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You are here: BAILII >> Databases >> European Court of Human Rights >> HAMER v. FRANCE - 19953/92 [1996] ECHR 30 (7 August 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/30.html
Cite as: 23 EHRR 1, (1997) 23 EHRR 1, [1996] ECHR 30

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In the case of Hamer v. France (1),

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 Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr L.-E. Pettiti,

Mr A. Spielmann,

Mr N. Valticos,

Mr S.K. Martens,

Mr A.B. Baka,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

Mr B. Repik,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 22 February and 27 June 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 34/1995/540/626. 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.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 12 April 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 19953/92) against the French Republic lodged with the Commission

under Article 25 (art. 25) by a German national, Ms Birgit Hamer, on

10 March 1992.

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 para. 1 of the Convention (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she

wished to take part in the proceedings and designated the lawyer who

would represent her (Rule 30). The German Government, having been

notified by the Registrar of their right to intervene (Article 48 (b)

of the Convention and Rule 33 para. 3 (b)) (art. 48-b), did not

indicate any intention of so doing.

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. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of

the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot

the names of the other seven members, namely Mr A. Spielmann,

Mr N. Valticos, Mr S.K. Martens, Mr F. Bigi, Mr A.B. Baka,

Mr J. Makarczyk and Mr B. Repik (Article 43 in fine of the Convention

and Rule 21 para. 5) (art. 43). Subsequently Mr G. Mifsud Bonnici,

substitute judge, replaced Mr Bigi, who had died (Rules 22 para. 1 and

24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

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 applicant's and the Government's memorials

on 19 and 20 October 1995 respectively.

On 7 December 1995 the Commission 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

20 February 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-F. Dobelle, Deputy Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mrs M. Dubrocard, magistrat, on secondment to the Legal

Affairs Department, Ministry of Foreign Affairs,

Mr G. Bitti, member of the Human Rights Office,

European and International Affairs Department,

Ministry of Justice, Counsel,

Mrs N. Berthélémy-Dupuis, magistrat, on secondment to

the Human Rights Office, European and International

Affairs Department, Ministry of Justice, Observer;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Ms S. Hubin-Paugam, avocate, Counsel.

The Court heard addresses by Mr Danelius, Ms Hubin-Paugam and

Mr Dobelle.

AS TO THE FACTS

I. Circumstances of the case

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.

A. The investigation proceedings (19 August 1978 -

2 February 1987)

1. First period (Judge Breton)

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 civil-party 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.

2. Second period (Judge de Valon)

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.

3. Third period (Judge Tissot)

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.

B. The trial proceedings (30 September 1988 - 2 July 1992)

1. Committal for trial

(a) Before the Indictment Division of the Bastia Court

of Appeal

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.

(b) In the Court of Cassation

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 the

deliberate intent to assault or use violence against any

person, the Indictment Division could not, without

contradicting itself, hold that there was sufficient evidence

to prove Victor-Emmanuel of Savoy guilty of the offence defined

in Article 311 para. 1 of the Criminal Code; accordingly, it

gave no legal basis for its decision, which falls to be

quashed."

It remitted the case to the Indictment Division of the Paris

Court of Appeal.

(c) Before 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.

(d) In the Court of Cassation

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 the

assault allegedly made by the accused on Nicolas Pende [the

Cocke's passenger] was intentional and that there was a causal

connection between that assault and the death of Dirk Hamer.

That being the case, the Indictment Division, which replied in

sufficient detail to the main arguments in the pleading filed,

assessed the weight of the evidence set before it. It

established that there was sufficient evidence to prove

Victor-Emmanuel of Savoy guilty, if the facts were made out,

of the offence defined both in the last paragraph of the former

Article 309 of the Criminal Code, which was applicable at the

material time, and in the first paragraph of Article 311 of

that Code, as amended by the Law of 2 February 1981."

2. The trial at the Paris Assize Court

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.

3. The judgment of the Court of Cassation

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 against

Victor-Emmanuel of Savoy. The judgment concerned does not

contain any provision relating to civil matters. That being

the case, and no other judgment having been given on the

submissions of the civil parties, the latter, under Article 567

of the Code of Criminal Procedure, have no standing to contest

the decision on the criminal proceedings and the costs payable

to the State."

On 10 July 1992 the judgment was served on the civil parties

and Prince Victor-Emmanuel.

II. Relevant domestic law and practice

A. The principles governing civil-party applications

57. Article 2 of the Code of Criminal Procedure ("CCP") provides:

"All those who have personally suffered from the damage

directly caused by a serious offence [crime], less serious

offence [délit] or petty offence [contravention] may bring

civil-party proceedings [action civile] to seek compensation

for such damage.

Discontinuance of such proceedings can neither terminate nor

stay the criminal proceedings, without prejudice to the cases

provided 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 by

settlement where express provision is made for this

possibility. They may likewise be discontinued in the event

of withdrawal of the complaint where the complaint was an

essential 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 the

admissibility 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 in

the broad sense of participation by the civil party in the

criminal proceedings.

For how can it be maintained that the injured party brings any

kind of 'civil proceedings' when he merely calls, as he is

expressly 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 criminal

judgment, but in the criminal court he has made no claim which

can be characterised as civil.

Lastly, from the theoretical point of view, the above analysis

renders obsolete the controversy about the nature of

civil-party proceedings, which some commentators have held to

be two-fold ... while others say their nature is unmixed ...

