CASE OF FOUCHER v. FRANCE
Violation of Art. 6-1;Violation of Art. 6-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
N. Valticos;R. Pekkanen
6. Mr Frédéric Foucher, a French national who was born in 1972, lives in Argentan in the Orne département. 7. On 24 July 1991 the applicant and his father were summoned to appear before the Argentan Police Court under the direct committal procedure (Article 531 of the Code of Criminal Procedure - see paragraph 16 below). They were charged with having used insulting and threatening words and behaviour towards public-service employees - two national game and wildlife wardens - on 13 February 1991 in Fontenai-sur-Orne. This offence is classified as a fifth-class minor offence under Article R. 40-2 of the Criminal Code, punishable by a term of imprisonment of between ten days and a month and by a fine of between 2,500 and 5,000 French francs (FRF), or by one of these penalties only. 8. The applicant decided to conduct his own case and his mother went to the police court registry on 25 July 1991 to consult the case file and procure copies of the documents it contained. In a note that same day the Argentan public prosecutor stated that copies could not be issued to individuals except through a lawyer or an insurance company. On 26 July 1991 the applicant and his father went to the registry for the same purpose. In a second note, dated 26 July, the public prosecutor informed them that copies of official reports could not be issued to individuals. 9. At the police court hearing on 2 October 1991 the applicant and his father argued that the proceedings against them were unlawful. They relied on a breach of Article 6 of the Convention (art. 6) in that they had been denied access to the criminal file and had been refused copies of the documents from the file. 10. In a judgment of 2 October 1991 the police court upheld their submissions and set aside the proceedings against the applicant and his father on the ground that the rights of the defence had been infringed. It declared inadmissible applications by the National Field Sports Board and the two game wardens to join the proceedings as civil parties. It gave the following reasons: "... Article 6 (art. 6) of the European Convention on Human Rights provides that everyone charged with a criminal offence has the right, among other things, to be informed in detail of the accusation against him, to have adequate time and facilities for the preparation of his defence, and to defend himself in person. In the instant case the public prosecutor’s office in no way disputed the fact that the defendants were not allowed access to their case file when they requested it prior to the hearing. That the defendants attempted to secure such access is confirmed by two notes of 25 and 26 July 1991, although these documents refer only to the refusal to hand over copies. The defendants should have been allowed access to their case file in order to prepare their defence. The value of such access is sufficiently demonstrated by the use legal representatives make of it. No discrimination adversely affecting the rights of the defence can be justified by the fact that a defendant prefers to conduct his own defence. Furthermore, however detailed the inquiry into the facts carried out at the hearing is, the defendant cannot be deprived of the opportunity to see and actually to familiarise himself with the documents concerning him. It follows that the rights of the defence were infringed during the criminal proceedings against Mr Gérard Foucher and Mr Frédéric Foucher and that the proceedings must accordingly be set aside." 11. On 30 October 1991 the public prosecutor’s office and the civil parties appealed against this judgment. 12. On 2 March 1992 a summons was served on the applicant at his home. He did not, however, appear at the hearing in the Caen Court of Appeal on 16 March 1992. According to him, his mother went to the registry of the Court of Appeal to obtain information on how to gain access to the case file, but met with the registrar’s refusal. 13. In a judgment of 16 March 1992, given after proceedings that were adversarial in the case of the applicant’s father and deemed to have been adversarial in the case of the applicant, the Court of Appeal reversed the judgment of 2 October 1991 and refused the application for the proceedings to be set aside for having violated the rights of the defence. It ruled as follows: "... Gérard Foucher [the applicant’s father] has pleaded that the proceedings should be set aside as they are in breach of the rights of the defence. He argued that he had not had access to the case file in order to prepare an effective defence and that this constituted a violation of the European Convention on Human Rights. However, although Article [6] (art. 6) of that Convention states that everyone charged with a criminal offence has the right, among other things, to be informed in detail of the nature and cause of the accusation against him, the right to have adequate time and facilities for the preparation of his defence and the right to defend himself in person, the Convention does not require that the case file be made available to the applicant himself. Moreover, Gérard Foucher was informed, by means of the summons in due form, of the offences with which he was charged and of the legal provisions relating thereto. Under these circumstances the objection that the proceedings were vitiated fails." Relying on the official report drawn up on 13 February 1991 by the two game wardens and on the statements made by another hunter, the Court of Appeal fined the applicant and his father FRF 3,000 each for insulting the game wardens. 