PROCEDURE

The case originated in an application (no. 1092/04) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Jean-Claude Gacon (“the applicant”), on 23 December 2003.

The applicant was represented by Mr X. Vuitton, of the Conseil d’Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.

The applicant alleged that the additional time granted to the Principal Public Prosecutor for appealing against a judgment of the Criminal Court amounted to a breach of the principle of equality of arms as enshrined in Article 6 § 1 of the Convention.

On 16 October 2006 the Court decided to give notice of the application. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1940 and lives in Saint-Didier-au-Mont-d’Or.

On 30 May 1995 the Lyons Central Health Insurance Office (caisse primaire centrale d’assurance maladie) filed a criminal complaint stating that an investigation it had carried out in 1993 had revealed that the price charged for prosthetic knee joints by the Clinique du Parc, of which the applicant was the manager, appeared abnormally high, especially in relation to the price charged in the public sector. It added that the prostheses were directly delivered to the operating theatre at the Clinique du Parc but were billed by a company named Clinique Service, also managed by the applicant, with a systematic increase of 15% for the prostheses and 18.5% for the ancillary equipment, the increased price alone being charged to the Health Insurance Office. The Health Insurance Office therefore had doubts about the Clinique Service company, suspecting that its sole activity consisted in overbilling in this way.

In the course of the investigation, complaints about similar acts were filed by various other health insurance funds or payment agencies.

The preliminary investigation found, among other things, that the Clinique Service company had been established in particular to alleviate cash-flow problems resulting from the delay in reimbursement of health care under the third-party payment system. Under this system, in order to be fully reimbursed by the social security scheme for the health care provided, Clinique du Parc had to wait for the invoice from the prosthesis supplier, which meant a delay of several days, if not weeks.

It also transpired that Clinique Service used the same premises and staff as the Clinique du Parc, that its sole customer was the Clinique du Parc and that its manager, the applicant, was also the manager of the Clinique du Parc together with his brother.

In an order of 28 August 2000 the applicant and his brother were committed to stand trial in the Lyons Criminal Court, being charged in particular with having deceived the social security scheme and the relevant health insurance offices through fraudulent practices including the operation of a bogus company in order to secure reimbursement.

The applicant submitted, as part of his defence, that the offence of professional collusion (compérage) was covered by an automatic amnesty and that a prosecution for the same actions characterised as fraud could not succeed, since only the special provisions concerning the characterisation of professional collusion were applicable.

In a judgment of 30 March 2001 the Lyons Criminal Court held that the prosecution had lapsed as the offence of professional collusion was covered by an automatic amnesty, and that it lacked jurisdiction to examine the claims of the civil parties (the health insurance offices that had lodged the criminal complaint against the applicant) whose interests had been harmed as a result of the acts covered by the automatic amnesty. It further held that the offence of fraud was not made out. The applicant was accordingly acquitted.

Within the ten-day time-limit laid down in Article 498 of the Code of Criminal Procedure, the civil parties appealed against the judgment of 30 March 2001.

Although the public prosecutor at the Criminal Court had declined to appeal within the ten-day time-limit laid down in Article 498 of the Code of Criminal Procedure, the Principal Public Prosecutor lodged an appeal against the judgment on 20 April 2001, availing himself of the two-month time-limit granted to him for that purpose by Article 505 of the same Code.

The applicant submitted, in particular, that the Principal Public Prosecutor’s appeal was inadmissible on the grounds that the time-limit reserved for him was incompatible with the guarantees of Article 6 § 1 of the Convention, in particular the principle of equality of arms.

In a judgment of 13 March 2002 the Lyons Court of Appeal dismissed that argument on the following grounds: “... The provisions of Article 505 of the Code of Criminal Procedure, by which the time granted to the Principal Public Prosecutor for exercising his right of appeal under Article 497 of the same Code is set at two months, are not incompatible with the principle of a fair trial under Article 6 of the European Convention on Human Rights, in so far as the Code secures the right of appeal to defendants, who are given sufficient time in which to make meaningful use of it. The balance between the rights of each party is not upset by the two-month time-limit accorded to the Principal Public Prosecutor, which is justified by the latter’s statutory duty to ensure that the criminal law is applied throughout the area of the Court of Appeal’s jurisdiction. ...”

The Lyons Court of Appeal also upheld the judgment appealed against in so far as it had declared that the prosecution of the offence of professional conspiracy had lapsed by virtue of an amnesty, but overturned it by finding the applicant guilty of the offence of fraud. The applicant was accordingly sentenced to a suspended term of two years’ imprisonment, ordered to pay a fine of 120,000 euros (EUR) and stripped of his civic, civil and family rights for five years. He was also ordered, jointly and severally with his brother, to pay the sum of EUR 442,573.13 in compensation for all the damage found to have been sustained by the civil parties, and EUR 6,800 in respect of the costs incurred by the civil parties.

The applicant appealed on points of law, arguing in particular that the time available to the Principal Public Prosecutor for lodging an appeal under Article 505 of the Code of Criminal Procedure was incompatible with Article 6 § 1 of the Convention. In a judgment of 25 June 2003 the Criminal Division of the Court of Cassation dismissed the applicant's appeal, holding in particular: “... Article 505 of the Code of Criminal Procedure, which sets a two-month time-limit for an appeal by the Principal Public Prosecutor, is not in breach of Article 6 § 1 of the Convention in so far as the defendant also has a right of appeal and sufficient time in which to make meaningful use of it. ...”