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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> REMLI v. FRANCE - 16839/90 [1996] ECHR 18 (23 April 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/18.html Cite as: (1996) 22 EHRR 253, 22 EHRR 253, [1996] ECHR 18

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In the case of Remli v. France (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr R. Pekkanen,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr B. Repik,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 23 November 1995 and

30 March 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 4/1995/510/593. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

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

of Human Rights ("the Commission") on 18 January 1995, 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. 16839/90) against the French Republic lodged with the

Commission under Article 25 (art. 25) by a French national,

Mr Saïd André Remli, on 16 May 1990.

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 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Pekkanen,

Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici and

Mr B. Repik (Article 43 in fine of the Convention and Rule 21 para. 5)

(art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the French

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the orders made in consequence, the

registry received the applicant's and the Government's memorials and

the Delegate's written observations on 7 August, 25 August and 2

October 1995 respectively. On 8 June 1995 the Secretary to the

Commission had supplied the Registrar with various documents he had

requested on the President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 November 1995. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Perrin de Brichambaut, Director of Legal

Affairs, Ministry of Foreign Affairs, Agent,

Mrs M. Dubrocard, magistrat, on secondment

to the Legal Affairs Department, Ministry

of Foreign Affairs,

Mr F. Fèvre, magistrat, on secondment to

the Department of Criminal Affairs and

Pardons, Ministry of Justice,

Mr P. Mollard, judge of the Metz District Court, Counsel;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) for the applicant

Ms C. Waquet, of the Conseil d'Etat and

Court of Cassation Bar, Counsel.

The Court heard addresses by Mr Geus, Ms Waquet and

Mr Perrin de Brichambaut and also replies by the latter two to a

question put by one of its members.

AS TO THE FACTS

I. CIRCUMSTANCES OF THE CASE

6. Mr Saïd André Remli, a French national of Algerian origin, is

currently in custody at Les Baumettes Prison in Marseilles.

A. Background to the case

7. On 16 April 1985, while attempting to escape from Lyons-Montluc

Prison, the applicant and a fellow prisoner of Algerian nationality,

Mr Boumédienne Merdji, knocked out a warder, who died four months later

as a result of the blows he had received.

8. The two prisoners were charged with intentional homicide for

the purpose of facilitating, preparing or executing the offences of

escape and attempted escape. In a judgment of 12 August 1988 the

Indictment Division of the Lyons Court of Appeal committed them for

trial at the Rhône Assize Court. On 5 December 1988 the Court of

Cassation dismissed an appeal on points of law that Mr Remli had lodged

against the decision to commit him for trial.

B. Proceedings in the Rhône Assize Court

9. The trial at the Assize Court took place on 12, 13 and

14 April 1989. On the first day, when the sitting began, the members

of the jury and two additional jurors were drawn by lot. The

defendants challenged five of them, the legal maximum, and the

prosecution two of them. The jury was subsequently finally empanelled

and the hearing of witnesses began.

10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed,

counsel for the applicant filed submissions in which they requested the

court to take formal note of a remark made by one of the jurors on

12 April, before the hearing began, which had been overheard by a third

person, Mrs M., and to append her written statement, together with

their submissions, to the record of the trial.

11. Mrs M.'s statement of 13 April read as follows:

"I, the undersigned Mrs [M.], declare on my honour that I

witnessed the following facts:

I was at the door of the court at about 1 p.m., next to a group

of people. From their conversation, I chanced to overhear that

they were members of the jury drawn by lot in the Merdji [and]

Remli against Pahon case.

One of them then let slip the following remark: 'What's more,

I'm a racist.'

I do not know that person's name, but I can state that he was

on the left of the juror sitting immediately to the left of the

judge on the presiding judge's left.

Being unable to attend the hearing to confirm the facts as my

daughter has recently gone into hospital, but being at the

court's disposal if it proves essential to call me as a

witness, I have drawn up this statement to be used for the

appropriate legal purposes."

12. The court, composed in this instance solely of the judges,

withdrew to deliberate and then delivered the following judgment:

"...

According to the handwritten statement of a Mrs [M.] of

13 April 1989, one of the members of the jury in the present

case said 'What's more, I'm a racist' at the door of the court

at about 1 p.m.

According to this statement and the written submissions, these

words were spoken before the beginning of the first hearing in

the instant case and not in the presence of the judges of the

Court.

The Court is thus not able to take formal note of events

alleged to have occurred out of its presence.

For these reasons, it

Refuses the application made to it for formal note to be taken;

Holds that the applicants' written submissions and the

statement of Mrs [M.] are to be appended to the record of the

trial;

..."

13. On 14 April 1989 the Assize Court sentenced Mr Remli to life

imprisonment and Mr Merdji to a twenty-year term, for two-thirds of

which he would not be liable to any form of release.

