CASE OF HAMER v. FRANCE
No violation of Art. 6-1
N. Valticos
6. On 17 August 1978 four yachts were moored in Palma Cove in the eastern part of the island of Cavallo, one of the Lavezzi Islands, which lie off the coast of southern Corsica. Three of these yachts - the Cocke, the Master and the Mapagia - were moored alongside each other; the fourth, the Aniram, was the property of Prince Victor-Emmanuel of Savoy, who lived in Geneva. 7. In the night of 17 to 18 August 1978, on leaving a restaurant where he had spent the evening, Prince Victor-Emmanuel noticed that a rubber dinghy belonging to him was moored, for no reason that he knew of, to the stern of the Cocke. Having armed himself with a rifle classified as a military weapon and fitted with a cartridge clip containing thirty-one cartridges, he brought his boat alongside the Cocke to try to recover his property. Confronting a passenger who had been woken by the manoeuvre, Prince Victor-Emmanuel fired twice. The Cocke’s passenger, avoiding the shots, threw himself on his assailant and both men fell into the water. 8. However, one of the bullets very seriously wounded a nineteen-year-old German youth, Mr Dirk Hamer, who had been asleep on the deck of the Mapagia. Prince Victor-Emmanuel called for the emergency services and Mr Hamer was admitted to Porto-Vecchio Hospital at about 6 a.m., in a deep coma, with no measurable pulse or blood pressure, the accident having occurred about four hours before. On 19 August 1978 he was transferred to Marseilles Northern Hospital in a very alarming condition. On 30 August 1978, against the advice of the doctors at that hospital, Mr Hamer, whose parents were also doctors, was taken to Heidelberg University Hospital. 9. Intensive care was of no avail, and Mr Hamer died on 7 December 1978 without ever being able to give evidence. An autopsy carried out on 11 December 1978 showed that the bullet wound had been the cause of death. 10. Ms Birgit Hamer, a German national, is the sister of the deceased. At the time of the above events she was living with her family in Rome; she later moved to Germany. 11. On 18 August 1978 at 7 a.m. Prince Victor-Emmanuel was taken into police custody. 12. On 19 August 1978 Mr Breton, an investigating judge at the Ajaccio tribunal de grande instance, charged him with assault occasioning actual bodily harm and possessing and carrying a category I weapon; at the end of this first examination he remanded Prince Victor-Emmanuel in custody. 13. Between 20 and 29 August 1978 the investigating judge questioned the accused twice, took statements from witnesses and appointed experts to conduct a medical examination of the victim and produce a technical report on the gun. He also issued warrants authorising the police to take statements from witnesses and the victim. 14. In a letter of 28 August 1978 Prince Victor-Emmanuel admitted civil liability for the accident in which Mr Hamer had been injured on 18 August 1978. On 5 September 1978 the accused paid 500,000 French francs (FRF) to the victim’s family. 15. On 6 September 1978 the Ajaccio public prosecutor filed a supplementary application requesting further investigative measures. 16. On 8 September and 12 December 1978 the investigating judge ordered experts to produce a medical and psychological report on the accused and an analysis of the bullet extracted from the victim. On 11 September, 10 November and 7 and 8 December 1978 he issued letters of request, including two international ones. In these he asked for a statement to be taken from the victim and for the bullet extracted from him to be handed over; and then, after Mr Hamer’s death on 7 December 1978, he asked for an autopsy of his body to be carried out. 17. On 4 October 1978 the investigating judge again questioned the accused, who was released under judicial supervision on the following day. Further interviews took place on 12 October and 4 December 1979. On 10 January, 14 February and 1 and 11 June 1979 the investigating judge instructed experts to translate documents in German and Italian. 18. Prince Victor-Emmanuel was questioned again on 26 February 1979. 19. On 17 May and 25 June 1979 the investigating judge issued international letters of request; in the first of these he asked for a copy of an application in which Mr Hamer’s family had sought to commence civilparty proceedings and in the other he asked for witnesses to be questioned. On 20 June and 10 July 1979 he questioned witnesses. 20. On 25 June 1979, in the light of the victim’s death certificate, he sent the file to the public prosecutor. On 29 June the investigating judge questioned the accused. 