CASE OF GUTFREUND v. FRANCE
No violation of Art. 6-1
Georg Ress
8. By a penal order of 8 October 1997, the applicant was fined 1,000 French francs (FRF) for an assault on his wife that did not incapacitate her from work. On 8 December 1997 he applied to the Saverne Police Court to have that order set aside. 9. On 3 July 1998 the applicant was served by a court bailiff with a summons requiring him to attend the Police Court on 15 September 1998 to answer a charge of “intentional assault entailing no unfitness for work” on 24 July 1997. The offence was classified as a “Class 4 minor offence” and carried a maximum fine of FRF 5,000 under Article 131-13 of the Criminal Code. 10. On 11 August 1998 the applicant lodged a legal-aid application with the legal-aid office of the Saverne tribunal de grande instance, in accordance with the provisions of the Legal Aid Act of 10 July 1991 and its implementing decree of 19 December 1991. 11. He furnished evidence, which the legal-aid office accepted, that his monthly income was FRF 2,423. In accordance with section 4 of the 1991 Act, he claimed to be entitled to full legal aid. 12. A committee of the legal-aid office presided over by R. (as attested by a letter of November 2000 from the registry of the Saverne tribunal de grande instance) dismissed the application on 27 October 1998 as being “manifestly inadmissible, since it concern[ed] a Class 4 minor offence”. 13. On 13 November 1998 the applicant appealed against that decision to the President of the Saverne tribunal de grande instance. He said that in a similar case the Strasbourg tribunal de grande instance had construed the decree differently and granted legal aid. In an order of 16 September 1998, the Strasbourg tribunal de grande instance had noted a conflict between the decree and the Act and stated that to resolve it the decree had to be construed in the light of the purpose of the Act. 14. The appeal was heard by R., now sitting in his capacity as the President of the Saverne tribunal de grande instance. He upheld the impugned decision in an order of 27 November 1998, against which French law afforded no right of appeal (section 23, sub-paragraph 2, of the Act of 10 July 1991). He gave a number of reasons for dismissing the applicant’s appeal: “... although section 10 of the aforementioned Act [of 10 July 1991] provides that ‘legal aid shall be granted ... before all courts’ ..., it does not require it to be granted in all types of proceedings. ... the table appended to Article 90 of the decree and to which the decree refers for the calculation of counsel’s remuneration only contemplates an accused receiving assistance in the police court for Class 5 minor offences. ... that restriction cannot be due to an oversight on the part of the public authorities. ... it is not for either the legal-aid office or the president of the court concerned unilaterally to extend the scope of rules in respect of which no appeal has been made to the Conseil d’Etat. ... it is perfectly clear that the relevant table is restrictive in scope.” 15. On 15 December 1998 the applicant, assisted by a lawyer, attended the hearing at the Saverne Police Court. In a judgment delivered that same day, the court found him guilty of assault entailing no unfitness for work, but decided not to impose a penalty. 16. The Legal Aid Act (Law no. 91-647 of 10 July 1991) provides: “Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid. ...” “In order to qualify for full legal aid, applicants must show that their monthly resources are less than 4,400 francs.” “Legal aid shall be granted for both contentious and uncontentious proceedings, to bring or to defend a claim before all courts or in connection with the hearing of a minor in accordance with Article 388-1 of the Civil Code. ...” “Each legal-aid office or department thereof referred to in section 13 shall be presided over by a judge from the seat of the tribunal de grande instance or court of appeal, as the case may be. ...” “The decisions of a legal-aid office, a department thereof or the president of the office or department may be referred to the president of the tribunal de grande instance, court of appeal or Court of Cassation, as the case may be, ... or his or her delegate. No appeal shall lie against the decisions of these authorities. ...” 17. Decree no. 91-1266 of 19 December 1991 implementing Law no. 91-647 of 10 July 1991 provides, inter alia: “Decisions of offices established at the seat of a tribunal de grande instance ... shall be referred to the president of the tribunal de grande instance where the office was set up. ...” 18. Article 90 of the decree stipulates that the State’s contribution to the remuneration of lawyers acting for recipients of full legal aid shall be determined by reference to a series of criteria set out in a table appended to the decree. The sole reference in the table to the category of “proceedings for minor offences” is “assistance to the accused in the police court (Class 5)”. 19. A bill on access to the law and justice, intended to reform, inter alia, the legal-aid system, is currently before Parliament. 20. There have been no decisions of the Court of Cassation on the grant of legal aid to persons prosecuted for minor offences not falling into Class 5 (and which therefore are not included in the table appended to the aforementioned decree of 19 December 1991). 21. At the material time, the table was construed differently by different courts. Thus, as the parties have noted, the order made on 27 November 1998 by the President of the Saverne tribunal de grande instance contradicted an order made a few months earlier (on 16 September 1998) by the President of the Strasbourg tribunal de grande instance. 22. In an order of 22 September 2000, the President of the Béthune tribunal de grande instance ruled that legal aid could not be refused to a person charged with a Class 4 minor offence simply because the table appended to Article 90 of Decree no. 91-1266 of 19 December 1991 only provided for assistance to be given to the accused in the police court in connection with Class 5 minor offences.