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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FOUCHER v. FRANCE - 22209/93 [1997] ECHR 13 (18 March 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/13.html
Cite as: (1998) 25 EHRR 234, [1997] ECHR 13, 25 EHRR 234, [1998] 25 EHRR 234
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In the case of Foucher 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. Bernhardt, President,
Mr L.-E. Pettiti,
Mr N. Valticos,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.B. Baka,
Mr D. Gotchev,
Mr K. Jungwiert,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 30 November 1996 and
17 February 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 10/1996/629/812. 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) (1 October 1994) 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 25 January 1996 and by the
French Government ("the Government") on 6 February 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 22209/93) against the French Republic lodged with the Commission
under Article 25 (art. 25) by a French national, Mr Frédéric Foucher,
on 16 April 1993.
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
Government's application referred to Article 48 (art. 48). The object
of the request and of the application 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. 3 of the Convention in
conjunction with Article 6 para. 1 (art. 6-3+6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, 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. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the
presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely
Mr N. Valticos, Mr I. Foighel, Mr A.B. Baka, Mr L. Wildhaber,
Mr D. Gotchev, Mr K. Jungwiert and Mr U. Lohmus (Article 43 in fine of
the Convention and Rule 21 para. 5) (art. 43). Subsequently
Mr R. Pekkanen, substitute judge, replaced Mr Wildhaber, who was unable
to take part in the further consideration of the case (Rules 22
paras. 1 and 2 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government,
the applicant's 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
applicant's memorial on 24 July and the Government's memorial on
31 July 1996.
On 8 August 1996 the Commission 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
25 November 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-F. Dobelle, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mrs C. Marchi-Uhel, magistrat, on secondment
to the Legal Affairs Department,
Ministry of Foreign Affairs,
Mrs N. Berthélémy-Dupuy, magistrat,
on secondment to the Human Rights Office,
European and International Affairs Department,
Ministry of Justice,
Mr F. Fèvre, magistrat, on secondment to the
Department of Criminal Affairs and Pardons,
Ministry of Justice,
Mr D. Douveneau, Legal Affairs Department,
Ministry of Foreign Affairs, Counsel;
(b) for the Commission
Mr I. Békés Delegate;
(c) for the applicant
Mr P. Masure, avocat at the Caen Court of Appeal, Counsel.
The Court heard addresses by Mr Békés, Mr Masure and Mr Dobelle.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Frédéric Foucher, a French national who was born in 1972,
lives in Argentan in the Orne département.
A. The proceedings in the Argentan Police Court
7. On 24 July 1991 the applicant and his father were summoned to
appear before the Argentan Police Court under the direct
committal procedure (Article 531 of the Code of Criminal Procedure
- see paragraph 16 below). They were charged with having used
insulting and threatening words and behaviour towards
public-service employees - two national game and wildlife wardens - on
13 February 1991 in Fontenai-sur-Orne. This offence is classified as
a fifth-class minor offence under Article R. 40-2 of the Criminal Code,
punishable by a term of imprisonment of between ten days and a month
and by a fine of between 2,500 and 5,000 French francs (FRF), or by one
of these penalties only.
8. The applicant decided to conduct his own case and his mother went
to the police court registry on 25 July 1991 to consult the case file
and procure copies of the documents it contained. In a note that same
day the Argentan public prosecutor stated that copies could not be
issued to individuals except through a lawyer or an insurance company.
On 26 July 1991 the applicant and his father went to the registry
for the same purpose. In a second note, dated 26 July, the
public prosecutor informed them that copies of official reports could
not be issued to individuals.
9. At the police court hearing on 2 October 1991 the applicant and
his father argued that the proceedings against them were unlawful. They
relied on a breach of Article 6 of the Convention (art. 6) in that they
had been denied access to the criminal file and had been refused copies
of the documents from the file.
10. In a judgment of 2 October 1991 the police court upheld their
submissions and set aside the proceedings against the applicant and his
father on the ground that the rights of the defence had been infringed.
It declared inadmissible applications by the
National Field Sports Board and the two game wardens to join the
proceedings as civil parties. It gave the following reasons:
"...