C. Proceedings in the Court of Cassation

14. Mr Remli appealed on points of law. He argued mainly that the

Assize Court had made a mistake of law and had disregarded Article 6

para. 1 (art. 6-1) of the Convention in holding that it was "not able

to take formal note of events alleged to have occurred out of its

presence" when it had power to do so.

15. In a judgment of 22 November 1989 the Court of Cassation

dismissed the appeal. It gave the following reason in particular:

"The Assize Court rightly refused to take formal note of events

which, assuming they were established, had taken place outside

the hearing, such that it could not have been in a position to

note them."

II. RELEVANT DOMESTIC LAW

16. Procedure in the Assize Court is governed by Articles 231 to

380 of the Code of Criminal Procedure ("CCP").

The Assize Court consists of the court properly speaking - the

presiding judge and, normally, two other judges - and the jury,

composed of citizens who satisfy the conditions of eligibility laid

down by law. It tries mainly serious criminal cases sent to it by the

Indictment Division and related or inseparable lesser offences. No

reasons are given in its judgments, which are appealable only on points

of law.

A. The Assize Court jury

1. Constitution of the jury

17. For each case on the Assize Court's list a jury is empanelled

at the beginning of the trial. It contains nine jurors, drawn by lot

from a session list. This list contains thirty-five names drawn by lot

every three months from an annual list, itself consisting of a variable

number of names drawn by lot from preparatory lists that are compiled

in each municipality after an initial drawing of names by lot from the

electoral register.

One or more additional jurors are also drawn by lot and attend

the trial in order that they may, if necessary, replace any juror who

is unable to sit.

The jury is constituted at the point when the names of nine

jurors who have not been challenged and the names of the additional

jurors have all been drawn by lot.

2. Challenges

18. As the names of the jurors are being drawn, the defendant or

defendants are entitled to challenge up to five of them and the

prosecution up to four. Their grounds for doing so cannot be given.

19. Article 668 CCP provides:

"Any judge may be challenged on any of the following grounds:

1. Where the judge or his spouse is a blood relative or a

relative by marriage of one of the parties or of a party's

spouse, up to the degree of second cousin inclusive. The

challenge may be made against the judge even in the event of

divorce from his spouse or the latter's death where the spouse

was a relative by marriage of one of the parties, up to the

second degree inclusive;

2. Where the judge or his spouse, or a person in respect of

whom either acts as guardian (tuteur), supervisory guardian

(subrogé tuteur) or court-appointed administrator, or a company

or association in whose management or supervision either takes

part has an interest in the dispute;

3. Where the judge or his spouse is a blood relative or

relative by marriage, to the degree indicated above, of the

guardian, supervisory guardian or court-appointed administrator

of one of the parties or of a director or manager of a company

that is a party to the proceedings;

4. Where the judge or his spouse is dependent on one of the

parties;

5. Where the judge has dealt with the case as a judge,

arbitrator or legal adviser, or where he has given evidence as

a witness relating to the facts of the case;

6. Where there has been litigation between the judge, his

spouse or their lineal blood relatives or relatives by marriage

and one of the parties, his spouse or his lineal blood

relatives or relatives by marriage;

7. Where the judge or his spouse is litigating in a court of

which one of the parties is a judge;

8. Where the judge or his spouse or their lineal blood

relatives or relatives by marriage are in dispute over an issue

similar to that between the parties;

9. Where there have been any disagreements between the judge

or his spouse and one of the parties sufficiently serious to

cast doubt on his impartiality."

Article 669 CCP provides:

"A charged person, accused or any party to the proceedings who

wishes to challenge an investigating judge, a judge of the

police court or one or more or all of the judges of the

Criminal Court, the Court of Appeal or the Assize Court must,

if the challenge is to be valid, make an application to the

President of the Court of Appeal.

Members of State Counsel's Office cannot be challenged. The

application must mention by name the judge or judges being

challenged and set out the grounds relied on, together with all

the supporting evidence.

A party who has willingly proceeded in a court or before an

investigating judge shall be entitled to make a challenge only

on grounds of circumstances that have arisen since, where they

are such as to constitute a ground for challenge."

In the case of the Assize Court these provisions apply only to

the judges and not to the jurors.

3. Taking of the oath

20. The members of the jury, standing bareheaded, are addressed by

the presiding judge as follows:

"You swear and promise to consider the charges that will be

brought against X ... with the greatest care; not to betray

either the interests of the accused or those of society, which

is accusing him/her; not to communicate with anyone until you

have returned your verdict; not to be swayed by hatred or

spitefulness or by fear or affection; to reach your verdict in

the light of the charges and the defence, according to your

conscience and your innermost conviction, with the impartiality

and firmness that befit a free man of integrity; and to

preserve the secrecy of the deliberations, even after you have

discharged your office."

Each of the jurors is individually called upon by the presiding

judge and replies, raising his hand: "I swear."

