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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> CARDOT v. FRANCE - 11069/84 [1991] ECHR 24 (19 March 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/24.html
Cite as: 13 EHRR 853, (1991) 13 EHRR 853, [1991] ECHR 24
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In the Cardot 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 Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr C. Russo,
Mr S.K. Martens,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 October 1990 and
19 February 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 24/1990/215/277. 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 21 May 1990,
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. 11069/84) against the French Republic lodged
with the Commission under Article 25 (art. 25) by a national of
that State, Mr Jean-Claude Cardot, on 12 December 1983.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 24 May 1990, in
the presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr B. Walsh, Mr R. Macdonald, Mr C. Russo,
Mr S.K. Martens and Mr J.M. Morenilla (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
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 29 June 1990, the Registrar received the
Government's memorial on 10 September and the applicant's memorial
on 24 September. On 18 October the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
5. On 9 July the Secretary to the Commission produced
documents relating to the proceedings before it; the Registrar had
asked for these on the President's instructions.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 12 September
that the oral proceedings should open on 24 October 1990 (Rule 38).
7. On 12, 16 and 24 October the Commission and the Government
filed several documents.
8. 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 J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Miss M. Picard, magistrat, on secondment to the
Department of Legal Affairs, Ministry of Foreign Affairs,
Mr P. Titiun, magistrat, on secondment to the
Department of Legal Affairs, Ministry of Foreign Affairs,
Mr M. Rouchayrole, magistrat, on secondment to the
Department of Criminal Affairs and Pardons,
Ministry of Justice, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr C. Etelin, avocat, Counsel.
The Court heard addresses by Mr Puissochet for the Government,
Mr Soyer for the Commission and Mr Etelin for the applicant, as
well as their replies to a question put by one of the judges.
9. On 14 and 20 November the Registrar received from the
applicant's lawyer a supplementary memorial on the application of
Article 50 (art. 50) of the Convention and a number of documents.
AS TO THE FACTS
I. The circumstances of the case
10. Mr Jean-Claude Cardot is a French national and works as a
road haulier.
On 2 August 1979 the public prosecutor at Valence (Drôme) applied
to a local investigating judge for an investigation to be opened
into, inter alia, the importing, exporting and transporting of
drugs by a person or persons unknown. The police had just
discovered an international organisation specialising in drug
trafficking between the Middle East and Europe. The organisation
had been active since 1978 and was made up of Iranian suppliers and
French carriers, masterminded by Dutch nationals.
A. The judicial investigation
11. In August 1979 the investigating judge charged Mr Cardot
and fourteen others with drug offences.
1. The applicant's conviction in Italy and his extradition to
France
12. On 27 November 1979 the Italian police arrested Mr Cardot
in Verona while he was carrying 455 kg of hashish in his lorry; the
investigating judge at Valence was informed of the arrest on
30 November.
On 21 June 1980 the Verona District Court sentenced the applicant
to five years and one month's imprisonment, but on appeal the
Venice Court of Appeal reduced the sentence to three years and
seven months.
13. On 21 December 1981 Mr Cardot was pardoned. He was not
released, however, as an international warrant for his arrest had
been issued by the investigating judge at Valence on 26 June 1980,
and on 3 July the French Government had applied to the Italian
authorities for his extradition. On 14 August 1980 Mr Cardot had
been served with a further warrant for his arrest, issued by the
same judge, on suspicion of inciting an attempt to import 1,080 kg
of hashish and attempting to import 650 kg; the commission of the
first offence had been frustrated only by a circumstance beyond his
control (the arrest of the principal offender in Tehran), while
commission of the second had been prevented by the applicant's
arrest in Verona.
On 24 March 1981 the Venice Court of Appeal ruled in favour of
extradition for the purposes of proceedings relating to
participation in transporting drugs on three occasions in 1978. On
23 February 1982 the Ministry of Justice decided to extradite
Mr Cardot, who was handed over to the French authorities
on 23 March.
2. Committal for trial of the applicant and his co-defendants and
the trial of the latter
(a) Committal for trial of the applicant and his co-defendants
14. In an order of 5 February 1981 the investigating judge
committed Mr Cardot, who was still in Italy, and his co-defendants
for trial at the Valence Criminal Court.
The applicant was charged, firstly, with having, in concert with
his co-defendants, organised an association or a conspiracy to
import and export drugs and of having imported and transported
drugs and, secondly, of having aided and abetted the offences with
which the other defendants were charged and of having attempted to
import, export and transport hashish on two specific occasions.
(b) Trial of the applicant's co-defendants
15. The court gave judgment on 7 May 1981.
It decided to sever the proceedings against Mr Cardot on account of
his being in custody in Italy (see paragraphs 12-13 above).
One of the defendants (Mrs Cuvillier) was acquitted on the ground
that there was insufficient evidence, and six others were given
either immediate custodial sentences (Mr Millo sixteen years,
Mr Jacques Montaner sixteen years, and Mr Humbert eight years) or
suspended sentences (Mr Kabayan three years, Mr Jean Montaner five
years, and Mrs Sabatier five years).
