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You are here: BAILII >> Databases >> European Court of Human Rights >> CARDOT v. FRANCE - 11069/84 [1991] ECHR 24 (19 March 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/24.html Cite as: 13 EHRR 853, (1991) 13 EHRR 853, [1991] ECHR 24

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In the Cardot 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 Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr R. Macdonald,

Mr C. Russo,

Mr S.K. Martens,

Mr J.M. Morenilla,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 26 October 1990 and

19 February 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 24/1990/215/277. 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 21 May 1990,

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. 11069/84) against the French Republic lodged

with the Commission under Article 25 (art. 25) by a national of

that State, Mr Jean-Claude Cardot, on 12 December 1983.

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

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 24 May 1990, in

the presence of the Registrar, the President drew by lot the names

of the other seven members, namely Mr Thór Vilhjálmsson,

Mr F. Gölcüklü, Mr B. Walsh, Mr R. Macdonald, Mr C. Russo,

Mr S.K. Martens and Mr J.M. Morenilla (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43).

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 29 June 1990, the Registrar received the

Government's memorial on 10 September and the applicant's memorial

on 24 September. On 18 October the Secretary to the Commission

informed the Registrar that the Delegate would submit his

observations at the hearing.

5. On 9 July the Secretary to the Commission produced

documents relating to the proceedings before it; the Registrar had

asked for these on the President's instructions.

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

appearing before the Court, the President directed on 12 September

that the oral proceedings should open on 24 October 1990 (Rule 38).

7. On 12, 16 and 24 October the Commission and the Government

filed several documents.

8. 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 J.-P. Puissochet, Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Miss M. Picard, magistrat, on secondment to the

Department of Legal Affairs, Ministry of Foreign Affairs,

Mr P. Titiun, magistrat, on secondment to the

Department of Legal Affairs, Ministry of Foreign Affairs,

Mr M. Rouchayrole, magistrat, on secondment to the

Department of Criminal Affairs and Pardons,

Ministry of Justice, Counsel;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicant

Mr C. Etelin, avocat, Counsel.

The Court heard addresses by Mr Puissochet for the Government,

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

well as their replies to a question put by one of the judges.

9. On 14 and 20 November the Registrar received from the

applicant's lawyer a supplementary memorial on the application of

Article 50 (art. 50) of the Convention and a number of documents.

AS TO THE FACTS

I. The circumstances of the case

10. Mr Jean-Claude Cardot is a French national and works as a

road haulier.

On 2 August 1979 the public prosecutor at Valence (Drôme) applied

to a local investigating judge for an investigation to be opened

into, inter alia, the importing, exporting and transporting of

drugs by a person or persons unknown. The police had just

discovered an international organisation specialising in drug

trafficking between the Middle East and Europe. The organisation

had been active since 1978 and was made up of Iranian suppliers and

French carriers, masterminded by Dutch nationals.

A. The judicial investigation

11. In August 1979 the investigating judge charged Mr Cardot

and fourteen others with drug offences.

1. The applicant's conviction in Italy and his extradition to

France

12. On 27 November 1979 the Italian police arrested Mr Cardot

in Verona while he was carrying 455 kg of hashish in his lorry; the

investigating judge at Valence was informed of the arrest on

30 November.

On 21 June 1980 the Verona District Court sentenced the applicant

to five years and one month's imprisonment, but on appeal the

Venice Court of Appeal reduced the sentence to three years and

seven months.

13. On 21 December 1981 Mr Cardot was pardoned. He was not

released, however, as an international warrant for his arrest had

been issued by the investigating judge at Valence on 26 June 1980,

and on 3 July the French Government had applied to the Italian

authorities for his extradition. On 14 August 1980 Mr Cardot had

been served with a further warrant for his arrest, issued by the

same judge, on suspicion of inciting an attempt to import 1,080 kg

of hashish and attempting to import 650 kg; the commission of the

first offence had been frustrated only by a circumstance beyond his

control (the arrest of the principal offender in Tehran), while

commission of the second had been prevented by the applicant's

arrest in Verona.

On 24 March 1981 the Venice Court of Appeal ruled in favour of

extradition for the purposes of proceedings relating to

participation in transporting drugs on three occasions in 1978. On

23 February 1982 the Ministry of Justice decided to extradite

Mr Cardot, who was handed over to the French authorities

on 23 March.

2. Committal for trial of the applicant and his co-defendants and

the trial of the latter

(a) Committal for trial of the applicant and his co-defendants

14. In an order of 5 February 1981 the investigating judge

committed Mr Cardot, who was still in Italy, and his co-defendants

for trial at the Valence Criminal Court.

The applicant was charged, firstly, with having, in concert with

his co-defendants, organised an association or a conspiracy to

import and export drugs and of having imported and transported

drugs and, secondly, of having aided and abetted the offences with

which the other defendants were charged and of having attempted to

import, export and transport hashish on two specific occasions.

(b) Trial of the applicant's co-defendants

15. The court gave judgment on 7 May 1981.

It decided to sever the proceedings against Mr Cardot on account of

his being in custody in Italy (see paragraphs 12-13 above).

