EUROFINACOM v. FRANCE
Inadmissible
The applicant, Eurofinacom, is a company formed under French law whose registered office is in Paris. It was represented before the Court by Mr P. de Fontbressin, a member of the Paris Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Justice. The applicant company provided a data-communications service that was accessible by a dedicated terminal (Minitel), under an agreement with France Télécom. The service could be accessed by typing in the code “36-15 ALINE”. It provided messaging and a mailbox system enabling online users to communicate with one another; users would choose a pseudonym (referred to as a “pseudo”) and could also supply a brief description of themselves (“CV”) for consultation by others. The public prosecutor's office suspected that the service was being used by prostitutes to contact potential clients and ordered a preliminary investigation. The police reported on 30 December 1996 that in the course of their inquiries officers had accessed 36-15 ALINE using the pseudo “AAA”. After consulting the CVs of “Lola massage”, “Claire 37 years old”, “Katy”, “Spanker”, “Bunny rabbit” , “Helena 38 years old”, “YW black s[eeks]”, “Almond eyes”, “Student”, “Katy the First”, “Elodye” and “Male slave” (the report did not state whether the CVs related to prostitution) they sent the following message to some of the correspondents: “terms”. “Lola massage” replied: “My rate is 1,000 francs for a RDV with sublime massage of the entire body Paris 16 Foch for further info your tel? thank you or write to me at Mbx Lola massage”. “Spanker” replied: “1,000”. “Helena 38 years old” replied: “1,200”. In response to a second message enquiring “How much?” “YW black s[eeks]”, replied: “tel dst 1,500”. On 17 April 1997 the Principal Public Prosecutor's Office lodged an application with the President of the Paris tribunal de grande instance for the appointment of a representative ad litem (mandataire de justice) to represent the company in criminal proceedings (Article 706-43 of the Code of Criminal Procedure). The application was worded as follows: “The Principal Public Prosecutor ... informs the court of the following: Eurofinacom S.A.R.L. ... operates a data-communications service called '36-15 ALINE'. Inquiries into this data-communications service have revealed that it acts as an intermediary between persons engaged in prostitution and their potential clients. This constitutes the offence of living on immoral earnings with the aggravating circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o) and 225-7 (3o) of the Criminal Code. Mr Valéry Sourieau, the manager of Eurofinacom S.A.R.L. has therefore been summoned by the public prosecutor's office under the direct committal procedure. Eurofinacom ... has for the past eighteen months achieved a monthly turnover of approximately 1,720,000 francs from '36-15 ALINE' alone. It would therefore appear that the offence of living on immoral earnings of which Mr Valéry Sourieau stands accused in his capacity as the de jure representative was committed on behalf of Eurofinacom. Criminal proceedings may therefore be brought against the company Eurofinacom in accordance with Article 121-2 of the Criminal Code. However, since the company's de jure representative is himself charged with the same offence, a representative ad litem will need to be appointed to represent Eurofinacom. For this reason, the President of the Paris tribunal de grande instance is asked to make an order under Articles 121-2 and 225-12 of the Criminal Code and Article 706-43 of the Code of Criminal Procedure appointing a representative ad litem to represent the Eurofinacom company in criminal proceedings in which it will be charged with: Having in Paris and on the national territory in 1995, 1996 and 1997, in particular on 30 December 1996, and 2, 3 and 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service called '36-15 ALINE' which it provided, with the [aggravating] circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o), 225-7 (3o) and 225-12 of the Criminal Code.” By an order of 17 April 1997, the President of the Paris tribunal de grande instance appointed Ms “Hélène Da Camara, judicial administrator, to represent Eurofinacom S.A.R.L. in criminal proceedings instituted on a summons by the public prosecutor's office under the direct committal procedure.” On 28 April and 12 May 1997 the public prosecutor's office summoned the applicant company and its manager, Mr Sourieau, to appear under the direct committal procedure at a hearing before the Criminal Division of the Paris tribunal de grande instance (“the Paris Criminal Court”) on 26 June 1997. They were accused of having, from 1995 to 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service 36-15 ALINE which it provided with the [aggravating] circumstance that it was committed against several people. On 20 May 1997 the applicant company's shareholders resolved