Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DELTA v. FRANCE - 11444/85 [1990] ECHR 30 (19 December 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/30.html
Cite as: [1990] ECHR 30, 16 EHRR 574, (1993) 16 EHRR 574
[New search] [Contents list] [Help]
In the Delta case*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and
the relevant provisions of the Rules of Court***, as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mr J. De Meyer,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 29 August and 20 November 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 26/1989/186/246. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
14 December 1989, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 11444/85)
against the French Republic lodged with the Commission under
Article 25 (art. 25) by a national of that State,
Mr Michel Sophie Delta, on 4 August 1984.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) of the Convention and to the declaration whereby France
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and
3 (d) (art. 6-1, art. 6-3-d).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 January
1990, in the presence of the Registrar, the President drew by lot
the names of the other seven members, namely Mr J. Cremona,
Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Sir Vincent Evans,
Mr R. Macdonald, Mr C. Russo and Mr J. De Meyer (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr Thór Vilhjálmsson, substitute judge, replaced
Mrs Bindschedler-Robert, who was unable to take further part in
the consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the French Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the need for a
written procedure (Rule 37 para. 1). In accordance with the
order made in consequence on 2 March 1990, the Registrar received
the applicant's memorial on 3 May. On 23 May and 8 June the
Agent of the Government and the Delegate of the Commission
informed the Registrar that they would submit their observations
at the hearing.
5. On 8 June the Secretary to the Commission produced the
file on the proceedings before the Commission which the Registrar
had sought from him on the President's instructions.
6. Having consulted, through the Registrar, those who would
be appearing before the Court, the President directed on 29 June
that the oral proceedings should open on 27 August 1990
(Rule 38).
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Baudillon, Assistant Director,
Department of Legal Affairs, Ministry
of Foreign Affairs, Delegate of
the Agent,
Mr M. Simamonti, magistrat, Department of
Criminal Affairs and Pardons, Ministry of Justice,
Mrs I. Chaussade, magistrat,
Department of Legal Affairs, Ministry of
Foreign Affairs, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr P.-F. Divier, avocat, Counsel.
The Court heard addresses by Mr Baudillon for the Government,
Mr Soyer for the Commission and Mr Divier for the applicant, as
well as their replies to its questions.
8. On 31 August the Registrar received from the applicant's
lawyer the documents which the applicant had indicated in his
memorial would be filed.
AS TO THE FACTS
I. The circumstances of the case
9. Mr Michel Sophie Delta is a French citizen who was born
in Guadeloupe and lives there today after having spent some time
in metropolitan France.
A. The police investigation
10. At 6.40 p.m. on 29 March 1983 a girl of 16, Miss Poggi,
and a friend of the same age, Miss Blin, were in a Paris
underground station when two coloured men accosted them. One of
the men snatched a gold chain and crucifix which Miss Poggi was
wearing round her neck and ran towards the exit.
11. The two girls immediately went to the central police
station of the 12th District, and at 7 p.m., as a result,
Mr Delta was arrested by Police Constable Bonci, accompanied by
the two girls, in a building by the exit from the underground.
The victim and her friend immediately said they recognised him.
A search of the applicant and subsequently of the premises
yielded nothing, however.
12. The applicant was taken to the central police station of
the 12th District and questioned at 8.40 p.m. by Chief Inspector
Mercier, an officier de police judiciaire, about his identity and
means of subsistence and was then taken into police custody.
13. From 10 a.m. to 10.20 a.m. the following day, Inspector
Duban, who was likewise an officier de police judiciaire, took a
statement from him about the facts of the case. Mr Delta said
that at about 6.30 p.m. he had been set upon by four people who
had chased him into the underground and stolen a cigarette
lighter and 100 francs from him. He surmised that one of them
could have committed the robbery as the two girls went by. He
said that he had run away because he had been put in fear by his
four attackers.
Subsequently (the exact time is not given in the police report),
Inspector Duban interviewed both girls separately, each in the
presence of her mother. They confirmed that the person who had
been arrested was indeed the person who had committed the
offence. The victim lodged a complaint alleging robbery.
Mr Delta was never formally confronted with Miss Poggi and
Miss Blin.
14. The Chief Superintendent in charge of the Fourth Area
police force forwarded the file to the public prosecutor's
office.
