European Court of Human Rights - case of Farhi v. France (2007) (excerpts)

European Court of Human Rights - case of Farhi v. France (2007) (excerpts)

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28.  The Court points out in that connection that, unlike in the Remli case, where the Assize Court rejected the application to take formal note simply because the alleged events had taken place in its absence, in the instant case the President of the Assize Court decided to organise an adversarial hearing on the incident. On that occasion the President and the other judges heard counsel for the applicant and for the civil party, the advocate-general, and then the accused. However, the Government have not stated how that hearing might have helped to determine the content of the communication or to identify the jurors concerned. It was the duty of the domestic court to use all the means in its power to dispel any doubts as to the reality and nature of the alleged events.

29.  The Court considers, in particular, that only a hearing of the jurors would have been likely to shed any light on the nature of the remarks exchanged and the influence they might have had, if any, on their opinions.

30.  Furthermore, the interlocutory decision as drafted by the Assize Court did not enable the Court of Cassation, much less this Court, to determine the effectiveness of the verification carried out by the Assize Court, or to decide whether there was a violation of the Convention provision relied upon. It simply stated that an adversarial hearing had taken place and that no violation of the provisions of Article 304 of the Code of Criminal Procedure had been found, without providing details of any evidence obtained as a result of the hearing.

31.  That being so, the Court considers that the verification made in the instant case cannot be considered effective as it deprived the applicant of the possibility of effective appeal to the Court of Cassation.