at an ordinary general meeting convened on special notice to appoint Mr Jean-Claude Rossignol to represent it in the proceedings and to instruct a lawyer. Mr Rossignol informed the Principal Public Prosecutor of this in a letter of 12 June 1997. At the hearing on 26 June 1997 counsel for the applicant company informed the Paris Criminal Court that, pursuant to Article 706-43 of the Code of Criminal Procedure, the company had appointed Mr Rossignol to represent it and had duly informed the court. He submitted that the appointment of a representative ad litem to represent the company was “superfluous” and invited the court to accept Mr Rossignol as the sole representative. Noting that the representative ad litem's appointment under Article 706-43 of the Code of Criminal Procedure was “prior in time and valid”, the Paris Criminal Court found that the company was lawfully represented by Ms Da Camara and that it was Mr Rossignol's appointment that was superfluous. The applicant company was represented in court by a lawyer chosen by Ms Da Camara. In a judgment of 9 October 1997 the Paris Criminal Court found Mr Sourieau and the applicant company guilty of the following offences: “living on immoral earnings: acting as an intermediary between a person engaged in prostitution and the person employing him or her” and “living on immoral earnings aggravated by the fact that the offence was committed against several people”. It imposed a fine of 300,000 French francs (FRF) on Mr Sourieau and FRF 5,000,000 on the applicant company and ordered them jointly to pay damages of FRF 200,000 to an association that had joined the proceedings as a civil party. It stated in its judgment: “... The investigation and in particular the photographs of the connection to the Minitel server 36-15 ALINE and the pages that followed show that, although it is stated that 'pseudos and CVs that are accessible to all users are constantly monitored and those containing a telephone number or messages relating to pornography, prostitution or the incitement of minors to immorality or illegal practices will be immediately disconnected', prostitutes are nevertheless put directly in touch with anyone wishing to reply to the messages. The subscribers with the telephone numbers which appeared on the 36-15 ALINE server were traced and interviewed by police officers. [E.S.] stated that she had been engaged in prostitution for more than two years under the pseudonym 'EVA 93' through the intermediary of 36-15 ALINE and posted the message: 'Pretty blonde 38 years old, naughty underwear, 1m 65 – 57 kg – 95 bust'. She said that she had never been disconnected from the server and had noticed that pseudos such as 'WHORE' were not disconnected either. [C.L.], whose pseudonym is COCO, stated that she posted the same type of message with a view to prostitution and that while she was not permitted to say in her CV that she received customers, 'this was nevertheless understood, as people are not stupid'. [N.B.], whose pseudonym is LINDA, was working as a prostitute in avenue Victor Hugo when she was told of the Minitel by prostitute friends who said that it could help her to find clients from the comfort of her home. She stated that she had then learnt how to go online, to engage in conversation on 36-15 ALINE and to provide a description of herself: 'brunette, 1m 70, long hair, bust 95 B, 38 waist and 55 kg'. She said that it was 'more comfortable than being on the game in the street'. [M.B.] (alias CHRISTINA or LYDIA), [N.K.] (alias MATHILDE or ORNELLA), [L.G.], [J.D.] (alias VANESSA, CELIA or JOY) referred to their financial difficulties and their desire to earn money by meeting men through the server. They said that they engaged in occasional prostitution. Police officers from the Vice Squad discovered a number of wholly unambiguous messages on 36-15 ALINE: 'CV of Lola massage': rate 1,000 francs; 'CV of Bunny rabbit': brunette – long hair, 170 cm, 55 kg, 85 bust, 30 years old, cuddly, mischievous, for moments of togetherness; 'CV of Spanker': exquisite and arousing, spanking for Mr Motivated, 115E bust, tall, brunette, 40 years old, Parisian; 'CV of HELENA' very pretty Italian redhead 38 years old, shaven, sensual and refined, very sexy; 'CV of male slave': 40 year old genuine male slave trained by mistresses and CPL very good practice of submission either alone or with other male or female submissives for an evening or for sessions; genuine, not fantasist PARIS or Paris area. All these connections indicate that the CVs and messages are manifestly prostitution-related. Persons wishing to offer their services as prostitutes use a pseudonym, post a CV on the 36-15 ALINE network, open a data-communications mail account in which they receive messages to which they respond with a rate and telephone number and arrange meetings with interested clients. Evidence of this modus operandi exists in the form of photographs taken by