B. The judicial proceedings
1. Paris Criminal Court
15. The Paris public prosecutor considered that a judicial
investigation was unnecessary and accordingly used the direct
committal procedure (Articles 393 to 397-7 of the Code of
Criminal Procedure, as amended by the "Security and Freedom" Act
of 2 February 1987).
16. On 31 March 1983 Mr Delta appeared before the
23rd Division of the Paris Criminal Court, which made an
interlocutory order for a psychiatric report and a social inquiry
report and remanded him in custody.
17. On 5 May the court passed a sentence of three years'
imprisonment on him. The judgment contained the following
reasons:
"The facts (robbery by snatching a neckchain and crucifix from
the victim) [are established], notwithstanding the defendant's
denials, by the evidence obtained, in particular by means of the
statements of Police Constable Bonci, who gave evidence on oath.
The defendant must be convicted and punished very severely,
having regard to the nature of the offence committed with the use
of violence.
Moreover, in a judgment dated 22 October 1981 Delta ... was
sentenced to two years' imprisonment by the Paris Court of Appeal
for robbery and consequently is legally a reoffender under
Article 58 of the Criminal Code;
..."
18. Although they had been duly summoned by the prosecution,
the two girls did not attend the trial and gave no reasons for
their failure to do so. The court did not take any steps to have
them brought before it under Article 439 of the Code of Criminal
Procedure (see paragraph 24 below).
The accused, whose defence was in the hands of two trainee
barristers who had successively been assigned to him by the
court, had not submitted any pleadings suggesting that any
witnesses should be examined or asking for any further inquiries
to be made into the facts.
2. Paris Court of Appeal
19. Mr Delta appealed, claiming that he was the victim of
mistaken identity. Relying on Article 513, second paragraph, of
the Code of Criminal Procedure (see paragraph 25 below) and
Article 6 para. 3 (d) (art. 6-3-d) of the Convention, he also
expressly sought to have the victim, the person who was with her
and two witnesses on his behalf called; he asserted that he had
himself urged the concierge and a resident in the building where
he had taken refuge to alert the police, as he feared for his
safety if his pursuers caught up with him.
20. On 28 September 1983 the Paris Court of Appeal
(10th Division) upheld the whole of the judgment of the court
below after refusing the application for examination of witnesses
in the following terms:
"After the defendant's arrest, Miss Poggi formally stated that he
was the man who had snatched the chain from her. Miss Blin
likewise identified Delta as being responsible for the snatch
theft from Miss Poggi.
These statements satisfy the Court that the defendant was guilty
of the offences charged and make the requested examination of
witnesses unnecessary."
3. Court of Cassation
21. Mr Delta appealed on points of law, alleging a violation
of Article 6 para. 3 (d) (art. 6-3-d) of the Convention and
Article 513 of the Code of Criminal Procedure.
The Court of Cassation (Criminal Division) dismissed the appeal
in a judgment of 4 October 1984 on the following grounds:
"It appears from the impugned judgment of the Court of Appeal
that Delta, who was prosecuted for robbery and claimed to be the
victim of mistaken identity, asked the Court of Appeal to order
an examination of the victim and of witnesses, and that the court
below, after studying the statements taken during the
investigation from Miss Poggi, the victim, and from the witness
Bonci, refused this application on the grounds that those
statements satisfied it that the defendant was guilty of the
offences charged and made the requested examination of witnesses
unnecessary.
In so holding, the Court of Appeal, far from violating the
provisions of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, gave its decision a legal basis.
The ground of appeal, which does no more than attempt to call in
question the appeal court's final assessment of all the evidence
adduced at the trial and of whether it was appropriate to order
further inquiries into the facts, cannot be accepted.
..."
C. The applicant's release
22. Mr Delta was released on 9 September 1985, after spending
a little over two years and five months in prison.
II. The examination of witnesses by criminal courts
(juridictions correctionnelles de jugement)
23. In French law the rules governing the examination of
witnesses by criminal courts differ according to whether the
court is hearing the case at first instance or on appeal.
A. Examination in the Criminal Court
24. The main provisions of the Code of Criminal Procedure
applicable in the Criminal Court are the following:
Article 437
"Anyone called to be heard as a witness shall be required to
appear, to take the oath and to give evidence."
Article 438
"A witness who fails to appear or who refuses either to take the
oath or to give evidence may, on an application by the public
prosecutor, be punished by the court as provided for in
Article 109."
