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You are here: BAILII >> Databases >> European Court of Human Rights >> SAINTE-MARIE v. FRANCE - 12981/87 [1992] ECHR 81 (16 December 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/81.html
Cite as: 16 EHRR 116, [1992] ECHR 81, (1993) 16 EHRR 116
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In the case of Sainte-Marie v. France*,
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 R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 June and 24 November 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 78/1991/330/403. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 September 1991, 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. 12981/87) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a French national,
Mr Jean-Pierre Sainte-Marie, on 29 April 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
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 28 September 1991 Mr J. Cremona, the
Vice-President of the Court, drew by lot, in the presence of the
Registrar, the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Bernhardt, Mr S.K. Martens,
Mrs E. Palm, Mr R. Pekkanen and Mr A.N. Loizou (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 applicant's lawyer on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Government and the Delegate of the Commission lodged
their observations respectively on 15 January and 12 February 1992.
On 20 January the applicant's lawyer informed the Registrar that she
would make oral submissions.
On 9 April 1992 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
On 22 May, with the Court's leave, the Government provided
various documents (Rule 37 para. 1 in fine).
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 June 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department, Ministry
of Foreign Affairs, Agent,
Mr P. Titiun, magistrat, on secondment to the
Legal Affairs Department, Ministry
of Foreign Affairs,
Mr J. Boulard, magistrat, on secondment to the
Criminal Affairs and Pardons Department,
Ministry of Justice, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mrs C. Waquet, of the Conseil d'Etat
and the Court of Cassation Bar, Counsel.
The Court heard addresses by Mr Gain for the Government, by
Mr Soyer for the Commission and by Mrs Waquet for the applicant.
6. The representatives of the Government and the applicant
produced various documents on 10 and 31 July 1992.
AS TO THE FACTS
7. Mr Jean-Pierre Sainte-Marie, a French national born in 1963,
resides at Lantabat, in the Pyrénées-Atlantiques department; he is a
farmer.
8. On 30 January 1985 police officers (gendarmes) arrested him
and seized at his home various articles and documents, in particular
arms and ammunition. They were acting in connection with an inquiry
into a bomb attack carried out in the night of 19-20 January against
the Mauléon-Licharre police station (gendarmerie), responsibility for
which was subsequently claimed by Iparretarrak, a clandestine Basque
separatist movement.
9. The following day a Bayonne investigating judge remanded the
applicant in custody after having charged him under the following two
heads: first, unauthorised possession of a category I weapon and
category I ammunition, transport without a lawful reason of such a
weapon and ammunition and of a category VI weapon, possession without
a lawful reason of incendiary devices and criminal conspiracy; second,
using explosives to cause criminal damage to another person's
immoveable property, in connection with an earlier attack against
another police station - then under construction -, that of Lecumberry,
in the night of 24 to 25 November 1984.
10. The two sets of proceedings were conducted in parallel both
as regards review of the detention on remand and for the investigation
and trial.
I. The proceedings concerning possession of weapons and
criminal conspiracy
A. Detention on remand
1. The order of the Bayonne investigating judge of
8 March 1985
11. On 8 March 1985 the Bayonne investigating judge dismissed an
application for release which Mr Sainte-Marie had submitted to him.
2. The decision of the Indictment Division of the Pau Court
of Appeal of 5 April 1985
12. On an appeal by the applicant, the Indictment Division
(chambre d'accusation) of the Pau Court of Appeal upheld the
investigating judge's order, on 5 April 1985, on the following grounds:
"...
... Jean-Pierre Sainte-Marie said that he was a member of
Iparretarrak, admitted ownership of the arms, ammunition and
unlawful or suspect articles found in the cars and at his
home, stated that the electrical mechanisms were to be used
by the organisation for the detonation of explosives at
targets of which he was unaware and acknowledged having even
participated as driver in the expedition of
24-25 November 1984, the objective of which had been the
police barracks under construction at Lecumberry, which were
partly destroyed that night by explosives.
