TOUVIER v. FRANCE

AFPI.ICA'IION N° 29420/95

Paul TOUVIER v/FRANCE

DECISION of n Jdiiuaiy lyy? on tlie ddmissibilily of rhe applit-tlion

Article 6, paragraph 1 of the Convention

a) The light to lemain silent and the in^ht not to contiihiite to inciiminaluiq oneself although not e\piesslv lejened to in Anicle 6. ate qeneiallv leco^nised international standaids which a/c pan of the contept of a fan tnal enshiiiwd in this

pioMsion

Does the fact that the file Lomeinin^ an application foi a piesidenlta! puidon

which contained an admission of letponsibililv by the appluant nas attached to the

cnnnnalfile in tntmnal pioceedm^s ai^ainsl him infi in^e his tiqht not to contiibute

10 inciinnnuHn\> himself (Qiusiion untesohed)

The fact that in appeal pi oceedmqs ai-amst conviction the Piesident did not infoim

the apphcant of his iii>ht to lematn silent and his iiiiht not to conliibute to

inciinnnating himself does not infiini>e those lights as the applicant could not. on

the facts claim to have bcin itnawaie of then existence and mr/s not compelled to

give self-incnminatinq esuhnte

b) Independent liibunal Although a iepl\ fioin a Ministei foi Foieii>ii Affaus to a lec/iiest foi inteipwlatton of int-.inational conientions tisiad by a domestic couit

lould ha\c intfiienced the UiLision vihethei oi not to puisne innnnal pioteedm^s

in plotless in this case the Minislei declined to i^ive an intei pi elation and the

domestic com I ^a\e its decisions on the basis of dcmiestic legislation which it alone

was competent to mteipiei

148Article 6, paragraphs I and .1 of the Convention The concept of 'equahf\ ofit/ms"

does not exhaust the conients of paia^iaphs 1 and ? of Aiticle 6 The Commission'';

task IS to asceitam whethci the pioceedin^s considcied as a whole weie fan

Article 6, paragraph 2 of the Convention Allegations of an iiifiingement of the

principle of the piesumplion of innocence on account of statements by ceitain public

pgiires duiing

ciiminalpioteedm^s

Article 6, paragraph 3 (d) of the Convention

a) The pu I pose of shis piovision is lo place the defendant on an equal footing with the piosecution leganhn^ thi heaiin^ of witnesses

b) As a genetal lule, it is foi the national couils to assess the exidence befoie them, as well as the lelevance of the e] idence which an accused seeks to adduce, and in

paiticulai whethei it is appiopiiate lo call witnesses in the autonomous sense given

lo that leim in the Convention swlem

c) It IS not enough foi an ace used pei son to complain that he was unable lo question ri'itain witnesses, he must also suppoil his lequesl to question witnesses h\

specifyim; the imponance iheuol and nnisi demonsiiale that the heaiini^ of the

witnesses is necessai \ fci asceitaming the liiiih

Article 7, paragraph 2 of the Convention The puipose of this piovision is lo specif \>

that this Aiticle does not affect the laws which in the exceptional ciicumstances at the

end of I he Second Woild Wai weie passed in oidei to punish wai ciinies and acts of

tieason and collaboialion n iili the enemv This leasoning also applies lo dimes against

humanity

Cons ((tionfoi aidini> and abellim: a ciime against hiimanits Piovision in the Chattel

if the Nuiembeii> Inieniutional liibunal and a Fiench law icfetiinv e\piessh lo that

pio\ ision that ci initnal pioneclunis in u lalion to this offcute cannot be time baited

The applicant was not coinicud of an oidinaiv offence, but of aidinq and abettim; a

Clime against hunianils No need lo lule on whethit the offence with which the

applicant was chaiged coiiUl, w hen it was committed, be classified as a ciime aiiamsi

humanity

Article 19 of the Convention

a) As u iieneial lule the applnulion and intei pi elation of domestic law is a mallei foi the domestic cnuils

b) The Commission is not conipetenl to examine alleged eiion of fact oi law committed hy national couils except wheie il consulei s that such eiioi s mi^lil haxe

ins'olved a violation of the lights and fieedoms set foiih in the Convention

149Article 26 of the Convention To txhausl domestic lemedn \ the peison concerned

must have laised in his appeal m^ainsl his com iction by the Assize Couil the complaint

he puts before the Ccmwnssion

T H E FACTS

The applicant, a Frencli national, was born in 1915 and died on 17 July 1996

He had no profession and was iinpiisoiied in the Saiue prison In A letter of 24 July

