PROCEDURE

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.

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).

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).

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.

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

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

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.

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

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.

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.

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.“

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; ...“

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

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.

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.“