VACHER v. FRANCE (64/1995/570/656) 17 December 1996: Lack of time to prepare appeal.

SUMMARY
France - convicted appellant hindered in presenting his appeal on points of law to the Court of Cassation by lack of time-limit for filing pleading

I. Scope of the case
Complaint of violation of Article 6 § 3 (a) of the Convention -outside scope of case as defined by Commission's decision on admissibility.

II. Article 6 §§ 1 and 3 (b) and (c) of the Convention
Applicant complained of lack of time-limit for filing a pleading in support of his appeal on points of law - Court did not have to assess French system for preparing criminal appeals on points of law for hearing.
Manner in which Article 6 applied depended upon special features of the proceedings involved - account had to taken of the role of the Court of Cassation.
Putting the onus on convicted appellants to find out when an allotted period of time started to run or expired was not compatible with the "diligence" which the Contracting States had to exercise to ensure that the rights guaranteed by Article 6 were enjoyed in an effective manner.
Since there had been no fixed date for filing a pleading and Court of Cassation took less time than usual to hear appeal, without applicant being either warned of the fact by the registry or able to foresee it, he had been deprived of possibility of putting his case in the Court of Cassation in a concrete and effective manner.
It was unnecessary for Court to rule on complaint of a violation of the principle of equality of arms between applicant and prosecution.

Conclusion: violation (six votes to three).

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) AND (c) OF THE CONVENTION
19. Mr Vacher complained that he had not had a fair trial as the Court of Cassation had dismissed his appeal on points of law for failure to lodge grounds of appeal, without informing him of the time-limit for filing a pleading. He relied on paragraphs 1 and 3 (b) and (c) of Article 6 of the Convention, which provide:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

..."

By not laying down a time-limit for lodging a personal pleading - that is to say one that has not been drafted by a member of the Conseil d'Etat and Court of Cassation Bar - the Code of Criminal Procedure had prevented him from exercising his defence rights. His pleading had been received by the registry after his appeal on points of law had been dismissed and had therefore been disregarded as being out of time. Yet his lawyer had lodged it within a reasonable time, in this instance two and a half months after the notice of appeal had been filed. On the Government's own admission, the average time for preparing for hearing an appeal on points of law in which the appellant was not represented by a member of the Conseil d'Etat and Court of Cassation Bar was three months. The Court of Cassation's registry could remedy this statutory shortcoming by informing appellants who did not wish to be represented by a member of the Conseil d'Etat and Court of Cassation Bar of the date on which their appeal would be heard. It was not for convicted appellants to take steps to find out that date. Indeed, the legislature had been conscious of the perverse effects of this legal vacuum, because the new Article 585-1 of the Code of Criminal Procedure now laid down a one-month time-limit (see paragraph 13 above).
Furthermore, the French system for preparing criminal appeals on points of law for hearing created an inequality of treatment between those appellants who were represented by a member of the Conseil d'Etat and Court of Cassation Bar and those who were not. A member of the Conseil d'Etat and Court of Cassation Bar was given a time-limit that enabled him not only to protect himself from forfeiture of the right to proceed, but also to ensure that his written observations would in fact be considered by the reporting judge. Neither of those safeguards was provided in equivalent conditions to appellants who acted in person or were assisted by a member of the ordinary Bar.
Lastly, there was inequality of arms between the defence and the prosecution. The procureur général at the Court of Cassation was personally advised of the progress of proceedings and of the hearing date, and at the hearing he could make observations without the appellant's being permitted to reply.

20. The Commission essentially agreed with the applicant.

21. In the Government's submission, an appeal to the Court of Cassation was a special form of appeal. The Court of Cassation was not therefore a third level of jurisdiction and special rules applied to criminal proceedings before it. The distinction made in the law between appellants who were represented by a member of the Conseil d'Etat and Court of Cassation Bar and those who were not was justified by the monopoly of representation in proceedings before the Conseil d'Etat and the Court of Cassation. Not imposing a time-limit on unrepresented appellants for filing pleadings gave an advantage to appellants who were not legal practitioners and who consequently were given more time than members of the Conseil d'Etat and Court of Cassation Bar to prepare their case. However, even though unrepresented appellants had more time, they should not remain inactive. On the contrary, they had to be vigilant as, under Article 604, first paragraph, of the Code of Criminal Procedure, the Court of Cassation was entitled to rule on the appeal once ten days had elapsed after the registry had received the case file. The 1993 reform was designed to ensure equality between all appellants.
Mr Vacher had deliberately chosen not to be assisted by a member of the Conseil d'Etat and Court of Cassation Bar. He should, consequently, have shown a minimum of diligence. In the present case the time available to him to draft his pleading - more than two months (28 May 1991 - 6 August 1991) - should have allowed him to prepare his case. Furthermore, he had been assisted by counsel who, though not a member of the Conseil d'Etat and Court of Cassation Bar, could not legitimately plead his ignorance of current practice in order to complain that the procedure was unfair. He should have taken advice from colleagues who specialised in Court of Cassation cases and taken one of the following steps: asked the Court of Cassation's registry when the Court of Appeal had forwarded the case file, that being when the ten-day period laid down in Article 604 of the Code of Criminal Procedure began to run; informed the reporting judge of his client's intention to file a pleading and applied to that judge for the case not to be listed for imminent hearing; or found out when the appeal was to be heard. Neither the applicant nor his lawyer had made use of the means available to them for ensuring that they actually enjoyed the rights protected by Article 6 of the Convention. In their neglect, identical to that which the Court had found in respect of Mr Melin (see the Melin v. France judgment of 22 June 1993, Series A no. 261-A), they had betrayed a distinct lack of interest in the outcome of the proceedings.
There could be no question in the instant case of the principle of equality of arms between the prosecution and the defence having been breached. In view of the special nature of appeals to the Court of Cassation, only the judgment appealed against was being impugned, irrespective of the appellant's status. Far from acting as the prosecution, the role of the procureur général's office at the Court of Cassation was that of an adviser on the law, providing the court with a legal view of the case in the same way as the reporting judge.
Lastly, procedure before the Court of Cassation was essentially written, oral submissions being rare. In that respect there was no objective difference between appellants represented by a member of the Conseil d'Etat and Court of Cassation Bar and those who were not.

