CASE OF PÉLISSIER AND SASSI v. FRANCE
Violation of Art. 6-1+6-3-a;Violation of Art. 6-1+6-3-b;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
7. Mr Pélissier was born in 1944 and lives at Sanary-sur-Mer; Mr Sassi was born in 1935 and lives at Cannes. Both are French nationals. 8. On 16 October 1975 Mr Fernand Cortez and Mr Claude Cortez formed a private limited company (société à responsabilité limitée – Sàrl), Bleu Marine, whose object was the sale of pleasure craft. Fernand Cortez was appointed manager. In 1976 Bleu Marine started to trade with a public company, Chantiers Beneteau S.A., whose object was boat-building. On 8 October 1981, Bleu Marine became Chantiers Beneteau’s exclusive distributor for the Var département coast. 9. On 31 March 1980 both applicants became shareholders in Bleu Marine, each holding 250 of a total of 1,000 shares (the remaining 500 belonged to the promoters, Fernand and Claude Cortez). 10. On 29 September 1982 Fernand Cortez, the applicants and Mr Dominique Stizi formed a private limited company, Station Service du Bateau Sàrl, which was run by Fernand Cortez and Dominique Stizi. Its objects were the development of port infrastructures, harbour building and the sale and outfitting of boats. The share capital was held by Fernand Cortez (48 shares), the applicants (24 shares), and Dominique Stizi (104 shares). On 29 February 1984 the Toulon Commercial Court declared the company insolvent and ordered its judicial reorganisation. 11. By agreements made with Station Service du Bateau and another company, Cortez et Cie, Bleu Marine was granted a licence allowing it to launch its boats on the sea front. 12. In 1983 relations between Bleu Marine and Chantiers Beneteau started to deteriorate, the former owing the latter nearly three million French francs (FRF). Chantiers Beneteau then terminated the distribution agreement with Bleu Marine. 13. On 30 May 1983 Bleu Marine filed for insolvency. On 1 June 1983 the Toulon Commercial Court held that the company was insolvent and ordered its judicial reorganisation. 14. On 4 July 1984 the Toulon Commercial Court, finding that Bleu Marine had debts of almost FRF 10 million, ordered its liquidation under the supervision of the court. 15. On 20 June 1983 Chantiers Beneteau lodged a complaint with the senior Toulon investigating judge against a person or persons unknown for forgery of commercial documents and fraud by the falsification of a balance sheet and its use with a view to obtaining a rescheduling of debt which would never be honoured. On 16 December 1983 the investigating judge sent instructions to the Marseilles Regional Police Department. 16. On 27 June 1984 Fernand Cortez, the manager of Bleu Marine, was charged by the Toulon investigating judge assigned to the case. On 8 October an additional charge of negligent and fraudulent bankruptcy was brought against him. On 22 January 1985 the investigating judge’s instructions of 16 December 1983 were carried out. The results revealed in particular the existence of a property holding company (société civile immobilière), SCI Le Ponant, which had been set up by Fernand Cortez, Mr Pélissier and Mr Sassi’s wife, in order to acquire land for letting to Bleu Marine. 17. On 15 October 1984 Mr and Mrs Grouzet lodged a complaint against Fernand Cortez and any other person having managerial responsibility for Bleu Marine, alleging misappropriation and, subsequently, fraud, in connection with the purchase and payment for a boat that was never delivered. On 4 October 1985 a Mr Louis Dreyer lodged a complaint against Fernand Cortez for misappropriation and applied to be joined to the proceedings as a civil party claiming damages. 18. On 14 September 1984, after appearing before the investigating judge on 20 and 21 August and 13 September 1984, the first applicant was charged with the offences set out in the complaint of 20 June 1983 and with negligent and fraudulent bankruptcy and misappropriation. 19. On 12 June 1985 the second applicant was charged with the same offences. 20. After Law no. 85-98 of 25 January 1985, which reformed insolvency law, came into force, the public prosecutor, considering there to be “strong evidence of criminal bankruptcy”, lodged an additional application to have Fernand Cortez, Dominique Stizi and the applicants charged with that offence under the new law. In so doing, he relied on the provisions relating to criminal bankruptcy and aiding and abetting criminal bankruptcy. 21. In a letter of 14 November 1985 to the investigating judge, the lawyer acting for Chantiers Beneteau argued that a charge of aiding and abetting criminal bankruptcy might lie against the applicants. On 17 July 1986 Chantiers Beneteau applied to be joined to the criminal bankruptcy proceedings as a civil party claiming damages. 