1996the applicant's heirs, that i--, his wife, born in 1925, and his two children, born

in 1948 and 1950. all three of French nationality and resident in Pans, stated their

intention to pursue the application Before the Commission, the applicant and his heirs

were represented by Mr Jacques Tremolel de Villers. a lawyer practising in Pans

The facts as submitted by the applicant, may be summarised as follows

During the Second Woild War the applicant was commander of the Second Unit

of the French militia in Lyons first tor the depaitcnienl and subsequendy for the

reg.ion, from November 194^ to the end of August 1944 He tied at the end of the v. ir

In a judgment of ID Septtinbt-r 1946. Lyons Court of Justice convicted the

applicant, in absentia of treason and sentenced him to the death penalty conhscation

of his proper!) and deprivation of Ins ci\ic rights

In ajudgment of 4 March 1947 Chambery Court of Justice also sentenced the

applicant, m absentia (o the death peiultv ordering the conhscation of his propert> and

deprivation of his civic lights foi collusion with the enemy

On 3 July 1947 the applicant v/as arrested m Pans He succeeded in escaping

on 9 July 1947

Law no 64 n 2 6 of 26 December 1964 provided m a single section, referring,

inlet alia, to the Chailer of the Nuicmberg Iniernjlional Tribunal annexed to ihe inter

Allied agreement of 8 August 1945, that the prosecution of crimes against humanity

could not be time barred

As regards the sentences passed m 1946 and 1947, the di^ath penally lapsed after

twenty years, but the othei penalties remained in force, pursuant to the provisions of

the Criminal Code

The applicant hied an application for a presidential paidon in which he allegedly

partly admitted his responsibility A lappaiteui recommended that his application be

dismissed, recalling the applicant s role in the RiUienx massacre m which seven people,

SIX of Jewish origin and one unideiuified, uere shot on 29 June 1944 by ft am s-gaides,

150a unit of Ihe Rhone French mililia under the command of the applicant himself acting

on the orders of "Commandant Knab. the head of ihe Gestapo, following the murder

of Philippe Hennot. a minister and member of the militia, by agents working for

Fiance Lihie

In a decree of 23 November 197L the President of the Republic granted the

applicant a pardon with respect to the exclusion order and Ihe conhscation ol property

10 which he had been sentenced following his convictions in 1946, 1947 and other

subsequent convictions for theft and attempted theft His civic rights were not restored

This pardon was strongly criticised b> among others, key politicians and members of

the legal profession

On 5 June 1972 the weekly magazine L'Exptess published an article entitled

'L'Express has found the Lyons executioner' All the national media followed suit,

referring to the applicant as, among other things. 'The Nazi occupiers' assistantexecutioner', murderer', 'Gestapo torturer", 'Jew executioner from Lyons", "war

criminal whose sadistic ciimes and rapacious pillaging were motivated by racism"

After receiving deaih threats, the applicant look refuge in a monasier>

On 9 February 1971. the weekly magazine Itilmne June published a photo of

the applicant and requested victims of the L^ons niilitia lo come forward

On 9 November 1973 a ciiminal complaint for crimes against humanity, together

with a request for leave to join the pioceedings as a civil party seeking damages, was

hied with the Lyons investigating judge It was hied by R E , who accused the

applicant of having atiaiked a synagogue in Lyons in 1943. and by G G , the son of

one of the Rillieux victims

On 27 March 1974 A M R , J L -A , G C and R N hied criminal complaints

for crimes against humanity with a Chambery investigating judge Thev also requested

leave to join the proceedings as civil parties seeking damages

Both investigating judges gave oiders declining jurisdiction, which were upheld

by the Indictments Chambers of I \ons and Chambery Courts of Appeal on 30 May and

