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 >> ACQUAVIVA v. FRANCE - 19248/91 [1995] ECHR 48 (21 November 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/48.html
Cite as: [1995] ECHR 48, (2001) 32 EHRR 7, 32 EHRR 7
[New search] [Contents list] [Help]
In the case of Acquaviva v. France (1),
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 Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Mr S.K. Martens,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 26 June and 23 October 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 45/1994/492/574. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, 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. 19248/91) against the French Republic lodged with the
Commission under Article 25 (art. 25) by three French nationals,
Mr Ange-François, Mrs Anne-Marie and Mrs Marie-Noëlle Acquaviva, on
16 December 1991.
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) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would
represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
(art. 43) of the Convention), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1994, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr C. Russo, Mr A. Spielmann,
Mr S.K. Martens, Mr A.N. Loizou, Mr A.B. Baka and Mr K. Jungwiert
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the French Government
("the Government"), the applicants' lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1 and
38). Pursuant to the order made in consequence, the Registrar received
the applicants' and the Government's memorials on 24 March and
1 April 1995 respectively. The applicants lodged a memorial in reply
on 3 May 1995. On 2 May the Secretary to the Commission had informed
the Registrar that the Delegate would make his submissions at the
hearing.
On 16 January 1995 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
19 June 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Ms M. Picard, magistrat, on secondment to the
Legal Affairs Department, Ministry of
Foreign Affairs, Agent,
Mr J.-P. Vidallier, magistrat, on secondment to
the Criminal Affairs and Pardons Department,
Ministry of Justice, Counsel;
(b) for the Commission
Mr D. Sváby, Delegate;
(c) for the applicants
Mr V. Stagnara, avocat,
Mr F. Martini, avocat, Counsel.
The Court heard addresses by Mr Sváby, Mr Stagnara and Ms Picard.
AS TO THE FACTS
I. Particular circumstances of the case
6. On 15 November 1987 at approximately 8 p.m. the officers of the
Vescovato brigade of gendarmerie received a telephone call from Mrs R.
informing them that an attack had just been carried out at her and her
husband's farm at Querciolo, Sorbo Ocagnano (Haute-Corse). The
perpetrator of the attack had been fatally wounded.
When the officers arrived at the scene of the incident, they
found the body of a man, identified at the morgue as being that of
Jean-Baptiste Acquaviva, the applicants' son and brother. The deceased
had been a militant nationalist on the run, whose photograph had
appeared on police posters offering a reward for information leading
to his arrest.
R. was immediately placed in police custody, but was released at
1.30 a.m. on 16 November 1987. His wife was also questioned. A
post-mortem report was drawn up on 17 November 1987. The following day
the Bastia public prosecutor sought ballistic and toxicological
reports, which were submitted on 4 December 1987 and 4 January 1988.
7. In two communiqués issued the day after the killing, the Corsican
National Liberation Front (FLNC) - an organisation that had been
dissolved in January 1983 - described the deceased as a "brother in
arms" and a "martyr for the nationalist cause", deliberately
assassinated by R.
On 18 November 1987 Mr and Mrs R. left Corsica under false
identities as the local police commander (capitaine de gendarmerie) had
advised them that he could not guarantee their safety. The furniture
disappeared from the R.s' farm on 20 November.
8. On 3 December 1987 the police investigation concluded that there
was sufficient serious and consistent evidence to justify charging R.
with fatal wounding, but that he had apparently been acting in
self-defence.
On 11 December 1987 the deceased's parents laid a complaint
against R. for intentional homicide and filed an application to join
the proceedings as civil parties. They wished to discover the
circumstances of their son's death and requested a reconstruction of
the events; they did not seek damages. On 14 January 1988 they lodged
security for costs of 5,000 French francs (FRF) fixed by an order of
14 December 1987.
9. On 19 December 1987 the R.s' farm, which had been under police
surveillance, was partly destroyed by a bomb attack. The investigation
opened into this incident was closed on 2 January 1990 under the
amnesty of 10 July 1989.