As to the seven co-defendants who had not appeared, the court
sentenced them in absentia to periods of imprisonment ranging from
five to twenty years.
The judgment contained the following passages concerning Mr Cardot:
"It appears from the preliminary investigation and the hearing that
in late March or early April 1978, on Cardot's instructions, a
convoy of eight lorries driven by, among others, Cardot, Millo,
Humbert and a driver from Jacques Montaner's firm carried chemicals
and pharmaceuticals to Afghanistan, returning via Iran.
Two days after the arrival of Cardot's lorry at the Jacques
Montaner depot at Charmes (Ardèche), Cardot and Millo dismantled
the petrol tank and took out a number of metal boxes ... containing
300-400 kg of hashish ...
At all events, before the petrol tank was dismantled, Cardot had
indicated to Millo that it contained hashish, whereas Montaner was
confronted with a fait accompli.
...
Cardot subsequently asked Jacques Montaner and Millo, who agreed,
to bring back a quantity of hashish when carrying car-wheel rims
from Yugoslavia ...
When Cardot had arranged the rendez-vous, Millo and
Jacques Montaner set off together during June 1978 ...
...
Cardot gave Jacques Montaner FRF 6,000, which did not even cover
his expenses, while Millo received FRF 50,000 only after another
journey to Iran.
...
For the petrol tanks fitted by the Dutchmen, Cardot went to two
different boilermakers so as not to arouse suspicion ...
According to Millo and Montaner, the tanks measured
2.3m-2.5m x 0.8m x 0.8m and their components were charged to the
Société Transpyrénées [Transpyrenean Company], in other words paid
by Cardot (record of the hearing).
...
On returning from a trip to Afghanistan, Cardot suggested to
Jean-Paul Humbert that he should engage in smuggling ...
At the end of July 1978 ... Humbert saw Cardot again, who told him
that a petrol tank was ready.
...
Cardot, who went to Iran before Humbert, had arranged to meet him
in the car park of Tehran Customs.
After his vehicle had been immobilised ..., Humbert, acting on
Cardot's instructions, got in touch again with an Iranian, who
escorted him to a warehouse in the centre of the working-class
district of Tehran, where, at night, he watched two other Iranians
load forty rectangular metal boxes into the tank ...
...
On Cardot's instructions and accompanied by him, he took an empty
lorry to Holland, where Cardot made a telephone call from the
Novotel car park on the outskirts of Amsterdam.
Guided by André Bronkhorst in the car which Cardot had got into
..., Humbert left his trailer at the Dutchman's disposal outside a
warehouse ...
...
On his return to Charmes, still accompanied by Cardot, he was given
FRF 120,000 by Cardot for transporting 700 kg of hashish.
...
At about the same time, likewise on Cardot's instructions,
Jacques Montaner went to Iran in his lorry in order to bring back
a quantity of hashish ...
According to Montaner's disclosures at the hearing, Cardot, Millo
and Humbert also went to Iran, each with specially adapted petrol
tanks, whereas his own was not adapted until he reached Iran.
...
Montaner travelled via France to Amsterdam, where he rang a
telephone number he had been given by Cardot in order to contact
Antonius Vriens, known as 'Tony', who took delivery from him.
After the petrol tank had been cut out with a chain-saw in a
warehouse, Montaner unloaded the tins containing the hashish, came
back to France and subsequently received from Cardot payments of
FRF 20,000, FRF 50,000 and FRF 10,000 on account, i.e. FRF 80,000
in all for the two journeys, this one and the one that had been
made to Yugoslavia in June.
...
At Cardot's instigation, Millo returned to Tehran by air on
30 September 1978 in order to collect his lorry, which he had left
in Iran on 26 August and which Cardot had said was now 'ready' ...
...
From the statements of the various defendants and persons charged
and inquiries made in Holland it appears that Van Dam Gybertus
financed the operation and was the person for whom the consignments
of drugs carried by the hauliers were ultimately intended.
...
André Bronkhorst, an important member of the organisation, took
delivery in Amsterdam in August 1978 of the drugs brought from Iran
by Humbert and Cardot.
...
Esser got Cardot involved in smuggling hashish ...
...
Gérardus Waterloo went to Valence several times in June 1978 to
make specially adapted petrol tanks together with Van Vemde and
Cardot.
...
In sum, as regards the transport of drugs, it has been established
that:
1. In March 1978 Cardot and Millo took part in importing 400 kg of
hashish from Afghanistan and exporting it.
2. In June 1978 Cardot, Jacques Montaner and Millo took part in
importing 1,500 kg of hashish from Yugoslavia and exporting it to
Holland.
3. In July 1978 Cardot and Humbert took part in importing 700 kg of
hashish from Iran and exporting it to Holland.
4. In August 1978 Cardot and Jacques Montaner took part in
importing 600 kg of hashish from Iran and exporting it to Holland.
5. In late September or early October 1978 Cardot incited an
attempt to import 1,080 kg of hashish from Iran.