Jean-Pierre Sainte-Marie was therefore properly charged and
remanded in custody, when brought before the Bayonne public
prosecutor's office on 31 January 1985, in respect of two
investigations:
- the first concerns a charge of using explosives to cause
criminal damage to another person's immoveable property (in
connection with the destruction of the Lecumberry police
station);
- the second, which is the subject of the prosecution report
before us, concerns charges of unauthorised possession of a
category I weapon and category I ammunition, transport
without a lawful reason of such a weapon and ammunition and
of a category VI weapon, possession without a lawful reason
of incendiary devices and criminal conspiracy.
...
When he was interviewed as to the substance of the charges
on 6 February 1985, Jean-Pierre Sainte-Marie, who had
admitted the offences when he first appeared, refused to make
any further statements.
Expert examinations were carried out on the firearm and the
ammunition seized, which were of the same type as those
normally used by the Basque revolutionary group,
Iparretarrak.
The alleged offences are therefore manifestly serious ones
and in the light of the available evidence the accused's
continued detention on remand is fully justified in order to
prevent him from absconding since he could go into hiding
like other members of the organisation. Detention is also
the only means of ensuring that he does not re-offend."
13. The Indictment Division was composed of Mr Svahn, President,
Mrs Plantavit de la Pauze and Mr Benhamou, judges, appointed on
22 March 1983 by the general assembly of the Court of Appeal
(Article 191, fourth sub-paragraph, of the Code of Criminal Procedure).
B. Investigation and trial
1. The decision of the Bayonne Criminal Court of 4 July 1985
14. On 4 July 1985 the Bayonne Criminal Court declared void the
flagrante delicto investigation concerning Mr Sainte-Marie, as well as
all the subsequent proceedings. It found as follows:
"...
The flagrante delicto procedure confers on police officers
by way of exception some of the widest powers of the
investigating judge, including those which seriously encroach
on individual freedoms such as the inviolability of a
person's home. That is why a strict interpretation is called
for of the criteria authorising what are 'veritable
investigative powers' (Stéfani and Levasseur, Droit pénal
général et procédure pénale, 1966 edition, volume II,
no. 259).
Admittedly Article 55 of the Code of Criminal Procedure,
which defines the conditions for an investigation under the
flagrante delicto procedure, does not indicate any time-limit
for such an investigation, with the result that the
surprisingly long duration - ten days - of that carried out
following the criminal bomb attack at Mauléon is not
sufficient to entail its nullity, but this extension beyond
the usual period in such circumstances exposed the police
officers to the risk of losing sight of the conditions laid
down in the relevant provision. Thus the measures taken by
them against Sainte-Marie are open to the following
criticisms:
In the first place, for the period from 27 January 5 p.m.
to 28 January 5.50 p.m. no measure is mentioned in the
recapitulatory report and no official record appears in the
file of the proceedings. This interruption of over twenty-
four hours removed any justification for the very prolonged
continuation of the inquiry under the flagrante delicto
procedure.
Secondly, the attention of the police officers was finally
drawn to Sainte-Marie not only because he was known to be
sympathetic to the Basque separatist movements, but also by
the information received on 30 January that this new suspect
sometimes drove a Renault 14 of the same colour as a Simca
'Horizon' which had been noticed in a street of Mauléon on
the night of the attack. Yet it is 'within a very short time
after the offence' (Article 53 of the C.C.P. [Code of
Criminal Procedure]) that the persons suspected must manifest
'marks or clues' and this temporal condition cannot be
regarded as satisfied where the clue which led the
investigators to Sainte-Marie's home was only discovered by
them ten days after the offences had been committed.
Finally, there can be no doubt that the procedural
irregularity justifiably complained of has caused prejudice
to the accused. The defence is therefore well-founded in
claiming that the search which led to the discovery of
various articles for the possession of which Sainte-Marie is
charged and which led to the confessions relied on by the
prosecution was void."