Article 439
"If a witness fails to appear and has not put forward any excuse
recognised as being valid and legitimate, the court may, on an
application by the public prosecutor or of its own motion, order
the witness to be brought before it immediately by the police in
order to be examined or adjourn the case.
..."
Article 442
"Before proceeding to examine the witnesses, the presiding judge
shall question the accused and take statements from him. The
public prosecutor and, through the presiding judge, the civil
party seeking damages and the defence may put questions to him."
Article 444
"The witnesses shall subsequently give their evidence in turn,
either as to the offences with which the accused is charged or as
to his personality and morals.
The witnesses called by the prosecuting parties shall be heard
first, subject to the presiding judge's discretion to determine
himself the order in which the witnesses shall be heard.
With the court's leave, evidence may also be given by persons
suggested by the parties and who are present at the beginning of
the trial but have not been formally summoned."
Article 452
"Witnesses shall give evidence orally.
Exceptionally, however, they may, with the leave of the presiding
judge, make use of documents."
Article 454
"After each witness has testified, the presiding judge shall put
to him any questions he deems necessary and, where appropriate,
those that are suggested to him by the parties.
A witness may withdraw after testifying, unless the presiding
judge decides otherwise.
The public prosecutor, the civil party seeking damages and the
accused may request, and the presiding judge may always order,
that a witness should temporarily withdraw from the hearing-room
after giving evidence in order to be brought back and examined if
necessary after other witnesses have given evidence, with or
without a confrontation."
Article 455
"During the trial the presiding judge shall, if necessary, have
the exhibits shown to the accused or witnesses again and shall
hear their comments."
B. Examination in the Court of Appeal
25. The procedure laid down by law for the Criminal Court
also applies in principle to the Court of Appeal but subject to
an important proviso in the second paragraph of Article 513 of
the Code of Criminal Procedure, which reads:
"Witnesses shall be heard only if the court [of appeal] so
orders."
26. This provision has given rise to a line of decisions by
the Criminal Division of the Court of Cassation, which appears to
have departed from these precedents in 1989, that is to say after
the events in the instant case.
1. The case-law until 1989
27. The Criminal Division decided very early on that appeal
courts were not required to hear afresh witnesses who had already
given evidence at the original trial, even where an application
had been made for them to be re-examined; it did, however, lay on
them the obligation to hear and determine any applications made
and to give reasons for any refusal (30 October and
13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253;
20 October 1892, Recueil périodique Dalloz (DP) 1894, I, p. 140;
13 January 1916, DP 1921, I, p. 63; 20 December 1955, Dalloz
1956, sommaires, p. 29).
Where they considered it useful or necessary, appeal courts could
summon witnesses who had not testified in the Criminal Court; but
if they refused to call such witnesses, it was sufficient by way
of reasons if they stated in their judgment that there was no
need for further inquiries into the facts (20 October 1892,
Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975,
Bull. no. 237, p. 629).
2. The case-law since 1989
28. The Criminal Division's approach seems to have changed
markedly in its Randhawa judgment of 12 January 1989:
"By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms,
'everyone charged with a criminal offence has the [right] to
examine or have examined witnesses against him'. It follows
that, unless it is impossible for reasons which they must
specify, courts of appeal are bound, on a properly made
application, to order the examination in the presence of the
parties of prosecution witnesses who have not been confronted
with the defendant at any stage of the proceedings.
Sarb Randhawa, who was charged with drug-trafficking and a
customs offence, made an application to the Court of Appeal for
an examination inter partes of the witnesses Joris Suray and
Catherine Guillaume, whom he had had summoned and whose
statements provided, he claimed, the sole basis for the finding
of guilt. He said that he had not been able to have them
examined at any stage of the proceedings.
In support of its refusal of this application, and although it
based its finding of the defendant's guilt solely on the
statements of the aforementioned witnesses, the court below noted
merely that the witnesses whose examination had been sought had
been interviewed during the police inquiries and the judicial
investigation and that the defendant had been informed of the
charges arising from their statements.
But while a refusal to hear evidence from a prosecution witness
does not, as such, infringe the aforementioned provisions of the
Convention, since the court may take into account any special
difficulties entailed by an inter partes examination of a given
witness, for example the risk of intimidation, pressure or
reprisals, such a refusal must nevertheless comply with the
rights of the defence and the court must explain why a
confrontation is impossible.