...
8. In November 1979 Cardot attempted to import and export 650 kg of
hashish.
...
The offence of importing prohibited goods - in this instance 10 kg
of morphine, 7 kg of heroin and more than 3,500 kg of hashish, with
a total value of 47 million francs -, which is punishable under
Articles 38, 215, 373, 414, 417, 419 and 435 of the Customs Code,
has been made out.
The foregoing offence is imputable to Jacques Montaner, Millo,
Humbert, Jean Montaner, Kabayan, Sabatier, Cardot, Sarrafinehad,
Van Dam, Bronkhorst, Van Vemde, Vriens, Esser and Waterloo
severally, the proceedings against Cardot having, however, been
severed.
..."
(c) The appeals by some of the applicant's co-defendants
16. Five of those convicted appealed and on 18 February 1982
the Grenoble Court of Appeal gave judgment. It acquitted two of
them (Mr Jean Montaner and Mrs Sabatier) on the grounds that there
was insufficient evidence, and reduced the prison sentences of the
three others (Mr Humbert, Mr Millo and Mr Jacques Montaner) by a
quarter.
In its judgment the court indicated that they had all claimed to
have received their instructions from Mr Cardot, who was repeatedly
named in the text. The judgment included the following references:
"...
It is apparent from the case file and the oral proceedings that in
March 1978 Gérard Roucaries put Jean-Claude Cardot in touch with
the Dutchman Esser Stanley, known as Carlos, who proposed to
Jean-Claude Cardot - who was then in the business of road haulage
to the Middle East - that he should carry hashish against payment
of 100,000 French francs per tonne. Jean-Claude Cardot accepted
this proposal, and in late March or early April 1978, on Cardot's
instructions, a convoy of eight lorries driven by, among others,
Cardot, Millo, Humbert and a driver from Jacques Montaner's firm
carried chemicals and pharmaceuticals to Afghanistan, returning via
Iran.
Two days after the arrival of Cardot's lorry at the
Jacques Montaner depot at Charmes (Ardèche), Cardot and Millo
dismantled the petrol tank ...
...
Cardot subsequently asked Jacques Montaner and Millo, who agreed,
to bring back a quantity of hashish when carrying car-wheel rims
from Yugoslavia.
When Cardot had arranged the rendez-vous, Millo and
Jacques Montaner set off together ...
...
On returning from a trip to Afghanistan, Cardot suggested to
Jean-Paul Humbert that he should engage in smuggling.
...
After his vehicle had been immobilised ..., Humbert, acting on
Cardot's instructions, got in touch again with an Iranian ...
...
On Cardot's instructions and accompanied by him, he took an empty
lorry to Holland ...
...
At about the same time, likewise on Cardot's instructions,
Jacques Montaner went to Iran in his lorry in order to bring back
a quantity of hashish.
...
Francis Millo admitted at the hearing that ... he had driven a
consignment of hashish from Valence to Holland that had just been
brought from Iran by Jean-Claude Cardot.
...
At Cardot's instigation, he returned to Tehran by air on
30 September 1978 in order to collect his lorry, which Cardot had
said was now 'ready'.
..."
3. The investigation in respect of the applicant
17. Mr Cardot was summoned to appear before the Valence
Criminal Court on 2 April 1982.
On the same day, on an application by the prosecution, the court
ordered that further inquiries should be made into the facts and
that the defendant should remain in custody. On an appeal against
the latter decision, the Grenoble Court of Appeal upheld the lower
court's decision on 19 May 1982.
18. On 17 June the Valence Criminal Court appointed an
investigating judge to carry out the further inquiries.
19. The judge questioned Mr Cardot on 28 June and 30 July 1982.
20. He also confronted Mr Cardot with the four main witnesses:
Mr Humbert, Mr Millo, Mr Jean Montaner and Mr Jacques Montaner on
12, 13, 16 and 26 July respectively (see paragraphs 15 and
16 above).
On each occasion, in the presence of Mr Cardot and his lawyer, the
investigating judge read out the statements that the witnesses had
made to the police on 21 and 23 October 1979 and 19 February 1980.
Mr Humbert, Mr Millo and Mr Jacques Montaner confirmed them.
The applicant disputed certain points in Mr Millo's and
Mr Jean Montaner's statements; Mr Montaner had retracted certain
things he had said to the police and to the courts. Mr Cardot also
questioned the witnesses through his lawyer. He applied
successfully for the record of his confrontation with
Mr Jean Montaner to be amended and had further questions
put to him.
B. The court proceedings
1. At the Valence Criminal Court
21. The trial at the Valence Criminal Court opened on
1 September 1982. The prosecution did not deem it necessary to
call as witnesses the four people with whom Mr Cardot had been
confronted, and the accused himself did not make any written
application for evidence to be heard from them.
The court adjourned the case to 17 September so that the national
head office of the Customs investigations branch could be
represented as a civil party.
