Independence and right to a fair trial
II. RELEVANT DOMESTIC LAW 16. Procedure in the Assize Court is governed by Articles 231 to 380 of the Code of Criminal Procedure ("CCP"). The Assize Court consists of the court properly speaking - the presiding judge and, normally, two other judges - and the jury, composed of citizens who satisfy the conditions of eligibility laid down by law. It tries mainly serious criminal cases sent to it by the Indictment Division and related or inseparable lesser offences. No reasons are given in its judgments, which are appealable only on points of law. A. The Assize Court jury 1. Constitution of the jury 17. For each case on the Assize Court ’ s list a jury is empanelled at the beginning of the trial. It contains nine jurors, drawn by lot from a session list. This list contains thirty-five names drawn by lot every three months from an annual list, itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register. One or more additional jurors are also drawn by lot and attend the trial in order that they may, if necessary, replace any juror who is unable to sit. The jury is constituted at the point when the names of nine jurors who have not been challenged and the names of the additional jurors have all been drawn by lot. 2. Challenges 18. As the names of the jurors are being drawn, the defendant or defendants are entitled to challenge up to five of them and the prosecution up to four. Their grounds for doing so cannot be given. 19. Article 668 CCP provides: "Any judge may be challenged on any of the following grounds: 1. Where the judge or his spouse is a blood relative or a relative by marriage of one of the parties or of a party ’ s spouse, up to the degree of second cousin inclusive. The challenge may be made against the judge even in the event of divorce from his spouse or the latter ’ s death where the spouse was a relative by marriage of one of the parties, up to the second degree inclusive; 2. Where the judge or his spouse, or a person in respect of whom either acts as guardian ( tuteur ), supervisory guardian ( subrogé tuteur ) or court-appointed administrator, or a company or association in whose management or supervision either takes part has an interest in the dispute; 3. Where the judge or his spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of a director or manager of a company that is a party to the proceedings; 4. Where the judge or his spouse is dependent on one of the parties; 5. Where the judge has dealt with the case as a judge, arbitrator or legal adviser, or where he has given evidence as a witness relating to the facts of the case; 6. Where there has been litigation between the judge, his spouse or their lineal blood relatives or relatives by marriage and one of the parties, his spouse or his lineal blood relatives or relatives by marriage; 7. Where the judge or his spouse is litigating in a court of which one of the parties is a judge; 8. Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties; 9. Where there have been any disagreements between the judge or his spouse and one of the parties sufficiently serious to cast doubt on his impartiality." Article 669 CCP provides: "A charged person, accused or any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the Criminal Court, the Court of Appeal or the Assize Court must, if the challenge is to be valid, make an application to the President of the Court of Appeal. Members of State Counsel ’ s Office cannot be challenged. The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence. A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since, where they are such as to constitute a ground for challenge." In the case of the Assize Court these provisions apply only to the judges and not to the jurors. 3. Taking of the oath 20. The members of the jury, standing bareheaded, are addressed by the presiding judge as follows: "You swear and promise to consider the charges that will be brought against X ... with the greatest care; not to betray either the interests of the accused or those of society, which is accusing him/her; not to communicate with anyone until you have returned your verdict; not to be swayed by hatred or spitefulness or by fear or affection; to reach your verdict in the light of the charges and the defence, according to your conscience and your innermost conviction, with the impartiality and firmness that befit a free man of integrity; and to preserve the secrecy of the deliberations, even after you have discharged your office." Each of the jurors is individually called upon by the presiding judge and replies, raising his hand: "I swear." B. Procedural applications or objections during trials and entries in the record 21. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to "take formal note" of it. This is the party ’ s only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 19 77, Dalloz-Sirey 1978, p. 28) The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It also has an unfettered discretion to decide whether evidence should be taken to verify them (Court of Cassation, Criminal Division, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985, Garbidjian ). 22. Interlocutory decisions on such matters can be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits (Article 316 CCP). C. Transfer of a case on the ground of reasonable suspicion of bias (suspicion légitime ) 23. Article 662 CCP provides: "In matters within the jurisdiction of the Assize Court, the Criminal Court or the police court, the Criminal Division of the Court of Cassation may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank, either where the court that would normally have jurisdiction cannot be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias. An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor attached to the court dealing with the case, or by the person charged, or by a civil party to the proceedings. ... The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise. ..." The Criminal Division has unfettered discretion to determine whether such a ground is made out on the alleged facts (Court of Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272; 9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61; 17 November 1964, Bull. crim. no. 301). An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question. This procedure can be used only in respect of a whole court and not against one or more members of a collegiate court (Court of Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343; Revue de science criminelle et de droit pénal comparé 1977, p. 603, comments by J. Robert). PROCEEDINGS BEFORE THE COMMISSION 24. Mr Remli applied to the Commission on 16 May 1990. He complained that he had not had a hearing by an impartial tribunal and that he had also suffered discrimination on the ground of racial origin, contrary to Article 6 para. 1 and Article 14 (art. 6-1, art. 14) of the Convention. He further alleged that he had not had an effective remedy before a national authority as required by Article 13 (art. 13) of the Convention. 25. On 1 April 1994 the Commission adjourned its examination of the complaints based on Article 6 para. 1 (art. 6-1) taken alone and together with Article 14 (art. 6-1+14) and declared the remainder of the application (no. 16839/90) inadmissible. On 12 April it declared the first complaint admissible and decided that it was unnecessary to express an opinion separately on the second complaint, as this was bound up with the issue of the court ’ s impartiality. In its report of 30 November 1994 (Article 31) (art. 31), it expressed the opinion by seven votes to four 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 two dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 26. In their memorial the Government asked the Court to "dismiss Mr Remli ’ s application". 27. The applicant requested the Court to "find that France has breached Articles 6 para. 1 and 14 (art. 6-1, art. 14) of the Convention; and award just satisfaction under Article 50 (art. 50) ..." AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION 28. The applicant maintained that he had been the victim of a breach of Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..." A. The Government ’ s preliminary objections 29. As they had done before the Commission, the Government raised two objections to admissibility. 1. Non- exhaustion of domestic remedies (a) As to the complaint based on Article 6 (art. 6) of the Convention 30. The Government argued that the domestic remedies had not been exhausted. Not only had Mr Remli ’ s application to the Assize Court for formal note to be taken been inappropriate, but the applicant had also failed either to ask for evidence to be taken or to lodge an application for transfer of the trial on the ground of reasonable suspicion of bias. The Rhône Assize Court could not take formal note of events which, even supposing their occurrence was established, had taken place outside the courtroom. Furthermore, by not applying for evidence to be taken as to the truth of the alleged matters, the applicant had deprived himself of a remedy that could have redressed the supposed breach. If the taking of evidence had made it possible to establish the alleged facts, the Assize Court could have replaced the juror in question by one of the additional jurors. If the Assize Court had refused to allow the application for evidence to be taken, Mr Remli could have applied to the Criminal Division of the Court of Cassation for a transfer of the trial on the ground of reasonable suspicion of bias in order to secure the immediate removal of the case from the Rhône Assize Court. Such a procedure could be used only in respect of a whole court and not against one or more members of a collegiate court who were suspected of bias. However, the Government continued, seeing that the juror in question had not been challenged, the impartiality of the Assize Court as a whole might be affected and the procedure of an application for transfer of the trial on the ground of reasonable suspicion of bias was therefore the appropriate one. Under Article 662 of the Code of Criminal Procedure, the Court of Cassation could have ordered that the application should have a suspensive effect. 31. In the applicant ’ s submission, the application for formal note to be taken was the remedy envisaged in Article 26 (art. 26) of the Convention, since it alone afforded the possibility of having the facts in issue recorded. It had been the Assize Court ’ s duty to order evidence to be taken of its own motion if it considered the evidence filed by Mr Remli - Mrs M. ’ s written statements - to be insufficient. Nor could an application for evidence to be taken be regarded as a remedy for the purposes of Article 26 (art. 26). As to making an application to have the trial transferred on the ground of reasonable suspicion of bias, this was a wholly exceptional procedure and could only be used in respect of a court as a whole and not in respect of a single juror. Since such an application would not have had a suspensive effect, the Assize Court would anyway have continued to sit, so the harm would have been done. 32. The Commission agreed with the applicant ’ s submissions. 33. The Court reiterates that the purpose of Article 26 (art. 26) is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, para. 33). Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among other authorities, the Pressos Compania S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 19, para. 27). 