2. The decisions of the Criminal Appeals Division of the Pau
Court of Appeal of 14 August and 29 October 1985
(a) The decision of 14 August 1985
15. On 14 August 1985 the Criminal Appeals Division of the Pau
Court of Appeal ruled on the prosecuting authority's appeal against the
decision of the court below:
"...
Contrary to the claims of the defence, which were accepted
without verification by the first-instance court, the inquiry
was continued without interruption, day and night, until
30 January (see in particular the official record of
28 January whose existence has been ignored by the defence,
who have no excuse for this because it is referred to in the
recapitulatory report of the single inquiry covering the
attack on the police station and the possession of weapons,
the latter offence being the subject of the present
proceedings) up to the discovery of the car which had been
seen in the locality of the attack and the searches carried
out at the home of the persons who use this vehicle, which
led to the discovery of weapons and incendiary devices in the
possession of Jean-Pierre Sainte-Marie, who, when questioned,
denied having taken part in the attack on the Mauléon police
station, but admitted to being a member of the 'Abertzale'
movement and having participated in the attack carried out a
few weeks previously on the Lecumberry police station;
It follows that the two grounds of nullity invoked by the
defence, grounds which were accepted by the court below, do
not stand up to examination and the complaints must be
dismissed;
Under Article 520 of the Code of Criminal Procedure, where
the decision of a court which has ruled solely on a
procedural objection without examining the charges, thus
relinquishing jurisdiction for the continuation of the
proceedings, is declared void, the Court of Appeal must try
the case on its merits;
Consequently the case must be set down for hearing at a
future date for the examination of whether the charges
against Jean-Pierre Sainte-Marie are well-founded;
FOR THESE REASONS:
[The Court of Appeal]
Sitting in open court and in adversarial proceedings;
Holds that the appeal is admissible and well-founded;
Holds that the examination of the investigation carried out
under the flagrante delicto procedure by the Mauléon-Licharre
police force concerning Jean-Pierre Sainte-Marie does not
disclose a ground of nullity;
Setting aside the relevant decision,
Quashes the decision appealed and, pursuant to Article 520
of the Code of Criminal Procedure, decides to try the case
itself;
Sets down the case for hearing on 22 October 1985 to
examine the charges;
Reserves the costs."
16. The Criminal Appeals Division was composed of Mr Svahn,
President, and Mr Bataille and Mr Biecher, judges, all three of whom
were appointed on 20 May 1985 by the First President of the Court of
Appeal (Article 510 of the Code of Criminal Procedure).
(b) The judgment of 29 October 1985
17. By a second decision, of 29 October 1985, the Criminal Appeals
Division sentenced the applicant to a term of four years' imprisonment,
on the following grounds:
"The case falls to be heard on its merits by the Court of
Appeal in accordance with the decision of this court dated
14 August 1985.
The unlawful possession of an automatic pistol, a category
I weapon and ammunition for that weapon, and two molotov
cocktails, which are incendiary devices, and the transport in
a vehicle of such material and of a flick-knife are facts
established by the findings of the police investigators in
the course of the searches carried out and are moreover
admitted by the accused himself; they indeed constitute the
offences of unauthorised possession of category I weapons and
ammunition and transport without a lawful reason of category
I and category VI weapons and category I ammunition and the
offence of possession without a lawful reason of incendiary
devices, provided for and punished by Articles 28 and 32 of
the Act of 18 April 1939 and Article 3 of the Act of
19 June 1971.
The accused admitted and even asserted his membership of
the Iparretarrak movement; this movement was formed with a
view to attaining political objectives aimed at securing the
independence and unification of the northern and southern
Basque provinces; in pursuit of that aim it adopted various
methods, in particular armed struggle, which make it an
association or a conspiracy established with a view to the
preparation and commission of offences against persons or
property within the meaning of Article 265 of the Criminal
Code.
...
The weapons, ammunition and electrical components for
devices for the detonation of explosives found in Jean-Pierre
Sainte-Marie's possession and his own statements concerning
his membership of the Iparretarrak movement and on the use to
which he intended to put the weapons and the materials
discovered leave no doubt as to the accused's intention of
supporting that movement, the criminal aims of which are well
known to him.
