CASE OF DELTA v. FRANCE
Violation of Art. 6-1+6-3-d;Not necessary to examine Art. 6-2;Damage - financial award;Costs and expenses - claim dismissed
C. Russo
9. Mr Michel Sophie Delta is a French citizen who was born in Guadeloupe and lives there today after having spent some time in metropolitan France. 10. At 6.40 p.m. on 29 March 1983 a girl of 16, Miss Poggi, and a friend of the same age, Miss Blin, were in a Paris underground station when two coloured men accosted them. One of the men snatched a gold chain and crucifix which Miss Poggi was wearing round her neck and ran towards the exit. 11. The two girls immediately went to the central police station of the 12th District, and at 7 p.m., as a result, Mr Delta was arrested by Police Constable Bonci, accompanied by the two girls, in a building by the exit from the underground. The victim and her friend immediately said they recognised him. A search of the applicant and subsequently of the premises yielded nothing, however. 12. The applicant was taken to the central police station of the 12th District and questioned at 8.40 p.m. by Chief Inspector Mercier, an officier de police judiciaire, about his identity and means of subsistence and was then taken into police custody. 13. From 10 a.m. to 10.20 a.m. the following day, Inspector Duban, who was likewise an officier de police judiciaire, took a statement from him about the facts of the case. Mr Delta said that at about 6.30 p.m. he had been set upon by four people who had chased him into the underground and stolen a cigarette lighter and 100 francs from him. He surmised that one of them could have committed the robbery as the two girls went by. He said that he had run away because he had been put in fear by his four attackers. Subsequently (the exact time is not given in the police report), Inspector Duban interviewed both girls separately, each in the presence of her mother. They confirmed that the person who had been arrested was indeed the person who had committed the offence. The victim lodged a complaint alleging robbery. Mr Delta was never formally confronted with Miss Poggi and Miss Blin. 14. The Chief Superintendent in charge of the Fourth Area police force forwarded the file to the public prosecutor’s office. 15. The Paris public prosecutor considered that a judicial investigation was unnecessary and accordingly used the direct committal procedure (Articles 393 to 397-7 of the Code of Criminal Procedure, as amended by the "Security and Freedom" Act of 2 February 1987). 16. On 31 March 1983 Mr Delta appeared before the 23rd Division of the Paris Criminal Court, which made an interlocutory order for a psychiatric report and a social inquiry report and remanded him in custody. 17. On 5 May the court passed a sentence of three years’ imprisonment on him. The judgment contained the following reasons: "The facts (robbery by snatching a neckchain and crucifix from the victim) [are established], notwithstanding the defendant’s denials, by the evidence obtained, in particular by means of the statements of Police Constable Bonci, who gave evidence on oath. The defendant must be convicted and punished very severely, having regard to the nature of the offence committed with the use of violence. Moreover, in a judgment dated 22 October 1981 Delta ... was sentenced to two years’ imprisonment by the Paris Court of Appeal for robbery and consequently is legally a reoffender under Article 58 of the Criminal Code; ..." 18. Although they had been duly summoned by the prosecution, the two girls did not attend the trial and gave no reasons for their failure to do so. The court did not take any steps to have them brought before it under Article 439 of the Code of Criminal Procedure (see paragraph 24 below). The accused, whose defence was in the hands of two trainee barristers who had successively been assigned to him by the court, had not submitted any pleadings suggesting that any witnesses should be examined or asking for any further inquiries to be made into the facts. 19. Mr Delta appealed, claiming that he was the victim of mistaken identity. Relying on Article 513, second paragraph, of the Code of Criminal Procedure (see paragraph 25 below) and Article 6 para. 3 (d) (art. 6-3-d) of the Convention, he also expressly sought to have the victim, the person who was with her and two witnesses on his behalf called; he asserted that he had himself urged the concierge and a resident in the building where he had taken refuge to alert the police, as he feared for his safety if his pursuers caught up with him. 20. On 28 September 1983 the Paris Court of Appeal (10th Division) upheld the whole of the judgment of the court below after refusing the application for examination of witnesses in the following terms: "After the defendant’s arrest, Miss Poggi formally stated that he was the man who had snatched the chain from her. Miss Blin likewise identified Delta as being responsible for the snatch theft from Miss Poggi. These statements satisfy the Court that the defendant was guilty of the offences charged and make the requested examination of witnesses unnecessary." 21. Mr Delta appealed on points of law, alleging a violation of Article 6 para. 3 (d) (art. 6-3-d) of the Convention and Article 513 of the Code of Criminal Procedure. The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 4 October 1984 on the following grounds: "It appears from the impugned judgment of the Court of Appeal that Delta, who was prosecuted for robbery and claimed to be the victim of mistaken identity, asked the Court of Appeal to order an examination of the victim and of witnesses, and that the court below, after studying the statements taken during the investigation from Miss Poggi, the victim, and from the witness Bonci, refused this application on the grounds that those statements satisfied it that the defendant was guilty of the offences charged and made the requested examination of witnesses unnecessary. In so holding, the Court of Appeal, far from violating the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, gave its decision a legal basis. The ground of appeal, which does no more than attempt to call in question the appeal court’s final assessment of all the evidence adduced at the trial and of whether it was appropriate to order further inquiries into the facts, cannot be accepted. ..." 