11 July 1974

In three judgments of 6 Febiuaiy 1975. the Court of Cassation quashed those

orders on the grounds that it was the judges' task to assess whether or not the acts

compiained of constituted ciimes against humanity, for which theie are no special

courts and whose constituent elemcnls are different from war crimes or collusion with

the enemy It referred the cases lo Pans Court of Appeal

In several judgments of 27 October 1975, Pans Court of Ap[)eal set aside the

orders declining jurisdiction, but held that criminal proceedings for the offences

complained of weie time-baiied and that the applications by the parties seeking

damages were inadmissible

151In ajudgmeni ot 30 June 1976. the Court of Cassation quashed those judgments

on the grounds, miei alia, that it was the Indictments Chamber's task to determine

whether, pursuant to the mteiiuiEonal conventions including Articles 7 and 6t) ot the

European Convention of Human Rigiits, the presumed perpetrator of a crime against

humanity could benefit from the rule that criminal proceedings were time-barred It

referted the case back to the ludictmeius Cluimber of Pans Covitt of Appeal before

different judges

In thiee ]udgii\ents of 17 December 1976. the Indicimenti^ Chamber of Pans

Court of Appeal requested an inteipietation of the international conventions from the

Minister for Foreign Affairs, seeking clanhcation of the follovMng points

"1

Is it to be infeired fiom the provisions of the Charter of the International

Militjry Tribunal annexed to the inter-Alhed Agreement of 8 August 1945,

Article 6 of which delmes cumes against humanity wiiliout providing for any

time-limit on the piosecution and punishment thereof, that the prosecution of

crimes against humanity cannol be time barred''

2Does Article 7 paia 2 of the European Convention for the Piotection of

Human Rights and Fundamental Freedoms, published m Decree No 74 360 of

3 Ma> 1974, provide both lor the past and ihe (uluie or exclusively lor the

future'

3It the answei to quesiion 1 is no, docs the perpetiator of the crimes in

question, sliould they be made out, beneht from the prohibition on retroactive

application of ciiminal legisl.ilion by virtue of the provisions of Article 7 para 2

of ihc European Coiivennoii of Human RighU and Fundamental Freedoms

referred to in question 2*

4III the event llial the provisions of the Cuiopcan Conveniion ol Human

Rights and Fundamental Fieedoms do provide both for the past and for the

future where crimes against humanity are concerned, does the nghl under French

law IC) have criminal pioceedings declared lime barred lall. pursuant to the

combined provisions of Article 7 para 2 and Article 60 of that Convention,

within the category ot human lights and fundamental freedoms fiom which,

according to Article 60, none of the piovisions ol that Convention can

derogate''"

The Minister for I oreu:ii Affairs gave Ins opinion in a leport dated 15 June 1979

in which he concluded, intei alia, that it could be mfeiied from the Charter of the

Nuremberg luternaiional Miliiaiy nibunal tlut the prosecution of crimes against

humanity was not subject to hmilation. that Article 7 para 2 of the (\invenlion did

provide both for the past and the futuic and that cnmcs against humanity did not fall

viithin the ptoliibition on reirojcti\c application of the cnmuial law, having regard to,

inlei alia, the decision of the Euiopeaii Commission of Human Rights ot 26 July 1957

(Yearbook, Vol 1, p 2V)) As legaids the last question, the Minister consideied that

152this raised the issue whethei a light to have the prosecution of crimes against humanity

declared time barred (assuming tins uas allowed by our legislation) would fall into the

category ot human rights and tundamenlal freedoms recognised m accordance with our

laws, and concerns not an inteipietalion of international conventions, but our legislation

It IS therefore outside the power ot inteiprelation of the Minister for Foreign Affairs

In three judgments of 27 Jul> 1979. the Indictments Chamber of Pans Court of

Appeal, taking formal note of the icplies by the Minister for Foreign Affairs, ruled that

the prosecution of the crimes against humanity complained of by Ihe civil parties,

assuming they were made out was not time barred It referred the case to an

investigating judge attached to Pans tiibunal dc gtande instance tor the investigation

to be pursued

After a new investigating judge had been appointed a witness. L G , who was

present at the time Ihe RiKieux victims were singled out cxve evidence on 22 October

1981 His testimony gave the prosecution fresh evidence on which to request the

investigating judge to extend the investigation and issue a warrant for the applicant's

arrest

In a judgment ot 17 September 19X3, the Court of Cassation ordered a case

against the applicant tor a ciime against humanity, namely the murder of VB and his

wife, to be removed from the Lyons investigating judge and to be referred to the Pans

investigating judge Tiie investiganon continued before ihe investigating judge attached

to Pans liibunal de ^lande instanct.