..."
18. The Criminal Appeals Division was composed of Mr Lasalle-
Laplace, judge, replacing the President, the latter being unable to
sit, and designated for this purpose by the First President on
10 December 1984, as well as Mr Bataille and Mr Biecher, judges.
3. The judgment of the Court of Cassation of 6 November 1986
19. Mr Sainte-Marie filed two appeals on points of law against the
decisions of 14 August and 29 October 1985. They were dismissed by the
Criminal Division of the Court of Cassation in a single judgment of
6 November 1986.
In his memorial the applicant had made four submissions.
Two of them related to the decision of 14 August 1985, which
is not in issue here (see paragraph 24 below).
The first concerned the composition of the Criminal Appeals
Division when it quashed the decision of 4 July 1985 (see
paragraphs 14-15 above). The Criminal Division of the Court of
Cassation dismissed this complaint in the following terms:
"As regards the first ground of appeal, based on the
violation of Articles 49 and 591 of the Code of Criminal
Procedure and of Article 6 (art. 6) of the European
Convention ...[, whereby the appellant alleges as follows]:
'In so far as it appears from the interlocutory
decision of 14 August 1985 that the Pau Court of
Appeal was composed of Mr Svahn, sitting as
President, and Mr Bataille and Mr Biecher, judges;
in the first place, these judges had sat in the
same case as members of the indictment division
which, in two decisions dated 5 April and 8 August
1985, had confirmed orders refusing the applicant's
release; having thus been involved in the case at
the stage of the investigation, they were precluded
by virtue of the provisions of Article 49 of the
Code of Criminal Procedure from subsequently
participating in the trial and ruling on whether the
offence had been committed and on the accused's
guilt;
secondly, Article 6 (art. 6) of the European
Convention provides that 'everyone is entitled to a
... hearing ... by an independent and impartial
tribunal established by law ...'. The European
Court has already held that impartiality must be
assessed according to an objective test making it
possible to affirm that a court affords sufficient
guarantees to rule out any legitimate doubts in this
respect; that was not the case in this instance,
since, having given on two occasions, as members of
an indictment division, decisions confirming orders
refusing the applicant's release, these judges had
necessarily carried out a preliminary examination of
the merits and adopted a position on the value of
the evidence and clues against the accused, so that
they were precluded from subsequently participating
in the trial and ruling on whether the offence had
been committed and the accused's guilt';
The fact that judges of the Criminal Appeals Division which
gave the contested decisions had, in the same case, as
members of the Indictment Division, previously ruled on the
accused's detention on remand is not a ground for quashing a
judgment, since no statutory provision prohibits on
pain of nullity the members of the indictment division which
has given such a ruling from subsequently sitting in the
Criminal Appeals Division before which the case comes and,
furthermore, such participation is not contrary to the
requirement of impartiality laid down in Article 6 (art. 6)
of the European Convention ...;
Accordingly, the Court of Cassation is satisfied that the
court was lawfully composed;
The submission must therefore fail."
The second submission concerned the lack of a statement of
reasons, the failure to reply to final submissions, the lack of a legal
basis and the violation of the rights of the defence (Articles 53, 56,
57, 76 and 593 of the Code of Criminal Procedure and Article 6
(art. 6) of the Convention).
The remaining submissions were founded on the lack of a record
of the oath of the three witnesses who testified at the appeal hearing
on 22 October 1985 (Articles 437, 446 and 454 of the Code of Criminal
Procedure) as well as the failure to state reasons and the lack of a
legal basis for the judgment of 29 October 1985 (Articles 265 of the
Criminal Code and 593 of the Code of Criminal Procedure), and not the
lawfulness of the composition of the Pau Court of Appeal in these
proceedings (see paragraph 17 above).
