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You are here: BAILII >> Databases >> European Court of Human Rights >> SAIDI v. FRANCE - 14647/89 [1993] ECHR 39 (20 September 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/39.html Cite as: 17 EHRR 251, (1994) 17 EHRR 251, [1993] ECHR 39 |
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In the case of Saïdi v. France*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr F. Bigi,
Sir John Freeland,
Mr M.A. Lopes Rocha,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 March and 23 August 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 33/1992/378/452. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 September 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 14647/89) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a Tunisian national,
Mr Fahrat Saïdi, on 17 January 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 26 September 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr C. Russo, Mr R. Pekkanen,
Mr J.M. Morenilla, Mr F. Bigi, Sir John Freeland and
Mr M.A. Lopes Rocha (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the Government's memorial on 14 January 1993 and the
applicant's claims for just satisfaction (Article 50 of the Convention)
(art. 50) on 15 and 18 January; on 17 March he received the
observations of the Delegate of the Commission.
On 3 March the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 March 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr B. Gain, Head of the Human Rights Section of the
Legal Affairs Department, Ministry of
Foreign Affairs, Agent,
Mr P. Titiun, magistrat, on secondment to the
Legal Affairs Department, Ministry of
Foreign Affairs,
Mrs F. Travaillot, magistrat, on secondment to the
Criminal Affairs and Pardons Department,
Ministry of Justice, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Mrs C. Waquet, avocate, of the Conseil d'Etat
and the Court of Cassation Bar, Counsel.
The Court heard addresses by Mr Gain for the Government,
Mr Loucaides for the Commission and Mrs Waquet for the applicant, as
well as replies to its questions and to those of its President.
On the same day the Government replied in writing to the
questions put by the Court.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mr Fahrat Saïdi, a Tunisian national born in 1951, is a
bricklayer and lives in Nice.
A. The police inquiry
7. On 29 May 1986 the Nice police arrested him in connection with
an inquiry concerning two deaths - of Mrs Jovet (24 May) and Mr Molinie
(26 May) - caused by the injection of heroin; the police were acting
on information received from drug users and small-time dealers.
8. The following day a detective questioned the applicant
concerning, inter alia, a number of persons:
"Q [question]: Do you know Allala le boiteux [Lame Allala]?
R [reply]: I don't know him. I'd have to see him.
Q: Do you ever go to the Claridge?
R: Yes, I go there regularly.
Q: A person who was present during a conversation between you
and Allala le boiteux says that it was you who took the order
for ten grammes at the Claridge on 26 May last. What do you
have to say?
R: I don't know whether I met this lame bloke. I'd have to
be able to see him to say yes ...
...
Q: Do you know a Tunisian, quite an old man, whose first name
is Sadok?
R: I don't know him. I'd have to be able to see him ...
Q: A young man who only got his supplies directly from you
also died in the last few days following an overdose. His
friend, who is also a drug addict and who gets his drugs only
from you, accuses you directly of being the person who sold
them the drugs which led to his friend's death. What do you
have to say for yourself!
R: I've never touched drugs and I've never supplied anyone
with them. I would like to be confronted with this person.
SI [sur interpellation - on examination]: The person who
you've just shown to me and whom you say is called Allala le
boiteux does go to the Claridge. I only know him by sight.
I haven't had any special dealings with him.
..."
9. On the same day the police showed Mr Saïdi and two other
persons who had been arrested (Mr Bousselmi and Mr Hamza), through a
two-way mirror, to three drug addicts - Mrs Bentaieb and
Mr Hamdi Pacha, who were facing charges of possession, supply and use
of heroin, and Mr Trihan; the three addicts identified him
categorically.
B. The judicial investigation
10. Still on 30 May 1986 an investigating judge at the Nice
tribunal de grande instance charged Mr Saïdi with possession and supply
of heroin and involuntary homicide. He remanded him in custody by an
order which gave the following reasons:
"The alleged offences are very serious; inquiries still
have to be made; confrontations are to be organised;"
11. On the instructions of the investigating judge, the police
obtained statements from several witnesses, drug addicts or former drug
addicts: Mr Happe and Mrs Evrard on 2 June 1986, Mr Mazoyer on 5 June
and Mrs Pothier on 10 June. The officers showed them photographs and
they all identified Mr Saïdi and the two other persons charged as drug
dealers.
