FIFTH SECTION
 
 
 
 
 
CASE OF KIRIL ZLATKOV NIKOLOV v. FRANCE
 
(Applications nos. 70474/11 and 68038/12)
 
 
 
 
 
JUDGMENT
(Extracts)
 
 
 
STRASBOURG
 
10 November 2016
 
 
FINAL
 
06/03/2017
 
 
 
This judgment has become final under Article 44 § 2 of the Convention final but it may be subject to editorial revision. In the case of Kiril Zlatkov Nikolov v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Ganna Yudkivska,
 Erik Møse,
 André Potocki,
 Yonko Grozev,
 Carlo Ranzoni,
 Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 27 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 70474/11 and 68038/12) 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 Bulgarian national, Mr Kiril Zlatkov Nikolov (“the applicant”), on 27 October 2011 and 4 October 2012. 2. The applicant was represented by Ms C. Waquet, of the Conseil d’État and Court of Cassation Bar, and Mr L. Auffret, a lawyer practising in Lyons. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs, Ministry of Foreign Affairs. 3. The Government were given notice of the applications on 27 February 2014 in so far as they concerned Article 5 § 3 of the Convention, Article 14 of the Convention taken in conjunction with Article 6 § 1, and Article 13 of the Convention. The remaining complaints were declared inadmissible. 4. The Bulgarian Government, having been informed of the applications, did not avail themselves of their right to intervene under Article 36 § 1 of the Convention. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971. 6. In connection with an investigation into an international prostitution ring, measures were taken to intercept telephone conversations in accordance with Article 706-95 of the Code of Criminal Procedure, on one mobile telephone line in particular: from 5 p.m. on 6 August 2009 until 8.39 p.m. on 19 August 2009, on the basis of an order of 5 August 2009 by the Chambéry judge responsible for matters concerning civil liberties and detention (“the liberties and detention judge”), authorising interceptions for two weeks; and from 28 August 2009 until 11 September 2009, on the basis of an order of 26 August 2009 by the same judge. Two conversations with a person using a mobile phone belonging to a certain I.K., which were recorded on 4 September 2009, appeared to incriminate the applicant: one between a woman identified as R.G. and a man known as Kiril, later identified as the applicant, and the other between the same woman and another man, in which the same Kiril was referred to in terms suggesting that he was involved in the prostitution ring. A. The judicial investigation
1. The applicant’s arrest, transfer to France, placement under formal investigation and pre-trial detention
7. A judicial investigation was opened on 2 October 2009 into alleged offences of living on the earnings of prostitution with aggravating circumstances, committed as part of an organised gang; trafficking in human beings, committed as part of an organised gang; and criminal conspiracy. A warrant for the applicant’s arrest was issued on 28 July 2010 by Judge N.C., the vice-president responsible for the investigation at the Lyons tribunal de grande instance. After being arrested in Germany pursuant to the warrant, which had in the meantime been converted into a European arrest warrant, the applicant was handed over to the French authorities at 11.45 a.m. on 16 December 2010; he was then brought before the Strasbourg public prosecutor and immediately placed in administrative detention in Strasbourg. At 10.56 a.m. on 20 December 2010 he was brought for the first time before B.G., the investigating judge dealing with the case, who placed him under formal investigation for the above-mentioned offences. At about 5 p.m. on the same day, the Lyons liberties and detention judge, to whom the matter had been referred by the investigating judge, interviewed the applicant and remanded him in custody pending trial. 8. Although the alleged offences were classified as serious crimes, the interviews and confrontations carried out during the investigation were not recorded, by virtue of the exception provided for in the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, as applicable at the material time.
... 2. Application to have procedural steps declared void
13. On 17 June 2011 the applicant applied to the Investigation Division of the Lyons Court of Appeal to have various procedural steps declared void, including the order for his detention, the interviews and confrontations carried out during the investigation and the interception of various telephone conversations. He submitted two requests for preliminary rulings on constitutionality, concerning respectively the seventh paragraph of Article 64-1 and the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, pursuant to which no video recording had been made of the interviews and confrontations. 14. On 6 September 2011 the Investigation Division dismissed most of the application to have the procedural steps declared void (except for one point concerning the interception of telephone conversations), in particular restating the reason given in its previous decision of 13 January 2011. In two further judgments delivered on the same day, it referred the requests for preliminary rulings on constitutionality to the Court of Cassation. 15. On 14 September 2011 the applicant lodged an appeal on points of law, relying in particular on Article 5 § 3, Article 6 § 1 and Article 14 of the Convention and the constitutional principle of equality. 16. On 18 January 2012 the Court of Cassation referred the requests for preliminary rulings on constitutionality to the Constitutional Council and deferred judgment pending the Council’s decision. 17. In a decision of 6 April 2012 (no. 2012-228/229 QPC) the Constitutional Council declared the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure unconstitutional, holding that by providing for an exception to the rule of compulsory video recording of interviews in connection with serious offences where such interviews were carried out during preliminary or judicial investigations into serious offences relating to organised crime or undermining the fundamental interests of the nation, the impugned provisions infringed the principle of equality. It pointed out that the abrogation of those provisions would take effect from the publication of its decision and would apply in the case of persons in police custody or under formal investigation who were questioned or interviewed from that date onwards. 