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
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
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
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
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
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)
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)
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
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
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
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
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
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
to Article 27 para 2 of die Convenlion
162
Text from our archive (European Court of Human Rights, HUDOC). © Council of Europe / European Court of Human Rights. Reuse permitted with attribution; the Court's translations into languages other than English and French are not authoritative.