II. The proceedings relating to the charge of criminal damage
A. Detention on remand
1. The order of the Bayonne investigating judge of 8 July 1985
20. On the basis of the decision of 4 July 1985 (see paragraph 14
above) and contending that the proceedings in question were void,
Mr Sainte-Marie applied for his release.
On 8 July the investigating judge dismissed his application.
2. The decision of the Indictment Division of the Pau Court
of Appeal of 8 August 1985
21. On 8 August 1985 the Indictment Division of the Pau Court of
Appeal dismissed Mr Sainte-Marie's appeal from the investigating
judge's order. Its decision was based on the following reasons:
"The facts have already been examined in an earlier
decision of this Indictment Division dated 5 April 1985 [see
paragraph 12 above]; express reference is made thereto.
In support of his application and his appeal, Sainte-Marie
argues essentially that these proceedings, in respect of
which he is detained, are void because the Bayonne Criminal
Court has declared void other proceedings, the initial
investigation for which had provided the legal basis for the
present case. According to his lawyer, Sainte-Marie's
confessions were obtained following his arrest, held to be
unlawful by the criminal court on account of the flagrante
delicto procedure used. He could not therefore, it was
contended, be kept in detention on that basis.
However, the decision of the Bayonne Criminal Court was
immediately appealed by the public prosecutor and is shortly
to be examined by the Court of Appeal.
As the decision of the lower court has been challenged by
an appeal to the second-instance court for a new ruling on
the facts and the law, the argument of the accused, who
claims to be detained by virtue of proceedings which have
been declared void, cannot be accepted, beyond the [question
of] fact already adjudicated upon; it does not fall to the
Indictment Division to give a ruling, at this stage, on this
matter.
The proceedings in question must therefore be regarded as
perfectly lawful until such time as a final decision to the
contrary has been given;
Sainte-Marie should be kept in detention, at the disposal
of the judicial authorities. The other arguments put forward
by the accused in his memorial are not sufficient to outweigh
the fact that he has already shown that he represents a
danger to public order and to the institutions of the State
and that it may be thought that he would not hesitate to
rejoin his comrades or accomplices in hiding if he were to be
released."
22. The Indictment Division was composed of Mr Svahn, President,
and Mr Bataille and Mr Biecher, judges, appointed on 20 May 1985 by the
general assembly of the Court of Appeal (Article 191, fourth
sub-paragraph, of the Code of Criminal Procedure).
B. The judgment
23. On 10 April 1986 the Bayonne Criminal Court sentenced
Mr Sainte-Marie to five years' imprisonment. Its judgment was upheld
on 8 July 1986 by the Pau Court of Appeal. The applicant filed an
appeal on points of law, which the Court of Cassation dismissed on
26 May 1987.
These various decisions are not at issue in the present
proceedings.
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Sainte-Marie lodged his application with the Commission on
29 April 1987. He alleged a violation of Article 6 para. 1 (art. 6-1)
of the Convention in so far as the Criminal Appeals Division of the Pau
Court of Appeal had not constituted an impartial tribunal when it
convicted him on 29 October 1985, because two of its members had
previously ruled on an application for release.
25. The Commission declared the application (no. 12981/87)
admissible on 3 December 1990. In its report of 10 July 1991
(Article 31) (art. 31), it expressed the opinion by fourteen votes to
five that there had been no violation of Article 6 para. 1 (art. 6-1).
The full text of its opinion and of the dissenting opinion contained
in the report 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 253-A 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
26. At the hearing the Government confirmed the submissions set
out in their memorial requesting the Court to "find that [the]
application is inadmissible and, in the alternative, ill-founded".
27. The applicant's lawyer urged the Court "to recognise the
violation of Article 6 para. 1 (art. 6-1) committed in this case".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
28. The Government contended that the applicant had failed to
exhaust his domestic remedies. He had never challenged in the French
courts the participation of Judges Bataille and Biecher in the
adoption, by the Pau Criminal Appeals Division, of the two decisions
in the possession of arms and criminal conspiracy case, namely the
decision of 14 August 1985 on the validity of the flagrante delicto
procedure and that of 29 October 1985 on the merits (see
paragraphs 15-18 above).