12. On 6 June 1986 the applicant's lawyer sent to the
investigating judge the following letter:
"May I request you, on behalf of Mr Fahrat Saïdi, whom I
saw at Nice remand prison, to consider organising as soon as
possible a confrontation between him and the persons who have
denounced him.
Fahrat Saïdi denies the charge of drug trafficking and
would like to be able to prove his innocence."
13. On 5 November 1986 the judge in question interviewed
Mr Nenouchi, a friend of one of the victims - Mr Molinie -, who had
come forward spontaneously to testify against Mr Saïdi, whom he
described as his former supplier of drugs.
14. When questioned on 14 November 1986 by the investigating
judge, Mr Saïdi stated, inter alia, as follows:
"SI: You tell me that I've been accused by Trihan ...,
Mazoyer ..., Nenouchi ..., who are all drug addicts and who
claim that I sold them drugs. It's untrue, I want to be
confronted with them."
15. On 24 November 1986 Mr Saïdi's lawyer again wrote to the
investigating judge, in the following terms:
"Following the interview which you conducted on
14 November, I would ask you, as my client has already
himself done directly, to organise a confrontation between
him and the persons who accuse him."
16. By an order of 4 December 1986, the investigating judge
decided that the applicant should remain in custody.
17. On the same day the judge committed Mr Saïdi and four other
persons for trial on the following charges:
"Bentaieb and [Hamdi] Pacha:
that they did in Nice in the course of 1985 and 1986,
contravene the legislation on dangerous drugs by possessing,
supplying and making unlawful use of heroin, a class B drug;
Bousselmi, Sadok Hamza, Fahrat Saïdi:
that they did in the same place and over the same period as
the aforementioned
(a) contravene the legislation on dangerous drugs by
possessing and supplying heroin, a class B drug;
(b) by inadvertence, imprudence, lack of care, negligence or
failure to respect the legislation involuntarily cause the
death of Corinne Jovet and Patrick Molinie."
C. The trial and the appeal proceedings
1. In the Nice Criminal Court
18. On 3 February 1987 the Nice Criminal Court sentenced Mr Saïdi
and Mr Bousselmi to ten years' imprisonment for infringement of the
dangerous drugs legislation and involuntary homicide, Mr Hamza to three
years for possession and supply of heroin, and Mrs Bentaieb and
Mr Hamdi Pacha, who had not appeared at the trial, to three years for
supply and use of drugs.
The court based its decision on the following grounds:
"...
On the evening of 29 May 1986 Fahrat Saïdi and Allala
Bousselmi were arrested. Allala Bousselmi made possible the
arrest in his turn of his intermediary, Sadok Hamza, by
giving the latter's address and his first name.
The three men were formally identified by the couple
Abdel Hamdi Pacha and Saïda Bentaieb; Fahrat Saïdi was also
identified by Jean-Pierre Trihan.
In the course of their interrogations, the aforementioned
Allala Bousselmi, Fahrat Saïdi and Sadok Hamza denied all the
accusations levelled against them, although they were
concurring and had been made by persons who did not know each
other.
The first witnesses to be heard subsequently explained the
role played by each of the accused.
Thus Alain Happe and Michèle Evrard formally identified
from a plate of photographs Allala Bousselmi, Sadok Hamza and
Saïdi and specified that Bousselmi sold the drugs through the
intermediary of Sadok Hamza, Fahrat Saïdi being the
"wholesale" supplier. Later other witnesses implicated the
same three individuals.
Christian Mazoyer, well known to the police as a drug
addict, claimed to have bought between February and
April 1986 from one and a half to two grammes of heroin from
Fahrat Saïdi. He stated that Saïdi was the regular supplier
of drugs to the prostitute and transvestite community.
