EQUALITY OF ARMS IN CRIMINAL MATTERS
EQUALITY OF ARMS IN CRIMINAL MATTERS
"When France boasts of being the home of human rights, it is a figure of speech. France, and that is already a lot, is the home of the Declaration of Human Rights, but to go further is a matter of historical blindness " Robert Badinter, "France and the European Court of Human Rights", conference of 16 March 2011 at the Council of Europe (http://coenews.coe.int/vod/20110316_02_w.wmv)
1/ THE TREATIES HAVE A HIGHER AUTHORITY THAN THE LAWS.
1-Article 55 of the Constitution states:
"Treaties or agreements that have been duly ratified or approved have, from the time of their publication, an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party. »
2-According to well-established case law, the French court must set aside the application of domestic law when it is contrary to a treaty(Cass. ch. mixte, 24 May 1975, société des Cafés Jacques Vabres, D. 1975, p 497):
" BUT WHEREAS THE TREATY OF 25 MARCH 1957, WHICH, BY VIRTUE OF THE ABOVE-MENTIONED ARTICLE OF THE CONSTITUTION, HAS A HIGHER AUTHORITY THAN LAWS, ESTABLISHES ITS OWN LEGAL ORDER INTEGRATED INTO THAT OF THE MEMBER STATES; WHEREAS, BY REASON OF THIS SPECIFICITY, THE LEGAL ORDER WHICH IT CREATED IS DIRECTLY APPLICABLE TO THE NATIONALS OF THOSE STATES AND IS BINDING ON THEIR COURTS; THEREFORE , THE COURT OF APPEAL WAS RIGHT TO DECIDE, WITHOUT EXCEEDING ITS POWERS, THAT ARTICLE 95 OF THE TREATY HAD TO BE APPLIED IN THIS CASE, TO THE EXCLUSION OF ARTICLE 265 OF THE CUSTOMS CODE, EVEN THOUGH THE LATTER TEXT WAS SUBSEQUENT; IT FOLLOWS THAT THE PLEA IS INCORRECT. IT IS THEREFORE NOT CORRECT THAT THE PLEA ISUNFOUNDED.
Litigants are therefore entitled to invoke the provisions of French law, but when the latter are contrary to international provisions, they may invoke the latter directly.
2/ THE GENERAL PRINCIPLE OF EQUALITY OF ARMS IN CRIMINAL MATTERS.
- International standards.
1-Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms states:
"Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations and of any criminal charge against him. The judgment shall be delivered in public, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the privacy of the parties to the proceedings so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
- Anyone charged with an offence is presumed innocent until proven guilty according to law.
- Every defendant is entitled to, inter alia:
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- to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the charge against him or her ;
- have the time and facilities necessary for the preparation of his defence ;
- to defend himself in person or through legal assistance of his own choosing and, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or cause to be examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ;
- be assisted free of charge by an interpreter, if he or she does not understand or speak the language used at the hearing. »
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As the cornerstone of the European Convention on Human Rights, Article 6 is, in the words of one author, experiencing an"irresistible expansion of fair trial litigation". (cf R. Koering-Joulin, general introduction to the colloquium of 22 March 1996 on " New developments in fair trial under the European Convention on Human Rights", Bruylant, 1996, p. 10).
It is evolving in a direction that is increasingly protective of human rights and covers an expanding territory, while at the same time strengthening the scope of its guarantees
2-Article 47 of the Charter of Fundamental Rights of the European Union states:
"Everyone whose rights and freedoms as guaranteed by Union law have been violated is entitled to an effective remedy before a court in accordance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the right to be advised, defended and represented. Legal aid shall be granted to those who do not have sufficient resources, to the extent that such aid would be necessary to ensure effective access to justice. »
2-In European Union law, Article 47 of the Charter of Fundamental Rights of the European Union provides, in Union law, the protection conferred by Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
3-Article 14 of the International Covenant on Civil and Political Rights states
"All are equal before the courts and tribunals"
Article 26 of the same text states:
"All persons are equal before the law and are entitled without any discrimination to equal protection of the law. »
The UN Human Rights Committee has applied this principle, thus concurring with the position of the European Court (Robinson v. Jamaica - 30 March 1989).
- National texts.
1-Theprinciple of equality is omnipresent in many documents elaborated during the French Revolution and in particular in the Declaration of 1789, whether in article 1:
"Men are born and remain free and equal in rights",
Or in Article 6: "The law shall be the same for all".
This is why the principle of equality is the most frequently invoked and used reference standard for the review of the constitutionality of laws in France.
