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1. The authors of the
communications (initial submissions dated 15 January 1987 and 25 July 1988,
respectively)are Yves Cadoret and Hervé Le Bihan, two French citizens
employed as a teacher and an education advisor, respectively, and residing
at Bretagne, France. They claim to be the victims of a violation by France
of articles 14, 19, 26 and 27 of the International Covenant on Civil and
Political Rights.
THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 On 20 March 1985, the authors appeared before the Tribunal Correctionnel
of Rennes on charges of having vandalized three road signs near Rennes in
June 1984. They state that although Breton is their mother tongue, they were
not allowed to express themselves in that language before the Tribunal, and
that three witnesses they had called were unable to testify in the Breton
language. No information about the actual sentences against the authors is
provided, but they state that they appealed against the decision of the
Tribunal Correctionnel. At its hearing of 23 September 1985, the Court of
Appeal of Rennes allegedly again denied them the possibility to address the
Court in Breton.
2.2 With respect to the requirement of exhaustion of domestic remedies, the
authors allege that no remedies are available, because the French judicial
system does not recognize the use of Breton.
THE COMPLAINT
3.1 The authors claim that they were denied a fair trial, in violation of
article 14, paragraphs 1 and 3 (e) and (f) because they were denied the
right to express themselves in Breton before the French courts and therefore
did not testify. In particular, they allege that the courts steadfastly
refuse to provide the services of interpreters for accused persons of Breton
mother tongue on the ground that they are deemed to be proficient in French.
In this connection, they maintain that the Tribunal Correctionnel did not
ascertain whether they were proficient in French. Mr. Cadoret similarly
denies that he was interrogated in French before the Court of Appeal. In
this context, he claims that he never pretended that he was not fluent in
French, but merely insisted on being heard in Breton. This also applies to
his interrogation before the Court of Appeal, where he only spoke one
sentence, by which he manifested his desire to express himself in Breton.
3.2 Mr. Cadoret contends that no provision of the French Code of Penal
Procedure obliges the accused or a party to a case to express himself or
herself in French before criminal tribunals. More specifically, he refers to
article 407 of the French Code of Penal Procedure and argues that this
provision does not impose the use of the French language. This is said to
have been confirmed by a letter from the Minister of Justice, dated 29 March
1988, which indicates that article 407 only appears to impose the use of the
French language (" semble imposer l'usage de la seule langue francaise"),
and that the use of languages other than French in court is left to the
discretion and case-by-case appreciation of the judicial authorities. This
"uncertain situation", according to Mr. Cadoret, explains why some tribunals
allow individuals charged with criminal offences as well as their witnesses
to express themselves in Breton, as did, for example, the Tribunal of
Lorient (Bretagne) on 3 February 1986 in a case similar to his. Mr. Cadoret
further contends that the provisions of the Code of Penal Procedure
governing the court language cannot be said to be designed to guarantee the
equal treatment of citizens. Thus, one of the authors' witnesses, a
professor at the University of Rennes, was denied the opportunity to testify
in Breton on behalf of the authors, while he was permitted to do so in a
different case.
3.3 The authors claim that the refusal of the courts to let them present
their defence in Breton is a clear and serious restriction of their freedom
of expression, and that this implies that French citizens mastering both
French and Breton can only air their ideas and their views in French. This,
it is claimed, is contrary to article 19, paragraph 2, of the Covenant.
3.4 Mr. Cadoret further contends that the denial of the use of Breton before
the courts constitutes discrimination on the ground of language. He adds
that even if he were bilingual, this would in no way prove that he has not
been a victim of discrimination. He reiterates that French tribunals do not
apply the Code of Penal Procedure with a view to guaranteeing equal
treatment of all French citizens. In this context, he again refers to
differences in the application of article 407 of the Code of Penal Procedure
by the French tribunals and especially those in Bretagne, where some
tribunals allegedly are reluctant to allow accused individuals to express
themselves in Breton even if they experience severe difficulties of
expression in French, whereas others now accept the use of the Breton
language in court. In this way, he claims, French citizens who speak Breton
are subjected to discrimination before the courts.
3.5 With respect to article 27, the authors argue that the fact that the
State party does not recognize the existence of minorities on its territory
does not mean that they do not exist. Although France has only one official
language, the existence of minorities in Bretagne, Corsica or Alsace that
speak languages other than French is well known and documented. There are
said to be several hundred thousand French citizens who speak Breton.
THE STATE PARTY'S OBSERVATIONS
4.1 In its submissions, the State party provides a detailed account of the
facts of the cases and contends that available domestic remedies have not
been exhausted by the authors. Thus, while the authors appealed against the
sentence of the Tribunal Correctionnel, they did not appeal against the
decision of the judge of first instance not to make available to them and
their witnesses an interpreter. As a result, the State party claims, the
authors are precluded from seizing the Human Rights Committee on the ground
that they were denied the right to express themselves in Breton before the
courts because, in that respect, they did not avail themselves of existing
remedies.