Valérie Pothier, also a drug addict, affirmed that in the
course of 1985 she had bought drugs from the Boiteux. She
stated that at the time Allala Bousselmi supplied the addicts
directly. She also knew Fahrat Saïdi by his first name, as
a drugs dealer.
Nevertheless, the three men, Fahrat Saïdi, Allala Bousselmi
and Sadok Hamza continued to deny all the accusations
levelled against them, both before the investigating judge
and at the trial.
...
Allala Bousselmi and Fahrat Saïdi were formally implicated
by some of their regular customers (Alain Happe ...,
Michèle Evrard ..., Christian Mazoyer ..., Valérie Pothier
..., Patricia Rogowicz ...) and by the very people who
carried out some of their deliveries (Bentaieb ...,
Abdel Hamdi Pacha ...); their different roles were precisely
described by several witnesses, Bousselmi, the central figure
in the traffic, who took the orders, received payment and
gave instructions for the delivery, Saïdi, Bousselmi's
supplier and identified as a dealer in large quantities of
heroin;
It has been formally established by the statements of the
immediate circle of the drug addicts who died of an overdose
that the fatal dose had been sold by Bousselmi, who had been
supplied by Saïdi; the findings of the pathologists from
examining the victims' bodies leave no room for doubt as to
the direct causal connection between the taking of the drug
in question and the death which occurred within a very short
time of the injections."
The court also made in respect of the applicant and
Mr Bousselmi and Mr Hamza, who were likewise Tunisian nationals, an
order permanently excluding them from French territory.
2. In the Aix-en-Provence Court of Appeal
19. On appeals by Mr Saïdi and Mr Bousselmi, and by the public
prosecutor, the Aix-en-Provence Court of Appeal gave judgment on
1 October 1987. It found the accused guilty on only one count of
involuntary homicide - in relation to Mr Molinie - and reduced
Mr Saïdi's sentence to eight years' imprisonment and that of
Mr Bousselmi to six years. However, it confirmed the permanent
exclusion from French territory.
Its judgment included the following reasoning:
"...
The accused, as they had done throughout the police
inquiry, the judicial investigation and the first-instance
trial, formally denied that they had committed the alleged
offences;
They argued for their acquittal and stressed the inadequacy
of the investigation and in particular the fact that there
had been no confrontation between them and their accusers.
...
After Fahrat Saïdi was arrested, he was shown to Trihan
behind a two-way mirror and the latter stated word for word
as follows: 'That's the person to whom I go to buy powder
when I'm in Nice. He's the one who supplied us,
Patrick Molinie and myself, on the evening of 24 May 1986.'
In the course of the investigation and on the instructions
of the investigating judge the police officers showed
photographs of various individuals to Alain Happe ... and
Michèle Evrard ...
The latter formally identified from these photographs
Allala Bousselmi, Sadok Hamza and Fahrat Saïdi.
According to Happe, Allala Bousselmi supplies drugs to him
and to Corinne Jovet. He had them delivered by Sadok Hamza.
Fahrat Saïdi was indeed the 'wholesaler' who supplied
Bousselmi and Hamza.
Michèle Evrard affirmed that Bousselmi had supplied her
with drugs through the intermediary of Saïda Bentaieb.
Sadok Hamza acted as 'drug-keeper' for Allala Bousselmi and
Fahrat Saïdi was a heroin 'wholesaler'.
Other drug addicts, Christian Mazoyer, known as 'Barbara'
..., Valérie Pothier ... and Marcel Nenouchi, known as
'Sabrina'..., also implicated Fahrat Saïdi and
Allala Bousselmi.
The autopsy of the bodies of the two victims,
Patrick Molinie ... and Corinne Jovet ..., revealed their
drug addiction and there were recent marks, consistent with
the time of death, of intravenous injections.
In both cases the cause of death was, according to the
experts, acute oedema of the lung, of toxic origin, probably
the result of a massive injection of heroin.
...