On 24 May 1989 the apphcant was arrested and ch^u^ged with murder, several

counts of atlempted murder and of wiongful ariest and false imprisonment, crimes

against humanity and crimes against humanity in the form of arbitrary arrests arbitrary

imprisonment, arbitrary aiiesls and imprisonment, followed by physical torture,

premeditated murder and aiding and abetting murder He was also remanded in

custody

In ajudgment ot 19 Oclobei 1989 the Indictments Chamber of Pans Court of

Appeal dismissed an application toi the applicant s release and upheld the lawfulness

of the applicant's detention on the giound that he was bi'ing prosecuted for a crime

which, pursuant to i)ie Law of 26 December 1964 was not subject lo hmitaiion On

that occasion, the Indictments C h imber gave its own exposition ot the scope of the

1964 Law

In ajudgmeni of 25 Januaiy 1991) the Court ot Cassation dismissed a lequest for

the case to IK refened to the L)ons investigating judge in the intciests of the sound

administration of justice

The applicant's request foi lelease was granted by judgment of II July 1991 of

the Indictments Chamber ot Pai is ( ourt of Appeal which released him under judicial

supervision subject to a number ot conditions including payment of a security

153That decision provoked an outciy which was reported m the media On

6 January 1992 a comminee of liisionans subniilled a report, ordered by the Cardinal

Archbishop of 1 yons. revealing that churchmen had colluded with the applicant

In a 215-page judgment of I 3 April 1992 Paris Indicltnents Chamber ordered the

proceedi;\gs to be discoinmued for Uck of suffKietU evideiKe iisvd. coiwettwug (he

Rillieux crime, on ihe giound that the investigjiion had not. in the light of the

circumstances of the case and the case-law of the Court of Cassation, shown it to be

a crime ag.ini';! humanity, ihere could theielore be no pioseculion Judicial supervision

was lifted

A wave of protest followed tins judgment, with comments by the President of

the Republic and a number of mmisteis being reporied in the press The Principal Slate

Prosecutor attached lo Paris Couit of Appeal appealed on points of law

In a judgment of 27 November 1992, the Court of Cassation quashed the order

discontinuing the proceedings, but only the part relating to the Rillieux drama, holding,

(/;/('/ aha. that the Court of Appeal could not. without contradicting itself, rule out the

classification of crime against humanity on the one hand "while noting, on the other

hand, that the acts had been commuted on llie orders of a 'commandant' of the Gestapo,

an organisation which had been declared criminal on the ground that it belonged to a

country which had practised a policy of ideological hegemony" The court referred the

case to the Indictments Clumbei of Versailles Court of Appeal

In a judgment of 2 June 1993 the Indictments Chamber of Versailles Court of

Appeal committed the applicaiii tor tiial before (he Assize Couil for the Vvelines

depaitemeni. considcnng ili.n [he investigalion had yielded sulfjcicnl evidence that Ihe

applicant

'had in Ljons on 2K and 2y June 1944 knowinglv aided and abelled a crime

againsl humanity by, histly, giving instructions to commit premeditated

intentional homicide against the persons of Messrs Claeser, Krzvkowski,

Schlusseman, Ben Zimia, 7eizig, Prock and one other unidentified man and.

secondly, by aiding oi assisting the perpetrators of those inientional homicides

in llie commission of the iclevant acts, which were part of a common plan on

behalf of a State practising a policy of ideological hegemony against persons

singled out on the basis of their membership of a racial or religious community

In a judgment of 7 July 1993 the Indictments Chamber decided to place the

applicant under judicial supeivisiun. ihercby restncliiig his movements The apphcant

appealed against that decision His appeal was dismissed by the Couil ot Cassation on

21 October 1993

In a judgment ot 21 October 1993. the Court of Cassation also dismissed the

applicant's appeal against Ins committal tor trial before the Assize Court on the