A. The investigation at Bastia
1. By the investigating judge
10. On 25 January 1988 an investigation was opened into an offence
of fatal wounding by persons unknown. On the same day Judge Catalano
was assigned to the investigation and the prosecutor's office requested
an inquiry and a reconstruction of the events.
11. The applicants were interviewed on 8 April 1988. On 13 June 1988
the prosecutor's office called for evidence to be taken from the doctor
who had signed the death certificate and the senior officer of the
gendarmerie. These two persons were questioned on 25 August 1988.
The civil parties were summoned to appear on 4 July 1988, but did
not do so because their lawyer was unable to be present.
On 2 September 1988 the investigating judge sought the opinion
of the doctors who had carried out the post-mortem examination. They
submitted their report on 23 September. On 20 September evidence was
taken from the police officers concerned, as witnesses.
12. On 27 September 1988 the R.s' farm - which had been purchased in
Spring 1988 by the Ministry of Agriculture - was placed under seal.
13. On 13 October 1988 the applicants were interviewed on the subject
of the medical experts' report. They maintained their complaint and
continued to stress the need for a reconstruction.
On 20 October 1988 R. was summoned to give evidence, but he
requested the judge to excuse him and did not appear on 3 November for
the interview.
14. In additional submissions of 26 October 1988 the public
prosecutor called for fresh expert reports, in particular a ballistic
report. One month later the civil parties also sought further
investigative measures.
On 10 January 1989 the investigating judge visited Orly Airport,
near Paris, to question R. as a "witness assisted by a lawyer" (temoin
assisté) and his wife as an ordinary witness.
15. On 11 January 1989 the judge rejected the applications for
investigative measures submitted by the prosecutor's office and civil
parties. The prosecutor's office and the applicants challenged his
decision.
Mr Catalano, who had been appointed to another post, was replaced
on 12 January 1989 by Judge Sievers.
2. By the Indictment Division of the Bastia Court of Appeal
(a) Proceedings concerning the reconstruction
16. The Bastia public prosecutor and the applicants appealed to the
Indictment Division of the Bastia Court of Appeal, which ruled, in a
preliminary decision of 22 February 1989, that the refusal to carry out
the investigative measures requested adversely affected the civil
parties' rights.
In accordance with the principal public prosecutor's submissions,
the Indictment Division quashed Judge Catalano's decision and ordered
further investigative measures including a reconstruction of the events
at the scene of the incident in the presence of R. and two ballistic
experts. It assigned the task of carrying out the reconstruction to
Judge Sievers and ordered that the costs of the expert reports be
advanced out of public funds.
17. On 31 May 1989 the prosecutor's office lodged further submissions
calling for Mr and Mrs R. to be brought to the scene of the incident
for the purposes of the reconstruction. R. was interviewed as a
"witness assisted by a lawyer" in Paris on 27 June 1989.
18. On 10 October 1989 the gendarmerie found that the seals put on
the farm had been broken and that an item of evidence, the front door,
which bore bullet marks, had been stolen. In a report submitted ten
days later the senior police officer indicated that this had made it
impossible to carry out the reconstruction under satisfactory
conditions, in view in particular of the fact that there was no
furniture in the house.
The investigating judge visited the scene on 23 October 1989.
He questioned R. in Paris on 26 October.
19. On 31 October 1989 the Bastia public prosecutor's office called
for the opening of an investigation in respect of the destruction of
the seals and the theft of the door by persons unknown. This
investigation was subsequently terminated by a decision finding that
there was no case to answer.
20. On 7 November 1989 the investigating judge ordered an inquiry
into the removal of the furniture and the disappearance of the door.
He visited the site on 9 November and interviewed the applicants the
following day in connection with the preparations for the
reconstruction.