2-With the Act of 15 June 2000, the legislator sought to incorporate the content of Article 6 of the European Convention into the Code of Criminal Procedure.
Thus the preliminary article of this Code states:
« I. - Criminal proceedings must be fair and adversarial and preserve the balance of the rights of the parties.
It must ensure the separation of prosecuting and adjudicating authorities.
Persons in similar circumstances and prosecuted for the same offences must be tried under the same rules.
II. - The judicial authority shall ensure that victims' rights are informed and guaranteed in all criminal proceedings.
III. - All suspected or accused persons shall be presumed innocent until proven guilty. Violations of the presumption of innocence shall be prevented, remedied and punished in accordance with the law.
She has the right to be informed of the charges against her and to be assisted by a defence counsel.
The measures of restraint to which that person may be subjected shall be taken by decision of or under the effective supervision of the judicial authority. They must be strictly limited to the needs of the proceedings, proportionate to the seriousness of the offence charged and not prejudice the dignity of the person.
A final decision on the charge against the person must be taken within a reasonable time.
Every convicted person has the right to have his conviction reviewed by another court.
In criminal and correctional matters, no conviction may be pronounced against a person solely on the basis of statements he or she has made without having had the opportunity to speak to a lawyer and be assisted by him or her. »
- Equality of arms definition and case law.
Equality of arms requires that each party be given a reasonable opportunity to present its case on terms that do not place it at a disadvantage to its opponent.
The purpose of equality of arms is to ensure a balance between the parties to the proceedings, by guaranteeing that any document provided to the court may be assessed and challenged by any party to the proceedings... (Judgment of the Court (Grand Chamber) of 6 November 2012 Europese Gemeenschap v Otis NV and Others ECLI identify: ECLI:EU:C:2012:684)
- International jurisprudence
1-It will be recalled that the European Commission first used this expression for the right to a fair trial in the Szwabowicz v. Sweden case on 30 June 1959:
" The right to a fair trial implies that every party to a civil action, and a fortiori to a criminal action, must have a reasonable opportunity to present his case to the court under conditions which do not place him at an appreciable disadvantage in relation to the other party. »
2-Theterm " equality of arms " was first used by the European Court of Human Rights in Neumeister v. Austria (27 June 1968) as a component of a fair trial before an independent and impartial tribunal.
The case law has been in a state of constant " expansion " ever since.
2- According to the European Court, free access to the documents in the case file, including the possibility of obtaining copies of relevant documents, are important guarantees of a fair trial.
To refuse them weighs heavily in favour of a violation of the principle of equality of arms(Beraru v. Romania, § 70).
3-Thefollowing are some examples of violations of equality of arms:
- In its Delcourt v. Belgium judgment of 17 January 1970, giving the word equity its etymological meaning of equality "aequitas", it formulated this principle by a contrario, ruling that a trial would not be fair if it took place "in conditions likely to place one party unfairly at a disadvantage. »
- What is important is that no party should be given a privileged position, even if it is the State or a public service such as the public prosecutor's office ( Hentrich v. France judgment , 22 September 1994).
- Refusal to hear any defence witnesses or to examine exculpatory evidence while adding prosecution witnesses and examining incriminating evidence may be problematic from an equality of arms perspective(Borisova v. Bulgaria, §§ 47-48; Topić v. Croatia, § 48).
- There is a breach of equality of arms where, for reasons of public interest, the accused has limited access to his or her file or other documents(Matyjek v. Poland, § 65; Moiseyev v. Russia, § 217).
- Failure to disclose evidence to the defence may undermine equality of arms (as well as the right to an adversarial trial)(Kuopila v. Finland, § 38.)
- If the judge dismisses claims through excessive formalism, access to justice is not guaranteed and the principle of equality of arms is de facto violated(Sotiris and Nikos Koutras ATTEE v. Greece (2000), RTBF v. Belgium (2011).