This was not so in the instant case, and the judgment must
accordingly be set aside ..." (Bull. 1989, no. 13, pp. 37-38)
This approach was confirmed in a judgment of 22 March 1989 (case
of X, Bull. 1989, no. 144, pp. 369-371).
PROCEEDINGS BEFORE THE COMMISSION
29. In his application of 4 August 1984 to the Commission
(no. 11444/85), Mr Delta alleged a breach of Article 6 paras. 1
and 3 (d) (art. 6-1, art. 6-3-d) of the Convention, claiming that
he had not had a fair trial as his conviction was based solely on
statements made to the police by witnesses whom neither he nor
his counsel had been able to examine.
30. The Commission declared the application admissible on
8 September 1988.
In its report of 12 October 1989 (made under Article 31)
(art. 31) the Commission expressed the opinion that there had
been a violation of paragraph 1 of Article 6 taken together with
paragraph 3 (d) (art. 6-1, art. 6-3-d). The full text of the
Commission's opinion, which was unanimous, is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 191
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
31. In his memorial the applicant requested the Court to:
"Hold that in the instant case France violated Article 6 para. 1
taken together with paragraphs 2 and 3 (b) and (d) (art. 6-1,
art. 6-2, art. 6-3-b, art. 6-3-d);
Find that there have been these violations and in consequence:
Order France to pay Mr Delta the sum of FRF 156,698.49 ... with
interest at the French statutory rate from the date of the
Court's decision, in compensation for the pecuniary damage
sustained by Mr Delta;
Order France likewise to pay him the sum of FRF 600,000 ... with
interest at the French statutory rate from the date of the
Court's decision, in compensation for the non-pecuniary damage
sustained by Mr Delta owing both to the violation itself and to
the feelings of distress which resulted from it and to the loss
of liberty in difficult prison conditions for two years and seven
months;
Order it to compensate Mr Divier, of the Paris Bar, direct by way
of paying him the sum of FRF 24,000 ..., likewise with interest
at the French statutory rate from the date of the Court's
decision, in compensation for the loss of earnings he has
sustained as a result of defending Mr Delta free of charge (but
not under the legal-aid scheme) in both appeal and cassation
proceedings;
And lastly, if the Court considers it fair, order France to
compensate Mr Divier direct for the loss of earnings sustained by
him on account of work done at the European Commission and Court
stage but not wholly covered by legal aid, as indicated above."
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)
(art. 6-1, art. 6-3-d)
32. Mr Delta complained that he had not had a fair trial. He
relied on paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d)
of the Convention:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a]
tribunal ... ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
..."
The Paris Criminal Court and Court of Appeal had allegedly
convicted him on the strength solely of statements made to the
police by persons - the victim of a robbery, Miss Poggi, and a
friend of hers, Miss Blin - whom neither his lawyer nor he
himself had been able to examine or have examined before either
of those two courts or, because of recourse to the direct
committal procedure, before an investigating judge. They had
thus, he claimed, deprived him of the opportunity to impugn the
statements of the two persons concerned. The only witness heard
at the trial was the police constable who had arrested Mr Delta
and taken the initial statements of Miss Poggi and Miss Blin; but
he had not witnessed the attack in the underground and was not an
officier de police judiciaire (see paragraph 11 above). The
Court of Appeal refused to call two defence witnesses and
likewise considered it unnecessary to hear evidence from the
complainant and her friend. In sum, the applicant claimed that
he had been tried exclusively on the basis of written evidence,
in accordance with a practice of taking hearsay evidence from
policemen.
The Commission accepted these arguments in substance.
33. The Government pointed out that in the Paris Criminal
Court the applicant did not call any witnesses or request any
further inquiries into the facts. They added that the
prosecution did not fail to summon the victim of the attack and
her friend, but the girls did not appear in court; there had
accordingly not been any inequality of treatment between the
prosecution and the defence.
In the Court of Appeal Mr Delta had indeed asked that Miss Poggi
and Miss Blin should be called, together with two defence
witnesses, but the Government alleged that he had only done so in
order to challenge the judgment at first instance by every
possible means and not in order to complain of any inequality of
treatment.
