Resolution CM/ResDH(2009)66

Execution of the judgment of the European Court of Human Rights
Lambert and Matheron against France

(Lambert, Application No. 23618/94, judgment of 24 August 1998, 
Matheron, Application No. 57752/00, judgment of 29 March 2005, final on 29 June 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court once it had become final;

Recalling that the violations of the Convention found by the Court in these cases concern breaches of the applicants’ right to respect for their private life and correspondence (violation of Article 8) as they were unable to contest the legality of telephone intercepts placed in their files, the conversation having taken place on someone else’s telephone line (Lambert) or in the context of a case to which the applicant was not party (Matheron) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate: 
 - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and 

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and 

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)66

Information about the measures to comply with the judgment in the cases of
Lambert and Matheron against France 

Introductory case summary

 These cases concern the refusal of the Cour de cassation to allow the applicants, charged respectively with handling the proceeds of aggravated theft in 1992 and drugs offences in 1994, to contest the legality of the inclusion of transcriptions of telephone intercepts in their case-files. In the Lambert case, the objection was based on the fact that the telephone line which was tapped was not his own, and in the Matheron case on the fact that the tapping was carried out in proceedings to which the applicant was not party (violations of Article 8).

 The European Court considered that the reasoning followed by the Cour de cassation might tend to withdraw the protection of the law either from any person conducting a telephone conversation using a line other than their own (Lambert) or from those facing accusations arising from telephone tapping carried out in cases not concerning them, thus depriving the protection provided by national law of much of its substance. The Court thus considered that the applicants had not enjoyed “effective supervision” such as to limit the interference at issue to what is necessary in a democratic society.

I.	Payment of just satisfaction and individual measures

a)  Details of just satisfaction

Application and No.	Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
Lambert, 23618/94	10 000 FF		15 000 FF	25 000 FF	
Paid on 13/04/1999 with default interest	
Matheron, 57752/00	3 000 EUR		5 000 EUR	9 000 EUR	
Paid on 15/12/2005 with default interest	

b) Individual measures

The possibility to request reopening their cases was available to the applicants under section L626-1 of the Code of Criminal Procedure.

II.	General measures

The European Court did not call into question the legal grounds for telephone tapping, found to be in conformity with the requirements of Article 8 of the Convention.

 In view of the direct of the direct effect given to the Convention by French courts, and in order to encourage courts to take due account of these judgments, they have been published and sent out to the relevant authorities. In addition they have been the subject of commentaries in various specialist journals, in particular CREDHO No. 5/1999 (Lambert) and the Quarterly Human Rights Review No. 66 of 1 April 2006.

 Following the judgment in Lambert, the Cour de cassation has progressively adapted is case-law.

Initially, in a judgment of 15 January 2003 (Cass. Crim., 15 January 2003, Appeal No. 02-87.341) the Criminal Chamber established that any person charged with an offence has the right to contest telephone intercepts resulting from the tapping of other people’s lines. However, it rejected the idea of examining the legality of intercepts carried out in a different investigation.

 Subsequently, in order to take account of the European Court’s judgment in the Matheron case, the Cour de cassation, in a dismissal judgment dated 7 December 2005, (Cass. Crim., 7 December 2005, Appeal No. 05‑85.876) accepted that the investigating chamber might examine the lawfulness of telephone intercepts carried out in separate proceedings but attached to the file of the case under examination. In this context the investigating chamber must check in particular: the aim of the intercept ordered, whether it is in accordance with the rules, whether it is necessary and whether the interference in the subject’s privacy is proportionate in view of the severity of the alleged offence. The case-law of the Cour de cassation has remained constant since this judgment.

 The Cour de cassation reported widely on its new case-law: the judgment of 7 December 2005 was the subject of a commentary in its annual report for that year, and the development of the case-law was traced in the annual report for 2006.

III.	Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1 of the Convention.