34. In the instant case the application for formal note to be taken was a prerequisite of any subsequent appeal on points of law, since the Court of Cassation cannot entertain complaints that have not been formally noted by the Assize Court and have not been entered in the record of the trial. Admittedly, the Assize Court can refuse to take formal note of events that have occurred outside the hearing, but it has the power to order evidence to be taken for the purpose of verifying them (see paragraph 21 above). That being so, and regard being had to the fact that by submitting Mrs M. ’ s written statement to the Assize Court, the applicant put that court in a position to exercise its power to order that evidence should be taken, the Court considers that the application for formal note to be taken was an effective remedy. An application for transfer of a trial on the ground of reasonable suspicion of bias can only be made in respect of a whole court. Where the impartiality of a given member of a court is in issue, only the procedure of a challenge is available. In the case of members of the jury, however, a challenge can only be made when the names of the jurors are being drawn by lot, so that it was too late to make one in the circumstances of the instant case. The objection must therefore fail. (b) As to the complaint based on Article 14 of the Convention taken together with Article 6 (art. 14+6) 35. The Government maintained that in the national courts Mr Remli had not complained of discrimination on the ground of race or national origin. The applicant was thus relying on Article 14 (art. 14) for the first time before the Convention institutions. 36. In the applicant ’ s submission, a breach of Article 14 (art. 14) could be alleged before the Convention institutions in so far as it was a consequence of the Court of Cassation ’ s judgment itself. 37. In its decision on the admissibility of the application the Commission considered that this complaint was bound up with the one based on Article 6 para. 1 (art. 6-1) and therefore did not require separate examination. 38. Having regard to the purpose of the requirement that domestic remedies must be exhausted (see paragraph 33 above), the Court allows the Government ’ s objection as to the admissibility of the complaint based on Article 14 taken together with Article 6 (art. 14+6). 2. Application out of time 39. The Government also argued, in the alternative, that the application had been out of time. The judgment of 22 November 1989, in which the appeal on points of law against the refusal to take formal note of events that had occurred outside the courtroom had been dismissed, was not the final decision from whose date the six-month period for applying to the Commission began to run. The Court of Cassation, which ruled on issues of law and not of fact, considered that the Assize Court had unfettered discretion to decide whether or not to take formal note of events that occurred out of its presence. The relevant period had accordingly begun to run on 14 April 1989, when the Assize Court had delivered its interlocutory judgment, and so the applicant had not complied with the time-limit. 40. Mr Remli disputed that submission. An appeal on points of law against interlocutory judgments of the Assize Court was expressly provided in Article 316, last paragraph, of the Code of Criminal Procedure. 41. In its decision on the admissibility of the application the Commission noted the provisions of Article 316 of the Code of Criminal Procedure. It went on to point out that the Court of Cassation had held that it had jurisdiction to rule on possible breaches of the Convention, which was directly applicable in French law; the Government had not shown that the grounds based on the Convention that had been argued in the Court of Cassation were contrary to case-law so settled that the appeal on points of law could not be considered an effective remedy. The Delegate of the Commission also pointed out that the ground of appeal based on a breach of Article 6 (art. 6) of the Convention had not been declared inadmissible by the Court of Cassation. In the Commission ’ s opinion, the relevant date for the purposes of Article 26 (art. 26) was therefore that of the Court of Cassation ’ s judgment, 22 November 1989. 42. The Court reiterates that an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably bound to fail in this specific case, the filing of the appeal was thus not a futile step. It consequently had the effect at the very least of postponing the beginning of the six-month period (see, as the most recent authority, the A. v. France judgment of 23 November 1993, Series A no. 277-B, pp. 47-48, para. 30). The objection that the application was out of time must therefore be dismissed. B. Merits of the complaint 43. In Mr Remli ’ s submission, if a court trying people of foreign nationality or origin included a juror who, before the hearing, had publicly expressed racist sentiments, it lacked impartiality. The juror in question should not have sat in a case that he was unable to assess with complete objectivity. The Rhône Assize Court, however, had dismissed his application for formal note to be taken of the remark in issue, although it had had jurisdiction to allow it. Mrs M. ’ s written statement had been clear, detailed and free from ambiguity or inconsistency, had accurately reported the remark and had identified the person who had uttered it. Where, as in the instant case, the alleged facts were such as to cast very serious doubt on the impartiality of one of the jurors, the Assize Court was, the applicant submitted, under an obligation to take formal note of it, failing which it would be denying the accused the opportunity of being tried by an impartial tribunal. In short, the Assize Court and the Court of Cassation should have reacted. 44. The Government conceded that a court containing a juror who had declared himself to be a racist could not be regarded as impartial. Nevertheless, it had to be established with certainty that such racist opinions were really held and evidence had to be brought to show that they could have influenced the conviction. In the instant case, however, Mrs M. ’ s statement was not, the Government continued, sufficiently reliable or supported to amount to evidence capable of objectively casting doubt on the jury ’ s impartiality. For one thing, it conflicted with what the applicant ’ s lawyers had said and, for another, the sentence "What ’ s more, I ’ m a racist" was just as likely to have been uttered as a joke or in connection with another case or solely in relation to the applicant ’ s co-defendant, an Algerian national, and not to Mr Remli himself, who had French nationality. It was therefore not possible to consider that it had been established that there was a doubt as to the impartiality of a member of the jury that had tried the applicant. Furthermore, a court could not be expected to verify all the remarks that a juror might make before being drawn by lot. In the instant case, the juror in question had not been challenged. Thereafter it was the impartiality of the jury itself that was relevant. In the instant case, however, it was difficult to describe the jury as a whole as biased, especially as under the Code of Criminal Procedure any decision unfavourable to an accused had to be taken by a majority of at least eight. 