21. On 20 July and 12 December 1979 the investigating judge instructed experts to translate documents in German and Italian. On 26 October 1979 he ordered the appointment of new experts to produce an additional ballistic report that had been sought by the defence on 28 September 1979; on the same day he issued an international letter of request asking for a copy of the autopsy report, which had been requested by the defence. 22. On 26 November 1979 Ms Hamer, her father, her mother and her sister joined the proceedings as civil parties by applying to the investigating judge. 23. On 1 February 1980 Prince Victor-Emmanuel’s lawyer asked Mr Breton to order the ballistic experts to carry out a further investigation. On 21 February 1980 the investigating judge asked the experts already instructed how the further investigation requested by the defence could be carried out. In a report of 28 February 1980 the judge noted the failure of the applicant and her family to appear as civil parties. 24. On 20 March 1980 Mr Breton questioned the victim’s father, and on 15 April and 10 September 1980 he instructed experts to translate documents in Italian and English. 25. On 3 June 1980 the public prosecutor wrote to the German judicial authorities reminding them of the international letter of request of 26 October 1979. 26. On 22 September 1980 the investigating judge notified the public prosecutor of the defence’s request for an additional expert opinion. On 8 November 1980 the public prosecutor filed submissions in favour of granting that request. 27. On 19 and 25 November 1980 and 21 January 1981 Mr Breton wrote to the accused’s lawyer, the director of the forensic laboratory and experts who might be capable of authenticating a boat part lodged as an exhibit by the defence. On 29 January and 4 February 1981 the experts wrote back stating that they were not competent to do this. 28. On 6 March 1981 the public prosecutor filed a supplementary application. On 10 March 1981 the investigating judge charged Prince Victor-Emmanuel with fatal wounding. A report of 11 March 1981 recorded the fact that the applicant and her family had failed to appear as civil parties. 29. On 31 March 1981 the accused’s lawyer filed an opinion criticising the autopsy report and requested that three new experts be appointed in order to determine the causes of Mr Hamer’s death. 30. On 15 May and 2 June 1981 the investigating judge issued letters of request asking for the victim’s medical file to be handed over and for witnesses to be questioned. On 12 October he made two orders refusing an additional ballistic report and a fresh expert opinion in connection with the autopsy report as sought by the defence on 1 February 1980 and 31 March 1981 respectively. 31. On 14 October 1981 the accused appealed against the above orders, which the Indictment Division of the Bastia Court of Appeal upheld on 17 December 1981. On 18 May 1982 the Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by Prince Victor-Emmanuel. 32. On 5 April 1982 the investigating judge appointed experts to translate documents in German. He questioned a new witness on 27 September 1982. On 27 December 1982 he made an order rejecting both an application by the accused for an order that there was no case to answer and an application of 8 October 1982 for a new ballistic report. 33. On an appeal by the accused, the Indictment Division held a hearing on 24 February 1983. On 28 April 1983 it ordered that the proceedings should be recommenced because one of the judges had been replaced. In a judgment of 30 June 1983 it upheld the impugned order. On 17 October 1983 the President of the Court of Cassation made an order in which he ruled that, as the file stood, an appeal on points of law by the applicant against the above judgment was inadmissible and directed that the proceedings should continue. 34. On 6 August 1983 the public prosecutor filed submissions requesting further investigative measures. 35. The investigating judge questioned the accused on 6 October 1983 and, at the defence’s request, ordered a further medical report on 7 October 1983. On 25 and 29 November 1983 he issued letters of request asking for the accused’s curriculum vitae to be established and his sister questioned. 36. On 2 July 1984 the case was assigned to a new investigating judge, Mrs de Valon. In a report of 18 July 1984 the judge noted the failure of the applicant and her family to appear as civil parties. 37. The investigating judge questioned the accused on 16 August 1984. On 21 November 1984 she made an order rejecting an application by the defence for a fresh expert report. On 15 January 1985 she sent the file to the public prosecutor. 38. On 27 March, 25 June, 7 and 27 November 1985 and 22 April 1986 the investigating judge issued letters of request, including an international one, asking for witnesses to be questioned and various inquiries made. On 23 March 1986 the letter of request of 27 November 1985 was executed in Italy and a reconstruction of the events by means of diagrams and sketches took place on the same day. 39. On 24 June 1986 the investigating judge questioned three witnesses. On 30 June 1986 she appointed an expert to translate documents relating to the execution of the international letter of request of 27 November 1985. 