4.2 The State party rejects the allegations that the authors were denied a
fair hearing, that they and their witnesses were not afforded the
possibility to testify and that therefore article 14, paragraph 1, and
article 14, paragraphs 3 (e)and (f), of the Covenant have been violated. It
contends that the authors' allegations concerning article 14, paragraph 1,
cannot be determined in abstracto but must be examined in the light of the
particular circumstances of the case. It submits that on numerous occasions
during the judicial proceedings, the authors clearly established that they
were perfectly capable of expressing themselves in French.
4.3 The State party further submits that criminal proceedings are an
inappropriate venue for expressing demands linked to the promotion of the
use of regional languages. The sole purpose of criminal proceedings is to
establish the guilt or the innocence of the accused. In this respect, it is
important to facilitate a direct dialogue between the accused and the judge.
Since the intervention of an interpreter always encompasses the risk of the
accused's statements being reproduced inexactly, resort to an interpreter
must be reserved for strictly necessary cases, i. e., if the accused does
not sufficiently understand or speak the court language.
4.4 The State party affirms that in the light of the above considerations,
the President of the Tribunal of Rennes was justified in not applying
article 407 of the French Penal Code, as requested by Mr. Cadoret. This
provision stipulates that whenever the accused or a witness does not
sufficiently master French, the President of the Court must, ex officio,
request the services of an interpreter.
In the application of article 407, the President of the Court has a
considerable margin of discretion, based on a detailed analysis of the
individual case and all the relevant documents. This has been confirmed by
the Criminal Chamber of the Court of Cassation on several occasions. It adds
that article 407 of the Code of Penal Procedure, which stipulates that the
language used in criminal proceedings is French, is not only compatible with
article 14, paragraph 3 (f), of the Covenant, but goes further in its
protection of the rights of the accused, since it requires the judge to
provide for the assistance of an interpreter if the accused or a witness has
not sufficiently mastered the French language.
4.5 The State party recalls that the authors and all the witnesses called on
their behalf were francophone. In particular, it observes that Mr. Le Bihan
did not specifically request the services of an interpreter. The State party
further acknowledges that two French courts -those of Guingamp and Lorient
in Bretagne allowed, in March 1984 and February 1985 respectively, French
citizens of Breton origin to resort to interpreters: it contends, however,
that these decisions were exceptions to the rule, and that the Court of
Appeal of Rennes as well as the Tribunaux de Grande Instance de Guingamp and
Lorient usually refuse to apply them vis-a-vis accused individuals or
witnesses who are proficient in French. Accordingly, it is submitted, there
can be no question of a violation of
article 14, paragraph 3 (f).
4.6 The State party rejects the authors' argument that they did not benefit
from a fair trial in that the court refused to hear the witnesses called on
their behalf, in violation of article 14, paragraph 3(e), of the Covenant.
Rather, Mr. Cadoret was able to persuade the court to call these witnesses,
and it was of their own volition that they did not testify, Using his
discretionary power, the President of the Court found that it was neither
alleged nor proved that the witnesses were unable to express themselves in
French and that their request for an interpreter was merely intended as a
means of promoting the cause of the Breton language. It was therefore owing
to the behaviour of the witnesses themselves that the court did not hear
them. The State party further contends that article 14, paragraph 3(e), does
not cover the language used before a criminal jurisdiction by witnesses
called on behalf of or against the accused and that, in any case, witnesses
are not entitled, under the Covenant or under article of 407 Penal of the
Procedure, Code to rights broader than those conferred upon the accused.
4.7 With respect to a violation of article 19, paragraph 2, the State party
contends that the authors' freedom of expression was in no way restricted
during the proceedings against them. They were not allowed to express
themselves in Breton because they are bilingual. They were at all times at
liberty to argue their defence in French, without any requirement to use
legal terminology. If the need had arisen, the tribunal itself would have
determined the legal significance of the arguments put forth by the authors.
4.8 As to the alleged violation of article 26, the State party recalls that
the prohibition of discrimination is enshrined in article 2 of the French
Constitution. It further submits that the prohibition of discrimination laid
down in article 26 does not extend to the right of an accused person to
choose, in proceedings against him or her, whatever language he or she sees
fit to use; rather, it implies that the parties to a case accept and submit
to the same constraints. The State party contends that the authors have not
sufficiently substantiated their allegation to have been victims of
discrimination, and adds that the authors' argument that an imperfect
knowledge of French legal terminology justified their refusal to express
themselves in French before the courts is irrelevant for purposes of article
26. The authors were merely requested to express themselves in "basic"
French. Furthermore, article 407 of the Code of Penal Procedure, far from
operating as discrimination on the grounds of language within the meaning of
article 26, ensures the equality of treatment of the accused and of
witnesses before the criminal jurisdictions, because all are required to
express themselves in French. The sole exception in article 407 of the Code
of Penal Procedure concerns accused persons and witnesses who objectively do
not understand or speak the language of the court. This distinction is
couched on "reasonable and objective criteria" and thus is compatible with
article 26 of the Covenant. Finally, the State party charges that the
principle of venire contra factum proprium is applicable to the authors'
behaviour: they refused to express themselves in French before the courts
under the pretext that they had not mastered the language sufficiently,
whereas their submissions to the Committee were made in "irreproachable"
French.