18. In a judgment of 10 May 2012 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law. ... It rejected his argument that there had been violations of the Convention (he had relied on Articles 6 and 14 of the Convention and, more broadly, the right to a fair trial and the prohibition of discrimination) and the Constitution as a result of the application of the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure in his case. Firstly, it held that the Constitutional Council had specified that the abrogation of the provisions in question would apply only in the case of persons in police custody or under formal investigation who were questioned or interviewed following the publication of its decision, so that his argument had in that respect become devoid of purpose. Secondly, it observed that the applicant had not been questioned in police custody and that, although his interviews by the investigating judge had not been recorded on video, “this did not result in any infringement of his rights under the Convention, be it his defence rights or the right to a fair trial, seeing that he was given the option of receiving legal assistance, and had the opportunity to review the manner in which the questions and answers had been transcribed in the record, which had been approved by a registrar, to ask for any corrections to be made and to challenge, at any stage of the proceedings, the meaning and scope of his statements as transcribed”.
19.  ... Lastly, it held that “it is not possible for anyone other than the party concerned to complain of a breach of the substantive requirements governing police custody, or of the lack of a video recording of police questioning or interviews by the investigating judge, in support of an application to have a procedural step or document declared void”; accordingly, the applicant was not entitled to object that the judgment appealed against had stated that there was no cause to declare void any police questioning or interviews by the investigating judge concerning individuals other than himself. B. The applicant’s conviction
20. In a judgment of 28 October 2011 the Lyons Criminal Court found the applicant guilty of the alleged offences, although it dismissed the charge of trafficking in human beings. It sentenced him to four years’ imprisonment and a fine of 10,000 euros (EUR). 21. In a judgment of 20 July 2012 the Lyons Court of Appeal upheld the judgment as to the issue of guilt and sentenced the applicant to six years’ imprisonment with a minimum term of two-thirds of the sentence, as well as imposing a fine EUR 10,000 and a five-year exclusion order from the départements of Savoie and Bas-Rhin. 22. An appeal on points of law by the applicant – whose sole argument was that French criminal law was not applicable – was rejected by the Criminal Division of the Court of Cassation in a judgment of 12 June 2013. 23. The applicant was released on 12 June 2015 after serving his sentence.
... THE LAW
... III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 § 1
54. The applicant complained that he had been discriminated against in that, having been prosecuted for a serious offence relating to organised crime, he had not been afforded the safeguard provided for in Article 116-1 of the Code of Criminal Procedure, namely a video recording of interviews at the investigating judge’s office of anyone placed under formal investigation, given that in accordance with the seventh paragraph of the Article in question, such a safeguard did not apply where the investigation concerned organised crime, serious offences undermining the fundamental interests of the nation or terrorist offences. He relied on Article 14 of the Convention in conjunction with Article 6 § 1. The Articles in question provide respectively:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties’ submissions
1. The Government
55. In the Government’s submission, the applicant could not rely on Article 14 of the Convention, seeing that the nature of the offence with which an individual was “charged”, within the meaning of Article 6 § 1, related solely to the characteristics of acts forming the subject of a preliminary or judicial investigation and therefore did not constitute either a characteristic of the individual concerned or an aspect of his or her status. They pointed out that in Gerger v. Turkey ([GC] no. 24919/94, § 69, 8 July 1999), Akbaba v. Turkey (no. 52656/99, § 28, 17 January 2006), and Tanrıkulu and Deniz v. Turkey (no. 60011/00, § 37, 18 April 2006) the Court had held that there was no discrimination in breach of the Convention where a distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity. 56. The Government further submitted that the difference in nature between offences had to be regarded as de facto entailing different situations for the individuals accused of having committed them: a person charged with an ordinary offence could not be viewed as being in a similar or comparable situation to that of a person charged with a serious or particularly complex offence, such as those provided for in Article 706-73 of the Code of Criminal Procedure (concerning organised crime, undermining the fundamental interests of the nation and terrorism). There had therefore not been a difference in treatment between similar situations. 57. Lastly, the Government pointed out that for there to be a breach of Article 14, the applicant had to have been the victim of discrimination in the enjoyment of a right set forth in the Convention. However, this had not been the case as far as his right under Article 6 § 1 was concerned. They accepted, with reference to the explanatory memorandum on the Bill to improve the balance in criminal proceedings ..., that by making it possible to check statements transcribed in records of questioning or interviews, video recordings contributed to guaranteeing the right of the “person charged” to a fair trial. However, as the domestic court had pointed out in the present case, the lack of a recording did not infringe that right if counsel for the accused was present during the questioning and was able to ensure that the accused’s statements were properly transcribed, to make any observations and to ensure that any difficulties were noted. The Government observed that the applicant had not challenged the accuracy of the records drawn up following his interviews by the investigating judge; and moreover, he had been assisted by counsel during the interviews, so that he had been afforded the same guarantee as the one set forth in Article 116-1 of the Code of Criminal Procedure. 