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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DELTA v. FRANCE - 11444/85 [1990] ECHR 30 (19 December 1990) URL: http://www.bailii.org/eu/cases/ECHR/1990/30.html Cite as: [1990] ECHR 30, 16 EHRR 574, (1993) 16 EHRR 574

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In the Delta case*,

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 the Rules of Court***, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr C. Russo,

Mr J. De Meyer,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 29 August and 20 November 1990,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 26/1989/186/246. 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.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on

14 December 1989, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 11444/85)

against the French Republic lodged with the Commission under

Article 25 (art. 25) by a national of that State,

Mr Michel Sophie Delta, on 4 August 1984.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) of the Convention and to the declaration whereby France

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request 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 paras. 1 and

3 (d) (art. 6-1, art. 6-3-d).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, 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. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 27 January

1990, in the presence of the Registrar, the President drew by lot

the names of the other seven members, namely Mr J. Cremona,

Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Sir Vincent Evans,

Mr R. Macdonald, Mr C. Russo and Mr J. De Meyer (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently Mr Thór Vilhjálmsson, substitute judge, replaced

Mrs Bindschedler-Robert, who was unable to take further part in

the consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the French Government ("the Government"), the Delegate of the

Commission and the lawyer for the applicant on the need for a

written procedure (Rule 37 para. 1). In accordance with the

order made in consequence on 2 March 1990, the Registrar received

the applicant's memorial on 3 May. On 23 May and 8 June the

Agent of the Government and the Delegate of the Commission

informed the Registrar that they would submit their observations

at the hearing.

5. On 8 June the Secretary to the Commission produced the

file on the proceedings before the Commission which the Registrar

had sought from him on the President's instructions.

6. Having consulted, through the Registrar, those who would

be appearing before the Court, the President directed on 29 June

that the oral proceedings should open on 27 August 1990

(Rule 38).

7. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Baudillon, Assistant Director,

Department of Legal Affairs, Ministry

of Foreign Affairs, Delegate of

the Agent,

Mr M. Simamonti, magistrat, Department of

Criminal Affairs and Pardons, Ministry of Justice,

Mrs I. Chaussade, magistrat,

Department of Legal Affairs, Ministry of

Foreign Affairs, Counsel;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicant

Mr P.-F. Divier, avocat, Counsel.

The Court heard addresses by Mr Baudillon for the Government,

Mr Soyer for the Commission and Mr Divier for the applicant, as

well as their replies to its questions.

8. On 31 August the Registrar received from the applicant's

lawyer the documents which the applicant had indicated in his

memorial would be filed.

AS TO THE FACTS

I. The circumstances of the case

9. Mr Michel Sophie Delta is a French citizen who was born

in Guadeloupe and lives there today after having spent some time

in metropolitan France.

A. The police investigation

10. At 6.40 p.m. on 29 March 1983 a girl of 16, Miss Poggi,

and a friend of the same age, Miss Blin, were in a Paris

underground station when two coloured men accosted them. One of

the men snatched a gold chain and crucifix which Miss Poggi was

wearing round her neck and ran towards the exit.

11. The two girls immediately went to the central police

station of the 12th District, and at 7 p.m., as a result,

Mr Delta was arrested by Police Constable Bonci, accompanied by

the two girls, in a building by the exit from the underground.

The victim and her friend immediately said they recognised him.

A search of the applicant and subsequently of the premises

yielded nothing, however.

12. The applicant was taken to the central police station of

the 12th District and questioned at 8.40 p.m. by Chief Inspector

Mercier, an officier de police judiciaire, about his identity and

means of subsistence and was then taken into police custody.

13. From 10 a.m. to 10.20 a.m. the following day, Inspector

Duban, who was likewise an officier de police judiciaire, took a

statement from him about the facts of the case. Mr Delta said

that at about 6.30 p.m. he had been set upon by four people who

had chased him into the underground and stolen a cigarette

lighter and 100 francs from him. He surmised that one of them

could have committed the robbery as the two girls went by. He

said that he had run away because he had been put in fear by his

four attackers.

Subsequently (the exact time is not given in the police report),

Inspector Duban interviewed both girls separately, each in the

presence of her mother. They confirmed that the person who had

been arrested was indeed the person who had committed the

offence. The victim lodged a complaint alleging robbery.

Mr Delta was never formally confronted with Miss Poggi and

Miss Blin.