45. In the Commission ’ s opinion, the statement drawn up by Mrs M. contained no inconsistencies and made it possible to identify with accuracy the person who had made the remark. As the Assize Court had not verified the alleged facts, the applicant was reasonably entitled to call the juror ’ s impartiality into question, and his fears in this respect were objectively justified. There had therefore been a breach of Article 6 para. 1 (art. 6-1) of the Convention. 46. The Court refers to the principles laid down in its case-law concerning the independence and impartiality of tribunals, which apply to jurors as they do to professional and lay judges (see the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30). When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 27). 47. The Court notes that in the instant case the Rhône Assize Court had to try Mr Remli and his co-defendant, both of them of North African origin, and that a third person, Mrs M., certified in writing that she had heard one of the jurors say : "What ’ s more, I ’ m a racist." It is not for the Court to rule on the evidential value of Mrs M. ’ s written statement or on whether the racist remark attributed to the juror in question was actually made. It notes merely that Mrs M. ’ s statement - which contained a serious allegation in the context of the case - was filed with the Assize Court by the applicant ’ s lawyers, who asked the court to take formal note of it. The court dismissed their application without even examining the evidence submitted to it, on the purely formal ground that it was "not able to take formal note of events alleged to have occurred out of its presence". Nor did it order that evidence should be taken to verify what had been reported - and, if it was established, take formal note of it as requested by the defence - although it could have done so. Consequently, the applicant was unable either to have the juror in question replaced by one of the additional jurors or to rely on the fact in issue in support of his appeal on points of law (see paragraph 21 above). Nor could he challenge the juror, since the jury had been finally empanelled (see paragraph 17 above) and no appeal lay against the Assize Court ’ s judgment other than on points of law (see paragraph 16 above). 48. Like the Commission, the Court considers that Article 6 para. 1 (art. 6-1) of the Convention imposes an obligation on every national court to check whether, as constituted, it is "an impartial tribunal" within the meaning of that provision (art. 6-1) where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. In the instant case, however, the Rhône Assize Court did not make any such check, thereby depriving Mr Remli of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, suffices for the Court to hold that there has been a breach of Article 6 para. 1 (art. 6-1). II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 49. Under Article 5 0 (art. 50) of the Convention, "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.Non -pecuniary damage 50. Mr Remli claimed 1,000,000 French francs (FRF) in respect of non-pecuniary damage. 51. The Delegate of the Commission invited the Court to assess that damage on an equitable basis. 52. Like the Government, the Court considers that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient just satisfaction. B. Retrial or reduction of sentence 53. The applicant further sought a retrial by an assize court affording all the guarantees of impartiality or, failing that, a reduction of his life sentence to fifteen years ’ imprisonment. 54. Like the Government and the Delegate of the Commission, the Court points out that Article 50 (art. 50) does not give it jurisdiction to make such an order against a Contracting State (see, for example, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, para. 47). C. Costs and expenses 55. Mr Remli sought FRF 166,896 (including value-added tax - VAT) for costs and expenses, that is to say FRF 118,600 for those incurred in the national courts and FRF 48,296 for those incurred before the Convention institutions. 56. The Government maintained that the applicant had not provided vouchers for these expenses, so that the claim should be disallowed or, failing that, the question of the application of Article 50 (art. 50) should be reserved. They added that at all events, costs and expenses incurred in the national courts should not be reimbursed. 57. The Delegate of the Commission considered that the reimbursement of costs and expenses had to be limited to those incurred in the national and international legal systems in order to remedy the alleged breach. 58. The Court notes that the applicant gave particulars of his claims in his memorial and his supplementary observations and, making its assessment on an equitable basis, awards him FRF 60,000, including VAT. D. Default interest 59. 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 6.65% per annum.
The Court held that there had been a violation of Article 6 § 1 of the Convention. It noted in particular that Article 6 § 1 imposed an obligation on every national court to check whether, as constituted, it was “an impartial tribunal” where, as in the applicant’s case, this was disputed on a ground that did not immediately appear to be manifestly devoid of merit. In the instant case, however, the Assize Court had not made any such check, thereby depriving the applicant of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, sufficed for the Court to hold that there has been a breach of Article 6 § 1.