Article 6 (art. 6) of the European Convention on Human Rights
provides that everyone charged with a criminal offence has the
right, among other things, to be informed in detail of the
accusation against him, to have adequate time and facilities for
the preparation of his defence, and to defend himself in person.
In the instant case the public prosecutor's office in no way
disputed the fact that the defendants were not allowed access to
their case file when they requested it prior to the hearing.
That the defendants attempted to secure such access is confirmed
by two notes of 25 and 26 July 1991, although these documents
refer only to the refusal to hand over copies.
The defendants should have been allowed access to their case file
in order to prepare their defence. The value of such access is
sufficiently demonstrated by the use legal representatives make
of it. No discrimination adversely affecting the rights of the
defence can be justified by the fact that a defendant prefers to
conduct his own defence. Furthermore, however detailed the
inquiry into the facts carried out at the hearing is, the
defendant cannot be deprived of the opportunity to see and
actually to familiarise himself with the documents concerning
him.
It follows that the rights of the defence were infringed during
the criminal proceedings against Mr Gérard Foucher and
Mr Frédéric Foucher and that the proceedings must accordingly be
set aside."
B. The proceedings in the Caen Court of Appeal
11. On 30 October 1991 the public prosecutor's office and the
civil parties appealed against this judgment.
12. On 2 March 1992 a summons was served on the applicant at his
home. He did not, however, appear at the hearing in the
Caen Court of Appeal on 16 March 1992.
According to him, his mother went to the registry of the Court
of Appeal to obtain information on how to gain access to the case file,
but met with the registrar's refusal.
13. In a judgment of 16 March 1992, given after proceedings that were
adversarial in the case of the applicant's father and deemed to have
been adversarial in the case of the applicant, the Court of Appeal
reversed the judgment of 2 October 1991 and refused the application for
the proceedings to be set aside for having violated the rights of the
defence. It ruled as follows:
"...
Gérard Foucher [the applicant's father] has pleaded that the
proceedings should be set aside as they are in breach of the
rights of the defence.
He argued that he had not had access to the case file in order
to prepare an effective defence and that this constituted a
violation of the European Convention on Human Rights.
However, although Article [6] (art. 6) of that Convention states
that everyone charged with a criminal offence has the right,
among other things, to be informed in detail of the nature and
cause of the accusation against him, the right to have adequate
time and facilities for the preparation of his defence and the
right to defend himself in person, the Convention does not
require that the case file be made available to the applicant
himself.
Moreover, Gérard Foucher was informed, by means of the summons
in due form, of the offences with which he was charged and of the
legal provisions relating thereto.
Under these circumstances the objection that the proceedings were
vitiated fails."
Relying on the official report drawn up on 13 February 1991 by
the two game wardens and on the statements made by another hunter, the
Court of Appeal fined the applicant and his father FRF 3,000 each for
insulting the game wardens.
C. The proceedings in the Court of Cassation
14. On 10 April 1992 the applicant lodged an appeal on points of law
against the judgment of 16 March 1992. In his grounds of appeal, which
he drafted himself, he cited Article 6 of the Convention (art. 6). His
father did not appeal.
15. On 15 March 1993 the Court of Cassation (Criminal Division)
dismissed the applicant's appeal on the following ground, among others:
"In holding that the European Convention for the Protection of
Human Rights and Fundamental Freedoms did not require that the
case file be made available to the defendant himself, and that
he had been informed, by means of the summons in due form served
on him, of the charges against him and the relevant
legal provisions, the Court of Appeal did not breach the
provisions of that Convention."
II. Relevant domestic law and practice
16. The relevant Articles of the Code of Criminal Procedure
concerning institution of proceedings in the police court and the rules
of evidence as regards minor offences are as follows:
Article 531
"Cases concerning offences within the jurisdiction of the
police court shall be brought before it by referral from the
investigating authority, by the parties' voluntary appearance or
by the direct committal of the defendant and of the person
civilly liable for the offence."
Article 537
"Minor offences shall be proved by official reports or, where
there are no such reports, or in support thereof, by evidence
taken from witnesses.