22. On 1 December 1986 the investigating judge preferred an additional charge of “criminal bankruptcy” against Fernand Cortez under sections 196 and 197 of the Law of 25 January 1985 and Articles 402 and 403 of the Criminal Code. On 4, 16 and 19 December 1986 he preferred identical additional charges of “criminal bankruptcy” against the first applicant, the second applicant and Dominique Stizi respectively. 23. On 15 June 1987 the investigating judge appointed two accounting experts to audit the accounts. 24. On 30 June 1988 they submitted their report to the investigating judge. 25. On 10 January 1989 the investigating judge made an order transmitting the file to the public prosecutor for submissions (ordonnance de soit-communiqué). 26. On 27 June 1990 the investigating judge made a discharge order on the charges of forgery and using forged commercial documents, negligent and fraudulent bankruptcy and fraud; ultimately, the only charge on which the applicants were committed to stand trial at the Criminal Court was that of criminal bankruptcy under the Law of 25 January 1985. A discharge order was also made in the case of Fernand Cortez on the same charges and on the complaint lodged by Mr and Mrs Grouzet. He was committed to stand trial at the Criminal Court alone (on certain charges for which he was the sole defendant), with Dominique Stizi (on charges relating to the management of Station Service du Bateau), and with the applicants. In his order, the investigating judge cited Articles 402, 406 and 408 of the Criminal Code and sections 196 and 197 of the Law of 25 January 1985. 27. On 12 March 1991 the Toulon Criminal Court sentenced Fernand Cortez to one year’s imprisonment and a fine of FRF 20,000 for fraudulent bankruptcy, concealment of assets and misappropriation. It acquitted Dominique Stizi of the charges against him. Of the civil parties, Chantiers Beneteau’s application to be joined to the criminal bankruptcy proceedings was declared inadmissible and the court noted that Mr and Mrs Grouzet had withdrawn their application to be joined as civil parties; the only person to be awarded compensation was Louis Dreyer (in respect of the misappropriation by Fernand Cortez). 28. In the same judgment, the Toulon Criminal Court held with regard to the bankruptcy charges against the applicants: “It should firstly be noted that under the Law only de jure or de facto managers, not, as suggested by the prosecution, members, can commit the offence. Without it being necessary to consider whether the indictment is bad for failure to allege that the members [the applicants] were de facto managers, that being an essential element of the offence, it need only be observed that [the applicants] have not performed any acts of management, the de jure manager cannot be regarded as having been a ‘replaceable’, compliant manager and it does not appear that he gave the other two the right to sign on his behalf. ... Thus, as they cannot properly be described as de jure managers, the defendants Sassi and Pélissier must be acquitted of these offences.” 29. On 14 March 1991 Chantiers Beneteau appealed against that judgment. The public prosecutor and Fernand Cortez did likewise on 22 March 1991. On 2 April 1992 Chantiers Beneteau lodged additional submissions with the registry of the Court of Appeal in which they proposed, in the alternative, recharacterising the acts the applicants were alleged to have committed as “aiding and abetting” criminal bankruptcy. 30. On 26 November 1992, after hearings on 16 April and 25 June 1992, the Aix-en-Provence Court of Appeal held that although the applicants could not be regarded as having been de facto managers of the company, they had nonetheless been informed of the serious difficulties it was in and had “wilfully performed positive, material acts that had facilitated, aided or abetted Cortez in the concealment of assets to the detriment of Bleu Marine”. It appears from the judgment that the applicants were regarded as appearing before the Court of Appeal as “defendants on criminal bankruptcy charges”. 31. The Court of Appeal consequently held that the applicants were guilty, not of the offences charged, but of the separate offence of aiding and abetting criminal bankruptcy through the concealment of assets. As regards the first applicant in particular, the Court of Appeal found, inter alia, that he had furnished a false certificate in order to justify the payment of a sum of money in a suspect operation. It referred in its judgment to Chantiers Beneteau’s main submissions requesting the applicants’ conviction for criminal bankruptcy, but made no mention of the additional submissions lodged on 2 April 1992 concerning the accusation that they had aided and abetted criminal bankruptcy. There is a dispute as to whether that request was brought to the attention of the applicants; however, it is common ground that it was mentioned, as an ancillary point, by the civil party at the hearing. 