In the course of this inquiry the judge questioned the police
officers concerned on 15 November 1989, Mr and Mrs R.'s son on
8 December and on 18 December the prosecutor who had been called out
on the night of the killing. On 20 December he gave instructions for
evidence to be taken.
21. The former public prosecutor of Bastia told him on
15 January 1990 that it had been planned from the beginning of the
investigation to organise a reconstruction.
The reconstruction, which had been scheduled for 16 January 1990
and organised with extensive security precautions, did not take place
because of the absence of R. and the police officer who had conducted
the inquiry and the applicants' refusal to attend in such
circumstances.
22. The following day the applicants requested that coercive measures
be taken in regard to Mr and Mrs R.
On 19 January 1990 the prosecutor's office called for the
transmission of the documents to the Indictment Division for a ruling
on the new applications and a decision on the further procedure.
23. On 29 January 1990 Judge Sievers forwarded the file to the
Indictment Division, which, on 7 March 1990, ordered that it be
communicated to the principal public prosecutor. On 21 May 1990 the
latter called for a reconstruction of the events.
24. On 12 June 1990 the applicants laid a complaint concerning the
destruction of the seals put on the R.s' house and the theft of the
front door; they also applied to join the proceedings as civil parties.
This complaint for theft, concealment and destruction of evidence was
declared inadmissible on technical grounds.
(b) Interlocutory proceedings concerning the status of "witness
assisted by a lawyer"
25. On 13 June 1990 the Indictment Division of the Bastia Court of
Appeal held a hearing. At the opening of the hearing the applicants
protested at the presence in the courtroom of the lawyers of R., a
"witness assisted by a lawyer". By an interlocutory decision of the
same day, the court allowed the objection and reserved judgment on the
remaining issues until 20 June.
26. R. appealed on points of law to the Court of Cassation and
requested an expedited hearing of his appeal.
The Bastia Indictment Division decided on 20 June 1990 to stay
the proceedings pending the decision of the Court of Cassation. The
same day the President of the Division instructed the investigating
judge not to take any new steps until further notice.
27. On an application by the public prosecutor, and then by the
Principal Public Prosecutor, the Indictment Division, by a decision of
27 June 1990, quashed the five investigative measures effected after
29 January 1990.
28. On 27 November 1990 the Court of Cassation dismissed R.'s appeal,
which it declared inadmissible on the ground that his status as a
"witness assisted by a lawyer" did not confer on him the standing of
party to the proceedings.
The status of "witness assisted by a lawyer" introduced by Law
no. 87-1062 of 30 December 1987 was intended to afford persons who are
the subject of a complaint laid with a civil party application the same
guarantees as those accorded to persons charged (inculpés) or, to use
the current terminology, placed under judicial investigation (mises en
examen).
B. The investigation at Versailles
29. On an application by its principal public prosecutor, the Court
of Cassation decided on 27 February 1991 to remove jurisdiction from
the Bastia Indictment Division. On grounds of public safety it
transferred the proceedings instituted against persons unknown for
fatal wounding to the Indictment Division of the Versailles Court of
Appeal.
30. That Division examined the case file as communicated by
Judge Sievers by his order of 29 January 1990.
On 21 June 1991 it gave a preliminary decision in which it
allowed the principal public prosecutor's application and held "that
it was not necessary to carry out the reconstruction ordered by the
Bastia Indictment Division". The reconstruction could no longer "be
effected in satisfactory conditions. In addition the participation of
Mr and Mrs R. in such events would entail unacceptable risks in view
of the insecurity reigning in the region in question according to
police reports".
It annulled all the measures taken with a view to the
reconstruction, delegated its President to continue the additional
investigative measures decided on 22 February 1989 and ordered that
from that point the costs should be borne by the civil parties, who
might be required to lodge further security.
31. By letter of 27 August 1991 the President of the Indictment
Division asked the applicants to inform him what steps they wished to
have carried out and on 29 October 1991 the Indictment Division
communicated the investigation file to the prosecutor's office for its
final submissions.