154grounds, hrst, that tlie non bis in idem rule did not apply to this case notwithstanding

the death penally pronounced in 1946. given that the offence had been reclassified as

a crime against humanily and secondly, that (he Indictmenls Chamber had found thai

the actus leus and mens tea of a ciime against humanity had been made out, which

justified committing him for tnal before the Assize Court

In ajudgment of 3 November 1993 the Court of Cassation refused lo refer the

case to the Assize Court foi the Rhone depaitemeni On 16 March 1994 it dismissed

the applicant s appeal against dn oider of the President of ihe Assize Court allowing

a video recording to be made of his liial

During the proceedings befoie the Assize Court, the applicant requested leave

lo examine Edouard Batladur, the Acting Prime Minister, as a witness m his capacity

as former Secretary General of the Presidency of the Republic, in order lo have him

clarify the conditions in which a pardon had been granted on 23 November 1971 The

Assize Court gave an interlocutory judgment dismissing that request, on the grounds

that it was not necessary for ascertaining ihe truth The applicant also requesied leave

to examine Jean Ouitton a member ot the Academie fian(,aise at the end of the

preparations for the hearing That lequest was also dismissed The applicant submitted

other requests to examine wiinesscs all of which were dismissed

In a judgment of 20 Apiil 1^94, the Assize Court for the Vvelines depaitemeni

sentenced the applicant to life impnsonmenl for aiding and abeltmg a crime against

humanity

The applicant appealed on points of law hlmg a supplemenlarv memorial and

further pleadings setting out eleven giounds of appeal Regarding his unsuccesstul

requests to examine witnesses, the applicant submitted grounds of appeal only in

respect of the requests coni,eining Edouard Balladur and Jean Guillon

The Court of Cassation dismissed his appeal in a judgment of 1 June 1995

Regarding the request to examine witnesses the court noted ihal Ihe applicant's

pleadings did not refer to any fact oi circumstance specifying the importance of the

Prime Minister's evidence and thai the evidence of Jean Guilton, who had neither been

summoned nor implicated was not considered relevant to the Assize Court's task of

ascertaining the truth

C O M P L A I N T S (EMMCt)

2He considers that he was not uied by an independent tribunal within the meaning

of Article 6 para 1 of the Convention, as a report interpreting the international

conventions had been given by the Minister for Foreign Affairs, at the request of the

Indictments Chamber

155

3He considers that he was systematically presumed guilty by both the media and

key politicians in public office He invokes Anicle 6 para 2 of the Convention

4The applicant considers thai, even after his conviction, he is slill unaware of llie

nature and cause of the accusation against him He invokes Article 6 para 3 (a) of the

Convention

5He complains that he was unable to examine witnesses who mighi have testihed

in his defence He invokes Aiticle 6 para I and 3 (d) of the Convention

6The applicant also invokes dn Article 6 para 3 (g) which, he claims, provides

that 'anyone accused of a crimm<il offence has a fully equal right to the following

guarantees g) not to be compelled to incriminate himself or to confess himself guilty"

7The applicant also considers tlut he was convicted because of ihe 1964 Law

which provided retroactively that the prosecution of crimes against humanity could not

be time barred He invokes Aiticle 7 paia I of the Convention He considers further

that the exception to [he pimciple of non-retroactivity, as provided for in Article 7

para 2, cannot apply in this case, as the offence of which he was convicted constitutes

an ordinary offence and not a ciime against humaiiily

THE LAW (Extract)

2The applicant consideis that he was not tried by an independent tribunal within

the meaning of Article 6 para 1 ot the Convention, as a report mieipreting the

international conventions was submitted by the Minister for Foreign Affairs at the

courts' request Article 6 para I provides

"In the determination of

any criminal charge against him everyone is entitled

lo a fair

hearing

by an independent and impailial tiibunal

The Commission notes ihat dui ing the preliminary investigation, the Indictments

Chamber of Pans Court of Appeal deiiveied three judgments dated 17 December 1976

asking tlie Minister for Foieigii Affaiis four questions relaimg to llic interpretation of

international conventions The Minisier leplied in a report of 15 June 1979

156The Commission accepts that the Minister's reply could have influenced the

decision whether or not to puisne the proceedings regaiding ihe purely procedural

question as to whether ihey were time-barred and. therefore, the possibility ot bnnging

a prosecution However, the Commission notes that the Minister for Foreign Affairs

declined to give his view on the question whether "a right to have the prosecution of

cnmes against humanity declared lime-baired (assuming such a right is recognised

under domestic law) would fall into the category of human rights and fundamental

freedoms' recognised in accoidance with domestic law", as that was a matter of

interpretation of the legislation Tiie Commission notes also that the Indictments