B. Procedural applications or objections during trials and entries

in the record

21. Where an event likely to infringe the rights of one of the

parties occurs during the trial, the party concerned may ask the Assize

Court - composed in this instance of only the judges - to "take formal

note" of it. This is the party's only means of having it recorded.

The Court of Cassation cannot entertain complaints that have been

raised if no application was made to the Assize Court to take formal

note of them and they were not entered in the record of the trial

(Court of Cassation, Criminal Division, 23 December 1899, Bulletin

criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365;

12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40;

5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427;

22 April 1977, Dalloz-Sirey 1978, p. 28).

The Assize Court may refuse to take formal note of events that

are alleged to have occurred outside the hearing. It also has an

unfettered discretion to decide whether evidence should be taken to

verify them (Court of Cassation, Criminal Division, 16 March 1901,

Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909,

Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985,

Garbidjian).

22. Interlocutory decisions on such matters can be challenged by

means of an appeal on points of law, but only at the same time as the

judgment on the merits (Article 316 CCP).

C. Transfer of a case on the ground of reasonable suspicion of

bias (suspicion légitime)

23. Article 662 CCP provides:

"In matters within the jurisdiction of the Assize Court, the

Criminal Court or the police court, the Criminal Division of

the Court of Cassation may remove a case from any investigating

court or judge or any court of trial and transfer it to another

court or judge of the same rank, either where the court that

would normally have jurisdiction cannot be composed as required

by law or where justice is otherwise prevented from taking its

course or on the ground of reasonable suspicion of bias.

An application for transfer may be made either by Principal

State Counsel attached to the Court of Cassation or by the

prosecutor attached to the court dealing with the case, or by

the person charged, or by a civil party to the proceedings.

...

The lodging of an application shall not have any suspensive

effect unless the Court of Cassation orders otherwise.

..."

The Criminal Division has unfettered discretion to determine

whether such a ground is made out on the alleged facts (Court of

Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272;

9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61;

17 November 1964, Bull. crim. no. 301). An applicant is required to

establish the existence of circumstances sufficiently weighty to

justify serious doubts as to the impartiality of the court in question.

This procedure can be used only in respect of a whole court and

not against one or more members of a collegiate court (Court of

Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343;

Revue de science criminelle et de droit pénal comparé 1977, p. 603,

comments by J. Robert).

PROCEEDINGS BEFORE THE COMMISSION

24. Mr Remli applied to the Commission on 16 May 1990. He

complained that he had not had a hearing by an impartial tribunal and

that he had also suffered discrimination on the ground of racial

origin, contrary to Article 6 para. 1 and Article 14 (art. 6-1,

art. 14) of the Convention. He further alleged that he had not had an

effective remedy before a national authority as required by Article 13

(art. 13) of the Convention.

25. On 1 April 1994 the Commission adjourned its examination of the

complaints based on Article 6 para. 1 (art. 6-1) taken alone and

together with Article 14 (art. 6-1+14) and declared the remainder of

the application (no. 16839/90) inadmissible. On 12 April it declared

the first complaint admissible and decided that it was unnecessary to

express an opinion separately on the second complaint, as this was

bound up with the issue of the court's impartiality. In its report of

30 November 1994 (Article 31) (art. 31), it expressed the opinion by

seven votes to four that there had been a violation of Article 6

para. 1 (art. 6-1). The full text of the Commission's opinion and of

the two dissenting opinions contained in the report is reproduced as

an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and Decisions - 1996),

but a copy of the Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

26. In their memorial the Government asked the Court to "dismiss

Mr Remli's application".

27. The applicant requested the Court to

"find that France has breached Articles 6 para. 1 and 14

(art. 6-1, art. 14) of the Convention; and

award just satisfaction under Article 50 (art. 50) ..."

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION

28. The applicant maintained that he had been the victim of a

breach of Article 6 para. 1 (art. 6-1) of the Convention, which

provides:

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing ... by an independent and

impartial tribunal ..."

A. The Government's preliminary objections

29. As they had done before the Commission, the Government raised

two objections to admissibility.

1. Non-exhaustion of domestic remedies

(a) As to the complaint based on Article 6 (art. 6) of the

Convention

30. The Government argued that the domestic remedies had not been

exhausted. Not only had Mr Remli's application to the Assize Court for

formal note to be taken been inappropriate, but the applicant had also

failed either to ask for evidence to be taken or to lodge an

application for transfer of the trial on the ground of reasonable

suspicion of bias.