40. On 7 January 1987 the case was assigned to a third investigating judge, Mrs Tissot. On 28 January 1987 she sent the file to the public prosecutor. 41. On 30 January 1987 the Ajaccio public prosecutor submitted his final application, in which he asked for the file to be transmitted to the Principal Public Prosecutor at the Bastia Court of Appeal. 42. On 2 February 1987 the investigating judge made an order transmitting the file to the Principal Public Prosecutor. 43. On 30 September 1988 the Principal Public Prosecutor at the Bastia Court of Appeal sent his counterpart at the Rome Court of Appeal a notice informing the civil parties of the date of the hearing before the Indictment Division of the Bastia Court of Appeal, set down for 30 November 1988. The accused’s lawyers were also notified. 44. On 21 and 29 November 1988 respectively the defence and the civil parties requested that the hearing set down for 30 November 1988 be put back, as the accused had not received the file and the applicant and her family, who lived in Germany, had not been notified of the hearing. On 30 November 1988 the Indictment Division adjourned the case to a hearing on 25 January 1989. 45. On 23 January 1989 the civil parties informed the President of the Indictment Division that they had not been notified of the hearing on 25 January 1989, which was accordingly adjourned until 19 April 1989. On 19 April 1989 the case was adjourned to a later date on account of a general strike by the administrative services in Corsica. 46. On 28 June 1989 the Indictment Division of the Bastia Court of Appeal delivered an interlocutory judgment dismissing procedural objections raised by the defence. 47. On 11 October 1989 it indicted Prince Victor-Emmanuel on charges of fatal wounding and offences relating to offensive weapons, and committed him for trial in the Corse-du-Sud Assize Court. 48. On 23 January 1990 the Criminal Division of the Court of Cassation upheld an appeal on points of law lodged by the accused on 9 November 1989, giving the following reasons: "But in the light of those findings, which do not make out thedeliberate intent to assault or use violence against anyperson, the Indictment Division could not, withoutcontradicting itself, hold that there was sufficient evidenceto prove Victor-Emmanuel of Savoy guilty of the offence definedin Article 311 para. 1 of the Criminal Code; accordingly, itgave no legal basis for its decision, which falls to bequashed." It remitted the case to the Indictment Division of the Paris Court of Appeal. 49. On 8 June 1990 the Indictment Division of the Paris Court of Appeal adjourned the case until 26 September 1990; in the event, the hearing set down for that date took place on 25 September 1990. 50. On 12 October 1990 the Paris Indictment Division committed Prince Victor-Emmanuel for trial at the Paris Assize Court on the same charges. 51. On 23 October and 14 November 1990 the Principal Public Prosecutor at the Paris Court of Appeal instructed experts to translate into German the judgment and the notice of service on the civil parties. 52. On 5 February 1991 the Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by the accused against the Paris Indictment Division’s judgment of 12 October 1990, on the following grounds: "The Indictment Division deduced from those findings that theassault allegedly made by the accused on Nicolas Pende [theCocke’s passenger] was intentional and that there was a causalconnection between that assault and the death of Dirk Hamer. That being the case, the Indictment Division, which replied insufficient detail to the main arguments in the pleading filed,assessed the weight of the evidence set before it. Itestablished that there was sufficient evidence to proveVictor-Emmanuel of Savoy guilty, if the facts were made out,of the offence defined both in the last paragraph of the formerArticle 309 of the Criminal Code, which was applicable at thematerial time, and in the first paragraph of Article 311 ofthat Code, as amended by the Law of 2 February 1981." 53. Between 3 June and 4 November 1991 ten experts, twenty-eight witnesses and the four members of the victim’s family, as civil parties, were summoned. 54. On 18 November 1991 the Paris Assize Court sentenced Prince Victor-Emmanuel to six months’ imprisonment, suspended, for unauthorised possession and carrying of a US30MI rifle, a category I military weapon, and ordered its confiscation. It also found that there were extenuating circumstances. It acquitted Prince Victor-Emmanuel of fatal wounding and unintentional homicide, ruling that he had not "by clumsiness, carelessness, inattention or negligence, unintentionally caused the death of Mr Dirk Hamer". 