One of the defendants (Mrs Cuvillier) was acquitted on the ground

that there was insufficient evidence, and six others were given

either immediate custodial sentences (Mr Millo sixteen years,

Mr Jacques Montaner sixteen years, and Mr Humbert eight years) or

suspended sentences (Mr Kabayan three years, Mr Jean Montaner five

years, and Mrs Sabatier five years).

As to the seven co-defendants who had not appeared, the court

sentenced them in absentia to periods of imprisonment ranging from

five to twenty years.

The judgment contained the following passages concerning Mr Cardot:

"It appears from the preliminary investigation and the hearing that

in late March or early April 1978, on Cardot's instructions, a

convoy of eight lorries driven by, among others, Cardot, Millo,

Humbert and a driver from Jacques Montaner's firm carried chemicals

and pharmaceuticals to Afghanistan, returning via Iran.

Two days after the arrival of Cardot's lorry at the Jacques

Montaner depot at Charmes (Ardèche), Cardot and Millo dismantled

the petrol tank and took out a number of metal boxes ... containing

300-400 kg of hashish ...

At all events, before the petrol tank was dismantled, Cardot had

indicated to Millo that it contained hashish, whereas Montaner was

confronted with a fait accompli.

...

Cardot subsequently asked Jacques Montaner and Millo, who agreed,

to bring back a quantity of hashish when carrying car-wheel rims

from Yugoslavia ...

When Cardot had arranged the rendez-vous, Millo and

Jacques Montaner set off together during June 1978 ...

...

Cardot gave Jacques Montaner FRF 6,000, which did not even cover

his expenses, while Millo received FRF 50,000 only after another

journey to Iran.

...

For the petrol tanks fitted by the Dutchmen, Cardot went to two

different boilermakers so as not to arouse suspicion ...

According to Millo and Montaner, the tanks measured

2.3m-2.5m x 0.8m x 0.8m and their components were charged to the

Société Transpyrénées [Transpyrenean Company], in other words paid

by Cardot (record of the hearing).

...

On returning from a trip to Afghanistan, Cardot suggested to

Jean-Paul Humbert that he should engage in smuggling ...

At the end of July 1978 ... Humbert saw Cardot again, who told him

that a petrol tank was ready.

...

Cardot, who went to Iran before Humbert, had arranged to meet him

in the car park of Tehran Customs.

After his vehicle had been immobilised ..., Humbert, acting on

Cardot's instructions, got in touch again with an Iranian, who

escorted him to a warehouse in the centre of the working-class

district of Tehran, where, at night, he watched two other Iranians

load forty rectangular metal boxes into the tank ...

...

On Cardot's instructions and accompanied by him, he took an empty

lorry to Holland, where Cardot made a telephone call from the

Novotel car park on the outskirts of Amsterdam.

Guided by André Bronkhorst in the car which Cardot had got into

..., Humbert left his trailer at the Dutchman's disposal outside a

warehouse ...

...

On his return to Charmes, still accompanied by Cardot, he was given

FRF 120,000 by Cardot for transporting 700 kg of hashish.

...

At about the same time, likewise on Cardot's instructions,

Jacques Montaner went to Iran in his lorry in order to bring back

a quantity of hashish ...

According to Montaner's disclosures at the hearing, Cardot, Millo

and Humbert also went to Iran, each with specially adapted petrol

tanks, whereas his own was not adapted until he reached Iran.

...

Montaner travelled via France to Amsterdam, where he rang a

telephone number he had been given by Cardot in order to contact

Antonius Vriens, known as 'Tony', who took delivery from him.

After the petrol tank had been cut out with a chain-saw in a

warehouse, Montaner unloaded the tins containing the hashish, came

back to France and subsequently received from Cardot payments of

FRF 20,000, FRF 50,000 and FRF 10,000 on account, i.e. FRF 80,000

in all for the two journeys, this one and the one that had been

made to Yugoslavia in June.

...

At Cardot's instigation, Millo returned to Tehran by air on

30 September 1978 in order to collect his lorry, which he had left

in Iran on 26 August and which Cardot had said was now 'ready' ...

...

From the statements of the various defendants and persons charged

and inquiries made in Holland it appears that Van Dam Gybertus

financed the operation and was the person for whom the consignments

of drugs carried by the hauliers were ultimately intended.

...

André Bronkhorst, an important member of the organisation, took

delivery in Amsterdam in August 1978 of the drugs brought from Iran

by Humbert and Cardot.

...

Esser got Cardot involved in smuggling hashish ...

...

Gérardus Waterloo went to Valence several times in June 1978 to

make specially adapted petrol tanks together with Van Vemde and

Cardot.

...

In sum, as regards the transport of drugs, it has been established

that:

1. In March 1978 Cardot and Millo took part in importing 400 kg of

hashish from Afghanistan and exporting it.

2. In June 1978 Cardot, Jacques Montaner and Millo took part in

importing 1,500 kg of hashish from Yugoslavia and exporting it to

Holland.