As regards the offence of infringement of the dangerous
drugs legislation, the court agrees with the relevant reasons
on which the first-instance court based its decision and
finds Allala Bousselmi and Fahrat Saïdi guilty;
The concurring and repeated statements of the people who
sold the drugs supplied by them, Saïda Bentaieb and
Abdel Hamdi Pacha, and those who bought the drugs,
Alain Happe, Michèle Evrard, Patricia Rogowicz,
Jean-Pierre Trihan, Christian Mazoyer, Valérie Pothier and
Marcel Nenouchi, are sufficiently convincing to establish the
offence of which they are accused and also the role which
they played in the heroin traffic in Nice;
Although the police officers and the investigating judge
did not organise a confrontation with their accusers, the
methods of identification which were used (identification
through a two-way mirror or examination of photographic
plates bearing their photograph) show sufficiently that, for
their own personal reasons, the dealers and the drug addicts
who gave evidence did not wish to be physically confronted
with the accused;
Even if confrontations had led to statements being
retracted, that would not have deprived of their weight the
repeated affirmations of the dealers and users;
It has been sufficiently established by the police inquiry
and the judicial investigation that Fahrat Saïdi did indeed
sell to Jean-Pierre Trihan and Patrick Molinie the heroin,
the injection of which led to Trihan being taken ill and
Molinie's death.
..."
3. In the Court of Cassation
20. Mr Saïdi appealed on points of law. His sole ground of appeal
was worded as follows:
"Violation of the general principles of criminal procedure
and of Article 6 para. 3 (d) (art. 6-3-d) of the Convention
...;
in that the Court of Appeal convicted the accused of drug
dealing and involuntary homicide;
whereas, firstly, in order to determine the accused's guilt
the lower courts relied solely on his being identified
indirectly by the witnesses who viewed him from behind a two-
way mirror; this method offends against the fairness of the
investigation and cannot furnish admissible evidence under
criminal procedure;
whereas, secondly, by refusing to organise a confrontation
between the accused and the persons who accused him and whom
he had never seen and never been able to examine, the
contested judgment infringed the accused's right to examine
the witnesses against him."
21. On 19 August 1988 the Criminal Division of the Court of
Cassation dismissed the appeal on the following grounds:
"It appears from the impugned judgment that in finding
Fahrat Saïdi guilty of heroin trafficking and the involuntary
homicide of Patrick Molinie, who died as a result of a
massive injection of that drug, the Court of Appeal noted
that two methods of identification had been used by the
investigating police officers, identification through a two-
way mirror and by means of photographs; these had enabled
various witnesses, named in the judgment, to identify Saïdi
as the person who had supplied the heroin; the Court of
Appeal held that the concurring and repeated statements of
the dealers and users of the drugs supplied by Saïdi and the
evidence from the police inquiry and the judicial
investigation were sufficiently convincing to establish the
role of the accused and his guilt as charged;
In the light of these findings and conclusions arrived at
by the lower courts in the exercise of their unfettered
discretion to assess the weight of the evidence adduced in
court at an adversarial hearing and given that neither the
contested judgment nor any properly made submissions show
that the accused requested the courts to organise a
confrontation, the Court of Appeal, without disregarding the
general principles of criminal procedure and the provisions
of Article 6 para. 3 (d) (art. 6-3-d) of the ... Convention
..., set out grounds for its decision and gave a legal basis
to the contested judgment;"
D. Subsequent developments
22. On 5 January 1990 the Aix-en-Provence Court of Appeal declared
inadmissible an application by Mr Saïdi for the lifting of the order
imposed by the first and second-instance courts permanently excluding
him from French territory. The applicant filed an appeal on points of
law against that decision.
He was released on 17 August 1991, after serving five years,
two months and seventeen days. The same day he refused to comply with
an order for his expulsion (reconduite à la frontière), which led to
his being convicted in the Créteil Criminal Court. On appeal the Paris
Court of Appeal sentenced him to six months' imprisonment, together
with a ten-year prohibition on residing on French territory. Mr Saïdi
applied to the same court to have the prohibition lifted. His
application was heard on 22 January 1993 and the proceedings were
adjourned to 7 May.
23. The Court has no information as to the outcome of the appeal
on points of law and of the application to have the prohibition lifted.