Save where the law provides otherwise, official reports by
law-enforcement officers or their deputies, or by public servants
responsible for carrying out certain police duties and authorised
by law to draw up reports of minor offences, shall be good
evidence in the absence of proof to the contrary.
Proof to the contrary must be established by either written or
witness evidence."
A. Representation in court by a lawyer
17. According to the Code of Criminal Procedure, it is only
compulsory for a defendant to be represented by a lawyer in the
Assize Court (Article 317). In all other criminal courts the person
placed under investigation - Law no. 93-2 of 4 January 1993 reforming
criminal procedure substituted the expression "mise en examen" (placing
under judicial investigation) for "inculpation" (charging) - can choose
whether or not to be represented by a lawyer.
B. Access to the case file and the release of documents it
contains
1. Lawyers
18. There are no regulations in the Code of Criminal Procedure
governing consultation of the case file or the release of documents to
lawyers except in relation to the investigation:
Article 114, third and fourth paragraphs
(as amended by Law no. 93-2 of 4 January 1993 and
Law no. 93-1013 of 24 August 1993)
"The case file shall be made available [to lawyers] at least
four working days prior to each examination of the person under
investigation or each interview with the civil party. Following
the first appearance of the person under investigation or the
first interview with the party claiming damages the case file
shall likewise be made available to lawyers at any time on
working days, in so far as this does not interfere with the
smooth running of the investigating judge's office. Pursuant to
the final paragraph of Article 80-1, the case file shall be made
available to the lawyer, in so far as this does not interfere
with the smooth running of the investigating judge's office,
fifteen days after dispatch of the registered letter or after
serving of the statement of charges, where a first appearance has
not been made in the interim.
Following the first appearance or the first hearing, the parties'
lawyers may request, at their expense, copies of the documents,
or parts of documents, in the case file, exclusively for their
own use and subject to a ban on copying."
Article 197, third paragraph
"During this period, the case file shall be lodged with the
registry of the Indictment Division and shall be made available
to the accused's counsel and to the civil parties. On a written
request, they shall receive copies forthwith, at their expense.
These copies may not be made public."
19. In a judgment of 30 June 1995 (Recueil Dalloz Sirey 1995, JP 417)
the Court of Cassation (full court) clarified the scope of Article 114,
fourth paragraph, of the Code of Criminal Procedure as regards a
preliminary inquiry:
"However it is clear from both Article 114, paragraph 4, of the
Code of Criminal Procedure, which is not contrary to the
provisions of Article 6-3-b of the Convention (art. 6-3-b)
already cited, and from Article 160 of the decree of
27 November 1991 governing the lawyers' profession that, although
a lawyer is authorised to receive copies of the investigation
file and may examine these in the presence of his client in order
to prepare his defence, he may not, on the other hand, entrust
his client with these documents which he received `exclusively
for his own use' and which must remain subject to the requirement
of confidentiality of the investigation."
2. The parties and other persons
20. In police court proceedings, there are no particular rules
governing consultation of the case file at the registry. However, the
Code of Criminal Procedure has two Articles governing the release of
documents to the parties and to others:
Article R. 155
"In proceedings relating to serious crimes or major or
minor offences, and without prejudice to the provisions of
Articles 91 and D.32 (where applicable), the following documents
may be released to the parties at their expense:
1. At their request, a copy of the criminal complaint filed by
the victim or a third party, `orders that have become final,
judgments and fixed penalty and enforcement orders provided for
under Article L. 27-1, paragraph 2, of the Highway Code'.
2. With the authorisation of the Public Prosecutor or
Principal Public Prosecutor (as applicable), a copy of any of the
other documents on the file, including those relating to an
inquiry resulting in a decision to take no further action."
Article R. 156
"In proceedings relating to serious crimes or major or
minor offences, no copy of any document other than judgments,
final fixed penalty orders and enforcement orders may be released
to any person not party to the proceedings without the
authorisation of the Public Prosecutor or the
Principal Public Prosecutor (as applicable), including those
documents relating to an inquiry resulting in a decision to take
no further action.
However, in the cases referred to in this Article and in the
previous Article the authorisation of the
Principal Public Prosecutor is required where the documents
sought have been filed with the court registry or relate to
proceedings terminated by a finding that there was no case to
answer or to a case which is to be heard in camera.