3. In July 1978 Cardot and Humbert took part in importing 700 kg of

hashish from Iran and exporting it to Holland.

4. In August 1978 Cardot and Jacques Montaner took part in

importing 600 kg of hashish from Iran and exporting it to Holland.

5. In late September or early October 1978 Cardot incited an

attempt to import 1,080 kg of hashish from Iran.

...

8. In November 1979 Cardot attempted to import and export 650 kg of

hashish.

...

The offence of importing prohibited goods - in this instance 10 kg

of morphine, 7 kg of heroin and more than 3,500 kg of hashish, with

a total value of 47 million francs -, which is punishable under

Articles 38, 215, 373, 414, 417, 419 and 435 of the Customs Code,

has been made out.

The foregoing offence is imputable to Jacques Montaner, Millo,

Humbert, Jean Montaner, Kabayan, Sabatier, Cardot, Sarrafinehad,

Van Dam, Bronkhorst, Van Vemde, Vriens, Esser and Waterloo

severally, the proceedings against Cardot having, however, been

severed.

..."

(c) The appeals by some of the applicant's co-defendants

16. Five of those convicted appealed and on 18 February 1982

the Grenoble Court of Appeal gave judgment. It acquitted two of

them (Mr Jean Montaner and Mrs Sabatier) on the grounds that there

was insufficient evidence, and reduced the prison sentences of the

three others (Mr Humbert, Mr Millo and Mr Jacques Montaner) by a

quarter.

In its judgment the court indicated that they had all claimed to

have received their instructions from Mr Cardot, who was repeatedly

named in the text. The judgment included the following references:

"...

It is apparent from the case file and the oral proceedings that in

March 1978 Gérard Roucaries put Jean-Claude Cardot in touch with

the Dutchman Esser Stanley, known as Carlos, who proposed to

Jean-Claude Cardot - who was then in the business of road haulage

to the Middle East - that he should carry hashish against payment

of 100,000 French francs per tonne. Jean-Claude Cardot accepted

this proposal, and in late March or early April 1978, on Cardot's

instructions, a convoy of eight lorries driven by, among others,

Cardot, Millo, Humbert and a driver from Jacques Montaner's firm

carried chemicals and pharmaceuticals to Afghanistan, returning via

Iran.

Two days after the arrival of Cardot's lorry at the

Jacques Montaner depot at Charmes (Ardèche), Cardot and Millo

dismantled the petrol tank ...

...

Cardot subsequently asked Jacques Montaner and Millo, who agreed,

to bring back a quantity of hashish when carrying car-wheel rims

from Yugoslavia.

When Cardot had arranged the rendez-vous, Millo and

Jacques Montaner set off together ...

...

On returning from a trip to Afghanistan, Cardot suggested to

Jean-Paul Humbert that he should engage in smuggling.

...

After his vehicle had been immobilised ..., Humbert, acting on

Cardot's instructions, got in touch again with an Iranian ...

...

On Cardot's instructions and accompanied by him, he took an empty

lorry to Holland ...

...

At about the same time, likewise on Cardot's instructions,

Jacques Montaner went to Iran in his lorry in order to bring back

a quantity of hashish.

...

Francis Millo admitted at the hearing that ... he had driven a

consignment of hashish from Valence to Holland that had just been

brought from Iran by Jean-Claude Cardot.

...

At Cardot's instigation, he returned to Tehran by air on

30 September 1978 in order to collect his lorry, which Cardot had

said was now 'ready'.

..."

3. The investigation in respect of the applicant

17. Mr Cardot was summoned to appear before the Valence

Criminal Court on 2 April 1982.

On the same day, on an application by the prosecution, the court

ordered that further inquiries should be made into the facts and

that the defendant should remain in custody. On an appeal against

the latter decision, the Grenoble Court of Appeal upheld the lower

court's decision on 19 May 1982.

18. On 17 June the Valence Criminal Court appointed an

investigating judge to carry out the further inquiries.

19. The judge questioned Mr Cardot on 28 June and 30 July 1982.

20. He also confronted Mr Cardot with the four main witnesses:

Mr Humbert, Mr Millo, Mr Jean Montaner and Mr Jacques Montaner on

12, 13, 16 and 26 July respectively (see paragraphs 15 and

16 above).

On each occasion, in the presence of Mr Cardot and his lawyer, the

investigating judge read out the statements that the witnesses had

made to the police on 21 and 23 October 1979 and 19 February 1980.

Mr Humbert, Mr Millo and Mr Jacques Montaner confirmed them.

The applicant disputed certain points in Mr Millo's and

Mr Jean Montaner's statements; Mr Montaner had retracted certain

things he had said to the police and to the courts. Mr Cardot also

questioned the witnesses through his lawyer. He applied

successfully for the record of his confrontation with

Mr Jean Montaner to be amended and had further questions

put to him.

B. The court proceedings

1. At the Valence Criminal Court

21. The trial at the Valence Criminal Court opened on

1 September 1982. The prosecution did not deem it necessary to

call as witnesses the four people with whom Mr Cardot had been

confronted, and the accused himself did not make any written

application for evidence to be heard from them.