22. During the hearing on 17 September Mr Cardot gave an
account of himself in relation to the charges against him. He
again challenged the statements that his former co-defendants had
made to the police, pointing out that they had varied, but he did
not apply for the persons concerned to be called.
23. On the same day the court sentenced him to six years'
imprisonment. He was found guilty as charged; the court did not
take into account the offences of which he had been convicted by
the Venice Court of Appeal (see paragraph 12 above).
The judgment referred to the statements of the former
co-defendants:
"...
... Millo stated that Cardot had used the time to have his trailer
equipped with a specially adapted petrol tank made in Iran.
It appeared from Humbert's statements that Cardot had had contacts
concerning the transport of smuggled goods - Cardot did not deny
this but claimed that the goods in question were carpets -, that
when he (Humbert) drove his lorry with its specially adapted petrol
tanks to Tehran, Cardot had told him that he could be paid
FRF 120,000 per journey, that he had indeed heard conversations
between Cardot and a Dutchman on the subject of drugs ...
For his part, Millo said that during his stay in Tehran, at that
time, Cardot suggested to him that he should have his lorry loaded
with hashish to take back to France, and Montaner stated that on
returning from Afghanistan Cardot brought round 400-500 kilos of
drugs, which had been collected by another lorry.
...
Millo said that the four petrol tanks had been made for Cardot by
Van Vemde ...
...
While returning to France on or about 8 or 10 August 1978 Cardot
met Millo in Turkey; the latter said during the further inquiries
into the facts that Cardot had told him on that occasion that his
lorry was carrying hashish; he even told Montaner that he had
brought back hashish on this journey.
Millo stated categorically that on his return to France 400 kilos
of hashish remained from Cardot's consignment; ...
...
Montaner and Millo stated categorically that Cardot was behind the
transporting of hashish from Yugoslavia; Montaner and Millo said
that Cardot had organised the journey and given all the necessary
instructions; ...
...
But in his original statements Humbert had said that ten or twelve
days after this journey to Holland Cardot had paid him FRF 120,000
in cash in France ...
...
Cardot denied any involvement in the journey allegedly made to
Lille by Montaner and himself together with Millo ...; Montaner and
Millo, however, had said that all three of them had stopped at the
Novotel in Lille before Millo continued his journey to Holland; the
Dutchman Tony Vriens had joined them; Montaner had said that this
Dutchman had given Cardot a bag containing money; Cardot had given
him two bundles each containing FRF 50,000 in 500-franc notes and
he had given one of these bundles of notes to Millo.
..."
2. In the Grenoble Court of Appeal
24. Mr Cardot, the civil party and the prosecution appealed,
and the Grenoble Court of Appeal gave judgment on 17 March 1983.
It upheld the lower court's judgment as regards Mr Cardot's guilt
and increased the sentence to seven years' imprisonment.
The part of its judgment headed "The facts" contained the
following:
"It appears from the police inquiries, from the judicial
investigation and from the partly confirming judgment of this Court
on 18 February 1982 [(see paragraph 16 above)] that the facts are
established as follows:
...
... The judicial investigation established that [the traffickers]
were divided into three groups: ... and, lastly, the carriers,
consisting of Francis Millo, Jacques Montaner and Jean-Paul
Humbert, who subsequently formally implicated Jean-Claude Cardot,
whom they described as the intermediary between the Dutch and
themselves.
...
For his part, Jean-Paul Humbert stated that on this occasion Cardot
introduced him to two Dutchmen, 'Tony' and 'Carlos' ...
...
Jacques Montaner and Francis Millo ... stated that they made this
journey at Cardot's request in order to bring back a consignment of
hashish. ... Millo stated that Cardot helped to load the lorry ...
...
According to [Cardot's mistress], who confirmed Humbert's and
Jacques Montaner's statements, Cardot helped Van Vemde and Waterloo
to make specially adapted petrol tanks, but Cardot denied this. ...
...
Furthermore, during the trial in this Court on 18 February 1982
Millo stated ... that on that journey he had driven a consignment
of hashish from Valence to Holland that had just been brought from
Iran by Jean-Claude Cardot. He also stated that after meeting
Cardot in Ankara he took his vehicle to Tehran and came back to
France, subsequently returning to Tehran by air at Cardot's
instigation on 30 September 1978 in order to collect his lorry,
which Cardot had told him was 'ready'. ...
...
The various French lorry drivers involved in this trafficking, in
particular Jacques Montaner, Francis Millo and Jean-Paul Humbert,
who were convicted by this Court on 18 February 1982, all stated
that they had received their instructions from Jean-Claude Cardot.
..."
25. At the hearing of the appeal the prosecution had considered
"the facts ... completely established by the evidence in the file
and in the concordant statements made by Jacques Montaner,
Jean-Paul Humbert and Francis Millo during the judicial
investigation and at the hearing in the Court of Appeal which led
to their conviction".
Mr Cardot had challenged all the prosecution evidence. In
particular, he had asserted that "Montaner's and Millo's statements
[were] untrue and malicious and ha[d] no other purpose than to
minimise their own responsibility" and that "the Grenoble Court of
Appeal's judgment of 18 February 1982 [could not] be used in
evidence against him". He had not, however, made any application
for witnesses to be called.