32. On 30 October 1991 the Versailles prosecutor's office called for
an order finding that there was no case to answer. On 19 November 1991
the applicants lodged pleadings seeking a reconstruction of the events.
In a decision of 10 December 1991 the Versailles Indictment
Division found that R. had been acting in self-defence and that there
was not sufficient evidence to justify charging anyone with the offence
that was the subject of the proceedings. It therefore ruled that there
was no case to answer.
33. The applicants lodged an appeal on points of law against this
decision. In a judgment of 14 April 1992 their appeal was declared
inadmissible by the Criminal Division of the Court of Cassation on the
ground that the pleadings had not been lodged with the registry of the
Court of Appeal but had been sent directly to the Court of Cassation
without using the services of a lawyer with a right of audience before
the Court of Cassation. The grounds of appeal had not therefore been
validly submitted to the Court of Cassation. The decision was served
on the applicants on 1 September 1992.
II. Relevant domestic law and practice
34. Article 2 of the Code of Criminal Procedure provides as follows:
"All those who have personally suffered from the damage directly
caused by a serious offence (crime), less serious offence (delit)
or petty offence (contravention) may bring civil party
proceedings (action civile) to seek compensation for such damage.
Discontinuance of such proceedings can neither halt nor stay the
criminal proceedings, without prejudice to the cases provided for
in paragraph 3 of Article 6 [of the present Code]."
However, in the case of petty offences, only the prosecuting
authority may set in motion the criminal proceedings.
Under paragraph 3 of Article 6 of the Code of Criminal Procedure,
"[Criminal proceedings] may, in addition, be discontinued by
settlement where express provision is made for this possibility.
They may likewise be discontinued in the event of withdrawal of
the complaint where the complaint was an essential condition for
the proceedings to be brought."
35. A civil party application (constitution de partie civile), which
has the effect of staying the proceedings in the civil courts, may be
made at any time to the investigating judge or the indictment division
up to the decision concluding the investigation. It may be opposed by
the prosecuting authority, by the person placed under investigation or
by another civil party, or the investigating judge may, of his own
motion, declare it inadmissible by an order which must state reasons
and which is open to appeal (Article 87 of the Code of Criminal
Procedure).
The decision of the investigation authority allowing a civil
party application to join the proceedings does not prejudge that of the
trial court as to the admissibility of that application.
36. The intervention of a civil party may be motivated solely by the
wish to support the public prosecution and to ensure that the guilt of
the accused is established. For this reason, according to the
case-law, a civil party application may be admissible even if no claim
for damages is possible. As a civil party, the victim is kept informed
of the steps of the investigation, may appeal against decisions which
harm his interests and has access to the investigation file under the
same conditions as the person placed under investigation.
37. When an investigation that has been opened on the basis of a
civil party complaint is terminated by an order finding that there is
no case to answer, any person who was the subject of the complaint may
seek damages in the criminal and civil courts and request that criminal
proceedings be brought against the civil party for false accusation;
the prosecuting authority may also summons the civil party to appear
in the criminal court before which the investigation was conducted.
If the civil party application is held to have been improper or
vexatious, the court may impose a civil fine not exceeding FRF 100,000
(Article 91 of the Code of Criminal Procedure).
PROCEEDINGS BEFORE THE COMMISSION
38. Mr and Mrs Acquaviva, and their daughter, applied to the
Commission on 16 December 1991. They criticised the length of the
investigation proceedings instituted on the basis of their civil party
application and made various complaints under Article 6 para. 1
(art. 6-1) of the Convention concerning the judgment of the Versailles
Court of Appeal.