The truth is that a civil-party application is vindictive in

character, whereas the purpose of an action for reparation is

to obtain compensation." (Extraits des Juris-Classeurs de

procédure 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.

B. The Assize Court's judgment on civil-party proceedings

62. The CCP contains the following relevant provisions:

Article 371

"Once the Assize Court has given judgment in the criminal

proceedings, it shall rule, in the jury's absence, on the

claims for damages lodged either by a civil party against the

accused 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 the

parties may still submit observations, after which the

prosecution shall be heard."

Article 372

"Where the trial ends in acquittal or discharge, the civil

party may seek compensation for damage resulting from the

defendant's fault, as made out by the acts which gave rise to

the 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).

C. The basis of civil proceedings

64. The Civil Code contains the following relevant provisions:

Article 1382

"Any act committed by a person that causes damages to another

shall render the person through whose fault the damage was

caused liable to make reparation for it."

Article 1384

"Liability is incurred not only for the damage caused by one's

own act but also for that caused by persons for whom one is

responsible or by things one has in one's keeping."

PROCEEDINGS BEFORE THE COMMISSION

65. Ms Hamer applied to the Commission on 10 March 1992. She

alleged that her case had not been heard within a reasonable time as

required by Article 6 para. 1 of the Convention (art. 6-1).

66. The Commission declared the application (no. 19953/92)

admissible on 9 March 1994. In its report of 21 February 1995

(Article 31) (art. 31), it expressed the opinion by thirteen votes to

ten that there had been a violation of Article 6 para. 1 (art. 6-1).

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 (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

67. In their memorial the Government asked the Court to

"hold that the application lodged by Ms Hamer is incompatible

ratione materiae with the provisions of the Convention, or in

the alternative that it is ill-founded".

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

68. Ms Hamer complained of the length of criminal proceedings

brought against Prince Victor-Emmanuel of Savoy which she had joined

as a civil party, considering it contrary to Article 6 para. 1 of the

Convention (art. 6-1), which provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ..."

69. Before determining, if need be, the question of compliance with

Article 6 para. 1 (art. 6-1), the Court must decide whether that

provision (art. 6-1) is applicable.

70. Ms Hamer maintained that her civil-party application implied

not only her participation in the criminal proceedings but also a claim

for civil reparation for her brother's death. In spite of the payment

of a sum of money by Prince Victor-Emmanuel to her family, she had

always intended to claim damages. The accused's acquittal and the fact

that the Assize Court held no hearing on the civil issues had prevented

her from lodging a claim for damages; in addition, it was no longer

open to her to bring an action for damages in a civil court. The

outcome of the criminal proceedings had therefore been decisive for her

right to compensation for pecuniary and non-pecuniary damage.

71. According to the Government, the object of Ms Hamer's

civil-party application had never been to settle a dispute over a civil

right. The lack of any explicit compensation claim by the applicant,

when it was open to her to lodge one even after the accused's

acquittal, either with the Assize Court or with the civil courts,

showed that the sole object of her civil-party application had been to

associate herself with the criminal prosecution and secure

Prince Victor-Emmanuel's conviction. That was not a civil right and

accordingly did not come within the scope of Article 6 para. 1

(art. 6-1).

72. The Commission considered irrelevant the fact that Ms Hamer had

not expressly asserted a right to compensation, given that under

French law her civil-party application evidenced her intention to seek

compensation for the damage caused by a criminal offence. Moreover,

although the accused's acquittal by the Assize Court had prevented the

applicant from obtaining damages, that in no way implied that her

initial application was not "civil" in character.

73. The Court reiterates that, according to the principles laid

down in its case-law (see, as the most recent authority, the

Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A,

p. 14, para. 46), it must ascertain whether there was a dispute

("contestation") over a "civil right" which can be said, at least on

arguable grounds, to be recognised under domestic law. The dispute

must be genuine and serious; it may relate not only to the existence

of a right but also to its scope and the manner of its exercise; and,

finally, the outcome of the proceedings must be directly decisive for

the right in question.

74. The Court notes that French law draws a distinction between a

civil-party application only and civil-party proceedings in which it

is also sought to obtain compensation for the damage sustained as a

result of an offence (see paragraph 60 above). Accordingly, the

admissibility of a civil-party application does not absolve the person

who makes it - if he wishes to assert his right to financial

reparation - from the obligation to lodge a claim for that purpose with

a court which will consider the merits of his civil action.

75. At no stage in the proceedings did Ms Hamer, who had joined

them by lodging a civil-party application with the investigating judge

on 26 November 1979, as had her parents and sister (see paragraph 22

above), claim damages or make known any intention of so doing. Nor did

she ever object to the settlement reached between her family and

Prince Victor-Emmanuel, who had acknowledged his civil liability and

paid them compensation on 5 September 1978 (see paragraph 14 above).

Nor did she express any reservations on that subject.

76. The applicant could have claimed damages either during the

investigation proceedings or at the trial in the Assize Court on

18 November 1991. Even after the judgment acquitting

Prince Victor-Emmanuel she could have filed written submissions to that

effect with the registry of the Assize Court, which would then have

held a hearing in its civil composition and ruled on the case

(see paragraphs 62-63 above). She could also have lodged her claim for

damages with the civil courts at a later date (see paragraph 64 above).

