[TRANSLATION] ... THE FACTS

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1 GUIGUE AND SGEN-CFDT v. FRANCE DECISION 1 [TRANSLATION]... THE FACTS The applicants, Mrs Jeanine Guigue and the Federation of Education Unions (SGEN-CFDT), are a French national, born in 1932 and living in Paris, and a legal person having its registered office in Paris. They were represented before the Court by Mr N. Senyk, a lawyer practising in Paris. A. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 27 July 1993 Mrs Guigue, the first applicant, who is a regional inspector of schools, lodged a criminal complaint and application to join the proceedings as a civil party against a person or persons unknown for premeditated assault. She submitted that, after applying for a job as general inspector of schools, she received an anonymous postcard containing insults of a kind to disrupt and compromise her personal and professional life. She stated that she had previously received four postcards of the same type. Moreover, she received a sixth one shortly afterwards. On the basis of a handwriting expert's evidence and a comparative analysis of the anonymous mail received by the applicant, B., a general inspector of schools having authority over the applicant, was placed under investigation. On 18 December 1996 the investigating judge at the Paris tribunal de grande instance made an order committing B. to that court for trial on a charge of intentional assault with premeditation against Mrs Guigue occasioning unfitness for work for less than eight days. The second applicant, the SGEN-CFDT, joined the proceedings as a civil party. In a judgment delivered on 30 September 1997, the court convicted B. of intentional assault with premeditation against Mrs Guigue, sentenced him to a suspended term of three months' imprisonment and a fine of 15,000 French francs (FRF), and awarded damages to the civil parties, namely FRF 25,000 to Mrs Guigue for her non-pecuniary damage, and FRF 1 to the SGEN-CFDT.

2 2 GUIGUE AND SGEN-CFDT v. FRANCE DECISION No appeal was lodged within the statutory ten-day time-limit binding on all the parties save the Principal Public Prosecutor. In a letter of 5 December 1997, B.'s lawyer informed the SGEN-CFDT's lawyer that the Principal Public Prosecutor at the Paris Court of Appeal had lodged an appeal against the judgment within the special two-month timelimit available to the Principal Public Prosecutor alone and laid down in Article 505 of the Code of Criminal Procedure ( the CCP ). On 10 December 1997, five days after being notified of the appeal by B.'s lawyer, the SGEN-CFDT lodged an appeal, stating grounds, against the aforementioned judgment. Mrs Guigue did likewise. In support of their appeals, the appellants requested the Court of Appeal to declare inadmissible the appeal lodged by the Principal Public Prosecutor or, in the alternative, to declare their appeal admissible in accordance with the principle of equality of arms as derived from the right to a fair hearing within the meaning of Article 6 of the Convention. In a judgment of 4 November 1998, the Paris Court of Appeal declared admissible the appeal by the Principal Public Prosecutor and inadmissible the appeals lodged by the applicants. In its judgment the court made the following finding among others: Articles 497, point (6), and 505 of the Code of Criminal Procedure give the Principal Public Prosecutor the right to appeal against a judgment within two months of its being delivered. The other parties to the criminal trial also have a right of appeal under Article 497, points (1)-(5) of the Code of Criminal Procedure, exercisable within ten days in accordance with Article 498 of that Code. In these conditions, they cannot allege that there has been a breach of the principle of equality of arms because they could have appealed against the decision within the time-limit allowed them. They cannot extend to cases involving major offences a line of argument based on an appeal regarding petty offences in respect of which the Principal Public Prosecutor, by virtue of the last paragraph of Article 546 of the Code of Criminal Procedure, is the only party able to appeal against all decisions of the police courts... It therefore appears that the appeal by the Principal Public Prosecutor is not incompatible with the provisions of Article 6 of the European Convention for the Protection of Human Rights.... The applicants appealed on points of law. On 29 February 2000 the Court of Cassation dismissed their appeal on the following grounds: In declaring admissible the appeal by the Principal Public Prosecutor and inadmissible the cross-appeals by the civil parties, the Court of Appeal ruled as set out in the grounds reproduced in the appeal. That being the case, and seeing that neither the defendant nor the civil parties, who have a statutory right to appeal in respect of their civil interests alone, appealed within