14. On 10 April 1992 the applicant lodged an appeal on points of law against the judgment of 16 March 1992. In his grounds of appeal, which he drafted himself, he cited Article 6 of the Convention (art. 6). His father did not appeal. 15. On 15 March 1993 the Court of Cassation (Criminal Division) dismissed the applicant’s appeal on the following ground, among others: "In holding that the European Convention for the Protection of Human Rights and Fundamental Freedoms did not require that the case file be made available to the defendant himself, and that he had been informed, by means of the summons in due form served on him, of the charges against him and the relevant legal provisions, the Court of Appeal did not breach the provisions of that Convention." 16. The relevant Articles of the Code of Criminal Procedure concerning institution of proceedings in the police court and the rules of evidence as regards minor offences are as follows: "Cases concerning offences within the jurisdiction of the police court shall be brought before it by referral from the investigating authority, by the parties’ voluntary appearance or by the direct committal of the defendant and of the person civilly liable for the offence." "Minor offences shall be proved by official reports or, where there are no such reports, or in support thereof, by evidence taken from witnesses. Save where the law provides otherwise, official reports by law-enforcement officers or their deputies, or by public servants responsible for carrying out certain police duties and authorised by law to draw up reports of minor offences, shall be good evidence in the absence of proof to the contrary. Proof to the contrary must be established by either written or witness evidence." 17. According to the Code of Criminal Procedure, it is only compulsory for a defendant to be represented by a lawyer in the Assize Court (Article 317). In all other criminal courts the person placed under investigation - Law no. 93-2 of 4 January 1993 reforming criminal procedure substituted the expression "mise en examen" (placing under judicial investigation) for "inculpation" (charging) - can choose whether or not to be represented by a lawyer. 18. There are no regulations in the Code of Criminal Procedure governing consultation of the case file or the release of documents to lawyers except in relation to the investigation: "The case file shall be made available [to lawyers] at least four working days prior to each examination of the person under investigation or each interview with the civil party. Following the first appearance of the person under investigation or the first interview with the party claiming damages the case file shall likewise be made available to lawyers at any time on working days, in so far as this does not interfere with the smooth running of the investigating judge’s office. Pursuant to the final paragraph of Article 80-1, the case file shall be made available to the lawyer, in so far as this does not interfere with the smooth running of the investigating judge’s office, fifteen days after dispatch of the registered letter or after serving of the statement of charges, where a first appearance has not been made in the interim. Following the first appearance or the first hearing, the parties’ lawyers may request, at their expense, copies of the documents, or parts of documents, in the case file, exclusively for their own use and subject to a ban on copying." "During this period, the case file shall be lodged with the registry of the Indictment Division and shall be made available to the accused’s counsel and to the civil parties. On a written request, they shall receive copies forthwith, at their expense. These copies may not be made public." 19. In a judgment of 30 June 1995 (Recueil Dalloz Sirey 1995, JP 417) the Court of Cassation (full court) clarified the scope of Article 114, fourth paragraph, of the Code of Criminal Procedure as regards a preliminary inquiry: "However it is clear from both Article 114, paragraph 4, of the Code of Criminal Procedure, which is not contrary to the provisions of Article 6-3-b of the Convention (art. 6-3-b) already cited, and from Article 160 of the decree of 27 November 1991 governing the lawyers’ profession that, although a lawyer is authorised to receive copies of the investigation file and may examine these in the presence of his client in order to prepare his defence, he may not, on the other hand, entrust his client with these documents which he received `exclusively for his own use’ and which must remain subject to the requirement of confidentiality of the investigation." 