77. In that respect the present case must be distinguished from

other similar cases the Court has had to deal with in which the outcome

of the proceedings was decisive for the "civil right" in question. The

cases of Tomasi v. France and Acquaviva v. France, in particular

(judgment of 27 August 1992, Series A no. 241-A, p. 43, para. 121, and

judgment cited above, pp. 14-15, para. 47), ended with judgments in

which it was held that there was no case to answer, whereas in the

present case the accused was committed for trial. In the

Acquaviva case, more particularly, the finding of self-defence by the

Indictment Division of the Versailles Court of Appeal deprived the

civil parties of any right to sue for compensation (ibid.).

78. In the present case, a contrario, the outcome of the

proceedings was not decisive, for the purposes of Article 6 para. 1

(art. 6-1), for the establishment of Ms Hamer's right to compensation.

As the applicant never asserted that right, there was therefore no

dispute ("contestation") over a "civil right".

79. Accordingly, Article 6 para. 1 (art. 6-1) was not applicable.

FOR THESE REASONS, THE COURT

Holds by six votes to three that Article 6 para. 1 of the

Convention (art. 6-1) was not applicable to the proceedings

complained of and was accordingly not breached.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 7 August 1996.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

(a) dissenting opinion of Mr Martens;

(b) dissenting opinion of Mr Repik, joined by Mr Spielmann.

Initialled: R. B.

Initialled: H. P.

DISSENTING OPINION OF JUDGE MARTENS

Introduction

1. In the night of 17 to 18 August 1978 the applicant's brother,

Mr Dirk Hamer, was seriously wounded by a bullet presumably fired by

Prince Victor-Emmanuel of Savoy. On 7 December 1978 Mr Hamer died from

his injuries.

2. On 26 November 1979 the applicant joined the criminal

proceedings against the Prince which had already been instituted by the

prosecuting authorities (1) on 19 August 1978. She did so by

personally writing a letter to the investigating judge making a

civil-party application to join those proceedings and by having a

barrister make before that magistrate a declaration to the same effect.

_______________

1. It may be of some importance to stress that it was not the

applicant who initiated the criminal proceedings: by making her

civil-party application she joined criminal proceedings which had

already been instituted long before on the initiative of the

prosecuting authorities. The pertinence thereof is that there can be

little doubt that part of the problems raised by the notion of civil

action within the meaning of Article 2 of the

Code of Criminal Procedure (CCP - see paragraph 12 below) stems from

the peculiar feature of French law that (under Article 1 para. 2 CCP)

criminal proceedings may be set in motion on the initiative of the

victim (see on this point, inter alia: Traité de droit civil,

Geneviève Viney, Introduction à la responsabilité, 2nd ed., 1995,

paras. 77 et seq.).

_______________

3. Article 2 CCP provides that "all those who have personally

suffered from the damage directly caused" by certain offences may bring

civil-party proceedings to seek compensation for such damage.

Article 85 CCP lays down that "everyone who claims to have suffered

damage" from those offences may lay a complaint and submit a

civil-party application to the investigating judge. However, neither

the applicant's letter nor her lawyer's declaration specified in what

respect or to what extent the applicant claimed to have personally

suffered prejudice as a direct consequence of the offences of which the

Prince had been accused. A fortiori, these documents did not contain

any claim for damages whatsoever. Nevertheless, the application was

evidently allowed. That necessarily implies that in the investigating

judge's opinion the mere fact that the applicant's brother had died as

a result of injuries presumably inflicted by the accused enabled him

to accept as possible the existence of damage personally suffered by

the applicant and of a direct causal link between that damage and the

offences of which the Prince had been accused (2). Apparently, the

prosecuting authority and the accused were of the same opinion for at

no stage of the criminal proceedings did they oppose the applicant's

participation as a civil party in those proceedings.

_______________

2. See Crim. 9 February 1961, D. 1961.306; 17 October 1972, D. 1973,

Somm. 61; 29 April 1986, Bull. crim. 144; 5 March 1990, ibid., 103.

_______________

4. On 18 November 1991 the Paris Assize Court acquitted the Prince

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". Notwithstanding

this acquittal, the Paris Assize Court remained competent, under

Article 372 CCP, to examine whether - on the basis of the facts (3)

underlying the accusation - under civil law a claim for damages could

be allowed against the former accused, provided that such a claim was

presented by the civil party concerned (4). However, the applicant

never presented any claim for damages.

_______________

3. Under the consistent case-law of the French Court of Cassation the

acquittal does not prevent the Assize Court from examining whether

those facts "stripped of the circumstances making up their criminal

character" nevertheless constitute a tort entailing the acquitted

accused's liability under civil law, provided that his culpability can

be established: Crim. 11 January 1984, Bull. crim. 17;

Crim. 7 October 1987, ibid., 341; D. 1988.104; Crim. 20 October 1993,

Bull. crim. 298. See further: Gaston Stefani, Georges Levasseur and

Bernard Bouloc, Procédure pénale (Précis Dalloz, 16th ed., 1996),

paras. 238 and 721, and Geneviève Viney, op. cit. (see note 1), p. 133.

4. According to the European Court's judgment (see paragraphs 76 and

63) a civil party may even present such a claim after the trial has

been closed by the pronouncement of the acquittal: in such cases the

Assize Court holds a civil hearing.

_______________

5. Before the Convention organs she now complains about the

inordinate length of the criminal proceedings, this length, in her

opinion, being such that it practically obliterated her chances of

getting a judgment for damages against the Prince. The Government

contended that Article 6 (art. 6) was not applicable because, as the

applicant had never formulated any claim for damages, it had to be

assumed that she had joined the criminal proceedings as a civil party

for the sole purpose of ensuring that the accused would be convicted.

6. Thus the Government again defend the proposition - as they did

in the case of Acquaviva v. France (5) - that civil-party applications

made for the purpose of obtaining damages fall within, whilst such

applications only made for the purpose of seeing to it that the accused

is convicted fall outside the ambit of Article 6 (art. 6).

_______________

5. Judgment of 21 November 1995, Series A no. 333-A, pp. 13-14,

para. 42.

_______________

7. In the Acquaviva case the Court did not examine the

Government's proposition. It held that Article 6 (art. 6) was

applicable on the basis of a combination of three arguments which, if

they have anything at all to do with the distinction advanced at that

time and now again by the French Government, seem to imply that the

Court accepted that the Acquavivas ultimately intended to seek

compensation (6).

_______________

6. See paragraph 47 of the judgment referred to in note 5.

_______________

In the present case, however, the Court did examine and has,

moreover, approved that proposition. Paragraphs 74 and 75 of its

judgment make it clear that in the Court's opinion whether or not

Article 6 (art. 6) is applicable depends exclusively on the intentions

of the civil party when joining the criminal proceedings. If that

party joins in order to claim financial compensation for the damage

suffered as a consequence of the offence, then Article 6 (art. 6)

protects his interests right from the beginning of the criminal

proceedings, that is from the start of the preliminary proceedings

before the investigating judge. But when the civil party does not

intend to claim financial compensation, then Article 6 (art. 6) does

not protect his interests for then the criminal proceedings cannot be

deemed to imply a determination of his civil rights within the meaning

of Article 6 (art. 6).

8. To my regret I fundamentally disagree.

In my opinion the applicant would have been entitled to the

protection enshrined in Article 6 of the Convention (art. 6) even if

she had indeed joined the criminal proceedings merely in order to have

the Prince's guilt established (which, moreover, I do not accept).

With due respect I think that the Court has

(a) disregarded its own doctrine concerning the role of Article 6

para. 1 (art. 6-1) and the - autonomous - key notion of "civil rights";

(b) not taken sufficient account of the specific features of national

law;

(c) not heeded the requirement that judicial interpretations should

provide legal certainty; and

(d) misconstrued the facts of the case.

I will elucidate each of these four criticisms in turn.

A. Are the interests of a civil party to criminal proceedings not

claiming financial compensation protected under Article 6

(art. 6)?

9. A first point to make is that - as the Court notes in

paragraph 61 of its judgment - under French law a civil-party

application has the effect of making the applicant under such an

application a party to the criminal proceedings: consequently, he

cannot be heard as a witness on oath (Article 335-6° CCP) and has

various rights and duties as a party, such as the right to call

witnesses, to question those of the defence, to have his counsel

present his version of the facts and to appeal (7). This opportunity

to join, as a party, criminal proceedings which in principle are

proceedings between two parties only, the prosecuting authorities and

the accused, is intended to promote the interests of victims of crime

(8). Moreover, French law allows such victims to join criminal

proceedings without claiming financial compensation for the damage

personally suffered as a direct result of the offences for which the

accused is prosecuted (see paragraph 60 of the Court's judgment and

paragraph 12 below). As regards their position as a party to the

criminal proceedings this makes no difference at all (9).

_______________

7. See Gaston Stefani, Georges Levasseur and Bernard Bouloc, op. cit.

(see note 3), para. 237, and Geneviève Viney, op. cit. (see note 1),

para. 102.

8. See, in this context, Geneviève Viney, op. cit. (see note 1),

para. 160.

9. See Geneviève Viney, op. cit. (see note 1), para. 111.

_______________

Since its Delcourt v. Belgium judgment of 17 January 1970,

Series A no. 11 (10), the Court has time and again stressed that in a

democratic society the right to fair administration of justice holds

such a prominent place that a restrictive interpretation of Article 6

para. 1 (art. 6-1) would not correspond to the aim and the purpose of

that provision (art. 6-1). The effect of the test accepted by the

Court is, however, that although certain victims of crime are, under

national law, permitted to participate as a party with full rights and

obligations in the criminal proceedings against the perpetrator of that

crime, yet, unlike the interests of the other parties to those

proceedings, their interests are not protected by Article 6 para. 1

(art. 6-1). If ever there was a restrictive interpretation of that

provision (art. 6-1) this is one (11)!

_______________

10. See p. 15, para. 25.

11. In this context I quote from one of the most recent handbooks on

the Convention, Donna Gomien, David Harris, Leo Zwaak, Law and Practice

of the European Convention on Human Rights and the European Social

Charter (Council of Europe, 1996), pp. 157-58: "... it is important to

remember that the Article [= Article 6] (art. 6) ... protects the

rights of the individual subject to court proceedings as a party."

(emphasis added)

_______________

10. The Court has, moreover, repeatedly stressed the increasing

sensitivity to the fair administration of justice (12). I would add

that there generally is also an increasing awareness of the need to

strengthen the position of victims of crime (13). The test accepted

by the Court runs counter to this trend. That test implies that the

interests of a victim of crime are more meritorious, more deserving of

protection, when the victim intends to claim financial compensation for

the damage he has suffered than when he does not intend to seek such

compensation but to content himself with seeking satisfaction by

assisting in securing the perpetrator's conviction.