29. The Court observes, like the Delegate of the Commission, that
the applicant's complaint before the Convention organs was directed at
something completely different. It concerned the lack of impartiality
of the Court of Appeal in so far as the two above-mentioned judges had
ruled on 8 August 1985 on an application for release in the criminal
damage proceedings before determining, on 29 October 1985, the
accused's guilt in the proceedings relating to charges of possession
of arms and criminal conspiracy (see paragraphs 17 and 21 above). The
preliminary objection is therefore devoid of purpose.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
30. Mr Sainte-Marie maintained that his case had not been heard
by an "impartial tribunal" within the meaning of Article 6 para. 1
(art. 6-1), according to which:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing ... by an ...
impartial tribunal ..."
In his submission, the Criminal Appeals Division of the Pau
Court of Appeal, which sentenced him, on 29 October 1985, to four
years' imprisonment, did not satisfy the requirements of that
provision. Two of its three members, Mr Bataille and Mr Biecher, had
sat on the previous 8 August in the Indictment Division of the same
Court of Appeal. In confirming an order dismissing an application for
release, they must necessarily have considered whether there were
plausible grounds for suspecting the applicant of having committed the
offence and must, accordingly, have carried out a preliminary
examination of the merits. They had thus formed an opinion on the
weight of the evidence and the clues contained in the prosecution case.
Although he had never been convicted, they had relied inter alia on the
assumption that "he represent[ed] a danger to public order and to the
institutions of the State" (see paragraph 21 above).
He conceded that their decision of 8 August 1985 had been
taken in the context of the criminal damage proceedings and not, like
the judgment of 29 October 1985, in the proceedings relating to the
charges of possession of arms and criminal conspiracy, but it had, in
his view, been one and the same criminal case. The public prosecutor's
office had divided it into two separate proceedings for purely
technical reasons and the sake of convenience. Several circumstances
were relevant in this respect: the same investigating judge had opened
on the same day two investigations which he had subsequently conducted
simultaneously; in its decision of 8 August 1985 the Indictment
Division had referred to the facts established in that of 5 April 1985,
which cited circumstances relating to both cases and had mentioned both
heads under which he had been charged; finally, in its judgment of
6 November 1986, the Court of Cassation had taken the view that only
one case was involved.
In short, the objective impartiality of the trial court could
appear open to doubt.
31. The Government contested this argument, relying principally
on the judgments in Piersack and De Cubber v. Belgium (1 October 1982
and 26 October 1984, Series A nos. 53 and 86) and the opinions of the
Commission in the cases of Ben Yaacoub v. Belgium and Hauschildt v.
Denmark (7 May 1985 and 16 July 1987, Series A no. 127, pp. 11-16, and
no. 154, pp. 33-38).
In the first place, the applicant had produced no evidence
capable of casting doubt on the personal impartiality of Mr Bataille
and Mr Biecher when they sat on 29 October 1985. In addition, neither
of them had previously been involved in the case as a representative
of the prosecuting authority or as investigating judge. Finally, the
decision of 8 August 1985 had dealt solely with the question of
Mr Sainte-Marie's remand custody; the Indictment Division had not made
any assessment in it of the applicant's possible criminal liability
arising out of the attack on the Mauléon-Licharre police station.
In conclusion, for the Government, the impartiality of a court
could not be impugned merely because some of its members had, before
ruling on the accused's guilt, been called upon to examine a - single -
application for release, filed moreover in the context of different
proceedings, concerning different offences, committed at different
times and in different places.