4.9 With respect to the alleged violation of article 27, the State party
recalls that, upon ratification of the Covenant, the French Government made
the following reservation: "In the light of article 2 of the Constitution of
the French Republic, the French Government declares that article 27 is not
applicable as far as the Republic is concerned." Thus, the State party
argues that "the idea of membership of an 'ethnic, religious or linguistic
minority which the applicant invokes is irrelevant in the case in point, and
is not opposable to the French Government which does not recognize the
existence of 'minorities in the Republic, defined, in article 2 of the
Constitution, as 'indivisible, secular, democratic and social . ..
'(indivisible, laïque démocratique et sociale)".
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
5.1 In considering the admissibility of the communications, the Committee
took account of the State party's contention that the communications were
inadmissible because the authors had not appealed against the decision of
the judge of the Tribunal Correctionnel of Rennes not to make available to
them and their witnesses the services of an interpreter. The Committee
observed that what the authors sought was the recognition of Breton as a
vehicle of expression in Court. It recalled that domestic remedies need not
be exhausted if they objectively have no prospect of success. This is the
case where, under applicable domestic laws, the claim would inevitably be
dismissed, or where established jurisprudence of the highest domestic
tribunals precluded a positive result. On the basis of these observations,
and taking into account relevant French legislation as well as article 2 of
the French Constitution, the Committee concluded that there were no
effective remedies that the authors should have pursued in this respect. De
lege lata, the objective pursued by the authors cannot be achieved by
resorting to domestic remedies.
5.2 As to the authors' claim that they had been denied their freedom of
expression, the Committee observed that the fact of not having been able to
speak the language of their choice before the French courts raised no issues
under article 19, paragraph 2. The Committee therefore found that this
aspect of the communications was inadmissible under article 3 of the
Optional Protocol as
incompatible with the Covenant.
5.3 In respect of the authors' claim of a violation of article 27 of the
Covenant, the Committee noted the French "declaration" but did not address
its scope, finding that the facts of the communications did not raise issues
under this provision.
5.4 With respect to the alleged violations of articles 14 and 26, the
Committee considered that the authors had made reasonable efforts
sufficiently to substantiate their allegations for purposes of
admissibility.
5.5 On 25 July and 9 November 1989, the Human Rights Committee, accordingly,
declared the communications admissible in so far as they appeared to raise
issues under articles 14 and 26 of the Covenant. On 9 November 1989, the
Committee also decided to deal jointly with the two communications.
5.6 The Committee has noted the authors' claim that the notion of a "fair
trial", within the meaning of article 14 of the Covenant, implies that the
accused be allowed, in criminal proceedings, to express himself or herself
in the language in which he or she normally expresses himself or herself,
and that the denial of an interpreter for himself or herself and his or her
witnesses constitutes a violation of article 14, paragraphs 3(e)and (f). The
Committee observes, as it has done on a previous occasion, 91 that article
14 is concerned with procedural equality; it enshrines, inter alia, the
principle of equality of arms in criminal proceedings. The provision for the
use of one official court language by States parties to the Covenant does
not, in the Committee's opinion, violate article 14. Nor does the
requirement of a fair hearing obligate States parties to make available to a
person .: whose mother tongue differs from the official court language, the
services of an ;1 interpreter, if that person is capable of understanding
and expressing himself or herself adequately in the official language. Only
if the accused or the witnesses have difficulties in understanding or
expressing themselves in the court language is it obligatory that the
services of an interpreter be made available.
5.7 On the basis of the information before it, the Committee finds that the
French courts complied with their obligations under article 14, paragraph 1,
in conjunction with paragraphs 3(e)and (f). The authors have not shown that
they, or the witnesses called on their behalf, were unable to understand and
express themselves adequately in French before the. tribunals. In this
context, the Committee notes that the notion of a fair trial in article 14,
paragraph 1, juncto paragraph 3(f), does not imply that the accused be
afforded the possibility to express himself or herself in the language that
he or she normally speaks or speaks with a maximum of ease. If the court is
certain, as it follows from the decision of the Tribunal Correctionnel and
of the Court of Appeal of Rennes, that the accused are sufficiently
proficient in the court's language, it need not take into account whether it
would be preferable for the accused to express themselves in a language
other than the court language.
5.8 French law does not, as such, give everyone a right to speak his or her
own language in court. Those unable to speak or understand French are
provided with the services of an interpreter. This service would have been
available to the authors had the facts required it; as they did not, they
suffered no discrimination under article 26 on the ground of their language.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not sustain the authors'
claim that they are victims of a violation of any of the provisions of the
Covenant. |
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