Chamber held, in its judgment of 27 July 1979, that the prosecution of crimes against

humanity could not be time baiied and based its decision not only on the Minister's

interpretation, but also on the 26 December 1964 Law Lastly, it transpires from the

judgment of 19 October 1989 ihal ihe Indictments Chamber meant to justify the limebar on Its own terms, without refening to the Minister's opinion and niainiy basing its

decision not on tlie international conventions, but on the 26 December 1964 Law.

which the courts alone have comjietence lo interpret

The Commission theiefore considers thai ihe applicant's case was heard by an

"independent" tribunal within the meaning of Article 6 para I of (he Convention (see,

a contiaiio, Eur Court HR. Beaumarlin v France judgment of 24 November 1994,

Series A no 296-B p 63, paia 38)

It follows thai this complaint must be rejected as manifestly ill founded, pursuant

lo Article 27 para 2 of (he Convention

3The applicant consideis that he was syslemalically piesumed guilty both by the

media and by key politicians in public office He invokes Article 6 para 2 of the

Convention which provides that

"Everyone charged with a criminal ottence shall be presumed innocent until

proved guilty accoidmg to law

The Commission notes that the statemenis made by cerlain public hgures during

the criminal proceedings can be explained by the controversy which had long been

surrounding the applicant's activities during the Second Woild War These activities

were noted in two final judgments sentencing him lo death, in absentia, on

10 September 1946 and 4 Maich 1947 In any event, the impugned statemenis. taken

as a whole, could not be inteipieied as dcclanng the applicant guilty of the offence

which was in the process of being examined (see. iiilit alia, mutatis mutandis.

No 10847/84, Dec 7 10 85, OR 44. p 238)

Ilfollowslhaithiscomplaint must be rejected as manifestly ill-founded, pursuant

to Article 27 para 2 of the Convention

157

4The applicant claims that even after his conviction, he was still unaware of the

nature and cause of the accusation agamst him He invokes Article 6 para 3 (a) of the

Convention which provides

3Everyone charged with a criminal offence has the following minimum

rights

a

10 be informed promptly, in a language which he understands and

in detail, of the nature and cause of the accusation against him

The Commission notes that from 24 May 1989 the date on which the applicant

was arrested and charged, he was informed of the accusations against him, as staled in

the cnminal complaints hied with an application to join the proceedings as a civil

party, and of the legal classihcation i e among other things, crimes against humanily

and crimes against humanity in ihe form of arbitrary arrests, aibilrary imprisonment.

arrests and arbitrary imprisonment followed by physical torture, premeditated murder

and aidmg and abetting muidei , ihcn commuted by the Indictments Chamber of

Versailles Court of Appeal toi tnal before the Assize Court on charges of aiding and

abetting a crime against humanity The Commission notes lasdy that it is clear from

the circumstances of the case ih it during the proceedings, the applicant explained his

actions and submitted his grounds ot defence regarding the offence and classification

thereof

It follows that this complaint must be rejected as manifestly ill founded, pursuant

to Article 27 para 2 of the Convention

5The applicant complains that lie was unable to examine witnesses who might

have lesiihed on his belialf He invokes Article 6 para 1 and 3 (d) ot the Con\eni]on

Article 6 para 3 (d) of the Convention provides

3Everyone charged with a criminal offence has the following minimum

rights

d

to examine or have examined witnesses agiinst him and to obtain

the attendance and ex iminaiion of witnesses on his behalf under the same

conditions as witnesses against him.