In the cases referred to in this Article and the previous
Article, where authorisation is withheld, the judicial officer
concerned shall give notice of his decision in due form and shall
state the reasons for his refusal."
21. In a judgment of 12 June 1996 reproduced by the Government in the
annex to their memorial the Court of Cassation (full court) gave a new
interpretation of the Articles in question, based on Article 6 para. 3
of the Convention (art. 6-3), in relation to proceedings in which the
case has already been sent for trial:
"Articles 114 and 197 of the Code of Criminal Procedure,
according to which only the parties' lawyers are entitled to
receive a copy of the documents contained in the file of a case
under investigation, are not applicable to proceedings where the
case has already been sent for trial, which are therefore not
subject to the rule of confidentiality of the inquiry or
investigation laid down in Article 11 of the same Code.
Everyone charged with a criminal offence thus has the right,
under Article 6 para. 3 (art. 6-3) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, not to
the immediate communication of the documents on the file but to
the release, at his expense and, where appropriate, acting
through his lawyer, of copies of the documents submitted to the
court he has been summoned to appear before.
According to the impugned judgment, René Pascolini was directly
committed before the criminal court for misleading advertising;
Having refused the assistance of an officially appointed defence
counsel and as he had not been authorised by the
public prosecutor's office to receive a copy of all the evidence
in the case file, before putting forward any defence on the
merits the defendant raised an objection complaining that the
proceedings were vitiated because they were in breach of
Article 6 (art. 6) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms and asked the
trial court to order that he receive a copy of the case file.
The appellate court's judgment upheld the lower court's decision
and dismissed René Pascolini's objection and request, both
repeated on appeal. Referring to new grounds and to grounds cited
from the earlier decision, it stated that it had not been
established that failure to issue copies of the documents on the
case file to the defendant constituted an infringement of the
rights of the defence where lawyers, successively appointed to
act for the defendant who had inspected the case file and
obtained a copy of it had suggested the defendant consult it in
their presence, an offer the latter had declined. It found that
the provisions of the Convention cited (art. 6) did not require
that the defendant receive a copy of the case file where he could
gain access to it through the intermediary of a lawyer. It also
stated that the caution observed in issuing copies to the parties
could be justified by the 'requirements of civil liberties and
of security'.
However, in ruling in this way and given that the relevant
provisions of Article R. 155-2 of the Code of Criminal Procedure,
requiring the authorisation of the public prosecutor's office for
the release of copies of the documents on the case file to the
parties, may not impede the exercise of the rights of the
defence, the Court of Appeal misdirected itself as to the
provisions and principles reiterated above.
The judgment should therefore be quashed."
PROCEEDINGS BEFORE THE COMMISSION
22. Mr Foucher applied to the Commission on 16 April 1993. He relied
on Article 6 para. 3 of the Convention (art. 6-3) and complained of an
infringement of the rights of the defence in that he had not been able
to have access to his case file or to obtain a copy of the documents
in it.
23. The Commission declared the application (no. 22209/93) admissible
on 4 April 1995. In its report of 28 November 1995 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 6 para. 3 taken together with Article 6 para. 1
of the Convention (art. 6-3+6-1). The full text of the Commission's
opinion is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
24. In their memorial the Government asked the Court to "rule that
there has been no violation of Article 6 para. 3 taken together with
Article 6 para. 1 of the Convention (art. 6-3+6-1) as the complaint is
ill-founded".
25. The applicant asked the Court to hold "that there has been a
violation of Article 6 paras. 1 and 3 of the Convention (art. 6-1,
art. 6-3)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 and 3 OF THE CONVENTION
(art. 6-1, art. 6-3)
26. Mr Foucher complained of an infringement of the rights of the
defence in that, in criminal proceedings, he had not been able to have
access to his case file or to obtain a copy of the documents in it.
He relied on Article 6 para. 1 of the Convention taken together with
Article 6 para. 3 (art. 6-3+6-1), the relevant parts of which provide:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
(a) to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against
him;
(b) to have adequate time and facilities for the preparation of
his defence;
(c) to defend himself in person ..."