3 GUIGUE AND SGEN-CFDT v. FRANCE DECISION 3 the time-limit allowed them, the Court of Appeal correctly applied the provisions of Articles 497, 498, 500 and 505 of the Code of Criminal Procedure, which are not incompatible with the provisions of the Convention referred to. Moreover, since the civil action has lapsed, the appellants do not have locus standi to challenge the appeal lodged by the Principal Public Prosecutor... B. Relevant domestic law and practice 1. Code of Criminal Procedure Article 497 (Law no of 8 July 1983 Art. 8 Official Gazette of 9 July 1983 in force 1 September 1983) The following persons have a right of appeal: (1) the defendant; (2) the person liable under the civil law, in respect of civil interests only; (3) the civil party, in respect of his civil interests only; (4) the public prosecutor; (5) the public authorities, in cases where they have brought the prosecution; (6) the Principal Public Prosecutor at the Court of Appeal. Article 498 (Order no of 4 June 1960 Art. 2 Official Gazette of 8 June 1960) (Law no of 30 December 1985 Art. 48 and Art. 94 Official Gazette of 31 December 1985 in force 1 February 1986) Save in the case provided for in Article 505, an appeal shall be lodged within ten days of delivery of a judgment given in the presence of both parties. However, in respect of the following, the time-limit for appealing runs only from service of the judgment, irrespective of the method used: (1) o any party who, after adversarial proceedings, was not present or represented at the hearing at which judgment was delivered, but only where this party or his representative was not notified of the date on which judgment would be delivered;

4 4 GUIGUE AND SGEN-CFDT v. FRANCE DECISION (2) o any defendant who requested to be tried in absentia as provided for in Article 411, first paragraph; (3) any defendant who failed to appear, in the circumstances set forth in Article 411, fourth paragraph. The same shall apply in respect of the cases provided for in Articles 410 and Article 500 Where one of the parties appeals during the above-mentioned periods, the other parties shall have an additional five days in which to lodge an appeal. Article 505 (Order no of 4 June 1960 Art. 8 Official Gazette of 8 June 1960) The Principal Public Prosecutor shall lodge an appeal, by service either on the defendant or on the person civilly liable for the offence, within two months of the date on which judgment is delivered. 2. Case-law In a number of cases the Court of Cassation has had an opportunity to rule on the compatibility of Article 505 of the CCP with Article 6 of the Convention. It has held that Article 505 of the Code of Criminal Procedure, which lays down a two-month time-limit for an appeal by the Principal Public Prosecutor, is not contrary to the requirement of a fair hearing provided that the defendant also has a right of appeal and has sufficient time in which to make meaningful use of it (see, inter alia, X et Y, judgment of the Court of Cassation, Criminal Division ( Cass. crim. ) 9 January 2002; Cervoni; Cass. crim., 24 October 2001; Amelot, Cass. crim., 27 June 2000; Navarra, Cass. crim., 27 June 2000). COMPLAINTS Relying on Article 6 of the Convention, the applicants challenged the judgment delivered on 29 February 2000 by the Court of Cassation. They argued that the right to a fair hearing guaranteed by that Article required the parties to have the same rights, particularly regarding remedies. They complained of a double violation of the principle of equality of arms. They alleged, firstly, that if on the expiry of the statutory ten-day timelimit no appeal had been lodged, a right of appeal should not be reserved to the Principal Public Prosecutor alone. If the Principal Public Prosecutor

5 GUIGUE AND SGEN-CFDT v. FRANCE DECISION 5 appealed within the special two-month time-limit provided for in Article 505 of the CCP, the parties to the trial had no right of appeal and the civil parties could not submit any observations on appeal. In the applicants' submission, that resulted in a breach of the principle of equality of arms. They submitted, secondly, that in accordance with the principle of equality of arms, where an appeal was lodged by the Principal Public Prosecutor within the special two-month time-limit the parties should in turn have an extra five days within which to appeal, as they did in the other cases to which Article 500 of the CCP applied (possibility of appeal known as a cross-appeal ). In their submission, the Court of Appeal's ruling upheld by the Court of Cassation that their appeals were inadmissible infringed that principle. THE LAW The applicants submitted that the inadmissibility ruling in respect of their appeals, given by the Court of Appeal and upheld by the Court of Cassation, amounted to a double violation of the principle of equality of arms guaranteed by Article 6 1 of the Convention, which is worded as follows: In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal... They maintained that Article 505 of the CCP was incompatible with the principle of equality of arms because it allowed only the Principal Public Prosecutor a right of appeal within two months of the judgment by the criminal court, whereas the right of appeal by the other parties had to be exercised within a shorter period. They alleged further that the inability of civil parties to lodge a cross-appeal against an appeal lodged by the Principal Public Prosecutor infringed the principle of equality of arms. The Court notes at the outset that the issue of the applicability of Article 6 of the Convention arises in so far as this provision is applicable only to proceedings concerning a criminal charge against the applicants or to the determination of... civil rights and obligations. Although it is clear that Article 6 of the Convention is not applicable under its criminal head with regard to the applicants, the issue arises as to whether the proceedings in question concerned the determination of... civil rights and obligations. However, the Court does not consider it necessary to determine this issue in the instant case because it considers that the complaint is, in any event, inadmissible in its entirety. The Court reiterates that, according to its case-law, the principle of equality of arms requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a