II. The examination of witnesses in criminal proceedings
(correctionelle)
A. The investigating authorities
1. The investigating judge
24. As far as the investigating judge is concerned, three
provisions of the Code of Criminal Procedure are relevant in the
present case:
Article 101
"The investigating judge shall summon to appear before him,
through a bailiff or a police officer, any persons whose
testimony he considers would be useful ...
The witnesses may also be summoned by ordinary letter, by
registered letter or through administrative channels; they
may also appear of their own accord."
Article 102
"They shall be heard separately, not in the presence of the
accused, by the investigating judge assisted by his clerk; a
formal record shall be drawn up of their statements.
..."
Article 118
"The accused and the civil complainant may be heard or
confronted only in the presence of their lawyers or after the
latter have been duly summoned, unless they expressly waive
this right.
..."
2. The indictment division
25. On appeal the investigation is governed by equivalent rules
laid down in the Code of Criminal Procedure:
Article 201
"The indictment division may, in all cases, at the request
of the principal public prosecutor, of one of the parties or
even of its own motion, order any additional investigative
measure which it considers useful.
..."
Article 205
"Additional investigative measures shall be effected in
accordance with the provisions relating to the preliminary
investigation either by one of the members of the indictment
division or by an investigating judge which it delegates to
this effect.
..."
B. The trial and appellate courts
26. The rules governing the examination of witnesses differ
according to whether the court is hearing the case at first instance
or on appeal.
1. The Criminal Court
27. The principal provision of the Code of Criminal Procedure
which was applicable in the instant case is to be found in Article 427,
which is worded as follows:
"Unless otherwise provided by statute, any type of evidence
shall be admissible to substantiate a criminal charge, and
the court shall reach its decision on the basis of being
satisfied beyond reasonable doubt (intime conviction).
The court may only base its decision on evidence which has
been adduced during the trial and discussed before it inter
partes."
2. The Court of Appeal
28. The rules of procedure laid down for the Criminal Court also
apply 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."
29. This provision gave rise to a line of decisions by the
Criminal Division of the Court of Cassation, which appears to have
departed from those precedents in 1989, that is to say after the events
in the present case.
(a) The case-law until 1989
30. 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, consider that they were
under an obligation to hear and determine any such 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 (D.P.) 1894, I, p. 140; 13 January 1916, D.P. 1921,
I, p. 63; 20 December 1955, Dalloz 1956, sommaires, p. 29).
Where they deemed 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).
(b) The case-law since 1989
31. 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 called 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 inquiry and the
judicial investigation and that the defendant had been
informed of the prosecution evidence deriving 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 examination
of a given witness in the presence of the parties, for
example the risk of intimidation, pressure or reprisals, such
a refusal must nevertheless respect the rights of the defence
and the court must explain why a confrontation is impossible.
This was not so in the present 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; see also the judgments
of 23 January, 6 March and 9 October 1991, Bull. 1991, no. 40, p. 102,
no. 115, p. 293, and no. 336, p. 840).
PROCEEDINGS BEFORE THE COMMISSION
32. In his application of 17 January 1989 to the Commission,
Mr Saïdi complained of the refusal of the judicial authorities to
organise a confrontation with the prosecution witnesses who had
identified him; he considered this to be incompatible with
Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention.
33. The Commission declared the application (no. 14647/89)
admissible on 5 September 1991. In its report of 14 May 1992 (made
under Article 31) (art. 31) the Commission expressed the opinion, by
thirteen votes to one, that there had been a violation Article 6
paras. 1 and 3 (d) (art. 6-1, art. 6-3-d). The full text of the
Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 261-C of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
34. In their memorial the Government "maintain[ed] their
preliminary objection that domestic remedies [had] not [been] exhausted
and, in the alternative, that the application [was] manifestly
ill-founded".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)
(art. 6-1, art. 6-3-d)
35. Mr Saïdi complained that he had not had a fair trial. He
relied on paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d),
according to which:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
..."
A. The Government's preliminary objection
36. The Government contended primarily, as they had done before
the Commission, that Mr Saïdi had failed to exhaust his domestic
remedies inasmuch as he had not raised in the trial courts the
complaint based on a violation of Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d).