3. In the Court of Cassation
26. Mr Cardot appealed on points of law. One of his three
grounds of appeal was based on failure to comply with Articles 485
and 593 of the Code of Criminal Procedure, lack of reasons, absence
of any legal basis and a breach of the rights of the defence.
He criticised the Grenoble Court of Appeal for having
"found [him] guilty of the charges against him by reference to the
terms of a judgment delivered on 18 February 1982 by the Grenoble
Court of Appeal in a case brought by the public prosecutor's office
against other defendants, and to the hearing which [had] preceded
that judgment.
The court, however, has to reach its verdict in the light of the
particular circumstances of the case and not by reference to cases
already tried; by referring to an earlier decision given in respect
of other defendants and concerning facts which were necessarily
distinct from those then before it, the Court of Appeal [had] not
give[n] its decision any legal basis."
He ended this ground of appeal as follows:
"It follows in reality that the appellant was tried on the basis
not of the evidence uncovered by the investigation or by the
hearing which preceded his conviction but of evidence from an
earlier decision, to which he was not a party, and of a hearing
during which he had not been able to put forward his defence.
The reference thus made in the judgment of the Court of Appeal to
the contents of an earlier decision and, above all, to the hearing
which preceded that decision to which the appellant was not a party
manifestly amounts to a violation of the rights of the defence.
..."
27. The Criminal Division of the Court of Cassation dismissed
the appeal on 13 February 1984. As regards the ground of appeal in
question, it said:
"It appears from the impugned judgment of the Court of Appeal and
from the lower court's judgment, whose reasoning the Court of
Appeal adopted to the extent that it was not inconsistent, and from
the case file that Cardot, a road haulier, took part in substantial
smuggling of hashish between Iran and the Netherlands, in
particular by organising, preparing and carrying out the transport
of the drug as well as the manufacture and fitting in France of
hidden compartments on lorries.
In order to found its belief as to the importance of Cardot's role
in organising the smuggling, the Grenoble Court of Appeal referred
to the findings of another judgment it had given on 18 February
1982, in relation to proceedings against all the other members of
the criminal organisation and from which Cardot's case had been
severed, on the direction of the court of first instance, because
he was in custody in Italy for separate offences.
As copies of that judgment of the Court of Appeal and of the
judgment it upheld have been added to the case file, the Court of
Cassation is able to satisfy itself that, in holding as it did, the
Court of Appeal in no way infringed the rights of the defence.
The courts have unfettered discretion to assess the weight of the
various pieces of evidence, provided that, as in the instant case,
this evidence was adduced in adversarial proceedings; it is
accordingly wholly permissible to file documents from other
proceedings.
It follows that this ground of appeal must be rejected."
II. The relevant domestic legislation
28. Before the Convention institutions the Government and the
applicant mentioned or relied on several provisions of the Code of
Criminal Procedure. The main ones were the following:
Article 427
"Unless otherwise provided by statute, any type of evidence shall
be admissible to substantiate a criminal charge, and the court
shall reach its decision on the basis of being satisfied beyond
reasonable doubt (intime conviction).
The court may only base its decision on evidence which has been
adduced during the trial and discussed before it inter partes."
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, first paragraph
"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 444, third paragraph
"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 513, second paragraph
"Witnesses shall be heard only if the court [of appeal] so orders."
Article 590, first paragraph
"Pleadings shall contain the grounds of appeal to the Court of
Cassation and shall refer to the statutory provisions which it is
claimed have been disregarded."
PROCEEDINGS BEFORE THE COMMISSION
29. In his application of 12 December 1983 to the Commission
(no. 11069/84) Mr Cardot complained that he had been convicted on
the strength of evidence gathered in connection with proceedings to
which he had not been a party and that he had not had an
opportunity, either at his trial or on appeal, to challenge or have
challenged those who had testified against him.
He also impugned his conviction for aiding and abetting an offence
for which the principal offender, who had been amnestied in Iran,
could no longer be prosecuted in France. He alleged, lastly, that
the Court of Cassation, because of the insufficient reasoning in
the judgment of the Grenoble Court of Appeal, had not been able to
satisfy itself that the principle of non bis in idem had been
complied with.
30. On 7 September 1989 the Commission declared the last two
complaints inadmissible, but declared the application admissible as
regards the conduct of the judicial investigation and the court
proceedings.
In its report of 3 April 1990 (made under Article 31) (art. 31),
the Commission expressed the opinion that there had been a breach
of Article 6 paras. 1 and 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 200 of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
31. At the hearing the Government maintained the submissions in
their memorial. In this they had asked the Court to hold that
there had been no violation of Article 6 (art. 6) of the Convention
for a number of reasons, arguing in the first place that domestic
remedies had not been exhausted and, in the alternative, that the
application was unfounded.