32. The Aix-en-Provence Court of Appeal sentenced each of the applicants to a suspended term of eighteen months’ imprisonment and to a fine of FRF 30,000. While upholding the conviction of Fernand Cortez and the partial discharge order made in his favour by the Toulon Criminal Court, it nonetheless increased the term of imprisonment to eighteen months, while suspending it, and the fine to FRF 30,000. Lastly, the Court of Appeal upheld Dominique Stizi’s acquittal, the award of damages to Louis Dreyer and the declaration that Chantiers Beneteau’s application to be joined as a civil party was inadmissible. 33. On 26 and 27 November 1992 the applicants appealed against that decision to the Court of Cassation on points of law. In their pleadings they denied the offence and contended on the basis of Article 6 of the Convention that the Court of Appeal’s decision to convict them of an offence different from that charged had not been the subject of adversarial argument and had infringed the rights of the defence. In addition, the first applicant submitted that when referring to alleged irregularities on his account the Court of Appeal had relied on allegations that had never been put to him and were incapable of showing that he had aided and abetted criminal bankruptcy. 34. In a judgment of 14 February 1994 the Court of Cassation dismissed the applicants’ appeal on the grounds that: “... the reasons given in the impugned judgment enable the Court of Cassation to satisfy itself that the court below sufficiently made out, within the limits of its jurisdiction, all the constitutive elements of the actus reus and mens rea 35. The relevant provisions of the Code of Criminal Procedure provide: “The Criminal Court shall be seised of offences within its jurisdiction on the voluntary appearance of the parties, a summons accompanied by a statement of the charges, an immediate summary trial or, lastly, a committal by the investigating judge or judges.” “The case is transferred to the Court of Appeal to the extent determined in the notice of appeal ...” 36. The relevant provisions of the Criminal Code in force at the material time were as follows: “Accessories to a serious crime (crime) or other major offence (délit) shall be liable to the same penalties as the principals, except where statute provides otherwise.” “A person who, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, has incited the commission of a serious crime (crime) or other major offence (délit) or given instructions for its commission; has procured weapons, implements or any other means of assisting in the commission of an offence knowing that such weapons, implements or other means were intended for that purpose; or has knowingly aided or abetted the principal or principals in acts preparatory to the commission of the offence or facilitating its commission or in carrying out the offence, shall be guilty of an offence as accessories, without prejudice to the penalties specially imposed by this Code on persons conspiring to commit or inciting breaches of State security, even if the crime intended by those conspiring or inciting is not committed.” “Persons found guilty of criminal bankruptcy shall be liable on conviction to between three months’ and five years’ imprisonment and a fine of between FRF 10,000 and FRF 200,000 or to either of those penalties. In addition, an order may be made barring them from exercising the rights referred to in Article 42.” “Accessories to criminal bankruptcy shall be liable to the same penalties as those laid down in the preceding Article, even if they are not merchants, craftsmen or farmers and do not directly or indirectly, de facto or de jure, manage a private-law legal entity having an economic activity.” 37. The relevant provisions of this law read as follows: “The provisions of this Chapter are applicable to: (1) all traders and craftsmen; (2) anyone who has directly or indirectly, whether de jure or de facto, managed or liquidated a private-law entity having an economic activity; and (3) individuals who are permanent representatives of entities managing entities as defined in subsection 2 above.” “Where judicial reorganisation proceedings are commenced, the persons referred to in section 196 shall be guilty of criminal bankruptcy if they are found to have done any of the following: (1) with the intention of avoiding or delaying the commencement of judicial reorganisation proceedings, made purchases with a view to resale at less than market value or used ruinous means to procure funding; (2) misappropriated or concealed all or part of the debtor’s assets; (3) fraudulently increased the debtor’s liabilities; or (4) held fictitious accounts or caused accounting documents of the undertaking or entity to disappear or failed to keep any accounts.”