Generally speaking, Article 6 para. 3 (d) (art. 6-3-d) did not,
they submitted, give an accused an unlimited right to call
witnesses; it allowed the judicial authorities a discretion to
decide whether hearing a witness could contribute to the
discovery of the truth. The applicant had in no way shown how
the appearance in court of the victim and her friend or of
defence witnesses who had not seen what had happened could
provide any evidence of his innocence.
34. As the guarantees in paragraph 3 of Article 6 (art. 6-3)
are specific aspects of the right to a fair trial set forth in
paragraph 1 (art. 6-1), the Court will consider the applicant's
complaint under paragraphs 3 (d) and 1 taken together
(art. 6-3-d, art. 6-1), (see, among other authorities, the
Windisch judgment of 27 September 1990, Series A no. 186, p. 9,
para. 23).
Although the victim of the offence and her friend did not testify
in court in person, they are to be regarded for the purposes of
Article 6 para. 3 (d) (art. 6-3-d) as witnesses - a term to be
given an autonomous interpretation (ibid., p. 9, para. 23) -
since their statements, as reported orally by Police Constable
Bonci at the Criminal Court hearing and as recorded in writing by
Inspector Duban, were in fact before the court, which took them
into account.
35. The admissibility of evidence is primarily a matter for
regulation by national law, and, as a general rule, it is for the
national courts to assess the evidence before them. Accordingly,
the Court's task under the Convention is to ascertain whether the
proceedings considered as a whole, including the way in which
evidence was taken, were fair (ibid., p. 10, para. 25).
36. In principle, the evidence must be produced in the
presence of the accused at a public hearing with a view to
adversarial argument. This does not mean, however, that in order
to be used as evidence statements of witnesses should always be
made at a public hearing in court: to use as evidence such
statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6
(art. 6-3-d, art. 6-1), provided the rights of the defence have
been respected. As a rule, these rights require that an accused
should be given an adequate and proper opportunity to challenge
and question a witness against him, either at the time the
witness makes his statement or at some later stage of the
proceedings (see the Kostovski judgment of 20 November 1989,
Series A no. 166, p. 20, para. 41).
37. In the instant case Miss Poggi and Miss Blin had been
interviewed, at the police-investigation stage, only by PC Bonci
and the inspector who drew up the record of their statements.
They were questioned neither by an investigating judge, because
of recourse to the direct committal procedure (see paragraph 15
above), nor by the courts.
Before the Criminal Court the defence did not ask in their
written submissions for any witnesses to be called.
Nevertheless, the prosecution had duly summoned the two girls
and, since they did not appear and gave no reasons for their
failure to do so, the court could have made use of Articles 438
and 439 of the Code of Criminal Procedure to compel them to
attend.
In the Court of Appeal, on the other hand, the defendant
- relying, inter alia, on Article 6 para. 3 (d) (art. 6-3-d) of
the Convention - expressly asked for the complainant and her
friend and two defence witnesses to be summoned. This
application was, however, refused (see paragraph 20 above).
Accordingly, neither the applicant nor his counsel ever had an
adequate opportunity to examine witnesses whose evidence, which
had been taken in their absence and later reported by a policeman
who had not witnessed the attack in the underground, was taken
into account by the courts responsible for trying the facts -
decisively at first instance and on appeal, as the file contained
no other evidence. They were therefore unable to test the
witnesses' reliability or cast doubt on their credibility.
In sum, the rights of the defence were subject to such
restrictions that Mr Delta did not receive a fair trial. There
has accordingly been a breach of paragraph 3 (d) of Article 6
taken together with paragraph 1 (art. 6-3-d, art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 2 AND 3 (b) AND
ARTICLES 17 AND 18 (art. 6-2, art. 6-3-b, art. 17, art. 18)
38. Before the Court, counsel for the applicant also relied
on Article 6 paras. 2 and 3 (b) (art. 6-2, art. 6-3-b) and
Articles 17 and 18 (art. 17, art. 18) of the Convention.
The alleged disregard of the presumption of innocence concerned
the same facts and consequences that the Court has held to be
contrary to paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d,
art. 6-1); in the circumstances of the case, no separate
examination of it is necessary.
As regards the complaints relating to paragraph 3 (b) of
Article 6 and to Articles 17 and 18 (art. 6-3-b, art. 17,
art. 18), which were likewise not raised before the Commission,
they fall outside the limits resulting from the Commission's
decision on admissibility (see, among other authorities, the
Bezicheri judgment of 25 October 1989, Series A no. 164, p. 12,
para. 27). The Court accordingly has no jurisdiction to
entertain them.
