Documentation Centre Netherlands Institute of Human Rights (SIM)
SIM SIM

Drift 15, 3512 BR Utrecht, The Netherlands, telephone: +31 30 2538033, fax: +31 30 2537168, email: sim.documentation@uu.nl


Home
Search this Database



Publication:1996-III, no. 13
Title:Hamer v. France
Application No:19953/92
Respondent:France
Referred by:Commission
Date of reference by Commission:12-04-1995
Date of reference by State:
Date of Judgment:07-08-1996
Articles:6-1Conclusion:Article 6 not applicable
Keywords:PROMPT TRIAL / DETERMINATION OF CIVIL RIGHTS AND OBLIGATIONS

Summary:
Determination of a dispute over a civil right. The applicant's brother, was hit by a stray bullet while sleeping on the deck of a boat moored in a cove in southern Corsica. He died of his wounds on 7 December 1978. Prince Victor Emmanuel of Savoy, who had fired the shot, was taken into police custody. He was subsequently charged and remanded in custody. On 5 September 1978 he paid the victim's family FRF 500,000. In the months that followed the investigating judge ordered various investigative measures. In November 1979 the applicant and other members of her family applied to join the proceedings as civil parties. The proceedings lasted several more years, on account of the number of investigative measures and various procedural delays. In particular, three different investigating judges were assigned to the case in turn and the investigation which they conducted lasted eight and a half years. The case was set down for hearing in the Indictment Division of the Bastia Court of Appeal on 30 November 1988, then adjourned on a number of occasions, first on account of the failure to serve notice on the accused and the civil parties, and then because of a strike. By a decision of 11 October 1989 the Indictment Division of the Bastia Court of Appeal committed Prince Victor Emmanuel for trial in the Southern Corsica Assize Court on charges of fatal wounding and contravention of the legislation on offensive weapons. On 23 January 1990 the Criminal Division of the Court of Cassation quashed this decision and remitted the case to the Indictment Division of the Paris Court of Appeal, which then committed the defendant for trial in the Paris Assize Court on the same charges. On 18 November 1991 the Assize Court sentenced Prince Victor Emmanuel to six months' imprisonment, suspended on the offensive weapons charges and acquitted him of the remaining charges. On 2 July 1992 the Court of Cassation declared inadmissible an appeal on points of law lodged by the civil parties, with the exception of the applicant. The European Court of Human Rights noted that French law drew a distinction between a civil-party application only and civil-party proceedings in which it was also sought to obtain compensation for the damage sustained as a result of an offence. Accordingly, the admissibility of a civil party application did not absolve the person who made it - if he wished to assert his right to financial reparation - from the obligation to lodge a claim for that purpose with a court which would consider the merits of his civil action. At no stage in the proceedings did Ms Hamer, who had joined them by lodging a civil-party application with the investigating judge on 26 November 1979, as had her parents and sister, claim damages or make known any intention of so doing. Nor did she ever object to the settlement reached between her family and Prince Victor Emmanuel, who had acknowledged his civil liability and paid them compensation on 5 September 1978. Nor did she express any reservations on that subject. The applicant could have claimed damages either during the investigation proceedings or at the trial in the Assize Court on 18 November 199 1. Even after the judgment acquitting Prince Victor Emmanuel she could have filed written submissions to that effect with the registry of the Assize Court, which would then have held a hearing in its civil composition and ruled on the case. She could also have lodged her claim for damages with the civil courts at a later date. In that respect the present case had to be distinguished from other similar cases the Court had had to deal with in which the outcome of the proceedings had been decisive for the 'civil right' in question. The cases of Tomasi and Acquaviva, in particular judgments of 27 August 1992, A. 241-A, and 21 November 1995, A. 333-A), had ended with judgments in which it had been held that there was no case to answer, whereas in the present case the accused had been committed for trial. In the Acquaviva Case, more particularly, the finding of self-defence by the Indictment Division of the Versailles Court of Appeal had deprived the civil parties of any right to sue for compensation. In the present case, a contrario, the outcome of the proceedings had not been decisive, for the purposes of Article 6(1), for the establishment of Ms Hamer's right to compensation. As the applicant had never asserted that right, there had therefore been no 'dispute' over a 'civil right'. Accordingly, Article 6 was not applicable.

Home
Search this Database


Last Modified: 14-08-2009 17:20:49 (Documentation SIM)