55. After giving judgment in the criminal proceedings, the Assize Court judges did not hold a hearing on the civil issues. The applicant’s lawyer maintains that the termination of the trial prevented her from filing the submissions she had prepared on the award of damages; she thereupon telephoned the Advocate-General, who informed her that she could not raise the issue of the accused’s civil liability. According to the Government, the fact that there was no hearing on the civil issues was due to the lack of any application to that effect, which should have been lodged with the Assize Court’s registry. 56. On 2 July 1992 the Criminal Division of the Court of Cassation ruled that an appeal on points of law lodged by the civil parties, with the exception of the applicant, was inadmissible on the following grounds: "The notice of appeal is directed at ‘all the civil provisions’of the criminal judgment delivered in the proceedings againstVictor-Emmanuel of Savoy. The judgment concerned does notcontain any provision relating to civil matters. That beingthe case, and no other judgment having been given on thesubmissions of the civil parties, the latter, under Article 567of the Code of Criminal Procedure, have no standing to contestthe decision on the criminal proceedings and the costs payableto the State." On 10 July 1992 the judgment was served on the civil parties and Prince Victor-Emmanuel. 57. Article 2 of the Code of Criminal Procedure ("CCP") provides: "All those who have personally suffered from the damagedirectly caused by a serious offence [crime], less seriousoffence [délit] or petty offence [contravention] may bringcivil-party proceedings [action civile] to seek compensationfor such damage. Discontinuance of such proceedings can neither terminate norstay the criminal proceedings, without prejudice to the casesprovided for in paragraph 3 of Article 6 [CCP]." However, in the case of petty offences, only the prosecuting authority may set in motion the criminal proceedings. Article 6 para. 3 CCP provides: "[Criminal proceedings] may, in addition, be discontinued bysettlement where express provision is made for thispossibility. They may likewise be discontinued in the eventof withdrawal of the complaint where the complaint was anessential condition for the proceedings to be brought." 58. In French law the victim of an offence can bring civil-party proceedings either by intervention, that is by applying to the investigating judge, the Indictment Division or the trial court for leave to join pending criminal proceedings, or as private prosecutor, that is by directly summoning the alleged offender to appear in the trial court or by laying an information with the investigating judge together with an application to join the proceedings as a civil party, where no criminal proceedings have yet been instituted. 59. A civil-party application, which has the effect of suspending proceedings in the civil courts, may be opposed by the prosecution, by the person placed under investigation (Law no. 93-2 of 4 January 1993 reforming criminal procedure substituted the expression "placing under investigation" for "charging") or by another civil party, or the investigating judge may, of his own motion, declare it inadmissible in an order which must state reasons and which is open to appeal (Article 87 CCP). A decision by the judicial authority investigating an offence to allow an application to join the proceedings as a civil party does not in any way bind the trial court as to the admissibility of that application. 60. Intervention by a civil party may be grounded on nothing more than a concern to support the prosecution case and to secure a declaration of the accused’s guilt. Accordingly, it is accepted in case-law that a civil-party application is admissible even where no claim for damages will lie. The right to seek reparation for damage is merely a possibility afforded to the victim, who is free to decide not to make use of it (Court of Cassation, Criminal Division ("Cass. crim."), 10 October 1968, Bulletin ("Bull.") no. 249; Cass. crim. 15 October 1970, Dalloz (D.) 1970). "In modern legal analysis, derived from both statute and case-law, a distinction is drawn between the lodging of a civil-party application and civil-party proceedings, or rather,to avoid all ambiguity, an action for reparation. When dealing with the admissibility of a civil-party application and theadmissibility and merits of an action for reparation, it is no longer possible, without risk of confusion, to refer to both as civil-party proceedings, unless that term is understood inthe broad sense of participation by the civil party in thecriminal proceedings. For how can it