The court adjourned the case to 17 September so that the national

head office of the Customs investigations branch could be

represented as a civil party.

22. During the hearing on 17 September Mr Cardot gave an

account of himself in relation to the charges against him. He

again challenged the statements that his former co-defendants had

made to the police, pointing out that they had varied, but he did

not apply for the persons concerned to be called.

23. On the same day the court sentenced him to six years'

imprisonment. He was found guilty as charged; the court did not

take into account the offences of which he had been convicted by

the Venice Court of Appeal (see paragraph 12 above).

The judgment referred to the statements of the former

co-defendants:

"...

... Millo stated that Cardot had used the time to have his trailer

equipped with a specially adapted petrol tank made in Iran.

It appeared from Humbert's statements that Cardot had had contacts

concerning the transport of smuggled goods - Cardot did not deny

this but claimed that the goods in question were carpets -, that

when he (Humbert) drove his lorry with its specially adapted petrol

tanks to Tehran, Cardot had told him that he could be paid

FRF 120,000 per journey, that he had indeed heard conversations

between Cardot and a Dutchman on the subject of drugs ...

For his part, Millo said that during his stay in Tehran, at that

time, Cardot suggested to him that he should have his lorry loaded

with hashish to take back to France, and Montaner stated that on

returning from Afghanistan Cardot brought round 400-500 kilos of

drugs, which had been collected by another lorry.

...

Millo said that the four petrol tanks had been made for Cardot by

Van Vemde ...

...

While returning to France on or about 8 or 10 August 1978 Cardot

met Millo in Turkey; the latter said during the further inquiries

into the facts that Cardot had told him on that occasion that his

lorry was carrying hashish; he even told Montaner that he had

brought back hashish on this journey.

Millo stated categorically that on his return to France 400 kilos

of hashish remained from Cardot's consignment; ...

...

Montaner and Millo stated categorically that Cardot was behind the

transporting of hashish from Yugoslavia; Montaner and Millo said

that Cardot had organised the journey and given all the necessary

instructions; ...

...

But in his original statements Humbert had said that ten or twelve

days after this journey to Holland Cardot had paid him FRF 120,000

in cash in France ...

...

Cardot denied any involvement in the journey allegedly made to

Lille by Montaner and himself together with Millo ...; Montaner and

Millo, however, had said that all three of them had stopped at the

Novotel in Lille before Millo continued his journey to Holland; the

Dutchman Tony Vriens had joined them; Montaner had said that this

Dutchman had given Cardot a bag containing money; Cardot had given

him two bundles each containing FRF 50,000 in 500-franc notes and

he had given one of these bundles of notes to Millo.

..."

2. In the Grenoble Court of Appeal

24. Mr Cardot, the civil party and the prosecution appealed,

and the Grenoble Court of Appeal gave judgment on 17 March 1983.

It upheld the lower court's judgment as regards Mr Cardot's guilt

and increased the sentence to seven years' imprisonment.

The part of its judgment headed "The facts" contained the

following:

"It appears from the police inquiries, from the judicial

investigation and from the partly confirming judgment of this Court

on 18 February 1982 [(see paragraph 16 above)] that the facts are

established as follows:

...

... The judicial investigation established that [the traffickers]

were divided into three groups: ... and, lastly, the carriers,

consisting of Francis Millo, Jacques Montaner and Jean-Paul

Humbert, who subsequently formally implicated Jean-Claude Cardot,

whom they described as the intermediary between the Dutch and

themselves.

...

For his part, Jean-Paul Humbert stated that on this occasion Cardot

introduced him to two Dutchmen, 'Tony' and 'Carlos' ...

...

Jacques Montaner and Francis Millo ... stated that they made this

journey at Cardot's request in order to bring back a consignment of

hashish. ... Millo stated that Cardot helped to load the lorry ...

...

According to [Cardot's mistress], who confirmed Humbert's and

Jacques Montaner's statements, Cardot helped Van Vemde and Waterloo

to make specially adapted petrol tanks, but Cardot denied this. ...

...

Furthermore, during the trial in this Court on 18 February 1982

Millo stated ... that on that journey he had driven a consignment

of hashish from Valence to Holland that had just been brought from

Iran by Jean-Claude Cardot. He also stated that after meeting

Cardot in Ankara he took his vehicle to Tehran and came back to

France, subsequently returning to Tehran by air at Cardot's

instigation on 30 September 1978 in order to collect his lorry,

which Cardot had told him was 'ready'. ...

...

The various French lorry drivers involved in this trafficking, in

particular Jacques Montaner, Francis Millo and Jean-Paul Humbert,

who were convicted by this Court on 18 February 1982, all stated

that they had received their instructions from Jean-Claude Cardot.

..."

25. At the hearing of the appeal the prosecution had considered

"the facts ... completely established by the evidence in the file

and in the concordant statements made by Jacques Montaner,

Jean-Paul Humbert and Francis Millo during the judicial

investigation and at the hearing in the Court of Appeal which led

to their conviction".