14. The Chief Superintendent in charge of the Fourth Area

police force forwarded the file to the public prosecutor's

office.

B. The judicial proceedings

1. Paris Criminal Court

15. The Paris public prosecutor considered that a judicial

investigation was unnecessary and accordingly used the direct

committal procedure (Articles 393 to 397-7 of the Code of

Criminal Procedure, as amended by the "Security and Freedom" Act

of 2 February 1987).

16. On 31 March 1983 Mr Delta appeared before the

23rd Division of the Paris Criminal Court, which made an

interlocutory order for a psychiatric report and a social inquiry

report and remanded him in custody.

17. On 5 May the court passed a sentence of three years'

imprisonment on him. The judgment contained the following

reasons:

"The facts (robbery by snatching a neckchain and crucifix from

the victim) [are established], notwithstanding the defendant's

denials, by the evidence obtained, in particular by means of the

statements of Police Constable Bonci, who gave evidence on oath.

The defendant must be convicted and punished very severely,

having regard to the nature of the offence committed with the use

of violence.

Moreover, in a judgment dated 22 October 1981 Delta ... was

sentenced to two years' imprisonment by the Paris Court of Appeal

for robbery and consequently is legally a reoffender under

Article 58 of the Criminal Code;

..."

18. Although they had been duly summoned by the prosecution,

the two girls did not attend the trial and gave no reasons for

their failure to do so. The court did not take any steps to have

them brought before it under Article 439 of the Code of Criminal

Procedure (see paragraph 24 below).

The accused, whose defence was in the hands of two trainee

barristers who had successively been assigned to him by the

court, had not submitted any pleadings suggesting that any

witnesses should be examined or asking for any further inquiries

to be made into the facts.

2. Paris Court of Appeal

19. Mr Delta appealed, claiming that he was the victim of

mistaken identity. Relying on Article 513, second paragraph, of

the Code of Criminal Procedure (see paragraph 25 below) and

Article 6 para. 3 (d) (art. 6-3-d) of the Convention, he also

expressly sought to have the victim, the person who was with her

and two witnesses on his behalf called; he asserted that he had

himself urged the concierge and a resident in the building where

he had taken refuge to alert the police, as he feared for his

safety if his pursuers caught up with him.

20. On 28 September 1983 the Paris Court of Appeal

(10th Division) upheld the whole of the judgment of the court

below after refusing the application for examination of witnesses

in the following terms:

"After the defendant's arrest, Miss Poggi formally stated that he

was the man who had snatched the chain from her. Miss Blin

likewise identified Delta as being responsible for the snatch

theft from Miss Poggi.

These statements satisfy the Court that the defendant was guilty

of the offences charged and make the requested examination of

witnesses unnecessary."

3. Court of Cassation

21. Mr Delta appealed on points of law, alleging a violation

of Article 6 para. 3 (d) (art. 6-3-d) of the Convention and

Article 513 of the Code of Criminal Procedure.

The Court of Cassation (Criminal Division) dismissed the appeal

in a judgment of 4 October 1984 on the following grounds:

"It appears from the impugned judgment of the Court of Appeal

that Delta, who was prosecuted for robbery and claimed to be the

victim of mistaken identity, asked the Court of Appeal to order

an examination of the victim and of witnesses, and that the court

below, after studying the statements taken during the

investigation from Miss Poggi, the victim, and from the witness

Bonci, refused this application on the grounds that those

statements satisfied it that the defendant was guilty of the

offences charged and made the requested examination of witnesses

unnecessary.

In so holding, the Court of Appeal, far from violating the

provisions of the European Convention for the Protection of Human

Rights and Fundamental Freedoms, gave its decision a legal basis.

The ground of appeal, which does no more than attempt to call in

question the appeal court's final assessment of all the evidence

adduced at the trial and of whether it was appropriate to order

further inquiries into the facts, cannot be accepted.

..."

C. The applicant's release

22. Mr Delta was released on 9 September 1985, after spending

a little over two years and five months in prison.

II. The examination of witnesses by criminal courts

(juridictions correctionnelles de jugement)

23. In French law the rules governing the examination of

witnesses by criminal courts differ according to whether the

court is hearing the case at first instance or on appeal.

A. Examination in the Criminal Court

24. The main provisions of the Code of Criminal Procedure

applicable in the Criminal Court are the following:

Article 437

"Anyone called to be heard as a witness shall be required to

appear, to take the oath and to give evidence."