39. The Commission declared the application (no. 19248/91) admissible
on 1 September 1993 in so far as it concerned the length of the
proceedings. In its report of 4 July 1994 (Article 31) (art. 31), the
Commission expressed the opinion, by twenty-three votes to one, that
there had been a violation of Article 6 para. 1 (art. 6-1). The full
text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 333-A 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
40. In their memorial the Government requested the Court to hold
"that the application lodged by the Acquavivas [was] incompatible
ratione materiae with the provisions of the Convention and in the
alternative that it [was] ill-founded".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
41. The Acquaviva family criticised the length of the proceedings
relating to the investigation of the complaint lodged with their civil
party application. They considered it to be contrary to Article 6
para. 1 (art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
A. Applicability of Article 6 para. 1 (art. 6-1)
42. The Government's principal submission, which they had not made
before the Commission, was that the proceedings in issue did not
concern "civil rights and obligations". They did not deny that
Mr Acquaviva and his wife and daughter were entitled to discover the
truth as to the circumstances of the death of their son and brother,
to lodge a civil party application in order to set in motion a public
prosecution and to request investigative measures. For the purposes
of the applicability of Article 6 para. 1 (art. 6-1), however, they
drew a distinction between a civil party application seeking
"vengeance" and one whose purpose was to obtain damages.
The Government maintained that the applicants' sole aim had been
to initiate a prosecution. Their action had not therefore been a civil
one within the meaning of Article 6 para. 1 (art. 6-1), unless it was
accepted that the Convention guaranteed to everyone the right to seek
a criminal conviction or at least to bring criminal proceedings against
other persons. In addition, the lodging of a civil party application
was to be distinguished from the action for damages which might
accompany or follow that step. In the instant case, no right to
compensation had been generated in the applicants' favour and no
proceedings had been instituted before any court to determine a dispute
on that issue.
43. The applicants stressed that their civil party application -
brought in order to set in motion a public prosecution - had been
allowed by the investigating judge, who had required them to lodge a
sum of money as security for costs. The judge had thus recognised the
validity of their dispute without however ruling on their right to
damages, which could arise only in the event of a conviction by a
criminal court. The outcome of the proceedings was therefore decisive
for the right to compensation in respect of their pecuniary and
non-pecuniary damage.
44. The Delegate of the Commission pointed out that the Commission
had, of its own motion, found Article 6 para. 1 (art. 6-1) to be
applicable on the basis of the Tomasi v. France judgment of
27 August 1992 (Series A no. 241-A, p. 43, para. 121). The lodging of
a civil party application by the applicants, even though it had not
been accompanied by a claim for damages, indicated their wish to take
action to secure reparation for the damage which they had sustained;
the closure of the investigation by an order finding that there was no
case to answer had been decisive for their civil rights.
45. The Court recalls that the applicability of one of the
substantive clauses of the Convention constitutes, by its very nature,
an issue going to the merits of the case, to be examined independently
of the previous attitude of the respondent State (see, inter alia, the
following judgments: Belgian linguistic, 9 February 1967, Series A
no. 5, pp. 18-19; Barthold v. Germany, 25 March 1985, Series A no. 90,
p. 20, para. 41; and H. v. France, 24 October 1989, Series A no. 162-A,
p. 20, para. 47). The Court will therefore examine the question
whether the proceedings in issue concerned a dispute over the
applicants' "civil rights and obligations".
46. According to the principles laid down in its case-law (see the
judgments of Zander v. Sweden, 25 November 1993, Series A no. 279-B,
p. 38, para. 22, and Kerojärvi v. Finland, 19 July 1995, Series A
no. 322, p. 12, para. 32), the Court must ascertain whether there was
a dispute ("contestation") over a "right" which can be said, at least
on arguable grounds, to be recognised under domestic law. The dispute
must be genuine and serious; it may relate not only to the existence
of a right but also to its scope and the manner of its exercise; and,
finally, the outcome of the proceedings must be directly decisive for
the right in question.
47. The Court notes that the Acquavivas' application, which was
allowed by the investigating judge and not opposed by the prosecuting
authority, temporarily denied them access to the civil courts for the
purpose of seeking compensation for any damage that they may have
sustained.