6 6 GUIGUE AND SGEN-CFDT v. FRANCE DECISION substantial disadvantage vis-a -vis his opponent (see, among other authorities, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 238, 53). Furthermore, the principle of equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality. It is a matter for the parties to assess whether a submission deserves a reaction and it is inadmissible for one party to make submissions to a court without the knowledge of the other and on which the latter has no opportunity to comment (see APEH Üldözötteinek Szövetsége and Others v. Hungary, no /96, 42, ECHR 2000-X). Lastly, the requirement of 'equality of arms', in the sense of a 'fair balance' between the parties, applies in principle to civil cases as well as to criminal cases (see Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, 33). In the instant case the Court notes that, in accordance with the provisions of the Code of Criminal Procedure (see Relevant domestic law and practice above) in force at the material time, the parties, including the civil parties, had a right to appeal against the judgment of 30 September 1997 delivered by the Paris tribunal de grande instance. Thus, far from being reserved to the Principal Public Prosecutor alone, all the parties, including the applicants, had a right of appeal. That right gave the applicants a real and genuine opportunity to submit their observations on appeal. Since the applicants did not appeal within the statutory time-limit, it is to be noted that they did not avail themselves of that opportunity (see Helle v. Finland, judgment of 19 December 1997, Reports, 1997-VIII, p. 2928, 54). The Court also observes that, although the ten-day time-limit for lodging an appeal was short, it was not so short as to deprive the applicants of the possibility of making meaningful use of that remedy. The fact that that timelimit is notably shorter for private parties than for the Principal Public Prosecutor whose position, moreover, is different cannot, in the Court's opinion, place the former at a substantial disadvantage vis-à-vis the latter within the meaning of De Haes and Gijsels, cited above, even accepting that the Principal Public Prosecutor may be regarded as their opponent within the meaning of that judgment. Furthermore, it appears, as shown by the domestic courts, that although an application to bring proceedings as a civil party triggers the public prosecution, the civil action brought by the applicants remains an action for damages for the loss incurred as a result of the offence, and any appeal that they might have lodged concerns only civil interests. This type of action is fundamentally distinct from the one brought by the Principal Public Prosecutor, who is vested with public authority and responsible for defending the general interest, which necessarily concerns only criminal provisions. In the instant case, in a judgment delivered on 30 September 1997, the court awarded damages to the civil parties. As no appeal was lodged, those

7 GUIGUE AND SGEN-CFDT v. FRANCE DECISION 7 provisions became final. They could not be called into question by the appeal lodged by the Principal Public Prosecutor. Accordingly, the applicants and the Principal Public Prosecutor brought two entirely different actions which had no bearing on each other. It follows that the applicants had a reasonable opportunity to present their case on appeal regarding the civil interests and that they cannot claim that the admissibility of the Principal Public Prosecutor's appeal unlawfully placed them in a substantially disadvantageous position vis-à-vis him. In these conditions, and having regard to the fact that Article 505 of the CCP does not deprive the applicants of a remedy available to the Principal Public Prosecutor but merely lays down different formal requirements and time-limits for its use, the Court considers that the applicants cannot maintain that there has been a breach of the principle of equality of arms inherent in the concept of a fair hearing. It follows that the application must be rejected as manifestly ill-founded within the meaning of Article 35 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.

THE FACTS. A. The circumstances of the case. The facts of the case, as presented by the applicant, may be summarised as follows.

THE FACTS. A. The circumstances of the case. The facts of the case, as presented by the applicant, may be summarised as follows. THE FACTS The applicant, Mr Giuseppe Calabrò, is an Italian national, born in 1950 and currently detained in Milan Prison. He was represented before the Court by Mr P. Sciretti, of the Milan Bar. A. The