Article 438

"A witness who fails to appear or who refuses either to take the

oath or to give evidence may, on an application by the public

prosecutor, be punished by the court as provided for in

Article 109."

Article 439

"If a witness fails to appear and has not put forward any excuse

recognised as being valid and legitimate, the court may, on an

application by the public prosecutor or of its own motion, order

the witness to be brought before it immediately by the police in

order to be examined or adjourn the case.

..."

Article 442

"Before proceeding to examine the witnesses, the presiding judge

shall question the accused and take statements from him. The

public prosecutor and, through the presiding judge, the civil

party seeking damages and the defence may put questions to him."

Article 444

"The witnesses shall subsequently give their evidence in turn,

either as to the offences with which the accused is charged or as

to his personality and morals.

The witnesses called by the prosecuting parties shall be heard

first, subject to the presiding judge's discretion to determine

himself the order in which the witnesses shall be heard.

With the court's leave, evidence may also be given by persons

suggested by the parties and who are present at the beginning of

the trial but have not been formally summoned."

Article 452

"Witnesses shall give evidence orally.

Exceptionally, however, they may, with the leave of the presiding

judge, make use of documents."

Article 454

"After each witness has testified, the presiding judge shall put

to him any questions he deems necessary and, where appropriate,

those that are suggested to him by the parties.

A witness may withdraw after testifying, unless the presiding

judge decides otherwise.

The public prosecutor, the civil party seeking damages and the

accused may request, and the presiding judge may always order,

that a witness should temporarily withdraw from the hearing-room

after giving evidence in order to be brought back and examined if

necessary after other witnesses have given evidence, with or

without a confrontation."

Article 455

"During the trial the presiding judge shall, if necessary, have

the exhibits shown to the accused or witnesses again and shall

hear their comments."

B. Examination in the Court of Appeal

25. The procedure laid down by law for the Criminal Court

also applies in principle to the Court of Appeal but subject to

an important proviso in the second paragraph of Article 513 of

the Code of Criminal Procedure, which reads:

"Witnesses shall be heard only if the court [of appeal] so

orders."

26. This provision has given rise to a line of decisions by

the Criminal Division of the Court of Cassation, which appears to

have departed from these precedents in 1989, that is to say after

the events in the instant case.

1. The case-law until 1989

27. The Criminal Division decided very early on that appeal

courts were not required to hear afresh witnesses who had already

given evidence at the original trial, even where an application

had been made for them to be re-examined; it did, however, lay on

them the obligation to hear and determine any applications made

and to give reasons for any refusal (30 October and

13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253;

20 October 1892, Recueil périodique Dalloz (DP) 1894, I, p. 140;

13 January 1916, DP 1921, I, p. 63; 20 December 1955, Dalloz

1956, sommaires, p. 29).

Where they considered it useful or necessary, appeal courts could

summon witnesses who had not testified in the Criminal Court; but

if they refused to call such witnesses, it was sufficient by way

of reasons if they stated in their judgment that there was no

need for further inquiries into the facts (20 October 1892,

Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975,

Bull. no. 237, p. 629).

2. The case-law since 1989

28. The Criminal Division's approach seems to have changed

markedly in its Randhawa judgment of 12 January 1989:

"By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention

for the Protection of Human Rights and Fundamental Freedoms,

'everyone charged with a criminal offence has the [right] to

examine or have examined witnesses against him'. It follows

that, unless it is impossible for reasons which they must

specify, courts of appeal are bound, on a properly made

application, to order the examination in the presence of the

parties of prosecution witnesses who have not been confronted

with the defendant at any stage of the proceedings.

Sarb Randhawa, who was charged with drug-trafficking and a

customs offence, made an application to the Court of Appeal for

an examination inter partes of the witnesses Joris Suray and

Catherine Guillaume, whom he had had summoned and whose

statements provided, he claimed, the sole basis for the finding

of guilt. He said that he had not been able to have them

examined at any stage of the proceedings.

In support of its refusal of this application, and although it

based its finding of the defendant's guilt solely on the

statements of the aforementioned witnesses, the court below noted

merely that the witnesses whose examination had been sought had

been interviewed during the police inquiries and the judicial

investigation and that the defendant had been informed of the

charges arising from their statements.

But while a refusal to hear evidence from a prosecution witness

does not, as such, infringe the aforementioned provisions of the

Convention, since the court may take into account any special

difficulties entailed by an inter partes examination of a given

witness, for example the risk of intimidation, pressure or

reprisals, such a refusal must nevertheless comply with the

rights of the defence and the court must explain why a

confrontation is impossible.