- The refusal of access to the criminal file is a violation of the right toequality of arms(ECHR 18th March 1997, Foucher v. France)
- The Court finds that, by failing to give the applicant a fair hearing of his case before the Court of Cassation in the context of an adversarial trial, by ensuring that the meaning of the Advocate General's Opinion was communicated and by allowing him to reply to it in writing, there has been a violation of Article 6(1) of the Convention in the present case (26 July 2002Meftah v. France ( Grand Chamber judgment):
4- Let us first recall that by a judgment of 15 April 2011, the plenary assembly of the Court of Cassation laid down the principle of the immediate authority of the decisions of the European Court of Human Rights, in these terms:
" Whereas States parties to this Convention are bound to respect the decisions of the European Court of Human Rights, without waiting to be challenged before it or to have amended their legislation In order for the right to a fair trial enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to be effective and concrete, it is necessary, as a general rule, for the person in police custody to have the assistance of a lawyer from the outset of the measure and during his or her questioning; ...] Whereas, in order to extend the detention, the order states that the judgments of the European Court of Human Rights are only binding on the States directly concerned by the appeals on which it rules, that those invoked by the appellant do not concern the French State, that the Convention for the Protection of Human Rights and Fundamental Freedoms does not require that any person arrested can only be heard in the presence of his or her lawyer, and that police custody, conducted in accordance with the current provisions of the Code of Criminal Procedure, cannot be declared unlawful; That in so ruling when Mrs X... had only had access to a lawyer after her interrogation, the first president violated the aforementioned texts "(Ass. plenary session, 15 April 2011, Appeal No. 10-17.049, Bull. 2011, Plenary Session, No. 1).
5-The case law of the Court of Luxembourg has taught us the following in particular:
- Treaties do not constitute a mere international agreement, but give rise to a " new legal order of international law in favour of which the States have limited, albeit in restricted areas, their sovereign rights, and whose subjects are not only the Member States, but also their representatives "(ECJ, judgment of 5 February 1963, Van Gend en Loos, case 26/62);
- The legal order thus established is integrated into the legal order of each of the Member States and takes precedence over the legal order of the Member States without distinction(ECJ, judgment of 15 July 1964, Costa v Enel, aff. 6/64); integration also applies to the rules of secondary legislation which form "an integral part, with priority, of the legal order applicable in the territory of each of the Member States " (ECJ, judgment of 9 June 1978, Simmenthal, case 106/77, AJDA 1978, p. 323);
- More broadly, the Court of Justice confers primacy, effectiveness and immediacy on the rules of European Community law in the past and on European Union law today in their relationship with the law of the Member States.
The legal order of the European Union, as shaped by the case law of the Court of Justice, has an impact on the role of the courts of the Member States.
It is binding on the latter, which are set up as ordinary judges of the rules of European Union law, and it is for them to give full effect to those rules, if necessary by disapplying, on their own authority, any contrary provision of national law, even if it is subsequent, without their having to request or wait for its prior elimination by legislation or any other constitutional procedure(ECJ, judgment of 9 March 1978, Simmenthal aff. 106/77, cited above, paragraphs 21 and 24, and CJEU, judgment of 19 November 2009, Filipiak, C-314/08, paragraph 81).
- National jurisprudence (which must respect the decisions of the ECHR).
1- There is no doubt that it was the case law of the European Court that prompted the Constitutional Council, on the basis of Article 16 of the Declaration of the Rights of Man and of the Citizen, to introduce, in 1989(Cons. const., dec. no. 89-260 DC of 28 July 1989: enshrining "the existence of a fair and equitable procedure guaranteeing the balance of the rights of the parties "), and then to make the concept of a fair trial autonomous, in 2005 (Cons. const., dec. no. 2004-510 DC of 20 January 2005) .
Since then, particularly since the introduction of the QPC, the Council has made regular use of this principle, which most often complements other freedoms, such as the rights of the defence or the impartiality and independence of the courts, to underpin its decisions on the fairness of the procedure.
2- In the judicial sphere, it was on 6 May 1997 that the Criminal Division quashed a decision by the trial judges for the first time ( Bull. No. 170), on the grounds that it violated the equality of arms principle.
The principle of equality of arms is stated very clearly, even though the expression appears in inverted commas - which is an understatement since it is a principle superior to French law - thus indicating that it was not part of the Court's usual vocabulary:
"Whereas the principle of 'equality of arms' as it results from the requirement of a fair trial, within the meaning of Article 6 of the European Convention on Human Rights, requires that the parties to the proceedings have the same rights; whereas this must be the case, in particular, of the right to exercise the remedies... »
3-Ashas been said, for the Court of Cassation :
" Whereas the States parties to this Convention are bound to respect the decisions of the European Court of Human Rights, without waiting to be challenged before it or to have amended their legislation "(Plenary Court, 15 April 2011, Appeal No. 10-17.049, Bull. 2011, Plenary Court, No. 1).
- Conclusions.
1 Whetherat the international or domestic level, the rights of the defence, the right to a fair trial, the right of access to the judge, and of course the equality of arms are increasingly protected.
2-It is up to the French courts to make a fair application of these jurisprudential evolutions because " if one should not be subjected to the weather of the day, one should take into account the climate of the moment. »
In this context, France could finally be the country of human rights.
key here...