They maintained that the applicant had not called witnesses
in the Nice Criminal Court or asked for witnesses to be summoned in the
Aix-en-Provence Court of Appeal, although it had been open to him to
do so under the Code of Criminal Procedure. There was nothing in the
file to suggest that there had been a special circumstance or reason
of such a nature as to justify this failure.
The Government conceded that during the trial the applicant
had raised the question of the lack of a confrontation, but he had
neglected to file written submissions requesting further inquiries and
to call, or ask the public prosecutor to summon, witnesses, despite the
fact that their names and addresses had been in the file.
37. According to the Delegate of the Commission, on the other
hand, Mr Saïdi had satisfied the requirements of Article 26 (art. 26)
of the Convention. On appeal he had stressed the fact that he had not
been confronted with the persons who had implicated him and the Court
of Appeal had devoted two paragraphs of its judgment to justifying this
omission. In addition, the applicant had expressly invoked
Article 6 para. 3 (d) (art. 6-3-d) in his appeal on points of law.
38. In its judgment in the case of Cardot v. France of
19 March 1991, the Court reiterated that, although Article 26 (art. 26)
had to be applied "with some degree of flexibility and without
excessive formalism", it did not require merely that applications
should be made to the appropriate domestic courts and that use should
be made of remedies designed to challenge decisions already given; it
normally required also that the complaints intended to be formulated
subsequently at Strasbourg should have been made to those same courts,
at least in substance and in compliance with the formal requirements
and time-limits laid down in domestic law and, further, that any
procedural means which might prevent a breach of the Convention should
have been used (Series A no. 200, p. 18, para. 34).
39. The Court must consider whether these conditions are satisfied
in the present case.
At first instance Mr Saïdi manifested the desire that the
Criminal Court should hear the persons who had denounced or identified
him; that is apparent - according to the Government - from the record
of the hearing. Even though he did not use the proper procedure and
did not name the witnesses, there were several considerations on the
basis of which the court could have acceded to his request. The
investigation file contained documents, including the order of
30 May 1986 remanding him in custody and the record of the accused's
interrogation of 14 November 1986 (see paragraphs 10 and 14 above),
which referred to the necessity of or the request for confrontations.
Secondly, the accused could have hoped to refute at the trial the
statements of two of his co-accused, Mrs Bentaieb and Mr Hamdi Pacha,
who had been committed for trial with him and duly summoned; they did
not, however, appear at the hearing and were convicted in absentia (see
paragraph 18 above). Thirdly, throughout the trial Mr Saïdi continued
to deny the accusations made against him (see the same paragraph),
thereby seeking to cast doubt on the credibility of the persons who had
made them. Finally, in France it is traditionally the public
prosecutor, as the authority with responsibility for bringing the
charges and proving them, who calls the prosecution witnesses in the
criminal court.
On appeal Mr Saïdi's lawyer did not lodge written submissions
requesting a confrontation and did not refer to the Convention.
However, according to the very wording of the judgment of
1 October 1987, he "stressed the inadequacy of the investigation and
in particular the fact that there had been no confrontation between
[his client] and [the latter's] accusers" (see paragraph 19 above).
Moreover, the Aix-en-Provence Court of Appeal did not take refuge in
procedural considerations; it went into the substance of the matter and
gave detailed reasons for its refusal to hear the prosecution
witnesses.
As regards the appeal to the Court of Cassation, the
applicant's sole submission was based on Article 6 para. 3 (d)
(art. 6-3-d) of the Convention and on that provision alone (see
paragraph 20 above).
40. In sum, Mr Saïdi - in contrast to Mr Cardot (see the
above-mentioned judgment, pp. 18-19, paras. 35-36) - provided the
French courts with the opportunity which is in principle intended to
be afforded to the Contracting States by Article 26 (art. 26), namely
the opportunity to prevent or to put right the violations alleged
against them (see, inter alia, the Guzzardi v. Italy judgment
of 6 November 1980, Series A no. 39, p. 27, para. 72). The objection
based on a failure to exhaust the domestic remedies is therefore
unfounded.