By choosing the avenue of criminal procedure, the applicants set
in motion judicial criminal proceedings with a view to securing a
conviction, which was a prior condition for obtaining compensation, and
retained the right to submit a claim for damages up to and during the
trial.
The finding of self-defence - which excluded any criminal or
civil liability - made by the Indictment Division of the Versailles
Court of Appeal (see paragraph 32 above) deprived them of any right to
sue for compensation. The outcome of the proceedings was therefore,
for the purposes of Article 6 para. 1 (art. 6-1), directly decisive for
establishing their right to compensation.
48. In sum, Article 6 para. 1 (art. 6-1) is applicable in the present
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
49. It remains to be established whether a "reasonable time" was
exceeded. The applicants and the Commission submitted that it had
been, whereas the Government contended that it had not.
1. Period to be taken into consideration
50. According to the applicants and the Commission, the proceedings
commenced on 11 December 1987, the date on which the Acquavivas lodged
their civil party application with the investigating judge, and ended
on 14 April 1992 with the Court of Cassation's judgment declaring their
appeal on points of law inadmissible (see paragraphs 8 and 33 above).
51. Before the Court the Government argued that the proceedings had
ended with the decision of the Indictment Division of the Versailles
Court of Appeal finding that the accused had acted in self-defence, on
10 December 1991 (see paragraph 32 above); as the Acquavivas' appeal
to the Court of Cassation had been declared inadmissible, it could not
be included in the calculation of the relevant period.
52. In accordance with its consistent case-law (see, inter alia, the
Tomasi judgment cited above, p. 43, para. 124), the Court considers
that the proceedings before the Court of Cassation should be taken into
account. It therefore finds that the relevant period ran from
11 December 1987 to 14 April 1992, that is four years and four months.
2. Reasonableness of the length of the proceedings
53. The reasonableness of the length of proceedings is to be assessed
in the light of the circumstances of the case and with reference to the
criteria laid down in the Court's case-law, in particular the
complexity of the case and the conduct of the parties and of the
competent authorities (see, inter alia, the judgments of Vernillo v.
France, 20 February 1991, Series A no. 198, p. 12, para. 30, and Monnet
v. France, 27 October 1993, Series A no. 273-A, p. 11, para. 27).
(a) Complexity of the case
54. The applicants asserted that the case had in no way been a
complex one.
55. The Commission shared that view.
56. The Government argued, on the other hand, that the proceedings
had been seriously disrupted by the local political climate, which had
been the cause of Mr and Mrs R.'s departure and of the difficulties
encountered in the judicial investigation. In addition, the scope of
the powers of the investigating judge delegated by the Indictment
Division to conduct the further inquiries and the status of "witness
assisted by a lawyer" attaching to Mr R. had given rise to legal
problems that had had an evident effect on the course of the
proceedings.
57. The Court does not discern any particular difficulties of a legal
nature. It does not, however, underestimate the political climate
reigning in Corsica at the material time. That situation caused the
departure from Corsica of the witnesses, who were afraid to return to
the island despite the arrangements made by the State authorities for
their protection, and led to the transfer of jurisdiction from the
Bastia court to the Versailles Court of Appeal. The latter decision
inevitably resulted in further delay.
(b) Conduct of the applicants
58. According to the Government, the applicants contributed to
prolonging the proceedings. By filing a civil party application
without waiting for the results of the preliminary inquiry, by refusing
to participate on 16 January 1990 in the reconstruction and by
instituting various legal proceedings, they had slowed down the
investigation.
59. The applicants replied that they had laid a complaint to
compensate for the judicial authorities' inaction and their subsequent
conduct had been guided by the same concern.
60. The Commission took the view that neither the applicants' failure
to appear on 4 July 1988 (see paragraph 11 above) nor their laying, on
12 June 1990, of a new civil party complaint (see paragraph 24 above)
had had any effect on the length of the investigation.
