Submitted by: Paul Triboulet [represented by Mr. Alain Lestourneaud,
lawyer in France]
Victim: The author
State party: France
Date of communication: 27 May 1995 (initial submission)
The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,
Meeting on 29 July 1997,
Adopts the following:
Decision on admissibility
1. The author of the communication is Mr. Paul Triboulet,
a French citizen born in 1929. He claims to be the victim of a violation
by France of article 14, paragraphs 1 and 3(c) and (e), of the International
Covenant on Civil and Political Rights. He is represented by counsel
(Alain Lestourneaud).
The facts as presented by the author
2.1 On 8 February 1982, the joint-stock company Innotech
Europe was set up to promote the industrial application of processes
developed by a Canadian university for the bioconversion of vegetable
waste into protein food for animals. The company had 10 shareholders,
including the author and Mr. G. Morichon, a legal adviser. On the same
day the author was appointed chairman and managing director of the company
with the agreement of the principal directors.
2.2 In the course of 1983, relations between the partners
of the company deteriorated, and on 15 April 1983 the auditor resigned
following a disagreement over the magnitude of the author's travel expenses.
On 8 March 1984, Mr. M. Botton, as resigning director, was replaced
by another shareholder. At a general meeting on 28 June 1984, Mrs. Slobodzian,
a director, was removed from office and replaced by Mr. Morichon. On
3 September 1984, the author was in turn relieved of his duties as chairman
and managing director.
2.3 On 13 October 1986 the commercial court (tribunal
de commerce) of Besançon ordered the affairs of the company, which
by then had liabilities of around FF 1,300,000, to be administered under
court supervision (redressement judiciaire). On 18 March 1991
the company went into liquidation by court order.
2.4 With regard to the legal action taken by the author,
his first complaint was lodged on 28 September 1984 for false representation
against Mr. Morichon, who was said by the author to have made him believe
in the company's solvency. On 8 February 1985, after a report by the
reporting judge of the commercial court of Besançon on the situation
of Innotech, the public prosecutor attached to the tribunal of Besançon
(tribunal de grande instance) requested the divisional commissioner
of the Dijon crime squad (service des renseignements de la police
judiciaire), to start an investigation. On 18 June, the chief prosecutor
of Besançon, noting that there were serious allegations of misuse of
company assets (abus de biens sociaux), against the author, requested
the initiation of criminal proceedings, and an examining magistrate
was appointed the following day. On 9 September 1986, the author filed
a further complaint for threats, false representation and misuse of
signature in blank, contending that the shareholders had concealed from
him the exact amount of the company's debt.
2.5 On 13 January 1987, the author was charged with misuse
of company assets and credits, and also with having claimed unwarranted
travel expenses. On 7 September 1987, owing to problems of internal
organization of the court, the public prosecutor requested the appointment
of another examining magistrate; on the same day, a new examining magistrate
was appointed. On 10 February 1988, the author informed the examining
magistrate that he was unable to attend a hearing convened for 11 February.
On 11 and 15 February, the magistrate heard two of the former shareholders
appearing as witnesses.
2.6 On 26 May and on 9 and 17 June 1988, the author filed
three new complaints. On 19 June, the examining magistrate issued an
order of referral and on the following day ordered the joinder of the
investigation into misuse of company assets and some of the complaints
whereby the author had brought criminal indemnification proceedings.
On 12 June 1990, the magistrate proceeded with another examination of
the author. On 26 December 1990, the author sent a letter to the Minister
of Justice claiming that the court-appointed administrator had not proposed
any recovery plan since the judgment placing the administrator of Innotech's
affairs under court supervision, and that there had been substantial
delays in examining his complaints. On 12 February 1991, the public
prosecutor informed the examining magistrate of the author's claims.
However, on 15 March 1991, the author, although summoned by the examining
magistrate, did not enter an appearance because of an impediment at
work.