Counsel for the applicant asked the Court to hold that there had
been a violation of paragraphs 1 and 3 (d) taken together.
AS TO THE LAW
THE GOVERNMENT'S PRELIMINARY OBJECTION
32. The Government's main submission, which was the same as
that made before the Commission, was that Mr Cardot had not
exhausted domestic remedies as he had failed to raise in the French
courts, even in substance, the complaint based on a violation of
Article 6 para. 3 (d) (art. 6-3-d) of the Convention.
The applicant had not called any witnesses in the Criminal Court
proceedings or asked the Court of Appeal to summon any, as he was
entitled to do under Article 437 and Article 513, second paragraph,
of the Code of Criminal Procedure (see paragraph 28 above).
Furthermore, in his appeal on points of law to the Court of
Cassation he had impugned the appeal court's judgment of
17 March 1983 only by reference to the judgment of 18 February 1982
concerning the appeals of his former co-defendants (see
paragraph 26 above); he had not raised any issue concerning the
hearing of witnesses either expressly or by implication.
33. The Delegate of the Commission submitted, on the contrary,
that Mr Cardot had satisfied the requirements of Article 26
(art. 26) of the Convention by appealing on points of law. In
claiming that the use of evidence gathered in other proceedings was
contrary to the rights of the defence, he had in substance
complained of not having had a fair trial; by challenging the
reasoning in the Grenoble Court of Appeal's judgment, he had
implicitly criticised the taking of evidence during his appeal,
including the failure to examine witnesses at the hearing.
34. The Court does not accept this argument. Admittedly,
Article 26 (art. 26) must be applied with some degree of
flexibility and without excessive formalism (see, among other
authorities, the Guzzardi judgment of 6 November 1980, Series A
no. 39, p. 26, para. 72), but it does not require merely that
applications should be made to the appropriate domestic courts and
that use should be made of remedies designed to challenge decisions
already given. It normally requires also that the complaints
intended to be made subsequently at Strasbourg should have been
made to those same courts, at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic
law (ibid., pp. 25-27, paras. 71-72; see also the decision of the
Commission of 11 January 1961 on the admissibility of application
no. 788/60, Austria v. Italy, Yearbook of the Convention, Vol. 4,
pp. 170-172); and, further, that any procedural means which might
prevent a breach of the Convention should have been used (see the
Barberà, Messegué and Jabardo judgment of 6 December 1988,
Series A no. 146, pp. 28-29, paras. 58-59, and also the Commission
decision previously cited, pp. 166-170).
Practice in international arbitration would appear to reflect a
similar approach. An example is to be found in the award
of 6 March 1956 in the Ambatielos case. The British Government
argued that legal remedies had not been exhausted, on the ground
that the claimant, a Greek shipowner, had not called a witness
during proceedings in an English court. The Commission of
Arbitration allowed the objection in the following terms:
"The rule [of exhaustion] requires that 'local remedies' shall have
been exhausted before an international action can be brought.
These 'local remedies' include not only reference to the courts and
tribunals, but also the use of the procedural facilities which
municipal law makes available to litigants before such courts and
tribunals. ...
...
It would be wrong to hold that a party who, by failing to exhaust
his opportunities in the Court of first instance, has caused an
appeal to become futile should be allowed to rely on this fact in
order to rid himself of the rule of exhaustion of local remedies."
(Reports of International Arbitral Awards, United Nations,
vol. XII, pp. 120 and 122)
35. In the court of first instance Mr Cardot did not express
any wish that evidence should be heard from his former
co-defendants, although they said that he had played a major part
in organising the smuggling of hashish from Iran to France and
although three of them, when confronted with him before the
investigating judge, had confirmed their earlier statements (see
paragraph 20 above). Nor did he make any application to the Court
of Appeal for such evidence to be heard. The case file discloses
no special reason which could have excused him from calling those
witnesses or applying to have them called.
As to his appeal on points of law, only one of the three grounds
put forward related to the proceedings in respect of the former
co-defendants who had been heard in that capacity at the time (see
paragraph 26 above). Above all, it did not rely on paragraph 3 (d)
of Article 6 (art. 6-3-d) or even on the general principle in
paragraph 1 (art. 6-1) and did not refer to the statements that
Mr Humbert, Mr Millo, Mr Jacques Montaner and Mr Jean Montaner had
made to the investigating judge; so that it was too vague to draw
the Court of Cassation's attention to the issue subsequently
submitted to the Convention institutions, namely the failure to
hear prosecution witnesses at any stage of the court proceedings
against Mr Cardot. It may also be asked whether it would have been
admissible for Mr Cardot, who had not raised this point before the
trial courts, to raise it for the first time in the Court of
Cassation. At all events, nothing would have prevented him from
appealing against the Valence Criminal Court's judgment if he had
been unsuccessful in calling witnesses at the trial, or from
challenging in the Court of Cassation a judgment of the Grenoble
Court of Appeal in which it refused to grant an application for
witnesses to be heard (see, mutatis mutandis, the Delta judgment of
19 December 1990, Series A no. 191, pp. 9-10, paras. 18-21).
36. In sum, Mr Cardot did not provide the French courts with
the opportunity which is in principle intended to be afforded to
Contracting States by Article 26 (art. 26), namely the opportunity
of preventing or putting right the violations alleged against them
(see, among other authorities, the Guzzardi judgment previously
cited, Series A no. 39, p. 27, para. 72). The objection that
domestic remedies have not been exhausted is therefore well
founded.