The Commission iccalls that as a general rule, it is for the national courts to

assess the evidence befoie them as well as the relevance of the evidence which the

accused seeks lo adduce (see f^ifi;; alia, Eur Court HR Barbera. Messegue and

Jabardo v Spain judgment ot 6 December 1988 Series A no 146 p 31 para 68)

158Article 6 para 3 (d) leaves it to them again as a general rule, to assess whether il is

appropriate lo call witnesses, in ihe aulonomous sense given to that word in the

Convention system (Eur Couit HR. Asch v Austiia judgment of 26 Apnl 1991,

Series A no 203, p 10, para 25), it does not require the attendance and exannnalion

of every witness on the accused's behalf, its essential aim is an equalily of arms (Eur

Court HR, Engel and Others v the Netherlands judgment of 8 June 1976, Senes A

no 22. pp 38 39. para 91, Biicmont v Belgium judgment of 7 July 1989, Series A

no 158. p 31, para 89) Howevci as the concept of 'equalii) of arms does not

exhaust the content of paragiapiis ( and 3 of Article 6 of the Convenlion, the

Commission has the task of ascei taming whether the proceedings m issue, considered

as a whole, were fair as requiied by paragraph 1 of Article 6 (Eur Court HR. Delta

V France judgment of 19 Decembei 1990. Series A no 191. p 15. para 35. Vidal

v Belgium judgment of 22 Apnl 1992. Series A no 235-B, pp 32-33. para 33)

The Commission notes, on the facts, that the applicant refers to a number of

dismissals of his requests to examine witnesses about which he did not complain in his

appeal on points of law against the judgment of ihe Assize Court of 20 April 1994

It follows thai ihis pad of die complaint must be rejected for non-exhausdon of

domestic remedies, puisuant to Aiiicles 26 and 27 paia 3 of the Convention

The Commission notes tuither that the applicant complains that he was unable

to examine the Prime Minister Edouard Balladur. who was Secretary General of the

Presidency of the Republic while Piesideni Georges Pompidou was in office, m order

to have him clarity the circumstances in which he was granted a presidential pardon

on 23 Novemt>er 1971, neithei was he able lo examine Jean Guitton, a member of the

Academie franc^aise

The Commission obseives al the outset thai ihe mailers for which llie applicant

wished to examine die Piime Minister did not concern the offence with which the

applicant was charged and, moieovei, dial he could, if he wished, have referred to and

commented on the pardon during the proceedings The Commission notes, lastly, that

the judgment of ihe Court of Cassation shows that ihe applicant did not substaniiale his

request before the Assize Couil so as to specify lis importance

As regards his other request to examine a witness, the Commission notes that

it was not submitted until the end of preparations for the Assize Couit hearing The

Commission, noting that the Assize Court did not consider il necessary to examine thai

witness m order to asceilain the tiuth has not found anything allowing it to establish

a violation of the piovisions lefeiied to on this point

It follows that this pan of the application must be rejected as being manifestly

ill founded, pursuant to Article 27 paia 2 of the Convention

159

6The applicant also invokes an Aiticle 6 para 3 (g) which he claims provides

that "anyone charged with a cnminal offence has a fully equal light to the following

guarantees g) not to be compelled to mciimmale himself or to confess himself guilty

The Commission, which lecalls that there is no paragraph 3 (g) of Article 6 of

the Convention, considers that this complaint should in reality be examined from the

standpoint of paragraph I of Aiticle 6

The Comnnssion recalls thai even if Article 6 makes no express mention

thereof, the right to remain silent and not lo contribute to incriminating oneself dre

generally recognised international standards which are at the heait ot the concept of a

fair tnal enshrined in Article 6 (see Eur Court HR. Funke v France judgment ot

25 February 1993. Series A no 256 A p 22. para 44, Murray v the United Kingdom

judgment of 8 February 1996, Repons 1996, lo be published)