2.7 On 26 April 1991, the examining magistrate proceeded
with another examination of the author, and on 4 January 1992 issued
a new order of referral. Two days later, the presiding officer of the
tribunal of Besançon appointed yet another examining magistrate owing
to internal problems of organization of the court. On 27 May 1992, the
public prosecutor submitted his final application against the author
and, by order of 30 June 1992, committed the author to the criminal
court (tribunal correctionnel) for trial. The complaints lodged
by the author in 1984, 1986 and 1988 were, however, dismissed by the
examining magistrate on the ground that the examination had not disclosed
sufficient evidence of any false representation, threats, attempted
extortion by force or duress of a promise, waiver or signature, fraud
or misuse of signature in blank by anyone against the author.
2.8 On 8 and 9 July 1992, the author appealed both against
the orders of dismissal of his complaints and against the order of committal
to the criminal court. By decisions dated 9 December 1992, the indictment
division (chambre d'accusation) of the Court of Appeal of Besançon
rejected the author's appeals and confirmed the orders issued. On 18
December 1992, the author lodged an appeal with the Court of Cassation
and, by decisions of 4 May 1993, the Court of Cassation, having ascertained
that the author had abandoned his appeal, recorded that fact. As to
the author's last appeal against the latter decision of the indictment
division of 9 December 1992, which had concerned one of the orders of
dismissal relating to the complaints lodged by the author, the Court
of Cassation decided on 1 February 1994 to reject the author's appeal
on the ground that the indictment division had replied to the main submissions
of the claimant and had set out the grounds on which it had found that
there was not enough evidence that anyone had committed the alleged
offences.
2.9 At the hearing before the criminal court on 8 September
1993, the author requested a confrontation between him and several witnesses
and an accounting expert evaluation. By judgment of 22 September 1993,
the criminal court sentenced the author to two months' imprisonment
(suspended) and fined him FF 20,000, concluding that the facts made
it possible to determine with certainty that the author had squandered
the company's capital in his own personal interest and that he was guilty
as charged. On 4 October 1993, the author and the public prosecutor
appealed against his conviction, but his grounds of appeal only reached
the court on 7 December 1993, the day of the hearing. By judgment of
21 December 1993, the Court of Appeal of Besançon sentenced him to 10
months' imprisonment (suspended) and fined him FF 25,000, on the ground
that the author had used the company's accounts, including his current
account as a partner, as a bank to pay off his loans and those of persons
close to him, without any concern for the company's credit and finances.
2.10 On 22 December 1993, the author appealed against
this judgment to the Court of Cassation. On 29 March, a reporting judge
was appointed by the Court of Cassation. On 1 and 5 August 1994, the
author and the reporting judge respectively submitted supplementary
pleadings and a report. On 19 August 1994, the advocate-general was
appointed and, by decision of 28 November 1994, the Court of Cassation
rejected the author's appeal.
The complaint
3.1 According to the author, the criminal court failed
to even mention in its judgment his request to obtain an expert evaluation
of the company's accounts and a confrontation between several witnesses.
This, he argues, constitutes a violation of article 14, paragraphs 1
and 3(e), of the Covenant.
3.2 The author affirms that he did not have a fair trial
because the Court of Appeal of Besançon increased the sentence pronounced
at first instance by the criminal court, basing itself on facts that
did not form part of the original charges and on which he was not able
properly to defend himself. The author claims that this constitutes
a violation of article 14, paragraph 1.
3.3 Mr. Triboulet contends that he is a victim of a violation
of article 14, paragraph 1, because the Court of Appeal of Besançon,
which had to rule on the substance of the case, was not an independent
and impartial tribunal. He points out that one of the judges of the
Court of Appeal had also sat as a judge in the indictment division of
that same Court when it ruled, on 9 December 1992, on the appeals against
the dismissal orders issued by the examining magistrate. According to
the author, the principle of the separation of the functions of examination
and judgment should have prohibited that judge from deciding on the
substance of the case. Counsel refers in this regard to the decision
of the European Court of Human Rights in the Piersack case. However,
this matter was not brought to the attention either of the Court of
Appeal or of the Court of Cassation.