B. Merits of the complaint
41. In the applicant's submission, his conviction was based solely
on the statements of the persons who had identified and implicated him.
There was no additional prosecution evidence to corroborate their
testimony, such as physical evidence or the results of inquiries or
expert reports. In those circumstances, the refusal of the judicial
authorities to organise a confrontation between him and the persons in
question had deprived him of a fair trial.
42. The Government emphasised the reasons which had led the
criminal courts not to hear the witnesses.
They argued that the file had been complete, which meant that
confrontations would have served little purpose; the accurate,
consistent and concurring character of the testimony obtained first
during the police inquiry and then during the judicial investigation
gave grounds for considering that the facts were sufficiently
established.
Secondly, the nature of the offence and the difficulty of
obtaining testimony from drug addicts had made the organisation of
confrontations a sensitive matter. In that field the protection of the
witnesses took priority and called for exceptional precautions. It was
necessary to take account of the psychological fragility of the drug
users and their legitimate desire to remain anonymous. The persons
concerned were often themselves petty dealers who were dependent on
larger suppliers and who feared that they would face reprisals if they
co-operated with the judicial authorities.
43. The Court reiterates that the taking of evidence is governed
primarily by the rules of domestic law and that it is in principle for
the national courts to assess the evidence before them. The Court's
task under the Convention is to ascertain whether the proceedings in
their entirety, including the way in which evidence was taken, were
fair (see, as the most recent authority, the Edwards v. the United
Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35,
para. 34).
All the evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
However, the use as evidence of statements obtained at the stage of the
police inquiry and the judicial investigation is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d,
art. 6-1), provided that the rights of the defence have been respected.
As a rule these rights require that the defendant be given an adequate
and proper opportunity to challenge and question a witness against him
either when he was making his statements or at a later stage of the
proceedings (see, among other authorities, the Isgrò v. Italy judgment
of 19 February 1991, Series A no. 194-A, p. 12, para. 34).
44. Like the Commission, the Court notes that in convicting the
applicant the two courts which tried him referred to no evidence other
than the statements obtained prior to the trial.
The Nice Criminal Court drew attention to the statements or
depositions of several drug users or dealers; it concluded that
Mr Saïdi had been "formally implicated by some of [his] regular
customers ... and by the very people who carried out some of [his]
deliveries" (see paragraph 18 above).
The Aix-en-Provence Court of Appeal stated that it endorsed
the grounds relied on at first instance, which were, in its view,
relevant. It considered that "the concurring and repeated statements
of the people who sold the drugs supplied by [him] ... and those who
bought the drugs ... [were] sufficiently convincing to establish the
offence of which [he was] accused and also the role which [he had]
played in the heroin traffic in Nice" (see paragraph 19 above).
The testimony therefore constituted the sole basis for the
applicant's conviction, after having been the only ground for his
committal for trial. Yet neither at the stage of the investigation nor
during the trial was the applicant able to examine or have examined the
witnesses concerned. The lack of any confrontation deprived him in
certain respects of a fair trial. The Court is fully aware of the
undeniable difficulties of the fight against drug-trafficking - in
particular with regard to obtaining and producing evidence - and of the
ravages caused to society by the drug problem, but such considerations
cannot justify restricting to this extent the rights of the defence of
"everyone charged with a criminal offence".
In short, there has been a violation of Article 6 paras. 1 and
3 (d) (art. 6-1, art. 6-3-d).
II. APPLICATION OF ARTICLE 50 (art. 50)
45. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. New trial or adoption of administrative measures
46. Mr Saïdi sought in the first place and above all a retrial.
He requested that, in the event of the Court's considering it
inappropriate to order a new trial, his criminal conviction should be
removed from his police record or certain extracts (bulletins)
therefrom and that his situation on French territory should be
regularised, in particular by according him a right of residence.
Neither the Government nor the Commission submitted
observations on this question.
47. The Court notes that the Convention does not give it
jurisdiction to direct the French State to open a new trial (see,
mutatis mutandis, the Belilos v. Switzerland judgment of 29 April 1988,
Series A no. 132, p. 32, para. 76) or to adopt one of the other
measures sought by the applicant.