III. APPLICATION OF ARTICLE 50 (art. 50)
39. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
Under this provision the applicant sought compensation for damage
and reimbursement of expenses.
A. Damage
40. Mr Delta claimed to have suffered damage on account of
the failure to comply with the requirements of the Convention and
sought 156,698.49 French francs (FRF) in respect of pecuniary
damage and FRF 600,000 in respect of non-pecuniary damage. The
first of these sums represented loss of earnings caused by his
detention, quantified on the basis of the national guaranteed
minimum wage, while the second related to the feelings of
distress induced by the violation of Article 6 (art. 6) and to
the deprivation of liberty. In respect of both sums, the
applicant claimed interest calculated at the French statutory
rate, to run from the date of the Court's judgment.
41. The Government pointed out that at the time the applicant
was arrested he had no occupation and was not receiving any
unemployment benefit. They considered that if the Court were to
find a breach, its judgment would provide sufficient just
satisfaction in respect of the non-pecuniary damage.
42. The Delegate of the Commission expressed doubts as to the
existence of a causal link between the alleged violation and the
damage sustained by Mr Delta on account of his loss of liberty;
he left it to the Court to award a nominal sum if it wished to go
beyond a finding of a violation.
43. The Court notes that in the present case an award of just
satisfaction can only be based on the fact that the applicant did
not have the benefit of all the guarantees of Article 6 (art. 6).
Whilst the Court cannot speculate as to the outcome of the trial
had the position been otherwise, it does not find it unreasonable
to regard Mr Delta as having suffered a loss of real
opportunities (see, among other authorities and mutatis mutandis,
the Goddi judgment of 9 April 1984, Series A no. 76, pp. 13-14,
paras. 35-36, and the Colozza judgment of 12 February 1985,
Series A no. 89, p. 17, para. 38).
Taking its decision on an equitable basis, as required by
Article 50 (art. 50), it awards Mr Delta compensation in the
amount of FRF 100,000 in respect of the whole of the damage he
suffered.
B. Costs and expenses
44. Counsel for the applicant claimed compensation for the
loss of earnings he had sustained by defending Mr Delta free of
charge. He sought FRF 24,000 plus interest in respect of the
national proceedings, as Mr Delta had preferred to choose his own
counsel and thus forgo legal aid for the proceedings in the Paris
Court of Appeal and in the Court of Cassation. As regards the
European proceedings, he requested the Court to decide whether
compensation should be awarded and, if so, how much; however, he
assessed his fees for the work done up to 1 May 1990 at
FRF 44,000 and stated that his client had been legally aided in
the proceedings before the Convention institutions.
45. In the Government's submission, only the expenses
actually incurred by Mr Delta himself could be reimbursed. It
was for the Court to assess the amount of the expenses entailed
by the national proceedings, having regard to the supporting
documents produced. Furthermore, the applicant had not proved
that in respect of the proceedings in Strasbourg he had incurred
any financial liabilities exceeding the amount of legal aid.
46. The Delegate of the Commission left the matter to the
Court's discretion.
47. According to the Court's case-law, an applicant's lawyer
cannot rely on Article 50 (art. 50) to claim just satisfaction on
his own account (see, among other authorities, the Luedicke,
Belkacem and Koç judgment of 10 March 1980, Series A no. 36,
p. 8, para. 15, and the Artico judgment of 13 May 1980, Series A
no. 37, p. 19, para. 40).
The claim for reimbursement of costs and expenses must therefore
be dismissed.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraph 3 (d)
of Article 6 of the Convention taken together with paragraph 1
(art. 6-3-d, art. 6-1);
2. Holds that it is not necessary also to examine the case
under Article 6 para. 2 (art. 6-2);
3. Holds that it is not called upon to consider the
complaints under Article 6 para. 3 (b) and Articles 17 and 18
(art. 6-3-b, art. 17, art. 18);
4. Holds that the respondent State is to pay the applicant
compensation for damage in the sum of 100,000 (one hundred
thousand) French francs;
5. Dismisses the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 19 December 1990.
Signed: Rolv RYSSDAL
President
Signed: For the Registrar
Herbert PETZOLD
Deputy Registrar