3.4 Lastly, Mr. Triboulet alleged a violation of article
14, paragraph 3(c), on account of the justifiable length of judicial
proceedings in his case. He points out that the proceedings lasted for
nine years and nine months from the outset of the investigation, ordered
on 8 February 1985, to the date of the decision of the Court of Cassation.
From the date of the indictment, on 13 January 1987, to the Court of
Cassation's decision, the proceedings lasted seven years and 10 months.
In both cases, the author considers that the duration of the proceedings
exceeded the requirements laid down in the Covenant.
The State party's observations on admissibility
and the author's comments thereon
4.1 In its observations under rule 91 of the rules of
procedure, dated 4 April 1996, the State party requests the Committee
to declare the communication inadmissible, principally on account of
non-exhaustion of domestic remedies and subsidiarily because Mr. Triboulet
does not qualify as "victim" within the meaning of article 1 of the
Optional Protocol. In the first context, the State party points out
that the author failed to avail himself of the means provided by domestic
law that could have made it possible, had his allegations been substantiated,
to remedy the violations of the Covenant which he claims before the
Committee. Thus, in his application to the Court of Cassation, for judicial
review of the decision of the criminal appeals division (chambre
des appels correctionnels) of the Court of Appeal of Besançon on
21 December 1993, the author did not bring to the attention of the Court
of Cassation the arguments relating to the length of the proceedings,
the impartiality of the judge who had also taken part in the deliberations
of the indictment division of the Court of Appeal, or the lack of response
from the criminal court to his request for an expert evaluation and
a confrontation with witnesses. Concerning the latter claim, the State
party observes that the author omitted to restate his request for a
confrontation with witnesses and an expert evaluation before the Court
of Appeal of Besançon. The Government notes, with regard to the complaint
questioning the impartiality of the Court of Appeal judge, that the
author failed to avail himself of an effective remedy - a motion challenging
the judge - which would have enabled the President of the Court of Appeal
to consider the merits of the complaint.
4.2 The State party recalls that, when filing his supplementary
pleadings before the Court of Cassation on 1 June 1994 calling for the
Court of Appeal's decision of 22 September 1993 to be set aside, the
author neglected to refer to any of the above-mentioned claims. Accordingly,
the Court of Cassation notes that the argument put forward by the author,
"who confines himself to questioning the sovereign appreciation by the
judges on the merits of the facts and circumstances of the case in adversary
proceedings, cannot be accepted". The State party invokes the Committee's
jurisprudence to the effect that domestic remedies cannot be said to
have been exhausted when complainants have not submitted to the national
authorities, even in substance, the complaints which they then bring
before the Committee. See, for example, the decision on communication
No. 243/1987 (S.R. v. France), 5 November 1987, para. 3.2.
4.3 As to the question of the impartiality of the judge
of the Court of Appeal of Besançon who had sat in the indictment division
of the same Court, the State party notes that the author could have
introduced a motion challenging the judge pursuant to articles 668 and
669 of the Code of Criminal Procedure. Since the author did not avail
himself of that remedy, he is hardly in a position to question the impartiality
of the judge before the Committee. As to the absence of a response from
the criminal court to the request for an accounting expert's evaluation
and a confrontation with the witnesses, the State party notes that in
the submissions which reached the Court of Appeal on the day of the
hearing on 7 December 1993, the author had not called either for such
an evaluation or for a confrontation with the witnesses. According to
the State party, it was for the author to submit any such request to
the Appeal Court and in particular to assess, in substance, all the
violations of the Covenant, in accordance with article 509 of the Code
of Criminal Procedure (Code de Procédure Pénale), which stipulates
that "the matter shall be brought before the Court of Appeal within
the limit set by the notice of appeal and by the standing of the appellant...".