B. Damage
48. Mr Saïdi also claimed compensation of 1,000,000 French francs
for the imprisonment which he had undergone as a result of his
conviction by the French courts.
The Government did not express a view on this matter; the
Delegate of the Commission, on the other hand, called for the applicant
to be paid a substantial amount, having regard to compensation awarded
in similar cases.
49. The Court cannot speculate as to what the outcome of the
proceedings in question would have been had the violation of the
Convention not occurred. It considers that in the circumstances of the
case the present judgment constitutes sufficient just satisfaction for
the applicant.
C. Costs and expenses
50. Finally, Mr Saïdi sought the reimbursement of the costs and
expenses that he had incurred in the French courts (7,000 francs for
his appeal on points of law against the judgment of the Aix-en-Provence
Court of Appeal of 1 October 1987 and 10,000 francs for his appeal on
points of law against the judgment of the same court of 5 January 1990)
and subsequently before the Convention institutions (20,000 francs
before the Commission and 15,000 francs before the Court).
The Government did not express an opinion. The Delegate of
the Commission considered the sums in question to be "perfectly
reasonable".
51. Having regard to the evidence at its disposal and to its case-
law in this field, the Court allows the applicant's claims with the
exception of that concerning the second appeal on points of law, which
had no connection with the violation found. It therefore awards him
42,000 francs under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 6 paras. 1
and 3 (d) (art. 6-1, art. 6-3-d);
3. Holds that, as regards the damage alleged by the applicant,
the present judgment constitutes sufficient just satisfaction
for the purposes of Article 50 (art. 50);
4. Holds that the respondent State is to pay to the applicant,
within three months, 42,000 (forty-two thousand) French
francs in respect of costs and expenses;
5. Dismisses the remainder of the applicant's claims.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 20 September 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the concurring
opinion of Mr Pettiti is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I came to agree with the finding of a violation principally
because the present case was very different from those which have
previously been dealt with by the European Court in its decisions in
French cases concerning the hearing of witnesses, namely the Delta and
Cardot cases*.
_______________
* Judgments of 19 December 1990 and 19 March 1991, Series A nos. 191-A
and 200.
_______________
In the Saïdi case the Court was confronted with a judgment of
the Aix-en-Provence Court of Appeal which was based solely, as had been
the decision of the Nice Criminal Court, on testimony obtained by the
police and during the judicial investigation, with no reference to
other precise and concurring evidence on which it could have founded
its finding of the applicant's guilt beyond reasonable doubt. This
does not mean that in other circumstances - for example inter partes
hearing of witnesses by the investigating judge not repeated before the
Criminal Court or the Court of Appeal, or conviction without
confrontation of the witnesses at the hearing, but based on additional
evidence - there would not be a finding of no violation from the point
of view of Article 6 (art. 6) of the European Convention.
It is possible to understand the position of the Court of
Appeal in view of the seriousness of the alleged offences in a case in
which there had been two young victims of drug dealers, but the extreme
and traditional vigilance of the courts in the necessary punishment of
such offences, when they are proved, must of course also extend to the
grounds for the decision from the point of view of Article 6 (art. 6)
of the Convention. This is particularly so where the defence's failure
to call witnesses in the Criminal Court and the decision not to have
recourse to Article 513 of the Code of Criminal Procedure would appear
to have been a tactic adopted by the accused, who reserved the
possibility of invoking Article 6 (art. 6) of the Convention for the
proceedings in the Court of Cassation. Even though some of the
depositions of the witnesses did not have a decisive influence on the
Court of Appeal's assessment of the applicant's guilt, it would have
been prudent in proceedings involving serious offences and heavy
sentences to organise a confrontation with the prosecution witnesses,
even if this was not expressly requested by the defence in that it did
not call witnesses in the Criminal Court or seek to invoke Article 513
of the Code of Criminal Procedure in the Court of Appeal.
The decision of the European Court on Article 50 (art. 50) and
the dismissal of the claim for just satisfaction shed further light on
the scope of this judgment which should be considered with reference
to the Delta and Cardot judgments.