The Rhône Assize Court could not take formal note of events

which, even supposing their occurrence was established, had taken place

outside the courtroom. Furthermore, by not applying for evidence to

be taken as to the truth of the alleged matters, the applicant had

deprived himself of a remedy that could have redressed the supposed

breach. If the taking of evidence had made it possible to establish

the alleged facts, the Assize Court could have replaced the juror in

question by one of the additional jurors. If the Assize Court had

refused to allow the application for evidence to be taken, Mr Remli

could have applied to the Criminal Division of the Court of Cassation

for a transfer of the trial on the ground of reasonable suspicion of

bias in order to secure the immediate removal of the case from the

Rhône Assize Court. Such a procedure could be used only in respect of

a whole court and not against one or more members of a collegiate court

who were suspected of bias. However, the Government continued, seeing

that the juror in question had not been challenged, the impartiality

of the Assize Court as a whole might be affected and the procedure of

an application for transfer of the trial on the ground of reasonable

suspicion of bias was therefore the appropriate one. Under Article 662

of the Code of Criminal Procedure, the Court of Cassation could have

ordered that the application should have a suspensive effect.

31. In the applicant's submission, the application for formal note

to be taken was the remedy envisaged in Article 26 (art. 26) of the

Convention, since it alone afforded the possibility of having the facts

in issue recorded. It had been the Assize Court's duty to order

evidence to be taken of its own motion if it considered the evidence

filed by Mr Remli - Mrs M.'s written statements - to be insufficient.

Nor could an application for evidence to be taken be regarded as a

remedy for the purposes of Article 26 (art. 26). As to making an

application to have the trial transferred on the ground of reasonable

suspicion of bias, this was a wholly exceptional procedure and could

only be used in respect of a court as a whole and not in respect of a

single juror. Since such an application would not have had a

suspensive effect, the Assize Court would anyway have continued to sit,

so the harm would have been done.

32. The Commission agreed with the applicant's submissions.

33. The Court reiterates that the purpose of Article 26 (art. 26)

is to afford the Contracting States the opportunity of preventing or

putting right the violations alleged against them before those

allegations are submitted to the Convention institutions (see, for

example, the Hentrich v. France judgment of 22 September 1994,

Series A no. 296-A, p. 18, para. 33). Thus the complaint to be

submitted to the Commission must first have been made to the

appropriate national courts, at least in substance, in accordance with

the formal requirements of domestic law and within the prescribed

time-limits. Nevertheless, the only remedies that must be exhausted

are those that are effective and capable of redressing the alleged

violation (see, among other authorities, the Pressos Compania S.A. and

Others v. Belgium judgment of 20 November 1995, Series A no. 332,

p. 19, para. 27).

34. In the instant case the application for formal note to be taken

was a prerequisite of any subsequent appeal on points of law, since the

Court of Cassation cannot entertain complaints that have not been

formally noted by the Assize Court and have not been entered in the

record of the trial. Admittedly, the Assize Court can refuse to take

formal note of events that have occurred outside the hearing, but it

has the power to order evidence to be taken for the purpose of

verifying them (see paragraph 21 above). That being so, and regard

being had to the fact that by submitting Mrs M.'s written statement to

the Assize Court, the applicant put that court in a position to

exercise its power to order that evidence should be taken, the Court

considers that the application for formal note to be taken was an

effective remedy.

An application for transfer of a trial on the ground of

reasonable suspicion of bias can only be made in respect of a whole

court.

Where the impartiality of a given member of a court is in

issue, only the procedure of a challenge is available. In the case of

members of the jury, however, a challenge can only be made when the

names of the jurors are being drawn by lot, so that it was too late to

make one in the circumstances of the instant case.

The objection must therefore fail.

(b) As to the complaint based on Article 14 of the

Convention taken together with Article 6 (art. 14+6)

35. The Government maintained that in the national courts Mr Remli

had not complained of discrimination on the ground of race or national

origin. The applicant was thus relying on Article 14 (art. 14) for the

first time before the Convention institutions.

36. In the applicant's submission, a breach of Article 14 (art. 14)

could be alleged before the Convention institutions in so far as it was

a consequence of the Court of Cassation's judgment itself.

37. In its decision on the admissibility of the application the

Commission considered that this complaint was bound up with the one

based on Article 6 para. 1 (art. 6-1) and therefore did not require

separate examination.

38. Having regard to the purpose of the requirement that domestic

remedies must be exhausted (see paragraph 33 above), the Court allows

the Government's objection as to the admissibility of the complaint

based on Article 14 taken together with Article 6 (art. 14+6).

2. Application out of time

39. The Government also argued, in the alternative, that the

application had been out of time. The judgment of 22 November 1989,

in which the appeal on points of law against the refusal to take formal

note of events that had occurred outside the courtroom had been

dismissed, was not the final decision from whose date the six-month

period for applying to the Commission began to run. The Court of

Cassation, which ruled on issues of law and not of fact, considered

that the Assize Court had unfettered discretion to decide whether or

not to take formal note of events that occurred out of its presence.

The relevant period had accordingly begun to run on 14 April 1989, when

the Assize Court had delivered its interlocutory judgment, and so the

applicant had not complied with the time-limit.