4.4 Subsidiarily, the State party considers that the author
does not qualify as a victim in respect of the alleged violations of
article 14. As regards the alleged violation of paragraph 1, concerning
the partiality of one of the judges and the principle of separation
of the functions of examination and judgment, the State party, while
subscribing to the principle of the separation of functions, submits
that, it is necessary to scrutinize the facts in the author's case in
order to determine the extent to which the same judge had cognizance
of the same elements of the case at different stages in the proceedings.
The State party points out that the author withdrew his appeal before
the indictment division concerning the order of committal to the criminal
court issued by the examining magistrate. Thus, it has to be determined
whether the applicant's fears can be held to be objectively justified,
Reference is made to the case law of the European Court of Human
Rights - Saraiva de Carvalho judgment of 22 April 1994, series
A No. 286-B, para. 35, p. 10. when a judge sitting in the criminal appeals
division has previously, in the indictment division, merely confirmed
the dismissal orders of the examining magistrate. In the indictment
division, the judge in question was called upon only to decide on the
validity of the dismissal orders concerning the proceedings brought
by the author against his former partners: at no time was this judge
required, in the indictment division, to pronounce upon the charges
laid against the author. The State party submits that a distinction
has to be made between the nature of the facts set before the judge
in the indictment division, which concerned only the proceedings brought
by the author himself, and the charges in respect of which he was sent
for trial before the criminal court: the facts were different since
in one case Mr. Triboulet was the plaintiff and in the other he was
the accused.
4.5 The State party therefore concludes that there is
compatibility, in the present case, between the exercise of the functions
of a judge within the criminal appeals division - hence, the author
has no standing before the Committee as a victim in that regard. The
State party also notes that the case law of the European Court of Human
Rights referred to by the author does not have strict application and
has undergone a number of changes (particularly in the Saraiva de
Carvalho judgment). Reference is made to the decisions
in the cases Hauschildt v. Denmark, judgment of 24 May 1989,
and Nortier v. the Netherlands, judgment of 24 August 1993.
4.6 Concerning the question of the lack of a fair hearing,
insofar as the Court of Appeal is said to have increased the sentence
previously imposed by the criminal court basing itself on facts that
did not form part of the original charges, the State party notes that
the Court of Appeal, in characterizing one course of conduct of the
author, specifically that he did not comply with certain provisions
of the Companies Act (loi sur les sociétés) of 24 July 1966,
merely evaluated one of the elements of the file submitted for free
discussion of the parties, without adding it to the initial charges.
Clearly, the Court of Appeal could not base itself on acts not punishable
in criminal law to increase the sentence pronounced at first instance
against the author: only the more severe appreciation of the actions
of Mr. Triboulet which were punishable in criminal law motivated the
heavier sentence handed down by the Court of Appeal. For this reason,
too, according to the State party, the author does not qualify as a
victim.
4.7 With regard to the alleged violation of article 14,
paragraph 3(c), of the Covenant, the State party notes that, in view
of the complexity of the case and the conduct of the author himself,
a duration of seven years and 10 months for the proceedings is justified.
Firstly, the author himself filed several complaints against his former
partners and this, according to the State party, complicated the proceedings.
Secondly, since the author made a large number of related accusations
against his former partners, a long and thorough investigation of all
the complainant's accusations was required. In this regard, the examining
magistrate, noting a connection between the proceedings brought against
the author and those initiated by the author himself, decided on 20
June 1988 to join the proceedings: the multitude of claims and counterclaims
made the case more complex and added to the task entrusted to the examining
magistrate.
4.8 The State party submits that the author's course of
conduct contributed significantly to delaying the proceedings. On two
occasions, the author failed to attend hearings convened by the examining
magistrate (February 1988 and March 1991). In the same sense, the former
associates against whom the author took action manifested no particular
interest in helping the proceedings to move forward. As regards the
duration of the proceedings, the State party observes that the author
initiated numerous actions and appeals before the higher courts in a
manner that was not pertinent, and that he should be regarded as solely
responsible for the length of the proceedings. By contrast, the domestic
courts showed great diligence: for example, the Court of Appeal, seized
on 4 October 1993 by the author, rendered its judgment on 21 December
1993; the proceedings before the Court of Cassation were likewise conducted
with all the necessary diligence.