Mr Cardot had challenged all the prosecution evidence. In

particular, he had asserted that "Montaner's and Millo's statements

[were] untrue and malicious and ha[d] no other purpose than to

minimise their own responsibility" and that "the Grenoble Court of

Appeal's judgment of 18 February 1982 [could not] be used in

evidence against him". He had not, however, made any application

for witnesses to be called.

3. In the Court of Cassation

26. Mr Cardot appealed on points of law. One of his three

grounds of appeal was based on failure to comply with Articles 485

and 593 of the Code of Criminal Procedure, lack of reasons, absence

of any legal basis and a breach of the rights of the defence.

He criticised the Grenoble Court of Appeal for having

"found [him] guilty of the charges against him by reference to the

terms of a judgment delivered on 18 February 1982 by the Grenoble

Court of Appeal in a case brought by the public prosecutor's office

against other defendants, and to the hearing which [had] preceded

that judgment.

The court, however, has to reach its verdict in the light of the

particular circumstances of the case and not by reference to cases

already tried; by referring to an earlier decision given in respect

of other defendants and concerning facts which were necessarily

distinct from those then before it, the Court of Appeal [had] not

give[n] its decision any legal basis."

He ended this ground of appeal as follows:

"It follows in reality that the appellant was tried on the basis

not of the evidence uncovered by the investigation or by the

hearing which preceded his conviction but of evidence from an

earlier decision, to which he was not a party, and of a hearing

during which he had not been able to put forward his defence.

The reference thus made in the judgment of the Court of Appeal to

the contents of an earlier decision and, above all, to the hearing

which preceded that decision to which the appellant was not a party

manifestly amounts to a violation of the rights of the defence.

..."

27. The Criminal Division of the Court of Cassation dismissed

the appeal on 13 February 1984. As regards the ground of appeal in

question, it said:

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

from the lower court's judgment, whose reasoning the Court of

Appeal adopted to the extent that it was not inconsistent, and from

the case file that Cardot, a road haulier, took part in substantial

smuggling of hashish between Iran and the Netherlands, in

particular by organising, preparing and carrying out the transport

of the drug as well as the manufacture and fitting in France of

hidden compartments on lorries.

In order to found its belief as to the importance of Cardot's role

in organising the smuggling, the Grenoble Court of Appeal referred

to the findings of another judgment it had given on 18 February

1982, in relation to proceedings against all the other members of

the criminal organisation and from which Cardot's case had been

severed, on the direction of the court of first instance, because

he was in custody in Italy for separate offences.

As copies of that judgment of the Court of Appeal and of the

judgment it upheld have been added to the case file, the Court of

Cassation is able to satisfy itself that, in holding as it did, the

Court of Appeal in no way infringed the rights of the defence.

The courts have unfettered discretion to assess the weight of the

various pieces of evidence, provided that, as in the instant case,

this evidence was adduced in adversarial proceedings; it is

accordingly wholly permissible to file documents from other

proceedings.

It follows that this ground of appeal must be rejected."

II. The relevant domestic legislation

28. Before the Convention institutions the Government and the

applicant mentioned or relied on several provisions of the Code of

Criminal Procedure. The main ones were the following:

Article 427

"Unless otherwise provided by statute, any type of evidence shall

be admissible to substantiate a criminal charge, and the court

shall reach its decision on the basis of being satisfied beyond

reasonable doubt (intime conviction).

The court may only base its decision on evidence which has been

adduced during the trial and discussed before it inter partes."

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, first paragraph

"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 444, third paragraph

"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 513, second paragraph

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

Article 590, first paragraph

"Pleadings shall contain the grounds of appeal to the Court of

Cassation and shall refer to the statutory provisions which it is

claimed have been disregarded."

PROCEEDINGS BEFORE THE COMMISSION

29. In his application of 12 December 1983 to the Commission

(no. 11069/84) Mr Cardot complained that he had been convicted on

the strength of evidence gathered in connection with proceedings to

which he had not been a party and that he had not had an

opportunity, either at his trial or on appeal, to challenge or have

challenged those who had testified against him.

He also impugned his conviction for aiding and abetting an offence

for which the principal offender, who had been amnestied in Iran,

could no longer be prosecuted in France. He alleged, lastly, that

the Court of Cassation, because of the insufficient reasoning in

the judgment of the Grenoble Court of Appeal, had not been able to

satisfy itself that the principle of non bis in idem had been

complied with.

30. On 7 September 1989 the Commission declared the last two

complaints inadmissible, but declared the application admissible as

regards the conduct of the judicial investigation and the court

proceedings.

In its report of 3 April 1990 (made under Article 31) (art. 31),

the Commission expressed the opinion that there had been a breach

of Article 6 paras. 1 and 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 200 of

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

Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

31. At the hearing the Government maintained the submissions in

their memorial. In this they had asked the Court to hold that

there had been no violation of Article 6 (art. 6) of the Convention

for a number of reasons, arguing in the first place that domestic

remedies had not been exhausted and, in the alternative, that the

application was unfounded.

