988 the R.s' farm - which had been purchased in Spring 1988 by the Ministry of Agriculture - was placed under seal. 13. On 13 October 1988 the applicants were interviewed on the subject of the medical experts' report. They maintained their complaint and continued to stress the need for a reconstruction. On 20 October 1988 R. was summoned to give evidence, but he requested the judge to excuse him and did not appear on 3 November for the interview. 14. In additional submissions of 26 October 1988 the public prosecutor called for fresh expert reports, in particular a ballistic report. One month later the civil parties also sought further investigative measures. On 10 January 1989 the investigating judge visited Orly Airport, near Paris, to question R. as a "witness assisted by a lawyer" (temoin assisté) and his wife as an ordinary witness. 15. On 11 January 1989 the judge rejected the applications for investigative measures submitted by the prosecutor's office and civil parties. The prosecutor's office and the applicants challenged his decision. Mr Catalano, who had been appointed to another post, was replaced on 12 January 1989 by Judge Sievers. 16. The Bastia public prosecutor and the applicants appealed to the Indictment Division of the Bastia Court of Appeal, which ruled, in a preliminary decision of 22 February 1989, that the refusal to carry out the investigative measures requested adversely affected the civil parties' rights. In accordance with the principal public prosecutor's submissions, the Indictment Division quashed Judge Catalano's decision and ordered further investigative measures including a reconstruction of the events at the scene of the incident in the presence of R. and two ballistic experts. It assigned the task of carrying out the reconstruction to Judge Sievers and ordered that the costs of the expert reports be advanced out of public funds. 17. On 31 May 1989 the prosecutor's office lodged further submissions calling for Mr and Mrs R. to be brought to the scene of the incident for the purposes of the reconstruction. R. was interviewed as a "witness assisted by a lawyer" in Paris on 27 June 1989. 18. On 10 October 1989 the gendarmerie found that the seals put on the farm had been broken and that an item of evidence, the front door, which bore bullet marks, had been stolen. In a report submitted ten days later the senior police officer indicated that this had made it impossible to carry out the reconstruction under satisfactory conditions, in view in particular of the fact that there was no furniture in the house. The investigating judge visited the scene on 23 October 1989. He questioned R. in Paris on 26 October. 19. On 31 October 1989 the Bastia public prosecutor's office called for the opening of an investigation in respect of the destruction of the seals and the theft of the door by persons unknown. This investigation was subsequently terminated by a decision finding that there was no case to answer. 20. On 7 November 1989 the investigating judge ordered an inquiry into the removal of the furniture and the disappearance of the door. He visited the site on 9 November and interviewed the applicants the following day in connection with the preparations for the reconstruction. In the course of this inquiry the judge questioned the police officers concerned on 15 November 1989, Mr and Mrs R.'s son on 8 December and on 18 December the prosecutor who had been called out on the night of the killing. On 20 December he gave instructions for evidence to be taken. 21. The former public prosecutor of Bastia told him on 15 January 1990 that it had been planned from the beginning of the investigation to organise a reconstruction. The reconstruction, which had been scheduled for 16 January 1990 and organised with extensive security precautions, did not take place because of the absence of R. and the police officer who had conducted the inquiry and the applicants' refusal to attend in such circumstances. 22. The following day the applicants requested that coercive measures be taken in regard to Mr and Mrs R. On 19 January 1990 the prosecutor's office called for the transmission of the documents to the Indictment Division for a ruling on the new applications and a decision on the further procedure. 23. On 29 January 1990 Judge Sievers forwarded the file to the Indictment Division, which, on 7 March 1990, ordered that it be communicated to the principal public prosecutor. On 21 May 1990 the latter called for a reconstruction of the events. 24. On 12 June 1990 the applicants laid a complaint concerning the destruction of the seals put on the R.s' house and the theft of the front door; they also applied to join the proceedings as civil parties. This complaint for theft, concealment and destruction of evidence was declared inadmissible on technical grounds. 25. On 13 June 1990 the Indictment Division of the Bastia Court of Appeal held a hearing. At the opening of the hearing the applicants protested at the presence in the courtroom of the lawyers of R., a "witness assisted by a lawyer". By an interlocutory decision of the same day, the court allowed the objection and reserved judgment on the remaining issues until 20 June. 26. R. appealed on points of law to the Court of Cassation and requested an expedited hearing of his appeal. The Bastia Indictment Division decided on 20 June 1990 to stay the proceedings pending the decision of the Court of Cassation. The same day the President of the Division instructed the investigating judge not to take any new steps until further notice. 27. On an application by the public prosecutor, and then by the Principal Public Prosecutor, the Indictment Division, by a decision of 27 June 1990, quashed the five investigative measures effected after 29 January 1990. 28. On 27 November 1990 the Court of Cassation dismissed R.'s appeal, which it declared inadmissible on the ground that his status as a "witness assisted by a lawyer" did not confer on him the standing of party to the proceedings. The status of "witness assisted by a lawyer" introduced by Law no. 87-1062 of 30 December 1987 was intended to afford persons who are the subject of a complaint laid with a civil party application the same guarantees as those accorded to persons charged (inculpés) or, to use the current terminology, placed under judicial investigation (mises en examen). 29. On an application by its principal public prosecutor, the Court of Cassation decided on 27 February 1991 to remove jurisdiction from the Bastia Indictment Division. On grounds of public safety it transferred the proceedings instituted against persons unknown for fatal wounding to the Indictment Division of the Versailles Court of Appeal. 30. That Division examined the case file as communicated by Judge Sievers by his order of 29 January 1990. On 21 June 1991 it gave a preliminary decision in which it allowed the principal public prosecutor's application and held "that it was not necessary to carry out the reconstruction ordered by the Bastia Indictment Division". The reconstruction could no longer "be effected in satisfactory conditions. In addition the participation of Mr and Mrs R. in such events would entail unacceptable risks in view of the insecurity reigning in the region in question according to police reports". It annulled all the measures taken with a view to the reconstruction, delegated its President to continue the additional investigative measures decided on 22 February 1989 and ordered that from that point the costs should be borne by the civil parties, who might be required to lodge further security. 31. By letter of 27 August 1991 the President of the Indictment Division asked the applicants to inform him what steps they wished to have carried out and on 29 October 1991 the Indictment Division communicated the investigation file to the prosecutor's office for its final submissions. 32. On 30 October 1991 the Versailles prosecutor's office called for an order finding that there was no case to answer. On 19 November 1991 the applicants lodged pleadings seeking a reconstruction of the events. In a decision of 10 December 1991 the Versailles Indictment Division found that R. had been acting in self-defence and that there was not sufficient evidence to justify charging anyone with the offence that was the subject of the proceedings. It therefore ruled that there was no case to answer. 33. The applicants lodged an appeal on points of law against this decision. In a judgment of 14 April 1992 their appeal was declared inadmissible by the Criminal Division of the Court of Cassation on the ground that the pleadings had not been lodged with the registry of the Court of Appeal but had been sent directly to the Court of Cassation without using the services of a lawyer with a right of audience before the Court of Cassation. The grounds of appeal had not therefore been validly submitted to the Court of Cassation. The decision was served on the applicants on 1 September 1992. 34. Article 2 of the Code of Criminal Procedure provides as follows: "All those who have personally suffered from the damage directly caused by a serious offence (crime), less serious offence (delit) or petty offence (contravention) may bring civil party proceedings (action civile) to seek compensation for such damage. Discontinuance of such proceedings can neither halt nor stay the criminal proceedings, without prejudice to the cases provided for in paragraph 3 of Article 6 [of the present Code]." However, in the case of petty offences, only the prosecuting authority may set in motion the criminal proceedings. Under paragraph 3 of Article 6 of the Code of Criminal Procedure, "[Criminal proceedings] may, in addition, be discontinued by settlement where express provision is made for this possibility. They may likewise be discontinued in the event of withdrawal of the complaint where the complaint was an essential condition for the proceedings to be brought." 35. A civil party application (constitution de partie civile), which has the effect of staying the proceedings in the civil courts, may be made at any time to the investigating judge or the indictment division up to the decision concluding the investigation. It may be opposed by the prosecuting authority, by the person placed under investigation or by another civil party, or the investigating judge may, of his own motion, declare it inadmissible by an order which must state reasons and which is open to appeal (Article 87 of the Code of Criminal Procedure). The decision of the investigation authority allowing a civil party application to join the proceedings does not prejudge that of the trial court as to the admissibility of that application. 36. The intervention of a civil party may be motivated solely by the wish to support the public prosecution and to ensure that the guilt of the accused is established. For this reason, according to the case-law, a civil party application may be admissible even if no claim for damages is possible. As a civil party, the victim is kept informed of the steps of the investigation, may appeal against decisions which harm his interests and has access to the investigation file under the same conditions as the person placed under investigation. 37. When an investigation that has been opened on the basis of a civil party complaint is terminated by an order finding that there is no case to answer, any person who was the subject of the complaint may seek damages in the criminal and civil courts and request that criminal proceedings be brought against the civil party for false accusation; the prosecuting authority may also summons the civil party to appear in the criminal court before which the investigation was conducted. If the civil party application is held to have been improper or vexatious, the court may impose a civil fine not exceeding FRF 100,000 (Article 91 of the Code of Criminal Procedure).