58. The Government added that serious offences committed as part of an organised gang had initially been excluded from the requirement to produce a recording “on account of their seriousness, complexity and more broadly the nature of such offences”. To that end, the legislature had intended to reconcile the rule on recordings with the specific requirements of preliminary and judicial investigations into offences relating to organised crime or undermining the fundamental interests of the nation. 2. The applicant
59. Relying on Clift v. the United Kingdom (no. 7205/07, §§ 58-59, 13 July 2010), the applicant pointed out that, although only differences based on an identifiable personal characteristic by which persons or groups of persons could be distinguished from one another could give rise to discrimination in breach of Article 14, a characteristic could qualify as personal even if it was not innate or inherent in the person concerned. The Court had found in that case (§§ 61-63) and in Engel and Others v. the Netherlands (8 June 1976, § 72, Series A no. 22) and Shelley v. the United Kingdom ((dec.), no. 23800/06, 4 January 2008) that this applied to the status of a prisoner serving a fixed-term sentence of fifteen years or more as opposed to a life sentence, and also to military rank and to the status of a detainee in general. The applicant argued that this was also true of the nature of the offence of which a person was accused. 60. In the applicant’s submission, there had been no relevant justification for the difference in treatment in his case. It could not be justified by the fact that he had been suspected of offences committed as part of an organised gang, since some offences of that kind were not covered by the exception complained of (he mentioned the offences of poisoning and armed assault of a police officer under Articles 221-5 and 222-14-1 respectively of the Criminal Code, where these were committed as part of an organised gang). As to the justification based on the seriousness of the alleged offence, it was inadequate on two counts: firstly because, as the Court had held in Gäfgen v. Germany ([GC], no. 22978/05, § 177, ECHR 2010) and other cases, it was in the face of the heaviest penalties that respect for the right to a fair trial had to be ensured to the highest possible degree by democratic societies; and secondly, because some offences that were just as serious as the one of which he had been suspected (since they carried the same sentence) were not covered by the exception. The same applied to the reason relating to the nature of the interests that had been harmed, given that an offence committed as part of an organised gang affected the same interests as if it had been committed in another way. B. The Court’s assessment
61. The Court observes that at the material time, Article 116-1 of the Code of Criminal Procedure, by virtue of its seventh paragraph, was not applicable where the investigation related to the offences referred to in Article 706-73 of the same Code (concerning organised crime) or to offences undermining the fundamental interests of the nation or to terrorist offences, unless the investigating judge decided to record the interview. In the present case, in the absence of such a decision, the applicant’s interview by the investigating judge was not recorded as he had been charged with offences referred to in Article 706-73 of the Code of Criminal Procedure, whereas such a measure was automatically applied in the case of anyone charged with other serious offences (except those undermining the fundamental interests of the nation and terrorist offences). 62. The applicant’s argument thus amounts to maintaining that he was discriminated against in the enjoyment of his right to a fair trial. 63. The Court observes, however, that there is no indication that in the circumstances of the case, the fact that the interviews of the applicant were not recorded had any significant impact on the exercise of his rights in the context of the criminal proceedings against him, or even, more broadly, on his personal situation (see Boelens and Others v. Belgium (dec.), no. 20007/09, § 31, 11 September 2012). 64. The Court thus concludes that in any event, the discrimination alleged by the applicant in the enjoyment of his right to a fair trial did not cause him a “significant disadvantage”, within the meaning of Article 35 § 3 (b) of the Convention. This part of the application should therefore be declared inadmissible unless, as specified by the Article in question, “respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”. 65. In this connection, the Court concludes from the fact that the seventh paragraph of Article 116-1 of the Code of Criminal Procedure has been abrogated ... that respect for human rights as defined in the Convention and the Protocols thereto does not require an examination of this part of the application on the merits; it points out that this conclusion can be drawn from the mere fact that the matter before it has been resolved at domestic level, so that the case is now only of historical interest on this point (see Boelens and Others, cited above, §§ 34-35, and Uhl v. the Czech Republic (dec.), no. 1848/12, §§ 25-27, 25 September 2012). Furthermore, it considers that the Constitutional Council’s decision no. 2012-228/229 QPC of 6 April 2012 and the Court of Cassation’s judgment of 10 May 2012 indicate that the complaint under Article 14 in conjunction with Article 6 § 1 has been duly considered by a domestic tribunal. 66. This part of the application must therefore be declared inadmissible and rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
...

Article of the Convention at issue: Article 5
Outcome: no_violation