CASE OF L.L. v. FRANCE
Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed
András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
4. The applicant was born in 1957 and lives in France. 5. On 5 February 1996 the applicant’s wife filed a divorce petition with the appropriate tribunal de grande instance. In an interlocutory decision of 26 March 1996, the family-affairs judge, finding that the couple were not reconciled, gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements. The judge granted parental responsibility for the children, who were born in 1985 and 1988, jointly to their father and mother, decided that they should habitually live with their mother and made provisions for the applicant’s right of visiting contact. The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family. The welfare report, filed on 9 July 1996, revealed that the applicant was present and active as a father and had developed a sound relationship with his children. It recommended that he be granted broad rights of visiting and staying contact. 6. On 25 September 1996 the applicant’s wife brought divorce proceedings against him before the same tribunal de grande instance. She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism. 7. In a judgment of 4 September 1998, the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone, confirmed the interim arrangements indicated in the interlocutory decision, acknowledged the father’s poor financial situation and exempted him from child maintenance obligations. It ruled as follows: “The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband’s behaviour towards her. Her husband, as she has also shown, suffers from alcoholism, and this may reasonably be said to constitute the primary cause of his behaviour. These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage. It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone. ...” 8. The applicant appealed against the judgment before the appropriate Court of Appeal, requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children. As to the grounds of divorce, he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic. In this connection, he principally requested the exclusion from the case file of a document from his medical records that his wife had, according to him, obtained by fraudulent means and on which she had relied to show that he was an alcoholic. The document in question was an operation report of 2 April 1994 concerning a splenectomy which the applicant had undergone. It had been sent on 20 April 1994 in a letter from Doctor C. (a specialist in digestive surgery) to the applicant’s general practitioner. The applicant claimed, however, that he had never provided his wife with a copy of the document, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. As to the ancillary arrangements decided by the court below, he considered that the restrictions on his right of contact were unjustified, arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them. The applicant’s ex-wife, for her part, reiterated the complaints she had made before the court below. She also denied that she had obtained a medical document fraudulently, alleging that her husband had entrusted her with “the management of paperwork”, rejected any accusation of violence, and considered that the applicant’s demands, in respect of his right of contact, were premature as he was living with his parents and had not yet overcome his drink problem. 9. In a judgment of 21 February 2000, the Court of Appeal upheld the provisions of the judgment appealed against as regards the granting of the divorce, the exercise of parental responsibility and the children’s habitual residence, giving the following reasoning: “– The granting of the divorce: ... Whilst certain testimony she has produced, concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings, is very dated and not useful for the proceedings, she has nevertheless submitted to the Court testimony from two of his sisters concerning Mr [L.L.]’s alcohol addiction and his resulting aggressiveness. Mr [L.L.]’s alcoholism has been confirmed by medical documents and in particular a letter of 20 April 1994 to his general practitioner from Doctor C. – and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘a bout of acute pancreatitis with a background of alcoholism’ and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol. Mrs [L.L.] also produced medical certificates dated 26 July 1994, 2 September 1994, 15 September 1994 and 2 February 1996 in which various injuries were recorded – in particular a perforated eardrum – and from which violent acts by the husband must necessarily be inferred, as no other explanations have been suggested by Mr [L.L.]. This conduct ... constitutes a serious and repeated breach of marital duties, leading to an irretrievable breakdown in the marriage, and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife. ...” 10. As regards the applicant’s request for the extension of his rights of visiting and staying contact, the court considered it necessary to order, as an interlocutory measure, a medical and psychological report on the family group. After the expert’s report had been filed, on an undetermined date, the Court of Appeal, on 7 June 2001, granted the applicant’s request and accorded him a right of contact with which he was satisfied. 