PROCEDURE

The case originated in an application (no. 47287/99) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mrs Paule Perez (“the applicant”), on 5 October 1998.

The applicant, who had been granted legal aid, was represented by Mr P.-F. Divier, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

The applicant alleged, in particular, that at the end of the investigation during which she was joined as a civil party, the procedure before the Court of Cassation had not been fair.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). On 30 January 2003 it was declared admissible by a Chamber of that Section, composed of Mr C.L. Rozakis, President, Mr J.-P. Costa, Mrs F. Tulkens, Mr P. Lorenzen, Mrs N. Vajić, Mr E. Levits, Mr V. Zagrebelsky, judges, and Mr S. Nielsen, Deputy Section Registrar. On 5 June 2003 a Chamber of that Section, composed of the following judges: Mr Rozakis, President, Mr Costa, Mrs Tulkens, Mr Lorenzen, Mr Levits, Mr. A. Kovler and Mr. Zagrebelsky, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The Grand Chamber decided that there was no need to hold a hearing on the merits of the case (Rule 59 § 3). The applicant and the Government each filed observations on the merits and on the question of the applicability of Article 6 of the Convention, which had been joined to the merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1933 and lives in La Plaine des Cafres (Réunion, France).

On 31 July 1995 she went to the gendarmerie in La Plaine des Cafres to file a complaint of having been assaulted by her two children. She said that her children had come to see her about a lawsuit between them concerning the non-payment of maintenance to which she was entitled because of her ill-health. While the applicant was in the front passenger seat of a motor car driven by her daughter, her son, who was in the back, had allegedly immobilised her and used a syringe to inject her twice with an unknown substance. She said she had quickly got out of the car and gone to hospital.

The applicant was found to have marks of injections. Moreover, after a witness had come forward, the gendarmes found a syringe which when tested was found to bear traces of diazepam and benzoic acid, both of which also form part of the chemical make-up of valium.

An investigation was begun on the grounds of assault with an offensive weapon resulting in total unfitness for work for more than eight days (reduced to less than that during the investigation).

During the investigation, the applicant joined the proceedings as a civil party.

On 14 March 1997 the Saint-Pierre investigating judge ruled that there was no case to answer on the ground that there was insufficient evidence that anyone had committed the offence. He found that the applicant's son, “who had allegedly given her the injection, had left the département to return to his dental practice abroad, in Gabon”, that “he had given his mother an injection of a substance which was medically harmless at that dosage...” and “that, in the absence of precise information as to his address, it did not [seem] practicable to interview [the son] given the difficulty of enforcing any request for evidence to be taken on oath in Gabon”. The decision was apparently served on the applicant on the same day by registered post with acknowledgment of receipt.

On 7 April 1997 the applicant went to the investigating judge's registry and, claiming that she had not received a copy of the decision, refused to sign the notice of appeal drafted by the registrar. She asserted that she had drafted a personal notice of appeal and lodged it at the registry on that same day. In her written observations to the court of appeal, the applicant requested, inter alia, that the investigating judge be made to stand down, that the investigation be resumed, that it be formally recorded that “her complaint [related to] premeditated assault with an offensive weapon resulting in thirty days' total unfitness for work and, given the results of the tests on the syringe, with criminal intent”, and that her children be “brought to the département by force in order to explain themselves”.

By a judgment of 8 July 1997, the Indictment Division of the Court of Appeal of Saint-Denis-de-la-Réunion found that the applicant had appealed “by letter addressed to and received on 7 April 1997 by the investigating judge's registry”, and that she had gone to the registry on the same day and refused to sign the notice of appeal. The Indictment Division therefore ruled that her appeal was inadmissible on the grounds that she had missed the legal deadline and had failed to sign the notice of appeal.

On 11 July 1997 the applicant appealed on points of law. On 21 July 1997 she filed personal observations in which she submitted that the Court of Appeal had, in its judgment of 8 July 1997, disregarded certain provisions of the Code of Criminal Procedure: firstly, “the judgment did not meet the essential conditions required for it to be lawful”, having been given by “judges who had not attended all the hearings in the case” and, secondly, the grounds set out in the impugned judgment relating to service of the decision that there was no case to answer were “insufficient” because they did not address the arguments she had put forward at the hearing. She alleged that there had been a breach of Articles 592, 575-6, 593 and 646 of the Code of Criminal Procedure.

In a judgment of 21 April 1998, the Criminal Division of the Court of Cassation dismissed her appeal in the following terms: “ ... Given the personal written observations filed; On the sole ground of appeal, based on a breach of Articles 485 and 183 of the Code of Criminal Procedure; Whereas, firstly, the particulars of the judgment under appeal establish that it was given in the conditions prescribed by Article 485, third paragraph, of the Code of Criminal Procedure; Whereas, secondly, the Court of Appeal was correct in finding that the appeal of 7 April 1997 against the decision that there was no case to answer served on 14 March 1997 was out of time in accordance with the conditions laid down in Article 183 of the Code of Criminal Procedure; ...”