CEDH · PRESS;GENERAL;ENG — 25 mars 1999

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .sB9D5CABB { width:28.35pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sE9D9CFD7 { width:18.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s36603326 { width:18.34pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s23A41E03 { width:36pt; display:inline-block } .sE94AE824 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-indent:-28.35pt; text-align:justify } .s85325123 { width:28.35pt; text-indent:0pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } EUROPEAN COURT OF HUMAN RIGHTS     183   25.3.1999   Press release issued by the Registrar   JUDGMENT IN THE CASE OF PÉLISSIER AND SASSI v. FRANCE       In a judgment delivered at Strasbourg on 25 March 1999 in the case of Pélissier and Sassi v. France (application no.   25444/94), the European Court of Human Rights held unanimously that there had been a violation of Article 6 §§ 1 and 3 (a) and (b) (fair hearing) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants a specified sum for pecuniary and non-pecuniary damage and for legal costs and expenses.     I.   Principal facts     The applicants, François Pélissier and Philippe Sassi, are French nationals. Mr Pélissier, was born in 1944 and lives at Sanary-sur-Mer; Mr Sassi was born in 1935 and live at Cannes.     After a criminal investigation the applicants were committed to stand trial in the Toulon Criminal Court on charges of criminal bankruptcy. That court acquitted them in 1991, finding that they had not acted as de jure or de facto managers. In a judgment delivered on 26   November 1992 the Aix-en-Provence Court of Appeal upheld that finding but convicted them of aiding and abetting criminal bankruptcy instead. It sentenced them to a suspended term of eighteen months’ imprisonment and imposed a FRF 30,000 fine. The applicants’ appeal to the Court of Cassation was dismissed on 14 February 1994.   2.   Procedure and composition of the Court     The application to the Commission was lodged on 18 July 1994. After declaring the application admissible, the Commission adopted a report on 13 January 1998 in which it established the facts and expressed the unanimous opinion that there had been a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention as regards the conviction for an offence different from the one charged and the length of the proceedings. It referred the case to the Court on 28 April 1998. The French Government also brought the case before the Court.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the new European Court of Human Rights on the entry into force of the Protocol, on 1 November 1998.     Judgment was given by the Grand Chamber composed of 17 judges, namely:   Luzius Wildhaber   (Swiss), President , Elisabeth Palm   (Swedish), Nicolas Bratza   (British), Matti Pellonpää   (Finnish), Luigi Ferrari Bravo   (Italian) [1] , Gaukur Jörundsson   (Icelandic), Lucius Caflisch   (Swiss) [2] , Jean-Paul Costa   (French), Willi Fuhrmann   (Austrian), Karel Jungwiert   (Czech), Marc Fischbach   (Luxemburger), Nina Vajić   (Croatian), John Hedigan   (Irish), Margarita Tsatsa-Nikolovska   (FYROMacedonia), Tudor Pantiru   (Moldovan), Egils Levits   (Latvian), Kristaq Traja   (Albanian), Judges ,   and also Paul Mahoney , Deputy Registrar .     3.   Summary of the judgment [3]   Complaints     The applicants complained that the Court of Appeal had decided in deliberations to convict them of aiding and abetting criminal bankruptcy, which was not the offence charged, without hearing argument from the parties on the issue. They complained, too, of the length of the proceedings. They relied on Article 6 §§ 1 and 3 (a) and (b) of the Convention. Mr   Pélissier also complained under Article 6 § 1 of the Convention that a certificate relied on by the Court of Appeal should not have been admitted in evidence.   Decision of the Court     Article 6 §§ 1 and 3 (a) and (b) as regards the fairness of the proceedings     As regards the complaint concerning the Court of Appeal’s admission of a contested certificate as evidence against the first applicant, the Court, after rehearsing the main principles established by its case-law, found on the basis of all the material in its possession that the certificate and the Aix-en Provence Court of Appeal’s reliance on it had not been decisive in the conviction or sentence of Mr Pélissier. Thus, the fact that the document had been admitted in evidence had not impaired the fairness of the proceedings. Consequently, the use by the Court of Appeal of the document in issue did not entail a violation of Article 6 § 1 of the Convention.     The Court went on to consider the decision of the Aix-en-Provence Court of Appeal to convict the applicants of a different offence. After explaining the scope of Article 6 § 3 (a) and (b), the Court noted that the only charge contained in the order committing the applicants for trial before the Criminal Court was criminal bankruptcy. There was nothing to suggest that a charge of aiding and abetting criminal bankruptcy was considered to have been a genuine possibility during the investigation. Argument before the Criminal Court had been confined to the offence of criminal bankruptcy.     On the public prosecutor’s appeal to the Aix-en-Provence Court of Appeal the applicants were at no stage, whether in the summons to appear or at the hearing, accused by the judicial authorities of having aided and abetted criminal bankruptcy. On the facts, the Court found that it had not been established that the applicants were aware that the Court of Appeal might return an alternative verdict of “aiding and abetting” criminal bankruptcy. None of the Government’s arguments, whether taken together or in isolation, could suffice to guarantee compliance with the provisions of Article 6 § 3 (a) of the Convention.     With regard to the question whether the notion of aiding and abetting under French law meant that the applicants ought to have been aware of the possibility that a verdict of aiding and abetting criminal bankruptcy might be returned instead of one of criminal bankruptcy, the Court noted that the provisions of Articles 59 and 60 of the Criminal Code as applicable at the material time expressly provided that aiding and abetting could be made out only on proof of a number of special elements, subject to strict, cumulative conditions. The Court could not, therefore, accept the Government’s submission that aiding and abetting differed from the principal offence only as to the degree of participation. It was not for the Court to assess the merits of the defences the applicants could have relied on had they had an opportunity to make submissions on the charge of aiding and abetting criminal bankruptcy. It merely noted that it was plausible that the defence would have been different from the defence to the substantive charge. Further, the principle that criminal statutes had to be strictly construed meant that it was not possible to avoid having to make out the specific elements of aiding and abetting.     The Court also found that aiding and abetting did not constitute an element intrinsic to the initial accusation known to the applicants from the beginning of the proceedings. The Court accordingly considered that, in using the right which it unquestionably had to recharacterise facts over which it properly had jurisdiction, the Aix-en-Provence Court of Appeal should have afforded the applicants the possibility of exercising their defence rights on that issue in a practical and effective manner and, in particular, in good time. It found nothing in the case before it capable of explaining why, for example, the hearing had not been adjourned for further argument or, alternatively, the applicants had not been requested to submit written observations while the Court was in deliberation. On the contrary, the evidence indicated that the applicants had been given no opportunity to prepare their defence to the new charge, as it was only through the Court of Appeal’s judgment that they had become aware of the recharacterisation of the facts. Plainly, that had been too late.     The Court concluded that the applicants’ right to be informed in detail of the nature and cause of the accusation against them and their right to have adequate time and facilities for the preparation of their defence had been infringed. Consequently, there had been a violation of paragraph 3 (a) and (b) of Article 6 of the Convention, taken together with paragraph 1 of that Article.     Article 6 § 1 of the Convention as regards the length of the proceedings     The Court noted that the period to be taken into consideration in determining whether the proceedings satisfied the “reasonable length” requirement laid down by Article 6 § 1 had begun when Mr Pélissier and Mr Sassi were charged, that is to say on 14 September 1984 and 12 June 1985 respectively, and ended with the judgment of the Court of Cassation of 14   February 1994. Consequently, the proceedings had lasted nine years and five months in the case of the first applicant and eight years, eight months and two days in the case of the second applicant .     The reasonableness of the length of proceedings was to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. In the case before it, the Court found that the length of the proceedings could not be justified by the complexity of the case and that there was nothing to suggest that the applicants had been responsible for the delays in the proceedings.     The Court also considered that there had been unjustified delays and periods of inactivity during the investigation, which were attributable to the national authorities. Consequently, there had been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings.     Article 41 of the Convention     The Court noted that in the case before it an award of just satisfaction could only be based on the fact that the applicants had not had the benefit of the guarantees of Article 6. Whilst it could not speculate as to the outcome of the trial had the position been otherwise, it did not find it unreasonable to regard the applicants as having suffered a loss of real opportunities. To that had to be added the non-pecuniary damage which the findings of a violation in the present judgment did not suffice to remedy. Ruling on an equitable basis, in accordance with Article 41, it awarded them FRF 90,000 each.     With regard to costs and expenses, the Court, ruling on an equitable basis, awarded the applicants FRF 70,000 each.     * * *     Judgments are available on the day of delivery on the Court’s Internet site (www.dhcour.coe.fr)     Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact: Roderick Liddell Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91 [1]   Judge elected in respect of San Marino. [2]    Judge elected in respect of Liechtenstein [3]   This summary by the Registry does not bind the Court.