FOR THESE REASONS, THE COURT
Holds by six votes to three that by reason of the failure to
exhaust domestic remedies, it is unable to take cognisance of the
merits of the case.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 19 March 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the following separate
opinions are annexed to this judgment:
(a) dissenting opinion of Mr Macdonald;
(b) dissenting opinion Mr Martens;
(c) dissenting opinion of Mr Morenilla.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE MACDONALD
Unfortunately I am unable to share the opinion of the majority of
the Court on the question relating to Article 26 (art. 26) of the
Convention.
This provision must be applied with some degree of flexibility and
without excessive formalism (see, among other authorities, the
Guzzardi judgment of 6 November 1980, Series A no. 39, p. 26,
para. 72). In the instant case the ground of appeal based on a
breach of the rights of the defence, although perhaps drawn in
terms lacking in clarity and precision, expressly referred to the
"hearing which [had] preceded" the judgment of the Grenoble Court
of Appeal (see paragraph 26 of the present judgment). The
circumstances of the hearing in that court on 17 March 1983 were
precisely what, according to the defence, had been influenced to
Mr Cardot's detriment by those of the hearing in the same court on
17 February 1982, at which Mr Cardot had not been present. The
ground of appeal was therefore indeed tantamount to complaining in
substance of a disregard of the rights enshrined in paragraph 1 of
Article 6 (art. 6-1) of the Convention, of which paragraph 3 (d)
(art. 6-3-d) is a specific aspect. In so doing, Mr Cardot provided
the Court of Cassation with the opportunity which is in principle
intended to be afforded to Contracting States by Article 26
(art. 26), namely the opportunity of putting right the violations
alleged against them (see, inter alia, the Guzzardi judgment
previously cited, Series A no. 39, p. 27, para. 72).
It follows that, in my opinion, the objection that domestic
remedies have not been exhausted is unfounded.
DISSENTING OPINION OF JUDGE MARTENS
1. I have voted in favour of rejecting the French Government's
preliminary objection because it was examined and rejected by the
Commission: for the reasons given in my separate opinion in the
Brozicek case (judgment of 19 December 1989, Series A no. 167,
pp. 23 et seq.), I think that the Court should leave it to the
Commission to determine whether such pleas are founded or not.
2. I have so voted with all the more conviction because in my
opinion the objection was indeed unfounded.
I agree with those of my colleagues who think that in his appeal to
the Court of Cassation on points of law the applicant did not
raise, even in substance, the grievance which in the course of the
Strasbourg proceedings gradually became his principal complaint,
namely that although he had had the opportunity to question his
former co-accused when confronted with them by the investigating
judge, the Grenoble Court of Appeal nevertheless violated his
rights under Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of
the Convention by using their statements as decisive evidence,
because those statements had not been made at a public hearing in
court.
Assuming, however, that this complaint is well-founded - as in this
context one should (see the Van Oosterwijck judgment of
6 November 1980, Series A no. 40, p. 14, para. 27) - and taking
into account the facts that French courts seem to be bound to apply
(self-executing provisions of) the Convention ex officio1 and that
if the lower courts have failed to do this, the Court of Cassation
may quash ex officio2, I think that the applicant did provide the
French courts to a sufficient degree with the opportunity which the
rule of exhaustion of domestic remedies is designed in principle to
afford, namely "the opportunity of preventing or putting right the
violations alleged ..." (see paragraph 36 of the present judgment):
if the applicant's interpretation of Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d) is assumed to be correct, the Court of
Cassation should have quashed ex officio because it was evident
from the Court of Appeal's judgment that his conviction was based
on "unlawful" evidence. I realise, of course, that this conflicts
with what the European Court held in paragraph 39 of its
Van Oosterwijck judgment but, in my opinion, the view taken there
is, as regards human rights cases, too strict: it unnecessarily
disregards the protection which a national law that requires its
judiciary to apply the Convention ex officio intends to afford to
those who for present purposes should be assumed to be victims of
a violation of that instrument.
_______________
1 See: Andrew Z. Drzemczewski, European Human Rights Convention in
Domestic Law (1983), p. 78; Marc-André Eissen, 'le statut juridique
interne de la Convention devant les juridictions pénales
françaises' in Gérard Cohen-Jonathan et al., Droits de l'Homme en
France (1985), p. 28; Gérard Cohen-Jonathan, la Convention
Européenne des Droits de l'Homme (1989), pp. 245 and 257.
2 See: Jacques Boré, La cassation en matière pénale (1985),
nos. 3086 et seq.