40. Mr Remli disputed that submission. An appeal on points of law

against interlocutory judgments of the Assize Court was expressly

provided in Article 316, last paragraph, of the Code of Criminal

Procedure.

41. In its decision on the admissibility of the application the

Commission noted the provisions of Article 316 of the Code of Criminal

Procedure. It went on to point out that the Court of Cassation had

held that it had jurisdiction to rule on possible breaches of the

Convention, which was directly applicable in French law; the Government

had not shown that the grounds based on the Convention that had been

argued in the Court of Cassation were contrary to case-law so settled

that the appeal on points of law could not be considered an effective

remedy.

The Delegate of the Commission also pointed out that the ground

of appeal based on a breach of Article 6 (art. 6) of the Convention had

not been declared inadmissible by the Court of Cassation.

In the Commission's opinion, the relevant date for the purposes

of Article 26 (art. 26) was therefore that of the Court of Cassation's

judgment, 22 November 1989.

42. The Court reiterates that an appeal to the Court of Cassation

is one of the remedies that should in principle be exhausted in order

to comply with Article 26 (art. 26). Even supposing that it was

probably bound to fail in this specific case, the filing of the appeal

was thus not a futile step. It consequently had the effect at the very

least of postponing the beginning of the six-month period (see, as the

most recent authority, the A. v. France judgment of 23 November 1993,

Series A no. 277-B, pp. 47-48, para. 30). The objection that the

application was out of time must therefore be dismissed.

B. Merits of the complaint

43. In Mr Remli's submission, if a court trying people of foreign

nationality or origin included a juror who, before the hearing, had

publicly expressed racist sentiments, it lacked impartiality. The

juror in question should not have sat in a case that he was unable to

assess with complete objectivity.

The Rhône Assize Court, however, had dismissed his application

for formal note to be taken of the remark in issue, although it had had

jurisdiction to allow it. Mrs M.'s written statement had been clear,

detailed and free from ambiguity or inconsistency, had accurately

reported the remark and had identified the person who had uttered it.

Where, as in the instant case, the alleged facts were such as

to cast very serious doubt on the impartiality of one of the jurors,

the Assize Court was, the applicant submitted, under an obligation to

take formal note of it, failing which it would be denying the accused

the opportunity of being tried by an impartial tribunal. In short, the

Assize Court and the Court of Cassation should have reacted.

44. The Government conceded that a court containing a juror who had

declared himself to be a racist could not be regarded as impartial.

Nevertheless, it had to be established with certainty that such racist

opinions were really held and evidence had to be brought to show that

they could have influenced the conviction. In the instant case,

however, Mrs M.'s statement was not, the Government continued,

sufficiently reliable or supported to amount to evidence capable of

objectively casting doubt on the jury's impartiality. For one thing,

it conflicted with what the applicant's lawyers had said and, for

another, the sentence "What's more, I'm a racist" was just as likely

to have been uttered as a joke or in connection with another case or

solely in relation to the applicant's co-defendant, an Algerian

national, and not to Mr Remli himself, who had French nationality. It

was therefore not possible to consider that it had been established

that there was a doubt as to the impartiality of a member of the jury

that had tried the applicant.

Furthermore, a court could not be expected to verify all the

remarks that a juror might make before being drawn by lot. In the

instant case, the juror in question had not been challenged.

Thereafter it was the impartiality of the jury itself that was

relevant. In the instant case, however, it was difficult to describe

the jury as a whole as biased, especially as under the Code of Criminal

Procedure any decision unfavourable to an accused had to be taken by

a majority of at least eight.

45. In the Commission's opinion, the statement drawn up by Mrs M.

contained no inconsistencies and made it possible to identify with

accuracy the person who had made the remark. As the Assize Court had

not verified the alleged facts, the applicant was reasonably entitled

to call the juror's impartiality into question, and his fears in this

respect were objectively justified. There had therefore been a breach

of Article 6 para. 1 (art. 6-1) of the Convention.

46. The Court refers to the principles laid down in its case-law

concerning the independence and impartiality of tribunals, which apply

to jurors as they do to professional and lay judges (see the Holm

v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14,

para. 30).

When it is being decided whether in a given case there is a

legitimate reason to fear that a particular judge lacks impartiality,

the standpoint of the accused is important but not decisive. What is

decisive is whether this fear can be held to be objectively justified

(see, among other authorities, the Saraiva de Carvalho v. Portugal

judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the

Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B,

p. 20, para. 27).

47. The Court notes that in the instant case the Rhône Assize Court

had to try Mr Remli and his co-defendant, both of them of North African

origin, and that a third person, Mrs M., certified in writing that she

had heard one of the jurors say: "What's more, I'm a racist."