This was not so in the instant case, and the judgment must

accordingly be set aside ..." (Bull. 1989, no. 13, pp. 37-38)

This approach was confirmed in a judgment of 22 March 1989 (case

of X, Bull. 1989, no. 144, pp. 369-371).

PROCEEDINGS BEFORE THE COMMISSION

29. In his application of 4 August 1984 to the Commission

(no. 11444/85), Mr Delta alleged a breach of Article 6 paras. 1

and 3 (d) (art. 6-1, art. 6-3-d) of the Convention, claiming that

he had not had a fair trial as his conviction was based solely on

statements made to the police by witnesses whom neither he nor

his counsel had been able to examine.

30. The Commission declared the application admissible on

8 September 1988.

In its report of 12 October 1989 (made under Article 31)

(art. 31) the Commission expressed the opinion that there had

been a violation of paragraph 1 of Article 6 taken together with

paragraph 3 (d) (art. 6-1, art. 6-3-d). The full text of the

Commission's opinion, which was unanimous, is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will

appear only with the printed version of the judgment (volume 191

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

31. In his memorial the applicant requested the Court to:

"Hold that in the instant case France violated Article 6 para. 1

taken together with paragraphs 2 and 3 (b) and (d) (art. 6-1,

art. 6-2, art. 6-3-b, art. 6-3-d);

Find that there have been these violations and in consequence:

Order France to pay Mr Delta the sum of FRF 156,698.49 ... with

interest at the French statutory rate from the date of the

Court's decision, in compensation for the pecuniary damage

sustained by Mr Delta;

Order France likewise to pay him the sum of FRF 600,000 ... with

interest at the French statutory rate from the date of the

Court's decision, in compensation for the non-pecuniary damage

sustained by Mr Delta owing both to the violation itself and to

the feelings of distress which resulted from it and to the loss

of liberty in difficult prison conditions for two years and seven

months;

Order it to compensate Mr Divier, of the Paris Bar, direct by way

of paying him the sum of FRF 24,000 ..., likewise with interest

at the French statutory rate from the date of the Court's

decision, in compensation for the loss of earnings he has

sustained as a result of defending Mr Delta free of charge (but

not under the legal-aid scheme) in both appeal and cassation

proceedings;

And lastly, if the Court considers it fair, order France to

compensate Mr Divier direct for the loss of earnings sustained by

him on account of work done at the European Commission and Court

stage but not wholly covered by legal aid, as indicated above."

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)

(art. 6-1, art. 6-3-d)

32. Mr Delta complained that he had not had a fair trial. He

relied on paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d)

of the Convention:

"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:

...

(d) to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him;

..."

The Paris Criminal Court and Court of Appeal had allegedly

convicted him on the strength solely of statements made to the

police by persons - the victim of a robbery, Miss Poggi, and a

friend of hers, Miss Blin - whom neither his lawyer nor he

himself had been able to examine or have examined before either

of those two courts or, because of recourse to the direct

committal procedure, before an investigating judge. They had

thus, he claimed, deprived him of the opportunity to impugn the

statements of the two persons concerned. The only witness heard

at the trial was the police constable who had arrested Mr Delta

and taken the initial statements of Miss Poggi and Miss Blin; but

he had not witnessed the attack in the underground and was not an

officier de police judiciaire (see paragraph 11 above). The

Court of Appeal refused to call two defence witnesses and

likewise considered it unnecessary to hear evidence from the

complainant and her friend. In sum, the applicant claimed that

he had been tried exclusively on the basis of written evidence,

in accordance with a practice of taking hearsay evidence from

policemen.

The Commission accepted these arguments in substance.

33. The Government pointed out that in the Paris Criminal

Court the applicant did not call any witnesses or request any

further inquiries into the facts. They added that the

prosecution did not fail to summon the victim of the attack and

her friend, but the girls did not appear in court; there had

accordingly not been any inequality of treatment between the

prosecution and the defence.

In the Court of Appeal Mr Delta had indeed asked that Miss Poggi

and Miss Blin should be called, together with two defence

witnesses, but the Government alleged that he had only done so in

order to challenge the judgment at first instance by every

possible means and not in order to complain of any inequality of

treatment.

