PROCEDURE

The case originated in an application (no. 48221/99) against the French Republic lodged with the European Court of Human Rights under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mrs Marie-Thérèse Berger (“the applicant”), on 28 October 1998. The application was registered on 20 May 1999.

The French Government (“the Government”) were represented by their Agent, Mrs M. Dubrocard, Head of the Human Rights Section, Ministry of Foreign Affairs.

The applicant complained, in particular, of the unfairness of criminal proceedings before the Court of Cassation in which she had been a civil party seeking damages.

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.

By a decision of 10 July 2001, the Chamber declared the application partly admissible.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

Both the applicant and the Government filed written observations on the merits of the case (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1932 and lives in Champagny-en-Vanoise (Savoie).

On 30 September 1991 she signed a notarial deed by which she entered into a leasing arrangement with a limited company called SOFEBAIL for the renovation and furnishment of a holiday centre. She intended to run the business as a sole trader. As early as the end of 1991 she complained that the company had failed to complete the renovation works stipulated in the contract.

A. The applicant's criminal complaint and application to join the proceedings as a civil party seeking damages

On 13 June 1994 the applicant lodged a criminal complaint against the company for fraud, theft and fraudulent breach of trust and sought leave to join the proceedings as a civil party seeking damages.

On 5 May 1997 the investigating judge discontinued the proceedings in an order worded as follows: “It appears, in fact, from the evidence given by the civil parties and the head of SOFEBAIL and from the documents produced by the parties that the leasing arrangement, the mechanism of which has been described as fraudulent by the civil party, does not fall within the ambit of the criminal law. The disputes between [the applicant] and SOFEBAIL are clearly matters governed by civil or commercial law and have, moreover, given rise to various proceedings of this type in the civil or commercial courts.”

On 7 May 1997 the applicant appealed against that order.

On 10 July 1997 the Indictment Division of the Colmar Court of Appeal upheld the order in question. It found that the applicant's complaints were “manifestly dilatory” and that some of her allegations were “contradictory”, “purely gratuitous” or “entirely unsupported”.

On 11 July 1997 the applicant appealed to the Court of Cassation. Her appeal was heard on 24 September 1998. She was represented by counsel. Both parts of the reporting judge's report (the first containing a statement of the facts, the procedure and the grounds of appeal and the second a legal analysis of the case and an opinion on the merits of the appeal) had been sent to the advocate-general prior to the hearing. However, the applicant had not been sent a copy of both parts of the reporting judge's report. In a judgment of the same date the Court of Cassation declared the appeal inadmissible on the following grounds: “The Court of Cassation is satisfied from the wording of the judgment appealed against that, in upholding the order discontinuing the proceedings, the Indictment Division, after examining all the facts alleged by the appellant and addressing the main arguments in her memorial, stated the reasons for its decision that there was insufficient evidence that anyone had committed the alleged offences of fraudulent breach of trust and fraud or any other offence. None of the grounds of appeal, which amount to contesting the validity of the judges' findings of fact and of law, corresponds to any of the situations in which a civil party may appeal to the Court of Cassation, under Article 575 of the Code of Criminal Procedure, against a judgment of an indictment division in the absence of an appeal by the prosecution ...” ...