police officers. Further, a review of previous cases handled by the Vice Squad has revealed that both male and female prostitutes have said that they used the 36-15 ALINE server to offer their services as prostitutes. In sum, there is ample proof that the 36-15 ALINE server was used in connection with prostitution. At the hearing Valéry Sourieau did not dispute that he was responsible for monitoring the messaging service to ensure the proper functioning of the service; he said that he supervised the teams of monitors and the pseudos registered on the server and had no hesitation in disconnecting non-compliant CVs. He said in the course of the investigation that he was no fool and was aware that many of the exchanges that took place on 36-15 ALINE involved men and women offering services as prostitutes. The defendants point to precautionary measures that had been taken, essentially monitoring, as evidence of their good faith and of the lack of mens rea to commit the offence charged. However, that argument does not stand up to examination when the facts uncovered by the investigation are considered. No warning was issued or account disconnected in response to the simultaneous posting of numerous and, for the most part, wholly unambiguous pseudos, to the detailed CVs indicating measurements and the services on offer, or to the replies to messages setting out rates and telephone numbers. On the contrary, these facilities enabled clients to find and speak to prostitutes, who in this instance were women. The second argument advanced by the defendants is that it was impossible for them to intervene directly in the private sphere, the online discussions, without infringing the right to freedom to communicate in private. ... Eurofinacom S.A.R.L., the service provider, undertook to ensure constant monitoring of the service in accordance with Article 5-2 and Appendices 1 and 2 [of its] agreement. Appendix 1 contains a reminder of the main legislative provisions applicable to data communications including those concerning living on immoral earnings. The interactive data-communications service 36-15 ALINE is governed by Law no. 861067 of 30 September 1986, section 43 of which requires prior notice to be given to the Principal Public Prosecutor's Office of an intention to provide audiovisual-communication services. The circular issued on 17 February 1988 pursuant to the said section 43 adopts the definition of the notion of audiovisual-communication service. Thus, audiovisual communication means a message intended for either the public generally or sections of the public, that is to say a group of undifferentiated people whose membership does not depend on considerations based on personal attributes. Private correspondence means a message solely intended for one or more specific, identifiable individuals or legal entities. The court notes that in the present case prostitutes use the 36-15 ALINE service to make non-exclusive offers open to anyone wishing to respond who is then given a rate which is uniform at this stage of the exchange. The exchange or discussion on the server does not acquire the character of private correspondence, owing to the fact that the advertisements and rates are available to all users of the service. On the other hand, the finalisation of the agreement leads to a private telephone conversation between specific individuals which is covered by the rules of confidentiality. In these circumstances, it is established that Valéry Sourieau and Eurofinacom S.A.R.L. allowed advertisements to be published without any proper supervision. A prostitution service involving a number of people developed through the intermediary of the 36-15 ALINE service. It follows that all the constituent elements of the offence of living on immoral earnings with aggravating circumstances are present and that the charges against the defendants have been made out. ...” Following a request dated 2 June 1998 by the person the applicant company had named as its representative, the President of the Paris Criminal Court directed on 9 June 1998 that Ms Da Camara's appointment under the order of 17 April 1997 would cease, as “Eurofinacom is now duly represented in the criminal proceedings by Mr Jean-Claude Rossignol”. The judgment of 9 October 1997 was upheld in its entirety by the Paris Court of Appeal in a judgment of 24 September 1998. The applicant company was represented in the Court of Appeal by a lawyer instructed by Mr Rossignol. The Court of Appeal dismissed an initial objection by the applicant company that the proceedings were a nullity owing to Mr Rossignol's exclusion from the proceedings in the Criminal Court. The Court of Appeal found that, since the Criminal Court had duly heard the submissions and arguments of counsel chosen by the judicial administrator, the applicant company had been properly represented and had had a fair trial at first instance. An objection by Mr Sourieau