11. On 14 June 2000 the applicant wrote a letter to the President of the Court of Cassation in which he expressed his intention to appeal on points of law against the judgment of 21 February 2000, considering that the “legislation [had] not been correctly applied”. As regards the medical documents produced in the case, he criticised the courts that had ruled on his case for using those documents in spite of his protests, and added that such a practice was in breach of the Criminal Code since “judges [could not] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality”. 12. For the purposes of his appeal on points of law, the applicant filed a request for legal aid with the Court of Cassation’s Legal Aid Board. His request was rejected by the Board on 10 May 2001, then by the President of the Court of Cassation on 11 July 2001, on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success”. 13. In the meantime, following a report of ill-treatment filed by the applicant with the Department for Prevention and Social Services, the children’s judge at the tribunal de grande instance, on 25 October 2000, initiated the procedure providing, in respect of the couple’s children, for a measure of guidance in the home community. That measure was extended on 4 December 2001 for a further one-year period. 14. At the material time the relevant provisions of the Civil Code read as follows: “Everyone has the right to respect for his private life. ...” “The proceedings on the cause of action, the consequences of the divorce and on the interim arrangements shall not be public.” “Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions.” “A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud.” “Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life.” 15. Articles 259 and 259-1 of the Civil Code were amended by Law no. 2004-439 of 26 May 2004, which came into force on 1 January 2005. Those Articles now read as follows: “Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. However, evidence from descendants may never be heard in respect of the complaints submitted by the spouses.” “A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud.” 16. In divorce proceedings, evidence of the complaints submitted is unrestricted and may be adduced by any means, unless it is shown that it has been obtained by duress or fraud (Article 259-1 of the Civil Code) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic premises (Article 2592 of the Civil Code). In this connection, where, for the purposes of adducing preliminary evidence of a spouse’s breach of his or her duty of fidelity, a report establishing adultery has been drawn up by a bailiff, with judicial authorisation, at the domicile of the other party to the adulterous relationship, such an act constitutes lawful interference with private life (Court of Cassation, Second Civil Division, 5 June 1985, Bulletin civil (Bull. civ.) no. 111). Similarly, a report drawn up without judicial authorisation, at the request of the husband, on premises of which he has possession, may be taken into consideration by the tribunals of fact (Court of Cassation, Second Civil Division, 14 December 1983). However, having regard to Article 9 of the Civil Code, the Court of Cassation has held that where a person has been spied on, watched and followed for several months, interference with that person’s private life, by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person’s former spouse, is disproportionate to the aim pursued (Court of Cassation, Second Civil Division, 3 June 2004, Bull. civ. no. 273). Conversely, having regard to Article 259-1 of the Civil Code, a court of appeal which held, on the basis of the evidence which it alone was empowered to assess, that a relationship detrimental to a husband carried on between his wife and a third party could be established by e-mails and by a private investigation report, rightly inferred therefrom, absent any evidence of duress or fraud, that serious and repeated breaches of marital duties were thus substantiated (Court of Cassation, First Civil Division, 18 May 2005, Bull. civ. I no. 213). In the same vein, a private investigation report is admissible when corroborated by other evidence such as comments written in a diary (Court of Cassation, Second Civil Division, 3 March 1983, unreported) or witness statements. As regards letters exchanged between one of the spouses and a third party within the meaning of the former Article 259-1 of the Civil Code, a court, in order to declare inadmissible letters from a wife to third parties, together with her diary, is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress (Court of Cassation, Second Civil Division, 29 January 1997, Juris-classeur périodique 1997, Bull. civ. II no. 28). It has been held, however, that a diary should be declared inadmissible on the basis of Article 8 of the Convention (Caen tribunal de grande instance, judgment of 9 June 2000). 17. The relevant provisions of the new Code of Civil Procedure read as follows: “Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant, subject to the exercise of their rights.” “In the event of refusal or where no response is obtained, the president of the tribunal de grande instance, or, where the refusal emanates from a registrar, the president of the court to which his office is attached, seised by way of application, shall adjudicate, after hearing representations from the applicant and the registrar or custodian, or after giving them notice to appear. Appeals shall be lodged, examined and determined as in non-contentious matters.”