61. The Court recalls that only delays attributable to the State may
justify a finding that a "reasonable time" has been exceeded (see,
inter alia, the H. v. France judgment cited above, pp. 21-22,
para. 55).
In this instance the applicants insisted on the presence of the
"witness assisted by a lawyer" at the scene-of-crime reconstruction,
thereby causing that measure to be postponed (see paragraph 21 above).
They objected to the presence of the lawyers representing the same
witness at the hearing before the Bastia Indictment Division to examine
the complaint concerning the destruction of the seals (see
paragraph 25 above). In addition and above all they failed to appear
before the Bastia investigating judge (see paragraph 11 above) and to
take part in the reconstruction (see paragraph 21 above). In short
they contributed to prolonging the proceedings.
(c) Conduct of the judicial authorities
62. The applicants' main criticism was directed at the failure,
despite the Bastia Indictment Division's order to that effect, to hold
the reconstruction.
63. Pointing to the numerous investigative measures and judicial
decisions punctuating the proceedings, the Government contended that
there had been no period of inactivity that could be held against the
judicial authorities; the latter had acted in pursuance of their
discretionary power and with due diligence.
64. The Commission expressed the opinion that a "reasonable time" had
been exceeded.
65. The Court notes that the necessary steps in the investigation had
proceeded at a regular pace in the months following
Jean-Baptiste Acquaviva's death.
It observes nevertheless, like the Commission, that the decision
to organise a reconstruction was not taken until 22 February 1989, one
year and three months after the events in question, and that even then
the date fixed for the reconstruction was 16 January 1990, eleven
months later.
66. Although State authorities must act with diligence taking special
account of the interests and rights of the defence, they cannot
disregard the political context where, as in this instance, it has an
impact on the course of the investigation (see paragraphs 29 and 57
above). A situation of this kind may justify delays in proceedings,
as Article 6 para. 1 (art. 6-1) is intended above all to secure the
interests of the defence and those of the proper administration of
justice.
(d) Conclusion
67. In the light of the particular circumstances of the case and the
situation in Corsica at the time, the investigation proceedings, taken
as a whole, did not exceed a "reasonable time". There has therefore
been no violation of Article 6 para. 1 (art. 6-1).
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that Article 6 para. 1 (art. 6-1) of
the Convention is applicable in this case;
2. Holds unanimously 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 21 November 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the partly
dissenting opinion of Mr Baka is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
PARTLY DISSENTING OPINION OF JUDGE BAKA
I voted with the majority in holding that there has been no
violation of Article 6 para. 1 (art. 6-1) in the present case.
However, my reasoning differs from that of the majority of the Court.
Article 6 para. 1 (art. 6-1) of the Convention is applicable in
relation to the criminal process once a "criminal charge" is laid
against a suspect (which is definitely not the case here as regards the
applicants) or, alternatively, in criminal proceedings in so far as
they also involve the determination of "civil rights and obligations".
In the latter connection the French legal system enables civil
parties to join a public prosecution or initiate criminal proceedings.
In doing so, it gives recognition to two interests of civil parties:
firstly it accepts that relatives and victims have a legitimate
interest in taking part in the procedure with a view to finding the
perpetrator and contributing in some way to the administration of
criminal justice; secondly, it allows civil parties to claim
compensation for damage sustained, thereby protecting their civil
rights and obligations. The outcome of a criminal prosecution may be
said, in a sense, to be directly decisive for a subsequent claim for
damages, but it must also be recognised that such a claim, that is the
"civil right" interest attracting the application of Article 6
para. 1 (art. 6-1), may not necessarily exist in a given criminal
process.
In this case the applicants joined the relevant criminal
proceedings as a civil party, but did not claim damages. The whole
investigation procedure was concerned with the issue of whether a
criminal prosecution should be brought; it did not involve at any point
the determination of a "civil right". Consequently, I hold that
Article 6 para. 1 (art. 6-1) has no application in the present case.