that the interception of private communications by the investigators was null and void was dismissed on the grounds that it had not been raised at first instance and could not be raised for the first time on appeal. On the merits, the Court of Appeal held, inter alia: “... Mr Sourieau's and Eurofinacom's guilt ... is established by the fact that the relevant messages related to prostitution ... and by the evidence of several female prostitutes who confirmed that they frequently used the '36-15 ALINE' server, as it was a well-known and habitual part of the prostitution network. They even said that it enabled them to avoid soliciting on the street and to select clients more easily. Mr Sourieau's affirmation that a team working twenty-four hours a day and seven days a week was assigned to monitor messages in order to eliminate those which were contra bonos mores is not accepted. Such affirmations are in total contradiction with the results of the investigation. Inquiries made by the police services who accessed the server on 12 December 1996, and 2, 3 and 7 January 1997 confirmed that none of the large number of prostitution-related messages were removed. Similarly, none of the prostitutes who used the server said in evidence that they had been 'disconnected' after posting their advertisements and some ... even categorically stated that they had not been. Accordingly, Mr Sourieau has not established good faith on this point. Likewise, it is not possible to accept Mr Sourieau's argument that he was prevented from directly intervening in online discussions because they were private communications. Referring to the impugned judgment, the Court of Appeal finds, like the court below, that the '36-15 ALINE' server did not constitute a messaging service intended for one or more specific, identifiable persons but a means of audiovisual communication offered to a non-specific and unidentifiable public. The server was accordingly governed by the Law of 30 September 1986, and in particular the provisions relating to the dignity of the human being and the preservation of law and order. In particular, it was established that the police accessed the server by following the standard procedure available to the public at large and that the connection ended when the two correspondents decided to transform the non-specific audiovisual communication into a personalised exchange on a private telephone line. Accordingly, despite the defendant's denials, it is established that Mr Sourieau knowingly supported an extensive prostitution network from which he made considerable profit. There is also no doubt that there was a community of interest between Mr Sourieau, Eurofinacom's manager, and the company he ran, as the investigation revealed that Eurofinacom's activity was in fact the alleged criminal activity and that it achieved an estimated turnover between July 1995 and December 1996 of 30,941,878 francs. ...” The applicant company and Mr Sourieau appealed to the Court of Cassation. They submitted, firstly, that there had been a violation of Article 6 of the Convention in that the trial court had ruled that the applicant company was represented in the proceedings by the representative ad litem appointed by the President of the Paris Criminal Court instead of the person it had appointed to that end. Relying, inter alia, on the same provision, they argued, secondly, that the alleged offence had been “the result of provocation and subterfuge”. Thirdly, they submitted that the offence of living on immoral earnings with aggravating circumstances had not, in the absence of a positive act, been made out in law, as a failure to act or acquiescence did not suffice. The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 12 January 2000. With regard to the first ground of appeal, it held: “... In dismissing Eurofinacom's application to set aside the proceedings at first instance on the grounds that it should not have been represented by Hélène Da Camara, the Court of Appeal noted that Article 706-43 of the Code of Criminal Procedure had been complied with and that the lawyer chosen by the company's representative had been able to present his observations and arguments at the hearing. In so doing, the Court of Appeal, which found that the company had been properly represented and assisted in the Criminal Court, applied the law correctly, notwithstanding the superfluous reasoning criticised in the second limb of the ground of appeal. The first subparagraph of Article 706-43 of the Code of Criminal Procedure provides that when criminal proceedings are brought against a legal entity and its de jure representative is also prosecuted for the same or a related offence, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings in accordance with the final subparagraph of that Article. ...” The second ground of appeal was dismissed for the following reasons: “According to the judgment of the Court of Appeal