Counsel for the applicant asked the Court to hold that there had

been a violation of paragraphs 1 and 3 (d) taken together.

AS TO THE LAW

THE GOVERNMENT'S PRELIMINARY OBJECTION

32. The Government's main submission, which was the same as

that made before the Commission, was that Mr Cardot had not

exhausted domestic remedies as he had failed to raise in the French

courts, even in substance, the complaint based on a violation of

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

The applicant had not called any witnesses in the Criminal Court

proceedings or asked the Court of Appeal to summon any, as he was

entitled to do under Article 437 and Article 513, second paragraph,

of the Code of Criminal Procedure (see paragraph 28 above).

Furthermore, in his appeal on points of law to the Court of

Cassation he had impugned the appeal court's judgment of

17 March 1983 only by reference to the judgment of 18 February 1982

concerning the appeals of his former co-defendants (see

paragraph 26 above); he had not raised any issue concerning the

hearing of witnesses either expressly or by implication.

33. The Delegate of the Commission submitted, on the contrary,

that Mr Cardot had satisfied the requirements of Article 26

(art. 26) of the Convention by appealing on points of law. In

claiming that the use of evidence gathered in other proceedings was

contrary to the rights of the defence, he had in substance

complained of not having had a fair trial; by challenging the

reasoning in the Grenoble Court of Appeal's judgment, he had

implicitly criticised the taking of evidence during his appeal,

including the failure to examine witnesses at the hearing.

34. The Court does not accept this argument. Admittedly,

Article 26 (art. 26) must be applied with some degree of

flexibility and without excessive formalism (see, among other

authorities, the Guzzardi judgment of 6 November 1980, Series A

no. 39, p. 26, para. 72), but it does not require merely that

applications should be made to the appropriate domestic courts and

that use should be made of remedies designed to challenge decisions

already given. It normally requires also that the complaints

intended to be made subsequently at Strasbourg should have been

made to those same courts, at least in substance and in compliance

with the formal requirements and time-limits laid down in domestic

law (ibid., pp. 25-27, paras. 71-72; see also the decision of the

Commission of 11 January 1961 on the admissibility of application

no. 788/60, Austria v. Italy, Yearbook of the Convention, Vol. 4,

pp. 170-172); and, further, that any procedural means which might

prevent a breach of the Convention should have been used (see the

Barberà, Messegué and Jabardo judgment of 6 December 1988,

Series A no. 146, pp. 28-29, paras. 58-59, and also the Commission

decision previously cited, pp. 166-170).

Practice in international arbitration would appear to reflect a

similar approach. An example is to be found in the award

of 6 March 1956 in the Ambatielos case. The British Government

argued that legal remedies had not been exhausted, on the ground

that the claimant, a Greek shipowner, had not called a witness

during proceedings in an English court. The Commission of

Arbitration allowed the objection in the following terms:

"The rule [of exhaustion] requires that 'local remedies' shall have

been exhausted before an international action can be brought.

These 'local remedies' include not only reference to the courts and

tribunals, but also the use of the procedural facilities which

municipal law makes available to litigants before such courts and

tribunals. ...

...

It would be wrong to hold that a party who, by failing to exhaust

his opportunities in the Court of first instance, has caused an

appeal to become futile should be allowed to rely on this fact in

order to rid himself of the rule of exhaustion of local remedies."

(Reports of International Arbitral Awards, United Nations,

vol. XII, pp. 120 and 122)

35. In the court of first instance Mr Cardot did not express

any wish that evidence should be heard from his former

co-defendants, although they said that he had played a major part

in organising the smuggling of hashish from Iran to France and

although three of them, when confronted with him before the

investigating judge, had confirmed their earlier statements (see

paragraph 20 above). Nor did he make any application to the Court

of Appeal for such evidence to be heard. The case file discloses

no special reason which could have excused him from calling those

witnesses or applying to have them called.

As to his appeal on points of law, only one of the three grounds

put forward related to the proceedings in respect of the former

co-defendants who had been heard in that capacity at the time (see

paragraph 26 above). Above all, it did not rely on paragraph 3 (d)

of Article 6 (art. 6-3-d) or even on the general principle in

paragraph 1 (art. 6-1) and did not refer to the statements that

Mr Humbert, Mr Millo, Mr Jacques Montaner and Mr Jean Montaner had

made to the investigating judge; so that it was too vague to draw

the Court of Cassation's attention to the issue subsequently

submitted to the Convention institutions, namely the failure to

hear prosecution witnesses at any stage of the court proceedings

against Mr Cardot. It may also be asked whether it would have been

admissible for Mr Cardot, who had not raised this point before the

trial courts, to raise it for the first time in the Court of

Cassation. At all events, nothing would have prevented him from

appealing against the Valence Criminal Court's judgment if he had

been unsuccessful in calling witnesses at the trial, or from

challenging in the Court of Cassation a judgment of the Grenoble

Court of Appeal in which it refused to grant an application for

witnesses to be heard (see, mutatis mutandis, the Delta judgment of

19 December 1990, Series A no. 191, pp. 9-10, paras. 18-21).

36. In sum, Mr Cardot did not provide the French courts with

the opportunity which is in principle intended to be afforded to

Contracting States by Article 26 (art. 26), namely the opportunity

of preventing or putting right the violations alleged against them

(see, among other authorities, the Guzzardi judgment previously

cited, Series A no. 39, p. 27, para. 72). The objection that

domestic remedies have not been exhausted is therefore well

founded.