32. The main thrust of the applicant's argument, namely that the
fact of having ruled on the question of detention on remand necessarily
entails a lack of objective impartiality, runs counter to the Court's
case-law. According to the Hauschildt judgment of 24 May 1989 , which
moreover is concerned, as appears from its express wording, solely with
the decisions of a judge who is not responsible for preparing the case
for trial, the mere fact that such a judge has already taken pre-trial
decisions in the case, including decisions relating to detention on
remand, cannot in itself justify fears as to his impartiality (Series A
no. 154, p. 22, paras. 50-51). Only special circumstances may warrant
a different conclusion, as they did in the Hauschildt case (ibid.,
pp. 22-23, para. 52).
33. The Court shares the Commission's view that there was nothing
of that nature in the present case. On 8 August 1985 the Indictment
Division made "express reference" to the facts which it had already
examined in the decision of 5 April 1985. That decision, given by a
division composed to a large extent differently (see paragraph 13
above), set out extremely precise findings: Mr Sainte-Marie "said that
he was a member of Iparretarrak, admitted ownership of the arms,
ammunition and unlawful or suspect articles found in the cars and at
his home" and "acknowledged having even participated as driver in the
expedition of 24-25 November 1984" against the Lecumberry police
station; "the firearm and the ammunition seized ... were of the same
type as those normally used by the Basque revolutionary group,
Iparretarrak" (see paragraph 12 above).
The Indictment Division thus based its decision of
8 August 1985 on the applicant's own statements. He did not retract
these statements and never claimed that they had been obtained under
duress. They were moreover corroborated by uncontested physical
evidence. The Indictment Division confined itself to making a brief
assessment of the available facts in order to establish whether prima
facie the police suspicions had some substance and gave grounds for
fearing that there was a risk of the accused's absconding.
34. In conclusion, the participation of Judges Bataille and
Biecher in the adoption of the judgment of 29 October 1985 did not
undermine the impartiality of the Criminal Appeals Division since the
applicant's misgivings cannot be regarded as objectively justified.
There has therefore been no violation of Article 6 para. 1 (art. 6-1).
In these circumstances, it appears superfluous to rule on the
views of the Government and the applicant as to whether or not the two
sets of criminal proceedings brought against the latter were separate.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government's preliminary objection;
2. Holds by eight votes to one that there has been no violation
of Article 6 para. 1 (art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 16 December 1992.
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 dissenting
opinion of Mr Walsh is annexed to the present judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE WALSH
1. The Court has many times held that Article 6 para. 1
(art. 6-1) of the Convention requires that a tribunal should be
structurally impartial. That is the question raised in the present
case. There has been no claim that a judge has failed to be
subjectively impartial.
2. The claim of absence of structural impartiality of the trial
court which convicted the applicant rests upon the participation, as
trial judges, of two judges who had previously heard and refused a
request for provisional liberty made by the applicant before his trial.
3. In principle a trial judge is not disqualified by reason only
of his having dealt with interim or interlocutory applications by the
accused before the trial. Such applications may include one concerned
with pre-trial liberty or remands in custody. But whether that is
always so must necessarily depend upon the issues which fall to be
decided, and the manner of their proof, in the particular pre-trial
application.
4. Where under national law an application for pre-trial
provisional liberty requires or permits the judge to assess the
probability or otherwise of the guilt of the applicant or where he
speculates on that issue in course of arriving at, or for the purpose
of, his decision, he has already reached at least a provisional view
on the question of the strength of the case or even of the guilt of the
applicant. Ordinarily the function of a judge hearing a pre-trial
application for provisional liberty is to decide, on appropriate
evidence, whether he is satisfied that the accused, if at liberty, will
abscond or seek to defeat justice by tampering with or destroying
evidence or intimidating witnesses. If the judge is not so satisfied
he should grant the application subject to such reasonable guarantees
or restrictive conditions as he thinks necessary and prudent. That
applies equally to the innocent and the guilty. If liberty is refused
simply because of the strong suspicion of guilt it violates the concept
of the presumption of innocence enshrined in Article 6 (art. 6). If
however the national legal system requires, or permits, consideration
of the probability of guilt as a factor in the decision on provisional
liberty, the judge who so decides clearly disqualifies himself from
participation as a judge at the trial of the substantive issue of guilt
or innocence.