and the judgment of the court below which it upheld, the investigation essentially took the form of questions to persons engaged in prostitution who used the Eurofinacom Minitel server to find clients and the retrieval by the police officers themselves of information from the data communications network. The Court of Appeal declared Valéry Sourieau's objection that evidence obtained by the police through the interception of data communications should be excluded under Articles 100 et seq. of the Code of Criminal Procedure on the grounds that that provision had not been pleaded in the Criminal Court. In so doing, the Court of Appeal correctly applied the final subparagraph of Article 385 of the Code of Criminal Procedure. ...” Lastly, the Criminal Division dismissed the third ground of appeal, holding that that it merely contestedthat had been the subject of adversarial argument, all of which were within the unfettered discretion of the courts below. Article 121-2 of the Criminal Code lays down that legal entities may be held criminally liable for offences committed on their behalf by their organs or representatives. Such a finding will not preclude criminal liability on the part of individuals who commit the offence or act as accomplices. As regards the representation of a legal entity that is a defendant in criminal proceedings, Article 706-43 of the Code of Criminal Procedure provides: “The criminal proceedings shall be instituted against the legal entity acting through its de jure representative at the time the prosecution was brought. The de jure representative shall represent the legal entity at all stages of the proceedings. However, when criminal proceedings are brought against the de jure representative for the same or related offences, he or she may make an application to the president of the tribunal de grande instance for the appointment of a representative ad litem to represent the legal entity. The legal entity may also be represented by any person who, in accordance with law or the memorandum and articles of association, holds a delegated power to that end. A person who has been assigned the task of representing the legal entity under the second subparagraph shall inform the court before which the proceedings are pending of his or her identity by registered letter with recorded delivery. The same rule shall also apply if there is a change of de jure representative while the proceedings are pending. If there is no one qualified to represent the legal entity in accordance with the conditions set out in this Article, the president of the tribunal de grande instance shall, on an application by the public prosecutor's office, the investigating judge or the civil party, appoint a representative ad litem to represent it.” In a judgment of 9 December 1997 (Bulletin criminel no. 420), the Criminal Division of the Court of Cassation held: “By virtue of the first subparagraph of Article 706-43 of the Code of Criminal Procedure, if criminal proceedings have been instituted against a legal entity and its de jure representative or the person to whom power has been delegated under subparagraph 2 of the aforementioned provision has also been prosecuted for the same or related offences, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings, in accordance with the procedure set out in the final subparagraph”. Article 225-5 of the Criminal Code provides: “Living on immoral earnings shall mean using any means whatsoever: 1º To aid or assist another to engage in prostitution or to protect a person so engaged; 2º To profit from or share the proceeds of another's engagement in prostitution, or to receive an allowance from a person who habitually engages in prostitution; 3º To recruit or procure a person for prostitution, to lead a person into prostitution or to exert pressure to make a person engage in prostitution or continue to do so. Anyone living on immoral earnings shall be liable to seven years' imprisonment and a fine of 150,000 euros.” Article 225-6, subparagraph 1o, of the Criminal Code lays down that “anyone who by any means whatsoever ... acts as an intermediary between two persons, one of whom engages in prostitution and the other of whom uses or pays for his or her services” shall be assimilated to a person living on immoral earnings and liable to the penalties laid down by Article 225-5. Article 225-7, subparagraph 3o, of the Criminal Code adds that the maximum sentence shall be ten years' imprisonment and a fine of 1,500,000 euros for anyone living on the immoral earnings where the offence is committed against several people. Law no. 98-468 of 17 June 1998 (published in the Official Gazette of 18 June 1998) inserted a tenth subparagraph which provides that the same maximum sentence shall apply when the offence of living on immoral earnings has been committed “with the help of a telecommunications network to disseminate messages to a non-specific public”.