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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, 25 EHRR 234, (1998) 25 EHRR 234, [1997] ECHR 13

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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



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