FOR THESE REASONS, THE COURT

Holds by six votes to three that by reason of the failure to

exhaust domestic remedies, it is unable to take cognisance of the

merits of the case.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 19 March 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention

and Rule 53 para. 2 of the Rules of Court, the following separate

opinions are annexed to this judgment:

(a) dissenting opinion of Mr Macdonald;

(b) dissenting opinion Mr Martens;

(c) dissenting opinion of Mr Morenilla.

Initialled: R. R.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE MACDONALD

Unfortunately I am unable to share the opinion of the majority of

the Court on the question relating to Article 26 (art. 26) of the

Convention.

This provision must be applied with some degree of flexibility and

without excessive formalism (see, among other authorities, the

Guzzardi judgment of 6 November 1980, Series A no. 39, p. 26,

para. 72). In the instant case the ground of appeal based on a

breach of the rights of the defence, although perhaps drawn in

terms lacking in clarity and precision, expressly referred to the

"hearing which [had] preceded" the judgment of the Grenoble Court

of Appeal (see paragraph 26 of the present judgment). The

circumstances of the hearing in that court on 17 March 1983 were

precisely what, according to the defence, had been influenced to

Mr Cardot's detriment by those of the hearing in the same court on

17 February 1982, at which Mr Cardot had not been present. The

ground of appeal was therefore indeed tantamount to complaining in

substance of a disregard of the rights enshrined in paragraph 1 of

Article 6 (art. 6-1) of the Convention, of which paragraph 3 (d)

(art. 6-3-d) is a specific aspect. In so doing, Mr Cardot provided

the Court of Cassation with the opportunity which is in principle

intended to be afforded to Contracting States by Article 26

(art. 26), namely the opportunity of putting right the violations

alleged against them (see, inter alia, the Guzzardi judgment

previously cited, Series A no. 39, p. 27, para. 72).

It follows that, in my opinion, the objection that domestic

remedies have not been exhausted is unfounded.

DISSENTING OPINION OF JUDGE MARTENS

1. I have voted in favour of rejecting the French Government's

preliminary objection because it was examined and rejected by the

Commission: for the reasons given in my separate opinion in the

Brozicek case (judgment of 19 December 1989, Series A no. 167,

pp. 23 et seq.), I think that the Court should leave it to the

Commission to determine whether such pleas are founded or not.

2. I have so voted with all the more conviction because in my

opinion the objection was indeed unfounded.

I agree with those of my colleagues who think that in his appeal to

the Court of Cassation on points of law the applicant did not

raise, even in substance, the grievance which in the course of the

Strasbourg proceedings gradually became his principal complaint,

namely that although he had had the opportunity to question his

former co-accused when confronted with them by the investigating

judge, the Grenoble Court of Appeal nevertheless violated his

rights under Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of

the Convention by using their statements as decisive evidence,

because those statements had not been made at a public hearing in

court.

Assuming, however, that this complaint is well-founded - as in this

context one should (see the Van Oosterwijck judgment of

6 November 1980, Series A no. 40, p. 14, para. 27) - and taking

into account the facts that French courts seem to be bound to apply

(self-executing provisions of) the Convention ex officio1 and that

if the lower courts have failed to do this, the Court of Cassation

may quash ex officio2, I think that the applicant did provide the

French courts to a sufficient degree with the opportunity which the

rule of exhaustion of domestic remedies is designed in principle to

afford, namely "the opportunity of preventing or putting right the

violations alleged ..." (see paragraph 36 of the present judgment):

if the applicant's interpretation of Article 6 paras. 1 and 3 (d)

(art. 6-1, art. 6-3-d) is assumed to be correct, the Court of

Cassation should have quashed ex officio because it was evident

from the Court of Appeal's judgment that his conviction was based

on "unlawful" evidence. I realise, of course, that this conflicts

with what the European Court held in paragraph 39 of its

Van Oosterwijck judgment but, in my opinion, the view taken there

is, as regards human rights cases, too strict: it unnecessarily

disregards the protection which a national law that requires its

judiciary to apply the Convention ex officio intends to afford to

those who for present purposes should be assumed to be victims of

a violation of that instrument.

_______________

1 See: Andrew Z. Drzemczewski, European Human Rights Convention in

Domestic Law (1983), p. 78; Marc-André Eissen, 'le statut juridique

interne de la Convention devant les juridictions pénales

françaises' in Gérard Cohen-Jonathan et al., Droits de l'Homme en

France (1985), p. 28; Gérard Cohen-Jonathan, la Convention

Européenne des Droits de l'Homme (1989), pp. 245 and 257.

2 See: Jacques Boré, La cassation en matière pénale (1985),

nos. 3086 et seq.