22. Mr Delta was released on 9 September 1985, after spending a little over two years and five months in prison. 23. In French law the rules governing the examination of witnesses by criminal courts differ according to whether the court is hearing the case at first instance or on appeal. 24. The main provisions of the Code of Criminal Procedure applicable in the Criminal Court are the following: "Anyone called to be heard as a witness shall be required to appear, to take the oath and to give evidence." "A witness who fails to appear or who refuses either to take the oath or to give evidence may, on an application by the public prosecutor, be punished by the court as provided for in Article 109." "If a witness fails to appear and has not put forward any excuse recognised as being valid and legitimate, the court may, on an application by the public prosecutor or of its own motion, order the witness to be brought before it immediately by the police in order to be examined or adjourn the case. ..." "Before proceeding to examine the witnesses, the presiding judge shall question the accused and take statements from him. The public prosecutor and, through the presiding judge, the civil party seeking damages and the defence may put questions to him." "The witnesses shall subsequently give their evidence in turn, either as to the offences with which the accused is charged or as to his personality and morals. The witnesses called by the prosecuting parties shall be heard first, subject to the presiding judge’s discretion to determine himself the order in which the witnesses shall be heard. With the court’s leave, evidence may also be given by persons suggested by the parties and who are present at the beginning of the trial but have not been formally summoned." "Witnesses shall give evidence orally. Exceptionally, however, they may, with the leave of the presiding judge, make use of documents." "After each witness has testified, the presiding judge shall put to him any questions he deems necessary and, where appropriate, those that are suggested to him by the parties. A witness may withdraw after testifying, unless the presiding judge decides otherwise. The public prosecutor, the civil party seeking damages and the accused may request, and the presiding judge may always order, that a witness should temporarily withdraw from the hearing-room after giving evidence in order to be brought back and examined if necessary after other witnesses have given evidence, with or without a confrontation." "During the trial the presiding judge shall, if necessary, have the exhibits shown to the accused or witnesses again and shall hear their comments." 25. The procedure laid down by law for the Criminal Court also applies in principle to the Court of Appeal but subject to an important proviso in the second paragraph of Article 513 of the Code of Criminal Procedure, which reads: "Witnesses shall be heard only if the court [of appeal] so orders." 26. This provision has given rise to a line of decisions by the Criminal Division of the Court of Cassation, which appears to have departed from these precedents in 1989, that is to say after the events in the instant case. 27. The Criminal Division decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial, even where an application had been made for them to be re-examined; it did, however, lay on them the obligation to hear and determine any applications made and to give reasons for any refusal (30 October and 13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253; 20 October 1892, Recueil périodique Dalloz (DP) 1894, I, p. 140; 13 January 1916, DP 1921, I, p. 63; 20 December 1955, Dalloz 1956, sommaires, p. 29). Where they considered it useful or necessary, appeal courts could summon witnesses who had not testified in the Criminal Court; but if they refused to call such witnesses, it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts (20 October 1892, Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975, Bull. no. 237, p. 629). 28. The Criminal Division’s approach seems to have changed markedly in its Randhawa judgment of 12 January 1989: "By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘everyone charged with a criminal offence has the [right] to examine or have examined witnesses against him’. It follows that, unless it is impossible for reasons which they must specify, courts of appeal are bound, on a properly made application, to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings. Sarb Randhawa, who was charged with drug-trafficking and a customs offence, made an application to the Court of Appeal for an examination inter partes of the witnesses Joris Suray and Catherine Guillaume, whom he had had summoned and whose statements provided, he claimed, the sole basis for the finding of guilt. He said that he had not been able to have them examined at any stage of the proceedings. In support of its refusal of this application, and although it based its finding of the defendant’s guilt solely on the statements of the aforementioned witnesses, the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiries and the judicial investigation and that the defendant had been informed of the charges arising from their statements. But while a refusal to hear evidence from a prosecution witness does not, as such, infringe the aforementioned provisions of the Convention, since the court may take into account any special difficulties entailed by an inter partes examination of a given witness, for example the risk of intimidation, pressure or reprisals, such a refusal must nevertheless comply with the rights of the defence and the court must explain why a confrontation is impossible. This was not so in the instant case, and the judgment must accordingly be set aside ..." (Bull. 1989, no. 13, pp. 37-38) This approach was confirmed in a judgment of 22 March 1989 (case of X, Bull. 1989, no. 144, pp. 369-371).