22. As the requirements of paragraph 3 (b) and (c) of Article 6 of the Convention constitute specific aspects of the right to a fair trial, guaranteed under paragraph 1, the Court will examine all the complaints under the three provisions taken together (see, among other authorities, the Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 16, § 31).

23. In the instant case the Court does not have to assess the French system for preparing criminal appeals on points of law for hearing. It will confine itself to considering the problem raised by the specific case before it. More particularly, it must ascertain whether the rights relied on by Mr Vacher, which are inherent in the concept of a fair trial, were violated in that - in accordance with the statutory provisions in force at the time - he was not given a time-limit for lodging a pleading, and consequently, not having been informed of the date of the hearing, lodged his observations eight days after the appeal had been dismissed.

24. The manner in which Article 6 applies clearly depends upon the special features of the proceedings involved and, in order to assess whether its requirements have been complied with, account must be taken of the role of the Court of Cassation (see, among other authorities, the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 14-15, §§ 25-26, and the Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, § 56).

25. Under Articles 585 and 588 of the Code of Criminal Procedure (see paragraph 13 above), a convicted appellant has the choice between instructing a member of the Conseil d'Etat and Court of Cassation Bar or presenting his own case. However, the reporting judge will only give a time-limit for filing a pleading in the first of those eventualities. In the instant case Mr Vacher, assisted by Mr Ricard (who is not a member of the Conseil d'Etat and Court of Cassation Bar), had until the date of the hearing to file his pleading.

26. The Government submitted that the Court had already held in the Melin case, which was identical to the present one, that the rules applicable to criminal appeals on points of law "were sufficiently coherent and clear" (see the Melin judgment cited above, p. 12, § 24).
The Court notes that, as is apparent from its judgment in the Melin case, it reached the conclusion that there had been no violation having regard to the very special circumstances of that case. Besides the fact that the complaints primarily concerned a failure to serve a copy of a court of appeal judgment in time, it notes, like the Commission, two points. Firstly, in the Melin case there was a gap of four and ten days (17 January 1986 - 27 May 1986) between the lodging of the appeal on points of law and its dismissal and no pleading was received by the registry, whereas in the instant case the Court of Cassation dismissed the appeal two months and nine days after it was lodged (28 May 1991 - 6 August 1991) and the pleading was filed on 14 August 1991, two and a half months after the appeal was lodged. Secondly, Mr Melin had practised as a lawyer and had in addition worked in the chambers of a member of the Conseil d'Etat and Court of Cassation Bar.

27. On the basis of the information supplied by the Government, the average time taken by the Court of Cassation to consider a case is approximately three months from the date of the appeal - two months for the case file to reach the Court of Cassation and one month for the court to deliver judgment. In the instant case the appeal was dismissed within a shorter period without the applicant being informed of the date of the hearing. Mr Vacher may have been taken by surprise by the fact that the proceedings took less time than average and, consequently, believing himself to be within the usual time for filing a pleading, may have seen no reason to worry about the hearing date.

28. The Court emphasises that States must ensure that everyone charged with a criminal offence benefits from the safeguards provided by Article 6 § 3. Putting the onus on convicted appellants to find out when an allotted period of time starts to run or expires is not compatible with the "diligence" which the Contracting States must exercise to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see the Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 15, § 28).

29. Furthermore, it is apparent from the explanatory memorandum of the Law of 24 August 1993 that the provision of the Code of Criminal Procedure criticised by the applicant was amended by the French legislature on account of the difficulties caused by the frequent dismissal of appeals on points of law for want of grounds of appeal, and in order to avoid such situations recurring. The new Article 585-1 now requires convicted appellants to file their pleadings within a period of one month, which may be extended (see paragraph 13 above).

30. In conclusion, since there was no fixed date for filing a pleading and the Court of Cassation took less time than usual to hear the appeal, without Mr Vacher being either   warned of the fact by the registry or able to foresee it, he was deprived of the possibility of putting his case in the Court of Cassation in a concrete and effective manner.

There has therefore been a violation of Article 6.

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