CASE OF FARHI v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
4. The applicant, who was born in 1968, is currently in custody in Fresnes Prison. 5. In an order of 5 April 2002 an investigating judge at the Versailles tribunal de grande instance committed the applicant for trial in the Yvelines Assize Court on counts of rape classified as a repeat offence, unauthorised entry into the country following expulsion and illegal entry or residence by a foreign national in France. 6. On 23 April 2003 the Yvelines Assize Court found him guilty as charged and sentenced him to twelve years' imprisonment. On the same day the Assize Court ruled on the civil claims and awarded the victim, who had joined the proceedings as a civil party, the sum of 15,000 euros (EUR) in damages. The prosecution was represented by B. 7. Both the applicant and the prosecution appealed. 8. On 23 July 2003 the Criminal Division of the Court of Cassation assigned the appeal to the Hauts-de-Seine Assize Court. The prosecution was once again represented by B. 9. The hearing before the Court of Appeal took place on 1 and 2 June 2004. 10. On 2 June 2004 the hearing was adjourned for the first time between 1.15 p.m. and 2.15 p.m. When it resumed, the President of the Assize Court ordered the photograph album in the case file to be shown to the parties, the jury and the other judges, then announced the questions the court and the jury would have to answer. Counsel for the accused objected to the wording proposed. The President called the civil party, the advocate-general, the defence and the accused, and the court then withdrew to deliberate. The hearing resumed at 2.40 p.m. Counsel for the applicant then filed submissions requesting that the court take formal note that unlawful communication within the meaning of Article 304 of the Code of Criminal Procedure had taken place between certain members of the jury and the advocate-general during the adjournment when the court had withdrawn to deliberate, leaving the jury in the courtroom. The President heard evidence from the applicant's and the civil party's lawyers, the advocate-general and the accused. The court, composed in this instance of only the judges, withdrew to deliberate and then delivered the following judgment: “The Court, having deliberated without the jury's assistance, Having regard to the conclusions submitted by Mr G., counsel to Redouane Farhi; Having regard to Articles 315 and 316 of the Code of Criminal Procedure, Considering that, as the judges composing the court were not personally in a position to confirm what may have happened in their absence, the court cannot put it on the record; Further considering that the evidence adduced and discussed inter partes has revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure ...” 11. In a judgment of 2 June 2004 the Assize Court of Appeal sentenced the applicant to fifteen years' imprisonment and eight years' social and judicial guidance, with the obligation to undergo treatment and not to approach the victim, her mother or her brother. Ruling on the civil claims, it ordered the applicant to pay the victim EUR 15,000 in respect of damage suffered prior to 23 April 2003 and EUR 4,000 in respect of damage suffered thereafter. 12. In a subsequent appeal on points of law the applicant relied on Article 6 § 1 of the Convention, asserting that it imposed “an obligation on every national court to check whether, as constituted, it is 'an impartial tribunal' within the meaning of that provision where, as in the instant case, this is disputed on a ground that does not immediately appear to be devoid of merit”, and that “in refusing the defence's request for a formal note to be made in the record that certain jurors had communicated with the advocate-general during an adjournment, without ordering an investigation to establish the facts and, if appropriate, taking the action requested by the defence” the Assize Court had infringed the provisions of that Article. 13. On 16 February 2005 the Criminal Division of the Court of Cassation dismissed the appeal on points of law, holding, inter alia: “The record of the proceedings states that the accused's lawyer filed submissions requesting formal note to be taken that unlawful communication, within the meaning of Article 304 of the Code of Criminal Procedure, had taken place between certain jurors and the advocate-general while the court was adjourned. The Court refused that request on the grounds that it could not make a record of things alleged to have happened in its absence, and the evidence adduced and discussed inter partes had revealed no violation of the provisions of the above-mentioned Article 304. That being so, there was no ground for appeal. On the one hand the judges composing the court were not personally in a position to confirm what may have happened in their absence. On the other hand, considering that the evidence adduced and discussed inter partes had revealed no violation of the provisions of Article 304 of the Code of Criminal Procedure, the court used its unfettered discretion without infringing the provisions of the law or the convention on which the accused relied. It follows that the ground of appeal cannot be accepted. ...” 14. The relevant provisions of the Code of Criminal Procedure provide: “The trial jury shall be formed of nine jurors when the Assize Court rules at first instance and twelve jurors when it rules on appeal. The court shall make a ruling ordering, before the drawing of the list of jurors and separately from it, the drawing by lot of one or more additional jurors who shall attend the hearing. Where one or more of the nine jurors are prevented from following the hearing up to the delivery of the Assize Court's judgment, they shall be replaced by the additional jurors. The replacement shall be made in the order in which the additional jurors were drawn by lot.” “The president shall give the following address to the jurors while they stand bare-headed: 'You shall swear and promise to examine with the most scrupulous attention the charges which will be brought against ...; to betray neither the interests of the accused nor those of society which accuses him, nor those of the victim; to refrain from communicating with anyone until after your finding; to heed neither hatred nor malice, nor fear nor affection; to remember that the accused is presumed innocent and that he has the benefit of the doubt; to decide according to the charges and defence arguments following your conscience and your innermost conviction, with the impartiality and resolution that befit a free man of integrity, and to preserve the secrecy of deliberations, even after the end of your service.' Each juror being called individually by the president shall answer, raising his hand: 'I swear it'.” 15. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to “take formal note” of it. This is the party's only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 1977, Dalloz-Sirey 1978, p. 28). 16. The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It has full discretion to decide whether or not to order an inquiry to establish the facts (Court of Cassation, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 8 February 1977, Bull. crim. no. 48). In a judgment of 14 January 1988, however, the Court of Cassation held that the content of the impugned judgment should enable it to assess whether the impugned communication was such as to influence the jurors' opinion (Court of Cassation, Criminal Division, 14 January 1988, Dalloz-Sirey 1988, p. 206).