be maintained that the injured party brings anykind of ‘civil proceedings’ when he merely calls, as he isexpressly authorised to do, for the offender to be punished or,if not punished, at least declared guilty. He may later,perhaps, in other courts, take advantage of the criminaljudgment, but in the criminal court he has made no claim whichcan be characterised as civil. Lastly, from the theoretical point of view, the above analysisrenders obsolete the controversy about the nature ofcivil-party proceedings, which some commentators have held tobe two-fold ... while others say their nature is unmixed ...The truth is that a civil-party application is vindictive incharacter, whereas the purpose of an action for reparation isto obtain compensation." (Extraits des Juris-Classeurs deprocédure pénale 1990, vol. 10, paras. 25-27) 61. Lodging a civil-party application gives the victim the status of party to the criminal proceedings. He is informed about the investigative measures taken and has access to the file under the same conditions as the person under investigation. He may appeal against orders of the investigating judge that are adverse to him and against judicial decisions concerning his civil interests. 62. The CCP contains the following relevant provisions: "Once the Assize Court has given judgment in the criminalproceedings, it shall rule, in the jury’s absence, on theclaims for damages lodged either by a civil party against theaccused or by an acquitted defendant against the civil party,after the parties and the prosecution have been heard. The court may delegate one of its members to hear the parties,inspect the file and submit his report at a hearing, when theparties may still submit observations, after which theprosecution shall be heard." "Where the trial ends in acquittal or discharge, the civilparty may seek compensation for damage resulting from thedefendant’s fault, as made out by the acts which gave rise tothe prosecution." The Assize Court has jurisdiction under Article 372 CCP to rule on a claim for damages lodged by a civil party against a defendant who has been acquitted on both the main charge of fatal wounding and the alternative charge of causing death by negligence. The not-guilty verdict of the court and the jury, for which no reasons are given, does not exclude either the existence of the acts which gave rise to the prosecution or the possibility that the victim’s death may have been caused by a non-intentional tort (Cass. crim. 3 December 1959, Bull. 531). The Assize Court must, after acquitting the accused, respond to any submissions made by the civil party, where the latter maintains his claim for damages, by ascertaining whether, on account of the acts which gave rise to the prosecution, divested of all their criminal attributes, the accused has committed a fault distinct from the alleged criminal offence for which he has been tried (Cass. crim. 14 January 1981, Bull. 24). The Assize Court may, after acquitting the accused, order him to pay damages, provided that its decision is based on the acts which have given rise to the prosecution, that it is consistent with the not-guilty verdict and that it specifies the fault on which its order is grounded, which must be distinct from the serious criminal offence of which he has been finally acquitted (Cass. crim. 26 February 1969, Bull. 97; Cass. crim. 11 March 1987, Bull. 121). A not-guilty verdict and acquittal do not prevent the Assize Court from considering whether the same act, divested of all the circumstances which gave it a criminal character, does not at least constitute prejudice such as to engage the accused’s civil liability if the court finds that he has committed a fault (Cass. crim. 15 December 1982, Bull. 293; Cass. crim. 7 October 1987, Bull. 341). When dealing with an application by the civil party after the accused’s acquittal, the Assize Court is under no obligation to ascertain whether the latter has committed a fault distinct from the serious criminal offence of which he has been finally acquitted if the civil party has not asked it to do so (Cass. crim. 13 April 1988, Bull. 157). 63. The Court of Cassation has held that submissions quantifying claims for damages filed after judgment has been given in criminal proceedings are admissible if the civil party has joined those proceedings before judgment (Cass. crim. 19 October 1950, Bull. 50 no. 238; Cass. crim. 24 October 1952, Bull. 52 no. 232). 64. The Civil Code contains the following relevant provisions: "Any act committed by a person that causes damages to anothershall render the person through whose fault the damage wascaused liable to make reparation for it." "Liability is incurred not only for the damage caused by one’sown act but also for that caused by persons for whom one isresponsible or by things one has in one’s keeping."