Generally speaking, Article 6 para. 3 (d) (art. 6-3-d) did not,

they submitted, give an accused an unlimited right to call

witnesses; it allowed the judicial authorities a discretion to

decide whether hearing a witness could contribute to the

discovery of the truth. The applicant had in no way shown how

the appearance in court of the victim and her friend or of

defence witnesses who had not seen what had happened could

provide any evidence of his innocence.

34. As the guarantees in paragraph 3 of Article 6 (art. 6-3)

are specific aspects of the right to a fair trial set forth in

paragraph 1 (art. 6-1), the Court will consider the applicant's

complaint under paragraphs 3 (d) and 1 taken together

(art. 6-3-d, art. 6-1), (see, among other authorities, the

Windisch judgment of 27 September 1990, Series A no. 186, p. 9,

para. 23).

Although the victim of the offence and her friend did not testify

in court in person, they are to be regarded for the purposes of

Article 6 para. 3 (d) (art. 6-3-d) as witnesses - a term to be

given an autonomous interpretation (ibid., p. 9, para. 23) -

since their statements, as reported orally by Police Constable

Bonci at the Criminal Court hearing and as recorded in writing by

Inspector Duban, were in fact before the court, which took them

into account.

35. The admissibility of evidence is primarily a matter for

regulation by national law, and, as a general rule, it is for the

national courts to assess the evidence before them. Accordingly,

the Court's task under the Convention is to ascertain whether the

proceedings considered as a whole, including the way in which

evidence was taken, were fair (ibid., p. 10, para. 25).

36. In principle, the evidence must be produced in the

presence of the accused at a public hearing with a view to

adversarial argument. This does not mean, however, that in order

to be used as evidence statements of witnesses should always be

made at a public hearing in court: to use as evidence such

statements obtained at the pre-trial stage is not in itself

inconsistent with paragraphs 3 (d) and 1 of Article 6

(art. 6-3-d, art. 6-1), provided the rights of the defence have

been respected. As a rule, these rights require that an accused

should be given an adequate and proper opportunity to challenge

and question a witness against him, either at the time the

witness makes his statement or at some later stage of the

proceedings (see the Kostovski judgment of 20 November 1989,

Series A no. 166, p. 20, para. 41).

37. In the instant case Miss Poggi and Miss Blin had been

interviewed, at the police-investigation stage, only by PC Bonci

and the inspector who drew up the record of their statements.

They were questioned neither by an investigating judge, because

of recourse to the direct committal procedure (see paragraph 15

above), nor by the courts.

Before the Criminal Court the defence did not ask in their

written submissions for any witnesses to be called.

Nevertheless, the prosecution had duly summoned the two girls

and, since they did not appear and gave no reasons for their

failure to do so, the court could have made use of Articles 438

and 439 of the Code of Criminal Procedure to compel them to

attend.

In the Court of Appeal, on the other hand, the defendant

- relying, inter alia, on Article 6 para. 3 (d) (art. 6-3-d) of

the Convention - expressly asked for the complainant and her

friend and two defence witnesses to be summoned. This

application was, however, refused (see paragraph 20 above).

Accordingly, neither the applicant nor his counsel ever had an

adequate opportunity to examine witnesses whose evidence, which

had been taken in their absence and later reported by a policeman

who had not witnessed the attack in the underground, was taken

into account by the courts responsible for trying the facts -

decisively at first instance and on appeal, as the file contained

no other evidence. They were therefore unable to test the

witnesses' reliability or cast doubt on their credibility.

In sum, the rights of the defence were subject to such

restrictions that Mr Delta did not receive a fair trial. There

has accordingly been a breach of paragraph 3 (d) of Article 6

taken together with paragraph 1 (art. 6-3-d, art. 6-1).

II. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 2 AND 3 (b) AND

ARTICLES 17 AND 18 (art. 6-2, art. 6-3-b, art. 17, art. 18)

38. Before the Court, counsel for the applicant also relied

on Article 6 paras. 2 and 3 (b) (art. 6-2, art. 6-3-b) and

Articles 17 and 18 (art. 17, art. 18) of the Convention.

The alleged disregard of the presumption of innocence concerned

the same facts and consequences that the Court has held to be

contrary to paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d,

art. 6-1); in the circumstances of the case, no separate

examination of it is necessary.