5.1 In his comments, counsel reaffirms that there were
excessive delays in the examination of the case, in violation of article
14, paragraph 3(c). He recalls that the author had addressed a letter
to the Minister of Justice, dated 26 December 1990, complaining of the
length of the proceedings, and adds that claiming a violation of the
notion of reasonable time before the Court of Cassation, the court of
last resort in criminal proceedings, would have served no purpose in
so far as the duration of the previous proceedings is concerned. For
counsel, to require that the length of criminal proceedings should be
invoked before the highest appellate instance is tantamount to denying
the content of the right protected.
5.2 Counsel argues that the problems of internal organization
of the Tribunal of Besançon, referred to by the State party, do not
justify the excessive delays in the examination of his client's case.
As to the action of the author himself, counsel submits that Mr. Triboulet
cannot be blamed for having used all the domestic remedies available
to him to protect his rights and organize his defence. That the author
appealed the committal order to the criminal court but abandoned his
appeal in the end does not in itself constitute a valid argument for
justifying the excessive length of the proceedings.
5.3 According to counsel, the inadmissibility argument
of the State party in relation to the heavier sentence pronounced by
the Court of Appeal cannot be allowed, since the author had expressly
included in his pleadings before the Court of Cassation the argument
that the criminal judge is barred from ruling on facts other than those
set out in the formal charges. This is said to be a violation of the
concept of a fair hearing guaranteed by article 14, paragraph 1, of
the Covenant.
5.4 Counsel argues that there is no requirement for the
author to refer expressly to the relevant provision of the Covenant
- it is sufficient for there to be a "substantive" link between the
alleged violation and one of the rights guaranteed by the instrument
concerned. In his view, the fact that neither the author nor his lawyer
had themselves based their claim on the Covenant "does not make it possible
to conclude that the domestic court has not availed itself of the opportunity
that the rule of the exhaustion of domestic remedies has precisely the
aim of affording to States...".
5.5 As to the claim that the author does not qualify as
a victim within the meaning of article 1 of the Optional Protocol, counsel
points out that the distinction made by the Government regarding the
functions exercised by the same judge in the indictment division and
then in the criminal appeals division of the Court of Appeal of Besançon
cannot be allowed inasmuch as this argument has no relevance to the
victim's standing. Firstly, the State party stresses that the examining
magistrate, in June 1988, ordered the joinder of the investigation into
misuse of company funds with some of the complaints initiated by the
author against his ex-associates. His case therefore formed an indivisible
whole in law. These facts are further stated in the public prosecutor's
final application on 17 May 1992, which led to the conviction of Mr.
Triboulet.
5.6 For counsel, the facts alleged were indeed connected
inasmuch s there was a close link between the allegations contained
in the complaints lodged by the author and the charges brought
against him in the same context. Reference is made to article
39 of the Code of Criminal Procedure, which prohibits the examining
magistrate, on pain of nullity, from "participating" in the judgment
of criminal cases of which he had cognizance as an examining magistrate.
Therefore, the judge who served in the indictment division of the Court
of Appeal of Besançon was not entitled to sit in the criminal appeals
division of the same court as well, when it decided on the substance
of the case.
5.7 Furthermore, counsel notes that the State party has
not shown that the author was not personally affected by the conviction.
It is clear that the Court of Appeal unilaterally increased the sentence
pronounced at first instance on the basis of elements of fact not mentioned
in the charges, and without having held any adversary hearing. The reasoning
of the Court of Appeal enabled it to characterize what it even describes
as the author's "bad faith" and the Court of Cassation for its part
did not review that point at all. The author can therefore properly
claim to be the victim of a violation of article 14, paragraph 1. Counsel
adds that there must be no confusion between lack of standing as a victim,
which is to be determined when considering the admissibility of the
complaint, and the substantive arguments which relate to the alleged
violation itself and which are to be taken into account in the adoption
of any views.