He maintained that consulting the documents in the case file
before the hearing was a necessary step in preparing a proper defence.
As he had not had access to his case file, he had been unable to
challenge the game wardens' official report on him, which was the sole
basis for his conviction by the Caen Court of Appeal.
27. The Commission too considered that denying the applicant access
to the case file, when he was not even represented by a lawyer,
constituted a substantial impairment of the right to a fair trial in
view of the breach of the principle of equality of arms and the
restriction in the rights of the defence which it entailed.
28. The Government took the opposite view. They acknowledged that
in principle the application was compatible ratione materiae with the
Convention, regard being had to the judgment of the Court of Cassation
of 12 June 1996, which had departed from earlier decisions concerning
the communication of documents from the case file to the defendant
where there had been no preliminary inquiry (see paragraph 21 above).
On the other hand, the application was ill-founded on the facts in that
the applicant could not claim to have suffered an infringement of his
right of access to the criminal file as he had not sought to exercise
this right on appeal. Mr Foucher's failure to do so and to attend the
hearing of the Court of Appeal represented two omissions on his part
from which the Court should draw the appropriate conclusions.
29. The Court notes at the outset that it is not disputed that this
case concerns the determination of a "criminal charge"; Article 6
para. 1 (art. 6-1) is therefore applicable.
30. It observes further that the guarantees in paragraph 3 of
Article 6 (art. 6-3) are specific aspects of the right to a fair trial
set forth in general in paragraph 1 (art. 6-1). For this reason, it
considers it appropriate to examine this complaint under the
two provisions taken together (art. 6-3+6-1) (see, in particular, the
Pullar v. the United Kingdom judgment of 10 June 1996, Reports of
Judgments and Decisions 1996-III, p. 796, para. 45).
31. It is necessary in the present case to ascertain whether the fact
that Mr Foucher was denied access to his criminal file and prevented
from obtaining a copy of the documents in it constituted a violation
of Article 6 para. 1 of the Convention taken together with Article 6
para. 3 (art. 6-3+6-1).
32. The Court disagrees with the Government's contention that the
applicant cannot complain of a refusal to grant him access to his
criminal file and to release to him copies of the documents in it
inasmuch as he had not at any time made such a request to the
Principal Public Prosecutor at the Caen Court of Appeal.
Admittedly, although Article R. 155 of the
Code of Criminal Procedure made provision for this possibility
(see paragraph 20 above), Mr Foucher did not make such a request during
the appeal proceedings and, moreover, did not appear at the hearing in
the Court of Appeal (see paragraph 12 above).
It is not, however, in dispute that he was denied access at
first instance by the public prosecutor, although the
Argentan Police Court annulled the proceedings against him on the
ground that they were in breach of Article 6 of the Convention
(art. 6) (see paragraphs 8-10 above).
The decisive factor in this case is that the
Caen Court of Appeal, which set aside the police court's judgment and
dismissed the applicant's objection that the proceedings were vitiated,
sentenced him solely on the basis of the game wardens' official report
(see paragraph 13 above).
The Court of Cassation, to which the applicant appealed on points
of law, upheld the Court of Appeal's judgment, inter alia, on the
ground that "the European Convention for the Protection of Human Rights
and Fundamental Freedoms did not require that the case file be made
available to the defendant himself ..." (see paragraph 15 above).
Thus neither the Caen Court of Appeal (on 16 March 1992) nor the
Court of Cassation (on 15 March 1993) adopted the line of argument put
forward by the Government before the Convention institutions. On the
contrary, they took it as settled that Mr Foucher had not been able to
have access to his case file or to obtain a copy of the documents in
it and considered that there was no requirement to that effect under
Article 6 of the Convention (art. 6).
33. That being so, it remains to consider whether, especially during
the appeal proceedings, there was an infringement of the applicant's
defence rights and of the principle of equality of arms.
34. The Court reiterates in this connection that according to the
principle of equality of arms, as one of the features of the wider
concept of a fair trial, each party must be afforded a reasonable
opportunity to present his case in conditions that do not place him at
a disadvantage vis-à-vis his opponent (see, in particular, the
Bulut v. Austria judgment of 22 February 1996, Reports 1996-II,
pp. 380-81, para. 47).