_______________

DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

To my regret, I dissent from the majority's conclusion that, by

reason of failure to exhaust domestic remedies, the Court is unable

to take cognisance of the merits of the case, and I do so for two

reasons.

1. In the first place, I voted with Judge Martens in favour of

rejecting the French Government's preliminary objection because the

Commission, after examining Mr Cardot's application, declared it

admissible, in accordance with Article 27 para. 3 (art. 27-3) of

the Convention.

I agree with Judge Martens's analysis and arguments in his separate

opinion in the Brozicek case (judgment of 19 December 1989, Series

A no. 167, pp. 23-28). In it he indicates that he is in favour of

departing from the precedent set by the Court in the De Wilde, Ooms

and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 29-31,

paras. 47-55), in which the Court held that it had jurisdiction to

entertain preliminary objections as to admissibility, such as pleas

that domestic remedies had not been exhausted, provided that they

had previously been raised before the Commission.

To reiterate his practical arguments, from the point of view of the

functioning of the Convention system and of more efficient

protection of human rights, I likewise think that the Court is not

to act as a court of appeal from the Commission and that it does

not fit in with this system that (as is possible under the Court's

doctrine) in one and the same case the Commission should reject the

preliminary objection, accept the petition and express the opinion

that there has been a violation, while the Court should find that

objection well-founded and therefore hold that it is unable to take

cognisance of the merits of the case. It is also undesirable that

an applicant, after winning his case before the Commission, should

find himself denied a judgment on the merits after lengthy

proceedings.

2. Furthermore, in the instant case I consider that the applicant

did in substance make before the French Court of Cassation the

complaints relating to paragraphs 1 and 3 (d) of Article 6

(art. 6-1, art. 6-3-d) of the Convention. In the Van Oosterwijck

judgment of 6 November 1980 (Series A no. 40, p. 14, para. 27) the

Court held that in order to determine whether a remedy satisfies

the conditions laid down in Article 26 (art. 26) "and is on that

account to be regarded as likely to provide redress for the

complaints of the person concerned, the Court does not have to

assess whether those complaints are well-founded; it must assume

this to be so, but on a strictly provisional basis and purely as a

working hypothesis".

Article 26 (art. 26), which refers to the "generally recognised

rules of international law", must be applied with some degree of

flexibility and without excessive formalism (see the Guzzardi

judgment of 6 November 1980, Series A no. 39, p. 26, para. 72).

The special character of the Convention and its purpose of

protecting rights which benefit from "collective enforcement"

(see the Ireland v. the United Kingdom judgment of 18 January 1978,

Series A no. 25, p. 90, para. 239, and the Soering judgment

of 7 July 1989, Series A no. 161, p. 34, para. 87) "require that

its provisions be interpreted and applied so as to make its

safeguards practical and effective" (see the Soering judgment,

loc. cit.). The object and purpose of the Convention call in this

case for a flexible "pro victima" interpretation of this Article

(art. 26), favouring admissibility of applications, so that the

complaints made can be considered by the Convention institutions.

In the instant case the ground of appeal to the Court of Cassation

based on a breach of the rights of the defence expressly referred

to the "hearing which [had] preceded the judgment of the Grenoble

Court of Appeal" (see paragraph 26 of the judgment). The

circumstances of the hearing in that court on 17 March 1983 were

precisely what, according to the defence, had been influenced to

Mr Cardot's detriment by those of the hearing in the same court on

17 February 1982, at which Mr Cardot had not been present.

Furthermore, he alleged that "the court ... ha[d] to reach its

verdict in the light of the particular circumstances of the case

and not by reference to cases already tried" (ibid.). Like the

Commission I consider that by challenging the Grenoble Court of

Appeal's reasoning, the applicant had by implication criticised the

procedure whereby evidence was taken.

The ground of appeal was therefore indeed tantamount to reasoning

based on a disregard of the rights enshrined in paragraph 1, of

which paragraph 3 (d) is a specific aspect (see, among other

authorities, the Deweer judgment of 27 February 1980, Series A

no. 35, p. 30, para. 56; the Pakelli judgment of 25 April 1983,

Series A no. 64, p. 19, para. 42; and the Goddi judgment of

9 April 1984, Series A no. 76, p. 11, para. 28), because "when

compliance with paragraph 3 is being reviewed, its basic purpose

must not be forgotten nor must it be severed from its roots"

(see the Artico judgment of 13 May 1980, Series A no. 37, p. 15,

para. 32).

The ground of appeal could probably have been drawn in terms that

were clearer and more precise and might, similarly, have alleged a

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

art. 6-3-d) of the Convention. But while it is normally for the

domestic courts to assess the evidence they have gathered (see the

Unterpertinger judgment of 24 November 1986, Series A no. 110,

p. 15, para. 33), the reasons set out by the applicant clearly

provided the Court of Cassation with "the opportunity which is in

principle intended to be afforded to Contracting States by

Article 26 (art. 26), namely the opportunity of putting right the

violations alleged against them" (see the Guzzardi judgment

previously cited, p. 27, para. 72).