_______________

12. See, among other authorities, the Bulut v. Austria judgment of

22 February 1996, Reports of Judgments and Decisions 1996-II, p. 359,

para. 47.

13. See note 8.

_______________

11. The test accepted by the Court implies that for the purpose of

applying Article 6 of the Convention (art. 6) there are two essentially

different kinds of civil party to criminal proceedings: one which joins

these proceedings in order to have its civil rights determined and one

which does so to further essentially different objectives. In view of

the points I made in paragraphs 9 and 10 above, this distinction could

only be accepted if the Court had been compelled to conclude that

national law makes that unavoidable. After all, the very purpose of

holding that the notion of "civil right" in Article 6 para. 1

(art. 6-1) is an autonomous one is to ensure that the protection

enshrined in that provision (art. 6-1) is as broad as possible.

Here again the Court has opted for an unnecessarily restrictive

interpretation, this time of the concept of "civil rights". From the

viewpoint of the Court there are, in my opinion, no compelling grounds

to assume that the right under Article 2 CCP is not a civil right under

French law. There are certainly no good grounds for holding that this

right is no civil right within the autonomous meaning of that concept

under the Convention.

12. Before I elucidate my opinion with respect to the first aspect,

I should explain why I said, in paragraph 11 above, "[f]rom the

viewpoint of the Court". The reason was that this case confronts us

with a particular feature of the French legal system: the extreme

succinctness of the judgments of the Court of Cassation. Since that

court usually restricts itself to formulating the rule to be applied,

it is not infrequently difficult to grasp the precise implications of

its decisions. Consequently, learned writers may be rather divided on

how the Court of Cassation's judgments should be explained as well as

on what should be deduced from them. In such cases it is rather

difficult for an international court like the European Court of

Human Rights to assess what exactly is the national law. It cannot but

try to form an opinion, but it should be clear that, being confronted

with different opinions of learned writers and left without decisive

guidance from the Court of Cassation, it necessarily has to do so with

a certain reticence, a freedom it should be allowed since, after all,

it is not deciding questions of French law.

Now, the evolution of the case-law of the Court of Cassation

in respect of the notion of civil action within the meaning of

Article 2 CCP is such that French learned authors are profoundly

divided as to the nature of the right under that provision. Some,

admittedly, distinguish two different kinds of civil action, one for

non-material and one for material purposes. The Court accepts their

view (see paragraphs 74 and 60 of its judgment) without considering

whether it is compelling. It does not even discuss the opposite view,

although there are other learned authors - and not the least

authoritative - who fundamentally disagree and maintain that the civil

action within the meaning of Article 2 CCP is and remains "essentially

an action for reparation, even if sometimes it is used less in order

to obtain compensation than in order to have the perpetrator of the

crime punished, which is the case if the victim only claims symbolic

compensation, one franc damages, or joins proceedings before a criminal

tribunal which has no jurisdiction to deal with a claim for damages"

(14).

_______________

14. See Gaston Stefani, Georges Levasseur and Bernard Bouloc, op. cit.

(see note 3), para. 162 in fine.

_______________

And indeed, seen from outside, neither the provisions of the

CCP nor the system of French law seem to make it compelling to

distinguish two fundamentally different kinds of civil action within

the context of criminal proceedings. On the contrary, those provisions

(15) and that system both seem to suggest that the civil action, even

if it is instituted before a criminal court and even if, consequently,

it is to a certain extent moulded by the rules of criminal procedure,

essentially remains the very same action for reparation as laid down

in Article 1382 of the Civil Code, thus having an essentially civil

character.

_______________

15. See, for example, Article 10 CCP: "The limitation period for a

civil action is that of the Civil Code. However, that action can no

longer be brought before the criminal courts after expiry of the

limitation period for prosecution."

_______________

In this context it is worth while noting that under the

consistent case-law of the civil courts the next of kin of a person who

has been injured or killed are entitled to claim compensation for the

non-material damage which they themselves suffered personally as a

consequence of that injury or death (16). The criminal courts have -

finally - also adopted that view (17). And indeed Article 3,

second paragraph, CCP underlines that "a civil action may be instituted

for all kinds of damage, material, corporeal or non-material, which

result from the facts which have given rise to the criminal

proceedings".

_______________

16. There was a time when the civil courts in this connection

differentiated between death and injury; in the former case the next

of kin were entitled to non-material damages for interference with

their feelings of affection, in the latter they were not. That

doctrine has, however, been abandoned. See for this evolution the

excellent report of Mr Justice Ponsard to the Plenary of the

Court of Cassation which gave judgment on 12 January 1979,

Juris-Classeur périodique 1980, 19335 (see, on this judgment, note 13).

17. In respect of the civil action under Article 2 CCP the Court of

Cassation once followed the civil courts' doctrine referred to in

note 16 where death had been caused. However, in its (plenary)

judgment of 12 January 1979 referred to in note 16 it refused to let

the evolution of the case-law of the civil courts referred to in that

note influence the admissibility of civil actions under Article 2 CCP:

it stressed that only those who had personally suffered damage directly

caused by the offence could make a civil-party application, noted that

in an injury case the victim's wife had not been wounded herself and

therefore was not a victim of the offence, and accordingly held that

she should not have been admitted as a civil party; the fact that she

could claim damages in the civil courts was immaterial

(see the comprehensive note by Mme M. Cartier,

Juris-Classeur périodique 1980, 19335). However, the Court of

Cassation abandoned this (much criticised) doctrine in its judgment of

9 February 1989, Bull. crim. 63, D. 1989.614, note by Bruneau. Since

then it has followed the civil courts in injury cases also: under

Article 2 CCP the next of kin may make a civil-party application with

respect to damage suffered as a result of having had to see their

relative suffer from his injuries (see also Crim. 23 May 1991, D. 1992,

Somm. 95, Comm. Pradel). See on this evolution also: Mme C. Roca,

D. 1991. Chr. pp. 85 et seq., and Geneviève Viney, op. cit.

(see note 1), para. 85, and especially para. 87.

_______________

Now, it is a commonplace of legal thinking that in principle

a sum of money can only be an imperfect form of satisfaction in respect

of non-material damages of the kind under discussion. Likewise, it is

generally accepted that, as an English judge put it:

"Many plaintiffs have mixed motives for bringing actions and

a claim for damages may often be a subsidiary matter to the

establishing as a matter of principle of the liability of the

defendant whom the plaintiff believes to have wronged him."

It is not surprising, therefore, that in France there is a very

firm tradition in this kind of case whereby plaintiffs claim and courts

allow a merely symbolic financial compensation of only one franc (18).

Such judgments have sometimes been criticised by the Court of

Cassation, but that has not put an end to the practice, which, on the

contrary, has found formulas which escape the Court of Cassation's

censure (19). Moreover, the idea behind this practice has been

approved by a good many learned authors (20). The result is that at

present the prohibition on symbolic compensation is itself to a large

extent symbolic, whilst the Court of Cassation itself seems to be

inclined to condone the idea (21).

_______________

18. See, for instance, P. Chambon, note under Ch. crim.

9 October 1978, D. 1979.185 (under III).

19. See, inter alia, Y. Chartier, La réparation du préjudice

(Dalloz, 1983), para. 471, who refers to the report of

Mr Justice Dauvergne with regard to the Court of Cassation's judgment

of 16 May 1974, D. 1974.513.

20. See, in addition to those referred to in note 14, Mazeaud and

Tunc, Traité théorique et pratique de la responsabilité civile

(6th ed.), para. 319 in fine.

21. See Traité de droit civil, V, Geneviève Viney, Les obligations;

La responsabilité: effets (1984), para. 64.

_______________

In a development consistent with this trend, the Court of

Cassation in its judgment of 8 June 1971 allowed plaintiffs to join

criminal proceedings as civil parties for the sole purpose "of

supporting the prosecution case and ensuring that the guilt of the

accused is established" (22). The Court of Cassation underlined that

under Article 2 CCP victims are completely free either to claim

financial compensation or not to submit such a claim.

_______________

22. Crim. 8 June 1971, D. 1971, jur., p. 594.

_______________

In other words, it seems at least arguable: (a) that

French criminal law has moulded the civil right to reparation of

non-material damage suffered as a result of another's "fault" - for

instance sorrow at the killing or maiming of a next of kin - so as to

encompass a right to have the guilt of the wrongdoer established, but

(b) that, in doing so, it has kept intact its essentially civil

character.

13. But even if this outsider's evaluation would be open to doubt

under French law, why should the victim's right to have the guilt of

the wrongdoer established not be classified as a civil right within the

autonomous meaning of Article 6 (art. 6)? Rights flowing from tort

have consistently been held to be civil rights (23), so why should the

victim's right to have the guilt of the wrongdoer established in court

not come within this autonomous notion, irrespective of the kind of

court concerned? Why should the rights flowing from tort be limited

to the right to financial compensation? Has not the European Court of

Human Rights itself repeatedly held that a judgment finding a violation

constitutes in itself sufficient just satisfaction with respect to

non-material damage suffered as a result of that violation?

_______________

23. See Harris, O'Boyle and Warbrick, Law of the European Convention

on Human Rights (Butterworths, 1995), p. 177.

_______________

14. From all this the Court should have concluded,

firstly, that whether or not a victim claims financial

compensation after being admitted as a (civil) party to the criminal

proceedings against the perpetrator of a punishable act which has

caused him non-material damage, he is at any rate asserting a right to

(a form of) compensation which, if not a purely civil right already

under French law, at any event comes within the autonomous notion of

civil right under Article 6 para. 1 (art. 6-1);

and, secondly, that to that extent the criminal proceedings

must be deemed to imply a determination of the victim's civil rights

within the meaning of that provision (art. 6-1).

B. The specific features of national law

15. The test accepted by the Court disregards, firstly, the fact

that Article 85 CCP allows a civil-party application to be made even

during the preliminary proceedings before the investigating judge

although that judge lacks jurisdiction to adjudicate (24) (to submit

a claim for financial compensation during these proceedings is

therefore pointless) and, secondly, the fact that during trial such a

claim can be submitted at any time up to the end of the hearing. In

other words: the victim is free to postpone the choice which, according

to the Court of Cassation, is implied in Article 2 CCP till the very

last moment of the criminal proceedings. That cannot but imply that

up till that moment the criminal proceedings must, right from their

beginning, meet the requirements of Article 6 (art. 6) also in respect

of the civil party. However, under the interpretation now accepted by

the Court, the victim will only be allowed to bring a complaint for a

failure to meet these requirements in the period before he had made his

choice, if the victim succeeds in persuading the Convention

institutions that during that period he had already formed the

intention of submitting a claim for financial compensation. That is

odd where the victim ultimately opts for financial compensation; it is

also odd where the victim finally chooses not to present such a claim,

because that choice may, of course, be influenced by deficiencies of

the criminal proceedings which fall within the ambit of Article 6

(art. 6): an excessive duration of those proceedings, as we have in the

present case, being only one of those deficiencies; lack of

impartiality, violation of the principle of equality of arms are other,

obvious examples of deficiencies which may in the end lead a victim to

change his mind and decide - as under national law he is free to do

without losing his standing as a civil party - not to submit a claim

for financial compensation.