The Commission notes in the instant case that the applicant complains that the

hie concerning his application tor a piesideiilial pardon was attached to the criminal

case-hie by ihe hist invesligatmg judge, on the ground thai Ins applitalion for a pardon

contained a cerlain admission of lesponsibilily

It IS not the Commission s lask to lule on whether the inclusion of ihe hie on

the application for a paidon could have infnnged the applicant's right not to contribute

to incriminating himself

The Commission notes that dns point was not submitted on appeal to ihe Court

ot Cassation Theie is nothing in the evidence submitted to the Commission to indicate

that an application was made to wiihdiaw certain evidence from the hie in particular

from the file concernmg the application tor a presidential paidon or that recouise was

made to remedies available undei domestic law on tins point in accordance with the

provisions of Article 26 ol ihe Convention

It follows that ihis pait of the complaint must be rejected for non exhaustion of

domestic remedies puisuant to Ailicles 26 and 27 para 3 of the Convention

The Commission notes fuither that [he applicant complained on appeal against

his conviclion of 20 Apnl 19';4 thai ihe President had not inlormed him of his right to

remain silent and not to contribute to mcnnimating himself

The Commission considers, however, m the light of the circumstances of the

case, that the applicant cannot clami to have been unaware of Ins right to remain silent

and not to contribute to inciimmatiug himself Neither has it tound any appearance ot

a violation of tins principle, as the applicant has never been compelled to give self

incnmmatmg evidence

160l! follows ihal this pan ol llie complami must be rejected as maiiifesily ill

founded, pursuant to Aiticle 27 paia 2 of the Convention

7The applicant also considers ihal he was convicted because of the 1964 Law

which provided retroactively that the piosecution of crimes against humanity could not

be time-barred He invokes Article 7 paia I of the Convention He also considers that

the exception to the pnnciple of non letroactivity, as provided foi in paragraph 2 of

Article 7, cannot apply in this t ase as the offence of which he was convicted was an

ordinary offence and not a ciime against humanity

Article 7 of ihe Convenlion piovides

1No one shall be held guilty of any criminal offence on account of any act

or omission which did not constitute a criminal ottence under national or

international law at the time when it was committed Nor shall a heavier penalty

be imposed than the one that was applicable at the time the criminal offence was

committed

2This Aiticle shall not piejudice the trial and punishment ot any person for

any act or omission which at the lime when it was commuted, was criminal

according lo the geneial pimtiplcs of law lecognised b\ civilised nations "

The Commission notes that [he applicant was sentenced to life imprisonment by

ihe Assize Court for the Vvelines depaitemeni on 20 April 1994 for aiding and abetting

a crime against humanity Tlie Commission notes tuither that the offence of a crime

against humanity and the luL that theie can be no lime bar were laid down by the

Charter of the Nurembeig Inlei national Tiibunal annexed to the inter-Allied Agreement

of 8 August 1945 and thai a 1 lench law of 26 December 1964 refening expressly to

Ihal Agreement provides tint the prosecution of cnmes against humanily cannot be

time b.u'red

The Commission consideis u unnecessary to rule on whether (he offence with

which the applicant was diaigcd could, at the time it was committed, be classihed as

such

The Commission must now examine whether the exception provided for in

paragraph 2 of Article 7 is applicable lo the circumstances of this case

The Commission lecalls that it transpires from the pieparatory work to Ihe

Convention Ihat the purpose of paiagiaph 2 of Article 7 is to specify that this Article

does not affect laws which, in ihe wholly exceptional circumstances at the end of the

Second World War, were p issed m order (o punish war cnmes, treason and collabor

ation wuh the enemy and docs not in any way aim to pass legal oi moral judgment on

those laws (see No 268/57, Dec 20 7 57, Yearbook I, p 241) It considers that this

leasoning is also applicable to cnmes against humanity

161The Commission lecalls. lastly, that it is nol ils function to deal with errors of

fact or of law allegedly commiiied by a national couit unless and in so far as they may

have infringed rights and fieedoms piolected by ihe Convention (see, for example.

No 13926/88, Dec 4 1090. DR 66, p 209, at p 225, No 17722/91, Dec 8 4 9 1 .

DR 69, p 345, at p 354) The Commission recalls further that the inierpreiation and

application of national law are as a general rule, matters for die national courts (see,

among other aulhonties, No 10153/S2, Dec 13 10 86. DR 49, p 67)

On the facts, the Commission notes that the applicant was not convicted of an

ordinary offence, but of aiding and abeltmg a crime against humanity, as is clear from

the proceedings brought against him and the judgment convicting him

It follows that this complaim must be rejected as manifestly ill-founded, pursuant

to Article 27 para 2 of die Convenlion

162