35. In the instant case, three considerations are of crucial
importance.
Firstly, Mr Foucher chose to conduct his own case, which he was
entitled to do both under the express terms of the Convention and under
domestic law (see paragraph 17 above). The Court's reasoning in the
cases of Kamasinski and Kremzow to the effect that it is not
incompatible with the rights of the defence to restrict the right to
inspect the court file to an accused's lawyer does not therefore apply
(see the Kamasinski v. Austria judgment of 19 December 1989, Series A
no. 168, p. 39, para. 88, and the Kremzow v. Austria judgment of
21 September 1993, Series A no. 268-B, p. 42, para. 52).
Secondly, as the applicant had been committed directly for trial
in the police court without a preliminary investigation, the question
of ensuring the confidentiality of the investigation did not arise.
Lastly, the applicant's conviction by the Caen Court of Appeal
was based solely on the game wardens' official report, which, under
Article 537 of the Code of Criminal Procedure (see paragraph 16 above),
was good evidence in the absence of proof to the contrary.
36. The Court, like the Commission, therefore considers that it was
important for the applicant to have access to his case file and to
obtain a copy of the documents it contained in order to be able to
challenge the official report concerning him.
As the Argentan Police Court rightly said, "the defendants should
have been allowed access to their case file in order to prepare their
defence [as] the value of such access is sufficiently demonstrated by
the use legal representatives make of it ..." (see paragraph 10 above).
As he had not had such access, the applicant had been unable to
prepare an adequate defence and had not been afforded equality of arms,
contrary to the requirements of Article 6 para. 1 of the Convention
taken together with Article 6 para. 3 (art. 6-3+6-1).
37. Finally, the Court notes that the Court of Cassation itself,
subsequent to its ruling of 15 March 1993 in the present case
(see paragraph 15 above) reversed its previous case-law concerning
communication of the documents from a file where the defendant has
already been sent for trial. In a judgment of 12 June 1996
(see paragraph 21 above) it held:
"Everyone charged with a criminal offence thus has the right,
under Article 6 para. 3 (art. 6-3) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, not to
the immediate communication of the documents on the file but to
the release, at his expense and, where appropriate, acting
through his lawyer, of copies of the documents submitted to the
court he has been summoned to appear before.
..."
38. Regard being had to all the circumstances of the case, the Court
finds that there has been a violation of Article 6 para. 1 of the
Convention taken together with Article 6 para. 3 (art. 6-3+6-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
39. Article 50 of the Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage and costs
40. The applicant sought compensation for both pecuniary and
non-pecuniary damage and the reimbursement of costs and expenses
incurred in the domestic courts and before the Convention institutions.
He claimed a total of FRF 100,000.
41. The Government considered that the Court's finding of a violation
would constitute sufficient compensation for the non-pecuniary damage.
They made no submissions as to the costs.
42. The Delegate of the Commission asked the Court to award the
applicant just satisfaction, but left it to its discretion to assess
the amount.
43. In the matter of the alleged pecuniary damage, the Court cannot
speculate as to the outcome of the proceedings had there not been a
violation of the Convention.
It considers further that the present judgment in itself
constitutes sufficient just satisfaction for the applicant's
non-pecuniary damage.
In respect of costs and expenses and making its assessment on an
equitable basis, the Court awards Mr Foucher FRF 15,000 less FRF 11,357
already paid in legal aid before the Convention institutions.
B. Default interest
44. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 3.87% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1 of the
Convention taken together with Article 6 para. 3 (art. 6-3+6-1);
2. Holds that the present judgment in itself constitutes sufficient
just satisfaction as regards the applicant's non-pecuniary
damage;
3. Holds that:
(a) the respondent State is to pay the applicant, within
three months, 15,000 (fifteen thousand) French francs in respect
of costs and expenses less 11,357 (eleven thousand three hundred
and fifty-seven) French francs already paid in legal aid; and
(b) simple interest at an annual rate of 3.87% shall be payable
on this sum from the expiry of the above-mentioned three months
until settlement;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 18 March 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar