PROCEDURE

The case originated in an application (no. 63879/00) 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 Tunisian national, Mr Laïfa Ben Naceur (“the applicant”), on 13 September 2000.

The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, and his successor, 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.

The application was allocated to the Second 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 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

In a decision of 29 November 2005 the Chamber declared the application admissible.

Neither the Government nor the applicant filed further written observations on the merits of the case (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1951 and is currently detained in Muret Prison (Haute-Garonne).

On 22 February 1999 the Lyons Criminal Court sentenced the applicant, who had been represented by counsel at trial, to seven years’ imprisonment and ordered his permanent exclusion from French territory for drug trafficking while classified in law as a recidivist.

Neither the applicant nor the public prosecutor appealed against the judgment within the ten-day time-limit laid down in Article 498 of the Code of Criminal Procedure.

On 8 March 1999 the public prosecutor asked the Principal Public Prosecutor at the Lyons Court of Appeal to lodge an appeal; the Principal Public Prosecutor did so in a notice of appeal served on 16 March 1999 in accordance with Article 505 of the Code of Criminal Procedure, by which the Principal Public Prosecutor has two months from the date of delivery of the Criminal Court judgment in which to lodge an appeal.

Before the Court of Appeal, the Principal Public Prosecutor – the only appellant – submitted that the applicant should be sentenced to fifteen years’ imprisonment and permanently excluded from French territory.

The applicant filed submissions urging the Court of Appeal to declare the appeal inadmissible for non-compliance with Article 6 § 1 of the Convention and the principle of equality of arms in that it had been lodged outside the time-limit applicable to the public prosecutor at the Criminal Court and to himself. He also challenged the finding as to his guilt.

On 1 July 1999 the Lyons Court of Appeal upheld the judgment as to the issue of guilt and the permanent exclusion from French territory, and increased the sentence to twelve years’ imprisonment, with a minimum term of two-thirds of the sentence. Addressing the applicant’s plea of inadmissibility, the Court of Appeal held: “Under Article 505 of the Code of Criminal Procedure, the Principal Public Prosecutor may lodge an appeal within two months from the date of delivery of the judgment. This opportunity granted to the Principal Public Prosecutor is not at variance with the provisions of Article 6 of the aforementioned Convention where, as in this instance, the right of appeal is also available to the defendant. The appeal by the Principal Public Prosecutor must be declared admissible.”

The applicant appealed on points of law and filed additional submissions in which he reiterated his argument that Article 505 of the Code of Criminal Procedure did not comply with the principle of equality of arms enshrined in Article 6 of the Convention. He also relied on the case-law of the Criminal Division of the Court of Cassation, which had ruled that Article 546 of the Code of Criminal Procedure infringed Article 6 of the Convention in that it afforded only the Principal Public Prosecutor the right to appeal against certain judgments concerning petty offences (contraventions).

In a judgment of 15 March 2000 the Criminal Division of the Court of Cassation dismissed the appeal on points of law, holding as follows: “In declaring the appeal by the Principal Public Prosecutor admissible, the Court of Appeal stated that the opportunity granted to the latter to lodge an appeal within two months from the date of delivery of the judgment, in accordance with Article 505 of the Code of Criminal Procedure, was not at variance with the provisions of Article 6 of the European Convention on Human Rights where, as in this instance, the right of appeal was also available to the defendant. In so holding, and in so far as Article 505 of the Code of Criminal Procedure does not deprive the defendant of a remedy that could be used by the Principal Public Prosecutor but simply subjects him to different formal conditions and time-limits from those applicable to the Principal Public Prosecutor, the judges applied the law correctly ...”