It is not for the Court to rule on the evidential value of

Mrs M.'s written statement or on whether the racist remark attributed

to the juror in question was actually made. It notes merely that

Mrs M.'s statement - which contained a serious allegation in the

context of the case - was filed with the Assize Court by the

applicant's lawyers, who asked the court to take formal note of it.

The court dismissed their application without even examining the

evidence submitted to it, on the purely formal ground that it was "not

able to take formal note of events alleged to have occurred out of its

presence". Nor did it order that evidence should be taken to verify

what had been reported - and, if it was established, take formal note

of it as requested by the defence - although it could have done so.

Consequently, the applicant was unable either to have the juror in

question replaced by one of the additional jurors or to rely on the

fact in issue in support of his appeal on points of law (see

paragraph 21 above). Nor could he challenge the juror, since the jury

had been finally empanelled (see paragraph 17 above) and no appeal lay

against the Assize Court's judgment other than on points of law (see

paragraph 16 above).

48. Like the Commission, the Court considers that Article 6 para. 1

(art. 6-1) of the Convention imposes an obligation on every national

court to check whether, as constituted, it is "an impartial tribunal"

within the meaning of that provision (art. 6-1) where, as in the

instant case, this is disputed on a ground that does not immediately

appear to be manifestly devoid of merit.

In the instant case, however, the Rhône Assize Court did not

make any such check, thereby depriving Mr Remli of the possibility of

remedying, if it proved necessary, a situation contrary to the

requirements of the Convention. This finding, regard being had to the

confidence which the courts must inspire in those subject to their

jurisdiction, suffices for the Court to hold that there has been a

breach of Article 6 para. 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

49. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Non-pecuniary damage

50. Mr Remli claimed 1,000,000 French francs (FRF) in respect of

non-pecuniary damage.

51. The Delegate of the Commission invited the Court to assess that

damage on an equitable basis.

52. Like the Government, the Court considers that the finding of

a breach of Article 6 para. 1 (art. 6-1) constitutes in itself

sufficient just satisfaction.

B. Retrial or reduction of sentence

53. The applicant further sought a retrial by an assize court

affording all the guarantees of impartiality or, failing that, a

reduction of his life sentence to fifteen years' imprisonment.

54. Like the Government and the Delegate of the Commission, the

Court points out that Article 50 (art. 50) does not give it

jurisdiction to make such an order against a Contracting State (see,

for example, the Saïdi v. France judgment of 20 September 1993, Series

A no. 261-C, p. 57, para. 47).

C. Costs and expenses

55. Mr Remli sought FRF 166,896 (including value-added tax - VAT)

for costs and expenses, that is to say FRF 118,600 for those incurred

in the national courts and FRF 48,296 for those incurred before the

Convention institutions.

56. The Government maintained that the applicant had not provided

vouchers for these expenses, so that the claim should be disallowed or,

failing that, the question of the application of Article 50 (art. 50)

should be reserved. They added that at all events, costs and expenses

incurred in the national courts should not be reimbursed.

57. The Delegate of the Commission considered that the

reimbursement of costs and expenses had to be limited to those incurred

in the national and international legal systems in order to remedy the

alleged breach.

58. The Court notes that the applicant gave particulars of his

claims in his memorial and his supplementary observations and, making

its assessment on an equitable basis, awards him FRF 60,000, including

VAT.

D. Default interest

59. According to the information available to the Court, the

statutory rate of interest applicable in France at the date of adoption

of the present judgment is 6.65% per annum.

FOR THESE REASONS, THE COURT

1. Dismisses by seven votes to two the Government's preliminary

objection based on non-exhaustion of domestic remedies in

respect of the complaint under Article 6 (art. 6) of the

Convention;

2. Holds unanimously that as domestic remedies have not been

exhausted, it cannot entertain the complaint under Article 14

of the Convention taken together with Article 6 (art. 14+6);

3. Dismisses unanimously the Government's preliminary objection

based on failure to comply with the six-month time-limit;

4. Holds by five votes to four that there has been a breach of

Article 6 para. 1 (art. 6-1) of the Convention;

5. Holds unanimously that this judgment constitutes sufficient

just satisfaction in respect of the alleged damage;

6. Holds by eight votes to one that the respondent State is to pay

the applicant, within three months, 60,000 (sixty thousand)

French francs for costs and expenses, on which sum simple

interest at an annual rate of 6.65% shall be payable from the

expiry of the above-mentioned three months until settlement;

7. Dismisses unanimously 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 23 April 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

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

Convention and Rule 53 para. 2 of Rules of Court A, the dissenting

opinions of Mr Thór Vilhjálmsson, Mr Pettiti, Mr Lopes Rocha and

Mr Mifsud Bonnici are annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

As to the preliminary objections raised by the Government, I

agree with the majority of the Court.

On the merits of the case, I would like to make the following

remarks.