_______________
DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
To my regret, I dissent from the majority's conclusion that, by
reason of failure to exhaust domestic remedies, the Court is unable
to take cognisance of the merits of the case, and I do so for two
reasons.
1. In the first place, I voted with Judge Martens in favour of
rejecting the French Government's preliminary objection because the
Commission, after examining Mr Cardot's application, declared it
admissible, in accordance with Article 27 para. 3 (art. 27-3) of
the Convention.
I agree with Judge Martens's analysis and arguments in his separate
opinion in the Brozicek case (judgment of 19 December 1989, Series
A no. 167, pp. 23-28). In it he indicates that he is in favour of
departing from the precedent set by the Court in the De Wilde, Ooms
and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 29-31,
paras. 47-55), in which the Court held that it had jurisdiction to
entertain preliminary objections as to admissibility, such as pleas
that domestic remedies had not been exhausted, provided that they
had previously been raised before the Commission.
To reiterate his practical arguments, from the point of view of the
functioning of the Convention system and of more efficient
protection of human rights, I likewise think that the Court is not
to act as a court of appeal from the Commission and that it does
not fit in with this system that (as is possible under the Court's
doctrine) in one and the same case the Commission should reject the
preliminary objection, accept the petition and express the opinion
that there has been a violation, while the Court should find that
objection well-founded and therefore hold that it is unable to take
cognisance of the merits of the case. It is also undesirable that
an applicant, after winning his case before the Commission, should
find himself denied a judgment on the merits after lengthy
proceedings.
2. Furthermore, in the instant case I consider that the applicant
did in substance make before the French Court of Cassation the
complaints relating to paragraphs 1 and 3 (d) of Article 6
(art. 6-1, art. 6-3-d) of the Convention. In the Van Oosterwijck
judgment of 6 November 1980 (Series A no. 40, p. 14, para. 27) the
Court held that in order to determine whether a remedy satisfies
the conditions laid down in Article 26 (art. 26) "and is on that
account to be regarded as likely to provide redress for the
complaints of the person concerned, the Court does not have to
assess whether those complaints are well-founded; it must assume
this to be so, but on a strictly provisional basis and purely as a
working hypothesis".
Article 26 (art. 26), which refers to the "generally recognised
rules of international law", must be applied with some degree of
flexibility and without excessive formalism (see the Guzzardi
judgment of 6 November 1980, Series A no. 39, p. 26, para. 72).
The special character of the Convention and its purpose of
protecting rights which benefit from "collective enforcement"
(see the Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 90, para. 239, and the Soering judgment
of 7 July 1989, Series A no. 161, p. 34, para. 87) "require that
its provisions be interpreted and applied so as to make its
safeguards practical and effective" (see the Soering judgment,
loc. cit.). The object and purpose of the Convention call in this
case for a flexible "pro victima" interpretation of this Article
(art. 26), favouring admissibility of applications, so that the
complaints made can be considered by the Convention institutions.
In the instant case the ground of appeal to the Court of Cassation
based on a breach of the rights of the defence expressly referred
to the "hearing which [had] preceded the judgment of the Grenoble
Court of Appeal" (see paragraph 26 of the judgment). The
circumstances of the hearing in that court on 17 March 1983 were
precisely what, according to the defence, had been influenced to
Mr Cardot's detriment by those of the hearing in the same court on
17 February 1982, at which Mr Cardot had not been present.
Furthermore, he alleged that "the court ... ha[d] to reach its
verdict in the light of the particular circumstances of the case
and not by reference to cases already tried" (ibid.). Like the
Commission I consider that by challenging the Grenoble Court of
Appeal's reasoning, the applicant had by implication criticised the
procedure whereby evidence was taken.
The ground of appeal was therefore indeed tantamount to reasoning
based on a disregard of the rights enshrined in paragraph 1, of
which paragraph 3 (d) is a specific aspect (see, among other
authorities, the Deweer judgment of 27 February 1980, Series A
no. 35, p. 30, para. 56; the Pakelli judgment of 25 April 1983,
Series A no. 64, p. 19, para. 42; and the Goddi judgment of
9 April 1984, Series A no. 76, p. 11, para. 28), because "when
compliance with paragraph 3 is being reviewed, its basic purpose
must not be forgotten nor must it be severed from its roots"
(see the Artico judgment of 13 May 1980, Series A no. 37, p. 15,
para. 32).
The ground of appeal could probably have been drawn in terms that
were clearer and more precise and might, similarly, have alleged a
breach of paragraphs 1 and 3 (d) of Article 6 (art. 6-1,
art. 6-3-d) of the Convention. But while it is normally for the
domestic courts to assess the evidence they have gathered (see the
Unterpertinger judgment of 24 November 1986, Series A no. 110,
p. 15, para. 33), the reasons set out by the applicant clearly
provided the Court of Cassation with "the opportunity which is in
principle intended to be afforded to Contracting States by
Article 26 (art. 26), namely the opportunity of putting right the
violations alleged against them" (see the Guzzardi judgment
previously cited, p. 27, para. 72).