_______________

24. See Gaston Stefani, Georges Levasseur and Bernard Bouloc, op. cit.

(see note 5), para. 171.

_______________

C. Legal certainty

16. I would have thought it was obvious that the requirement of

legal certainty makes it impossible for the applicability of the

guarantees of Article 6 (art. 6) to be made to depend on so moot a

factor as the subjective intentions of the civil party. The arguments

which we have been forced to read and listen to well illustrate the

point. The Government try to deduce that the applicant never intended

to claim financial compensation from the fact that she never did submit

such a claim. The applicant, however, answers that she intended to

submit such a claim all along but that when, after twelve years, the

defendant was acquitted, she felt that she no longer had a real chance

and therefore gave up. That would seem a reasonable explanation,

especially when one considers that pursuing a claim for financial

compensation after acquittal may entail the risk of having to pay the

costs of the ensuing further proceedings if the claim fails. Under

these circumstances the mere fact that the applicant did not after all

submit a claim for financial compensation does not prove - and cannot

prove - that at the time when she joined the criminal proceedings as

a civil party she did not ultimately intend to do so. What the

Government have requested the Court to do is to deny the applicant the

protection of the Convention on grounds that must necessarily remain

subjective and speculative. I am still quite unable to understand why

the Court has acceded to that request.

D. The facts of the case

17. The point I have been trying to make in paragraph 16 above may

be further illustrated by saying that, like Judge Repik, I think that,

on the face of the facts of the case as they have been presented to us,

it is likely that the applicant did indeed always intend to present a

claim for financial compensation. In that respect I agree with his

analysis, which I adopt.

18. The foregoing considerations have, I hope, made it clear why

I have voted against finding Article 6 (art. 6) not applicable. For

the reasons why I consider that Article 6 (art. 6) was violated I also

refer to the dissenting opinion of Judge Repik: I agree with his

reasons for finding a violation of Article 6 (art. 6).

DISSENTING OPINION OF JUDGE REPIK, JOINED BY JUDGE SPIELMANN

(Translation)

I regret that I am unable to agree with the majority's opinion

that Article 6 para. 1 (art. 6-1) is not applicable in the case.

In the case of Acquaviva v. France (judgment of

21 November 1995, Series A no. 333-A) the parents of the victim of a

homicide lodged a complaint together with an application to join the

proceedings as a civil party. "... They wished to discover the

circumstances of their son's death and requested a reconstruction of

the events; they did not seek damages" (p. 7, para. 8). Subsequently

they raised no claim for compensation nor did they ever mention an

intention of doing so at the appropriate stage of the proceedings. The

proceedings ended with a ruling that there was no case to answer, on

the ground that the accused could claim to have been acting in

self-defence. That finding - which excluded all criminal and civil

responsibility - deprived the applicants of any right to bring

proceedings for compensation in the civil courts. The Court concluded

that the applicants "set in motion judicial criminal proceedings with

a view to securing a conviction, which was a prior condition for

obtaining compensation, and retained the right to submit a claim for

damages up to and during the trial" (previously cited judgment,

pp. 14-15, para. 47).

The message of the above judgment must be read in the context

of French legislation, with its specific features, as interpreted by

the domestic courts. Case-law draws a distinction between the victim's

right to lodge a civil-party application and the right to claim

compensation for damage. This means that it is possible to bring

civil-party proceedings for the sole purpose of helping to secure a

proper conviction (1). If the victim also wishes to claim compensation

for the prejudice sustained, he must in addition file a claim for

damages, which may either be included in the civil-party application

or submitted later in a separate document. In the latter case

French law allows the victim to file his claim even after the criminal

judgment has been delivered (see paragraph 63 of the judgment), unlike

the position in certain other legal systems which require the victim

to specify at the outset the basis on which he is participating in the

proceedings and/or oblige him to file his claim for damages at an

earlier stage of the proceedings (2). If compensation is a possible

issue but the proceedings end with a result other than a conviction,

the consequence of the French system is that there is no objective

criterion for ascertaining what the true object of the victim was at

the time when he made his civil-party application, unless he has

already lodged his claim for compensation or has in some other way made

known during the proceedings his intention to claim compensation at the

appropriate time.

_______________

1. See paragraph 60 of the judgment and Procédures pénales en Europe,

ed. M. Delmas-Marty, PUF, Paris, 1995, pp. 230-31.

2. Czech law and Slovakian law distinguish between the position of a

person harmed by the offence as such, but who has not sustained any

economic loss on that account (Article 43 para. 1 of the

Code of Criminal Procedure - CCP), and the position of a person whose

economic interests are affected by the offence and who therefore, under

national law, has an arguable right to an award of damages (Article 43

para. 2 CCP). It has to be determined at the latest by the beginning

of the trial, in which of these two capacities the victim is taking

part in the proceedings. In German law a claim for damages must be

submitted, orally or in writing, before the trial opens

(Article 403 CCP).

_______________

In the case of Tomasi v. France (judgment of 27 August 1992,

Series A no. 241-A) the applicant lodged a complaint together with an

application to join the proceedings as a civil party. The proceedings

ended with a ruling that there was no case to answer. During the

proceedings the applicant never made any explicit claim for pecuniary

reparation or expressed in any other way his intention to do so at the

appropriate stage of the proceedings. Nor was any civil action for

compensation brought by the applicant in the civil courts after the

ruling that there was no case to answer, although this was

theoretically possible (see paragraph 118 of the Commission's opinion).

However, the Court based its ruling on an interpretation of national

law different from that given in the present case, to the effect that

Article 85 of the French CCP, which provided for the lodging of a

complaint together with an application to join the proceedings as a

civil party, simply applied Article 2 of the same Code, which laid down

the conditions for bringing civil-party proceedings (see paragraph 121

of the judgment). That interpretation means in substance that a

civil-party application implies a civil action for compensation in

respect of the damage caused by the offence.

On the essential points the present case does not differ from

the cases mentioned above. The applicant lodged a civil-party

application in circumstances where compensation was a possible issue.

The proceedings did not end in a conviction, which is normally a

precondition for the award of compensation in criminal proceedings.

Like Mr Tomasi and Mr and Mrs Acquaviva, the applicant did not submit

an explicit claim for compensation during the proceedings, but she was

not estopped from submitting such a claim even after the Assize Court's

judgment. Her conduct did not belie her assertion that in the event

of a conviction she would have submitted such a claim.

Admittedly, there are certain points which distinguish the

present case from the Tomasi and Acquaviva cases, but none of these

particular circumstances can justify a different conclusion. I shall

examine them in turn below.

The applicant did not lodge a complaint but joined the

proceedings already brought by the prosecuting authorities. That by

no means excludes the possibility of a subsequent compensation claim,

nor does it prove that the applicant had no intention of submitting

such a claim.

Payment of FRF 500,000 to the applicant's family by the accused

did not deprive her of the right to claim a further sum in damages.

At the hearing the Government Agent himself admitted this.

The proceedings ended at a more advanced stage than the

proceedings in the above-mentioned cases, namely with a judgment of the

trial court acquitting the accused. Unlike the position in those

cases, the applicant theoretically had the right to bring a civil

action not only in the civil courts but also in the criminal court

(Article 372 CCP). The majority's main argument is based on the fact

that the applicant did not make use of either of these remedies.

Logically, the applicant's subsequent inaction by no means

proves that if the outcome of the proceedings had been more favourable,

that is if the accused had been convicted, she would not have claimed

compensation. But even if it is accepted that the applicant's passive

conduct after the acquittal constitutes evidence of some kind as to her

initial intention, the value of that evidence must be assessed in the

light of the reasons why she did not bring the civil action that was

theoretically open to her.

According to the applicant, and this has not been denied by the

Government, the defence managed to adduce evidence in the Assize Court

which proved that the fatal bullet could not have come from the

accused's gun, or at least cast doubt on the possibility. That being

so, a compensation claim made to the criminal court had practically no

prospects of success. The same would probably have been true of an

action brought in the civil courts. Moreover, the applicant might

understandably have felt discouraged by the prospect of further -

probably lengthy and expensive - proceedings after criminal proceedings

which had already lasted eleven years.

But there is more. Unlike the position in the above-mentioned

cases, the applicant submitted evidence in support of her assertion

that she was ready to file her compensation claim after delivery of the

conviction she was expecting. She produced a copy of the pleading

prepared to be submitted to the Assize Court after the accused's

conviction. Her lawyer asserted that she contacted the

Advocate-General seeking an explanation why the Assize Court had not

held a hearing on the civil issues after delivery of the judgment

acquitting the accused (see paragraph 55 of the judgment). The

Government did not contest this. They only criticised the applicant's

lawyer for not following the correct procedure, in that she applied to

the Advocate-General and not to the registry of the Assize Court. But

however muddled the way the applicant's lawyer went about her work may

seem, her actions nevertheless reveal the intention to claim

compensation in the event of a conviction.

More generally, if the victim is given such latitude in

choosing when to file a compensation claim, the State rather than the

victim should suffer the consequences where the proceedings do not end

in a conviction and doubt remains about the victim's intention at the

time when the civil-party application was initially lodged. A victim

cannot be reproached for not filing a compensation claim while the

criminal proceedings were pending if he is entitled to wait until their

conclusion in order to do so. A victim who duly exercises his

statutory rights cannot be deprived of the protection of Article 6

para. 1 (art. 6-1) on the pretext that he must do more.

In short, I can see no valid reason to depart in this case from

the Court's existing case-law. The Court's ruling to the contrary

seems to me all the more regrettable as the victim - who deserves at

least as much protection as the accused - is not expressly protected

by the Convention in criminal proceedings and the protection which has

been inferred by means of the Court's case-law is thereby weakened.

Article 6 para. 1 (art. 6-1) being applicable, it is clear that

the applicant's case was not heard and determined within a reasonable

time. In that respect I agree with the Commission's opinion.



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