As regards the complaints relating to paragraph 3 (b) of

Article 6 and to Articles 17 and 18 (art. 6-3-b, art. 17,

art. 18), which were likewise not raised before the Commission,

they fall outside the limits resulting from the Commission's

decision on admissibility (see, among other authorities, the

Bezicheri judgment of 25 October 1989, Series A no. 164, p. 12,

para. 27). The Court accordingly has no jurisdiction to

entertain them.

III. APPLICATION OF ARTICLE 50 (art. 50)

39. Article 50 (art. 50) of the Convention 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."

Under this provision the applicant sought compensation for damage

and reimbursement of expenses.

A. Damage

40. Mr Delta claimed to have suffered damage on account of

the failure to comply with the requirements of the Convention and

sought 156,698.49 French francs (FRF) in respect of pecuniary

damage and FRF 600,000 in respect of non-pecuniary damage. The

first of these sums represented loss of earnings caused by his

detention, quantified on the basis of the national guaranteed

minimum wage, while the second related to the feelings of

distress induced by the violation of Article 6 (art. 6) and to

the deprivation of liberty. In respect of both sums, the

applicant claimed interest calculated at the French statutory

rate, to run from the date of the Court's judgment.

41. The Government pointed out that at the time the applicant

was arrested he had no occupation and was not receiving any

unemployment benefit. They considered that if the Court were to

find a breach, its judgment would provide sufficient just

satisfaction in respect of the non-pecuniary damage.

42. The Delegate of the Commission expressed doubts as to the

existence of a causal link between the alleged violation and the

damage sustained by Mr Delta on account of his loss of liberty;

he left it to the Court to award a nominal sum if it wished to go

beyond a finding of a violation.

43. The Court notes that in the present case an award of just

satisfaction can only be based on the fact that the applicant did

not have the benefit of all the guarantees of Article 6 (art. 6).

Whilst the Court cannot speculate as to the outcome of the trial

had the position been otherwise, it does not find it unreasonable

to regard Mr Delta as having suffered a loss of real

opportunities (see, among other authorities and mutatis mutandis,

the Goddi judgment of 9 April 1984, Series A no. 76, pp. 13-14,

paras. 35-36, and the Colozza judgment of 12 February 1985,

Series A no. 89, p. 17, para. 38).

Taking its decision on an equitable basis, as required by

Article 50 (art. 50), it awards Mr Delta compensation in the

amount of FRF 100,000 in respect of the whole of the damage he

suffered.

B. Costs and expenses

44. Counsel for the applicant claimed compensation for the

loss of earnings he had sustained by defending Mr Delta free of

charge. He sought FRF 24,000 plus interest in respect of the

national proceedings, as Mr Delta had preferred to choose his own

counsel and thus forgo legal aid for the proceedings in the Paris

Court of Appeal and in the Court of Cassation. As regards the

European proceedings, he requested the Court to decide whether

compensation should be awarded and, if so, how much; however, he

assessed his fees for the work done up to 1 May 1990 at

FRF 44,000 and stated that his client had been legally aided in

the proceedings before the Convention institutions.

45. In the Government's submission, only the expenses

actually incurred by Mr Delta himself could be reimbursed. It

was for the Court to assess the amount of the expenses entailed

by the national proceedings, having regard to the supporting

documents produced. Furthermore, the applicant had not proved

that in respect of the proceedings in Strasbourg he had incurred

any financial liabilities exceeding the amount of legal aid.

46. The Delegate of the Commission left the matter to the

Court's discretion.

47. According to the Court's case-law, an applicant's lawyer

cannot rely on Article 50 (art. 50) to claim just satisfaction on

his own account (see, among other authorities, the Luedicke,

Belkacem and Koç judgment of 10 March 1980, Series A no. 36,

p. 8, para. 15, and the Artico judgment of 13 May 1980, Series A

no. 37, p. 19, para. 40).

The claim for reimbursement of costs and expenses must therefore

be dismissed.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of paragraph 3 (d)

of Article 6 of the Convention taken together with paragraph 1

(art. 6-3-d, art. 6-1);

2. Holds that it is not necessary also to examine the case

under Article 6 para. 2 (art. 6-2);

3. Holds that it is not called upon to consider the

complaints under Article 6 para. 3 (b) and Articles 17 and 18

(art. 6-3-b, art. 17, art. 18);

4. Holds that the respondent State is to pay the applicant

compensation for damage in the sum of 100,000 (one hundred

thousand) French francs;

5. 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 19 December 1990.

Signed: Rolv RYSSDAL

President

Signed: For the Registrar

Herbert PETZOLD

Deputy Registrar