Issues and proceedings before the Committee
6.1 Before considering any claim contained in a communication,
the Human Rights Committee must, in accordance with rule 87 of the its
rules of procedure, decide whether or not it is admissible under the
Optional Protocol to the Covenant.
6.2 The author alleges a violation of article 14, paragraphs
1 and 3(e), on the ground that the criminal court of Besançon did not
accede to his request to obtain an expert evaluation of the accounts
of his company and the confrontation between several witnesses in the
case, and because a judge sitting in the criminal appeals division of
the Court of Appeal of Besançon had also sat in the indictment division
of that same court, as the instance which reviewed the dismissal orders
issued by the examining magistrate. The State party concludes in this
regard that the claim is inadmissible because all available remedies
have not been exhausted. The Committee notes that the author did not
bring these complaints either before the Court of Appeal or before the
Court of Cassation. He did not, for example, introduce a motion to challenge
the judge who had sat in the indictment division and the Court
of Appeal, pursuant to articles 668 and 669 of the Code of Criminal
Procedure, a remedy which would have enabled the President of the Court
of Appeal of Besançon to evaluate the merits of that claim. The Committee
recalls that while complainants are not required to invoke specifically
the provisions of the Covenant which they believe have been violated,
they must set out in substance before the national courts the claim
which they later bring before the Committee. Since the author did not
raise these complaints either before the Court of Appeal or before the
Court of Cassation, this part of the communication is inadmissible under
article 5, paragraph 2(b), of the Optional Protocol.
6.3 The author contends that the Court of Appeal increased
the sentence pronounced at first instance by the criminal court basing
itself on facts that did not form part of the original charges and on
which he was not able properly to defend himself. The Committee notes
that the author did in fact raise this complaint in his supplementary
pleadings before the Court of Cassation; he cannot therefore be criticized
for not having exhausted available domestic remedies in this respect.
It appears from the file, however, that the Court of Appeal of Besançon
based itself on exactly the same charges as the court of first instance
but simply judged more severely than the first instance some of the
acts of which the author was charged, including non-compliance with
certain provisions of the Companies Act of 24 July 1966. The Committee
recalls that it is in general for the appellate courts of States parties
to the Covenant to evaluate the facts and evidence in any given case,
unless it can be ascertained that the evaluation of evidence was arbitrary
or otherwise amounted to a denial of justice. Since no such irregularities
have been shown to have occurred in the instant case, this part of the
communication is inadmissible under article 3 of the Optional Protocol,
as incompatible with the provisions of the Covenant.
6.4 The author claims that the length of the examination
of his case and of the judicial proceedings was excessive and therefore
in violation of article 14, paragraph 3(c), of the Covenant. The State
party has argued that the author has failed to exhaust domestic remedies
in this regard, since he has not brought this claim before the Court
of Cassation. The author's counsel has argued that this remedy would
have served no purpose. The Committee recalls its jurisprudence that
mere doubts about the effectiveness of an available remedy do not absolve
the author of a communication from exhausting it. In the circumstances,
the Committee concludes that this part of the communication is inadmissible
for non-exhaustion of domestic remedies, under article 5, paragraph
2(b), of the Optional Protocol.
7. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible under articles 3 and
5, paragraph 2(b), of the Optional Protocol;
(b) that this decision shall be communicated to the State party,
to the author and to his counsel.
_______________
* The following
members of the Committee participated in the examination of the present
communication: Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr.
Thomas Buergenthal, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan
de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah,
Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Julio Prado Vallejo,
Mr. Martin Scheinin, Mr. Danilo Türk and Mr. Maxwell Yalden.
** Pursuant to rule 85 of the Committee's rules of procedure,
Ms. Christine Chanet did not participate in the examination of the case.
[Adopted in English, French and Spanish, the English text
being the original version. Subsequently to be issued also in Arabic,
Chinese and Russian as part of the Committee's annual report to the
General Assembly.]