If the alleged violation is tested against the everyday

experience of those who work as judges or advocates, it seems obvious

to me that it is far-fetched and could not have influenced the verdict,

even if the facts as set out by the applicant are assumed to be

correct. I find, with respect, that the complaint is so trivial that

the case falls outside the sphere of human rights. I accordingly

disagree with the majority of the Court on the merits of the case and

find no violation of the Convention.

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority in favour of finding that there had

been no breach of the Convention, contrary to the reasoning adopted by

the majority of the Chamber.

The majority consider that the Assize Court's refusal to take

formal note of Mrs M.'s written statement was such as to put in doubt,

at least to Mr Remli's mind, the court's impartiality within the

meaning of Article 6 (art. 6) of the Convention.

As the basis for reaching this conclusion the Chamber takes the

text of Mrs M.'s statement, worded as follows:

"I, the undersigned Mrs [M.], declare on my honour that I

witnessed the following facts:

I was at the door of the court at about 1 p.m., next to a group

of people. From their conversation, I chanced to overhear that

they were members of the jury drawn by lot in the Merdji [and]

Remli against Pahon case.

One of them then let slip the following remark: 'What's more,

I'm a racist.'

I do not know that person's name, but I can state that he was

on the left of the juror sitting immediately to the left of the

judge on the presiding judge's left.

Being unable to attend the hearing to confirm the facts as my

daughter has recently gone into hospital, but being at the

court's disposal if it proves essential to call me as a

witness, I have drawn up this statement to be used for the

appropriate legal purposes."

It also takes into account the Assize Court's judgment, which

gave the following reasons:

"...

According to the handwritten statement of a Mrs [M.] of

13 April 1989, one of the members of the jury in the present

case said 'What's more, I'm a racist' at the door of the court

at about 1 p.m.

According to this statement and the written submissions, these

words were spoken before the beginning of the first hearing in

the instant case and not in the presence of the judges of the

Court.

The Court is thus not able to take formal note of events

alleged to have occurred out of its presence.

..."

Admittedly, the Chamber indicates in paragraph 47 that it is

not ruling on the evidential value of the statement, but it accepts it

as to date and content, at the risk of contradicting itself. In so

doing, the Chamber admits, at least by implication, that the alleged

remark was made on 12 April 1989 and thus called for a response from

the Assize Court.

But the text of the statement cannot be glossed or interpreted.

Taken as it stands, it means that the remark was heard on the 13th.

On the 12th it was physically impossible for Mrs M., at the door of the

lawcourts before the hearing, to know that the person overheard was one

of the jurors in the Remli case, since the drawing of lots did not take

place until after 1 p.m. on the 12th.

Counsel for Mr Remli stated in his submissions that the remark

had been made on the 12th, which is clearly a mistake. On the 12th,

moreover, it would have been possible to challenge the juror when the

lots were drawn, as was done in the case of other jurors. On the 13th

it was no longer possible. That being so, refusal to make an entry in

the record was reasonable. At all events, on the 13th the defence had

other means available to them for clearing up the difficulty, namely

asking the presiding judge to exercise his discretion to order that

Mrs M. should be heard, or else applying for evidence to be taken. If

even those applications had been refused, the defence could have acted

on those refusals accordingly, but for tactical reasons they decided

otherwise. The Chamber (see paragraph 48) criticises the Assize Court

for not having made any check. In so doing, it runs the risk of

substituting it own assessment of the facts for that of the national

court, especially as the nature and bearing of the "hypothetical"

remark have not been made explicit in the judgment. At all events, the

impossibility of remedying such a situation is, in the Chamber's view,

the basis of the ruling that there has been a violation. This seems

to me to be open to criticism.

To support such reasoning, the Chamber would have had, in my

view, firstly to rule on the failure to request a hearing to apply for

evidence to be taken and secondly, and above all, to rule on the

possibility which remained open to the defence of applying to the

Criminal Division of the Court of Cassation for trial by another court

on the ground of reasonable suspicion of bias.

This procedural step was looked at by the Chamber in the

context of the objection as to non-exhaustion of domestic remedies in

respect of its non-suspensive effect, but was not dealt with in the

context of the appropriate remedy for counteracting, if necessary, any

risk of non-impartiality or even of an appearance of partiality.

Admittedly, an application for transfer on the ground of

reasonable suspicion of bias would not have had a suspensive effect.

Admittedly, if it had been allowed by the Criminal Division of the

Court of Cassation, the resulting decision would have been directed at

the whole court, not only the impugned juror.

But for the purposes of Article 6 (art. 6) of the Convention

the remedy for any lack of impartiality may result from an application

directed against the court as a whole and not exclusively from one

directed against a single judge or juror.

At all events, the Chamber was under an obligation to rule on

this point and on the possible outcome of lodging an application for

trial by another court on the ground of reasonable suspicion of bias.