20. In police court proceedings, there are no particular rules governing consultation of the case file at the registry. However, the Code of Criminal Procedure has two Articles governing the release of documents to the parties and to others: "In proceedings relating to serious crimes or major or minor offences, and without prejudice to the provisions of Articles 91 and D.32 (where applicable), the following documents may be released to the parties at their expense: 1. At their request, a copy of the criminal complaint filed by the victim or a third party, `orders that have become final, judgments and fixed penalty and enforcement orders provided for under Article L. 27-1, paragraph 2, of the Highway Code’. 2. With the authorisation of the Public Prosecutor or Principal Public Prosecutor (as applicable), a copy of any of the other documents on the file, including those relating to an inquiry resulting in a decision to take no further action." "In proceedings relating to serious crimes or major or minor offences, no copy of any document other than judgments, final fixed penalty orders and enforcement orders may be released to any person not party to the proceedings without the authorisation of the Public Prosecutor or the Principal Public Prosecutor (as applicable), including those documents relating to an inquiry resulting in a decision to take no further action. However, in the cases referred to in this Article and in the previous Article the authorisation of the Principal Public Prosecutor is required where the documents sought have been filed with the court registry or relate to proceedings terminated by a finding that there was no case to answer or to a case which is to be heard in camera. In the cases referred to in this Article and the previous Article, where authorisation is withheld, the judicial officer concerned shall give notice of his decision in due form and shall state the reasons for his refusal." 21. In a judgment of 12 June 1996 reproduced by the Government in the annex to their memorial the Court of Cassation (full court) gave a new interpretation of the Articles in question, based on Article 6 para. 3 of the Convention (art. 6-3), in relation to proceedings in which the case has already been sent for trial: "Articles 114 and 197 of the Code of Criminal Procedure, according to which only the parties’ lawyers are entitled to receive a copy of the documents contained in the file of a case under investigation, are not applicable to proceedings where the case has already been sent for trial, which are therefore not subject to the rule of confidentiality of the inquiry or investigation laid down in Article 11 of the same Code. Everyone charged with a criminal offence thus has the right, under Article 6 para. 3 (art. 6-3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, not to the immediate communication of the documents on the file but to the release, at his expense and, where appropriate, acting through his lawyer, of copies of the documents submitted to the court he has been summoned to appear before. According to the impugned judgment, René Pascolini was directly committed before the criminal court for misleading advertising; Having refused the assistance of an officially appointed defence counsel and as he had not been authorised by the public prosecutor’s office to receive a copy of all the evidence in the case file, before putting forward any defence on the merits the defendant raised an objection complaining that the proceedings were vitiated because they were in breach of Article 6 (art. 6) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and asked the trial court to order that he receive a copy of the case file. The appellate court’s judgment upheld the lower court’s decision and dismissed René Pascolini’s objection and request, both repeated on appeal. Referring to new grounds and to grounds cited from the earlier decision, it stated that it had not been established that failure to issue copies of the documents on the case file to the defendant constituted an infringement of the rights of the defence where lawyers, successively appointed to act for the defendant who had inspected the case file and obtained a copy of it had suggested the defendant consult it in their presence, an offer the latter had declined. It found that the provisions of the Convention cited (art. 6) did not require that the defendant receive a copy of the case file where he could gain access to it through the intermediary of a lawyer. It also stated that the caution observed in issuing copies to the parties could be justified by the ‘requirements of civil liberties and of security’. However, in ruling in this way and given that the relevant provisions of Article R. 155-2 of the Code of Criminal Procedure, requiring the authorisation of the public prosecutor’s office for the release of copies of the documents on the case file to the parties, may not impede the exercise of the rights of the defence, the Court of Appeal misdirected itself as to the provisions and principles reiterated above. The judgment should therefore be quashed."