Fair-trial guarantees

Many decisions of the Criminal Chamber of the Court of Cassation invoke Article 6 of the European Convention on Human Rights and, to a lesser extent, the preliminary article of the Code of Criminal Procedure, both of which set out the main fair-trial guarantees. Several recent decisions illustrate the attention paid by the Criminal Chamber to the rights of the defence, judicial impartiality and the loyalty of evidence.

Impaired health of the defendant and the fair trial

A leading decision concerns the need to assess the possibility of a criminal trial for a person whose physical or mental faculties are impaired (Crim., 11 July 2017, appeal no. 16-82960). Under Articles 6(1) and 3(a) of the European Convention and the preliminary article of the Code of Criminal Procedure, the Criminal Chamber holds that "where the impairment of a defendant's physical or mental faculties is such that it is incompatible with personal participation in the proceedings, the judges must verify that he is amenable to a criminal sanction and ensure that special procedural guarantees are put in place to allow him to exercise the rights of the defence effectively".

In the case at hand, the defendant had suffered a stroke after the act for which he was prosecuted. The Court of Cassation faulted the Court of Appeal for merely noting his absence and concluding that he should be tried by an adversarial judgment to be served, when "it should have ordered any measure to verify that the defendant was amenable to a criminal sanction, and, where appropriate, to trigger the assistance or representation procedures necessary for the exercise of the rights of the defence".

Confession during a psychiatric expert assessment and rights of the defence

Another decision concerns a confession made during a psychiatric expert assessment, outside the presence of a judge and lawyers (Crim., 11 July 2017, appeal no. 16-87660). The Criminal Chamber dismissed the appeal, confirming the investigating chamber's refusal to annul the psychiatric expert assessment of a man under investigation for the rape of his wife and who had admitted to the expert that she had not consented to the sexual relation.

Carried out under Article 164 paragraph 3 of the Code of Criminal Procedure, which provides that "doctors and psychologist experts in charge of examining the person under investigation (...) may (...) put questions to him for the performance of their mission outside the presence of the judge or lawyers", the expert assessment does not breach the rights of the defence, "since it was not argued that the expert had breached the duty of impartiality or the presumption of innocence, and the statements made by the person under investigation to the psychiatric expert will, where appropriate, be subject to adversarial debate before the trial court in compliance with the rights of the defence, those statements being unable, under the last paragraph of the preliminary article of the Code of Criminal Procedure, to serve as the sole basis for a finding of guilt".

Impartiality of the judge and provocation to commit an offence

The principle of impartiality is another fair-trial guarantee to which the Criminal Chamber is particularly attentive, while considering that impartiality is not synonymous with the absence of personal views by judges (see for example Crim., 13 January 2015, appeal no. 12-87059 in the so-called AZF case) or with the absence of honours conferred upon them. Thus the Chamber holds that "the status of member of the order of the Legion of Honour, conferred on judges (...) cannot, on its own, lead them to share, with all the persons (...) similarly honoured, a community of views and spirit (...) such that a suspicion of partiality could result, when the case before them concerns an act performed in the name of France and in the exercise of their duties by a State agent benefiting from the same honour" (Crim., 20 June 2017, appeal no. 16-80935). The grievance of partiality cannot therefore be established.

The principle of loyalty of evidence, derived from Article 6 of the European Convention and the preliminary article of the Code of Criminal Procedure, translates both into the prohibition on law-enforcement officers provoking an offence and into the prohibition on seeking evidence through stratagems.

In a widely reported "sextape" blackmail case, the Criminal Chamber strictly applied that prohibition (Crim., 11 July 2017, appeal no. 17-80313). It held that the fact for a judicial police officer, on instructions from the public prosecutor, to substitute himself, during telephone conversations, for the victim of the "sextape" in negotiations with the perpetrators of the alleged offence, is a disloyal practice that infringes the right to a fair trial and must therefore be prohibited. The Criminal Chamber reiterated its now-classic principle: "the stratagem that vitiates the search for evidence by a law-enforcement officer infringes the right to a fair trial and the principle of loyalty of evidence".