Furthermore, in the instant case, there was nothing in the

domestic proceedings to establish that the remark, if it was made,

would have been decisive for the court as a whole and for the jury's

vote (see paragraph 44 of the judgment).

The doctrine of appearances in relation to Article 6 (art. 6)

of the Convention must not be taken to extremes.

In the instant case the Chamber seems to me to have deviated

from the Court's traditional line in not taking account of domestic

remedies which make it possible to deal at least at last instance with

any risks that the rule of impartiality has not been complied with.

DISSENTING OPINION OF JUDGE LOPES ROCHA

(Translation)

I regret that I do not agree with the majority as regards the

merits of the case.

Like Judge Pettiti, I believe that in the instant case there

is nothing to show that the remark attributed to the juror in question

could have thrown any doubt on the impartiality of the Assize Court as

a whole; even supposing that the remark was actually made, it did not

suffice to call the court's impartiality reasonably in question.

Such a remark, taken out of a context whose details and

particular circumstances are unknown, might only have been a "joke".

It does not necessarily demonstrate bias capable of influencing the

vote of the person who made it at the stage of the collegiate court's

decision.

As Judge Thór Vilhjálmsson points out in his dissenting

opinion, the complaint is of such triviality in the light of all the

facts of the case that it cannot reasonably be convincing as to the

existence of a breach of the right to an impartial tribunal.

This is why, in my view, there has not been a breach of

Article 6 (art. 6) of the Convention.

DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1. In considering the procedural possibilities open to the

applicant after his advocate was informed about the words allegedly

heard by

Mrs M., I formed the opinion that the application should fail because

the domestic procedural remedies had not been exhausted before recourse

was had to the Convention organs.

2. The jury of nine and two supplementary jurors had been

empanelled and the Assize Court had already begun to hear witnesses.

According to the rules in the French Code of Criminal Procedure, at

that stage, it was not possible to challenge a juror. The applicant

therefore correctly requested the court to take formal note of the

incident reported by Mrs M. The court did not accept the request to

investigate the allegation but nevertheless ordered that the advocate's

written submissions and Mrs M.'s statement should form part of the

record of the trial.

3. At this stage of the trial the applicant could have considered

the provisions of Article 662 of the Code of Criminal Procedure

(paragraph 23 of the judgment) enabling him to apply to the Court of

Cassation to move the case to another trial court on the ground of

reasonable suspicion of bias. This was possible because of the Assize

Court's decision to include in the record of the trial Mrs M.'s

statement and the written submissions of the defence. The order of the

Assize Court, in fact, could have no other practical purpose but this,

taking into account the terms of the domestic rules of criminal

procedure.

4. It is of course true that the jurisprudence of the Court of

Cassation was in the sense that such a request will not be granted

unless the suspicion of bias covers the whole composition of the court

and not only one of its members, but I consider that the Court of

Cassation should have been put in a position to review its

jurisprudence in the matter against the background of the Convention

rules which now have to be taken into account by the French courts.

The doctrine of precedent is not part of the French legal order.

5. It may be objected that this expects too much from the

applicant. However, I am of the opinion that this is the spirit of

Article 26 (art. 26) of the Convention, which stipulates that all

possible domestic remedies have to be exhausted before recourse is had

to the Convention's judicial organs. Every Contracting State has to

be given all possible opportunities "of preventing or putting right the

violations alleged" as stated in Cardot v. France judgment of

19 March 1991 (Series A no. 200, p. 19, para. 36), which was preceded

by the dictum in De Wilde, Ooms and Versyp v. Belgium (judgment of

18 November 1970, Series A no. 12, p. 29, para. 50) "to put matters

right through their own legal system". Given the rigidity of the rules

of the French Code of Criminal Procedure, I am of the opinion that the

application of Article 26 (art. 26) was more impellent than ever, in

a matter such as the one under consideration, which, potentially, can

be taken to be of not infrequent occurrence in criminal trials before

assize courts in France. My view of the matter is strengthened by the

further consideration that the Assize Court could have easily replaced

one juror by a supplementary one unless it felt that it could not do

this within the ambit of the Code of Criminal Procedure unless directly

or indirectly, by implication, it had a direction by, or through, a

decision of the Court of Cassation.

6. Taking all this into consideration, I could not proceed further

into the case as it appears to me to be disproportionate to consider,

even if one were to concede that one out of nine jurors sitting with

three judges in the trial nurtured a generic racial prejudice, that

this should lead to the conclusion that the trial was not "fair"

because the court was not "impartial". The circumstance, in my

opinion, when considered against the background of the proceedings

taken as a whole (see Barberà, Messegué and Jabardo v. Spain judgment

of 6 December 1988, Series A no. 146, p. 31, para. 68), does not

justify a holding of a violation of Article 6 para. 1 (art. 6-1) of the

Convention.