Report by M. Laurans
The Plenary Assembly is seized, on the basis of articles 626-1 et seq. Of the Code of Criminal Procedure, by decision of 25 November 2004 of the Commission for the review of a criminal decision granting the request for review of the appeal lodged. by René X … against the judgment of the Bordeaux Court of Appeal dated April 29, 1997, which, ruling on referral after cassation condemned him to a fine of 10,000 francs fine for publicity of nature to mislead.
Facts and procedure
René X … (who had been arrested in front of the courthouse by the deputy public prosecutor) was summoned in application of the provisions of article 394 of the Code of Criminal Procedure at the hearing of January 18, 1993 of the Criminal Court of Toulouse under the prevention of having, in this city, on December 17, 1992 committed the offense of false advertising, by distributing to passers-by, on the public highway, a printed leaflet inviting them to contact an association called ADV (Association for the Defense of Victims) and inviting the reader to engage the responsibility of magistrates, lawyers, gendarmes or elected politicians because of their professional misconduct and to consult this association with a view to preventing litigation, advertising qualified as false in that the The association concerned, subject to judicial liquidation, no longer had legal existence and could no longer provide the service announced.
Offense provided for and punished by Articles 44 I, 44 II, paragraphs 7 and 8, 44, paragraphs 9 and 10 of Law No. 73-1193 of December 27, 1993 (now Articles L. 121-1, L. 121- 4 and L. 121-5 of the Consumer Code) and 1 of the law of August 1, 1905.
At this first hearing, the case was adjourned contradictorily to the hearing of January 20, 1993 .
During this second hearing , before any defense on the merits, the lawyer for Mr X … raised an objection of nullity based on Article 6 § 3 of the ECHR and based on the fact that his client had not been able to obtain the delivery , in a personal capacity, of the copy of the documents of the procedure.
By judgment of January 27, 1993 , the court rejected this objection of nullity and remitted the case contradictorily to the hearing of April 14, 1993 .
On that date , by judgment which Mr X … had to appeal on April 23, 1993, the court, on the one hand rejected his request for a copy of documents, on the other hand, again referred the case to the hearing of October 13, 1993 .
The case was scheduled to return for oral argument on January 12, 1994 .
At this hearing, the President of the Bar informed the court that Mr X … having challenged the second officially appointed lawyer who had been appointed to him following his challenge to the first, he refused to appoint a third lawyer. ‘office to ensure the defense of the accused.
Mr X … then requested a new referral as well as the communication of his file in order to provide personal defense.
Finally, by judgment of February 9, 1994 , which the accused and the public prosecutor appealed on February 16 and 17, 1994, the court declared Mr X … guilty of the acts with which he was accused and sentenced him to 200 days fines. an amount of 200 francs each.
In addition, the court ordered, at the expense of the condemned, the publication of extracts from its decision in the newspaper “La Dépêche du Midi”.
By judgment of April 6, 1995, the Toulouse Court of Appeal , ruling on the appeals brought against the aforementioned judgments, rejected the exception of nullity relating to the lack of communication in copy of the documents of the procedure, confirmed the judgment on guilt and sentenced Mr X … to a one-month suspended prison sentence, further ordering a publication measure.
By declaration of April 10, 1995 , René X … formed an appeal in cassation against this decision.
By judgment of June 12, 1996 , the criminal chamber of the Court of Cassation quashed the judgment of the Toulouse Court of Appeal on the essential ground that any person having the status of accused or accused was entitled to obtain , by virtue of Article 6 § 3 b of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ” not the direct communication of the documents of the procedure, but the delivery, at its expense if necessary through her lawyer, a copy of the documents in the file submitted to the court before which she is called to appear “.
By judgment of April 29, 1997 , the Bordeaux Court of Appeal, designated as the referring court, quashed the above-mentioned judgments handed down by the Toulouse Criminal Court for violation of Article 6 § 3 of the European Convention, taking into account of the fact that Mr X … had not been able to obtain communication of his file.
Then, referring, after having dismissed the exception of nullity of the procedure based on the violation of the provisions of article 397-6 of the CCP (“the provisions of articles 393 to 397-5 are not applicable to minors, nor in matters of press offenses, political offenses or offenses for which the prosecution procedure is provided for by a special law “) noting that the judgment had not been appealed before saying right of 27 January 1993 mentioned above, from when final and res judicata, by which the Criminal Court of Toulouse had rejected this exception of nullity, which had the effect of making this same exception inadmissible before the Court of Appeal,basically declared the defendant guilty of the offense of false advertising and sentenced her to a fine of 10,000 francs, relieving him of the additional penalty of publication of the decision, which he automatically incurred.
By declaration of May 2, 1997, MX … lodged an appeal against this second judgment.
The brief presented by counsel for Mr X …, disputed the offense with which he was accused, maintaining that with regard to the text retained to incriminate him, it was necessary for the offense to be constituted, for an illusory proposal to be made goods or services of a lucrative nature, which would not have been the case, in the present case, insofar as the acts complained of only consisted in distributing leaflets inviting passers-by to demand compensation for the faults committed by certain professionals and to consult a defense association without any remuneration being claimed.
More specifically, the extended brief stated that the text of the leaflet, reproduced by the judgment criticized was as follows: ” Claim compensation for professional misconduct by magistrate, lawyer, attorney, civil servant, gendarme, banker, insurer, doctor, union, association, policy etc. – To prevent any litigation, consult the ADV, Association for the Defense of Victims, 14 rue de Metz, 31000 Toulouse – Tel. 18.104.22.168 from 2 pm to 6 pm “.
The appellant therefore contests the existence of the offense by arguing that, in view of the text adopted to initiate the proceedings against him, it was necessary for the offense to be constituted, for an illusory offer of property or profit-making service, which would not have been the case in the present case, the incriminated facts consisting only of distributing leaflets inviting passers-by to claim compensation for the faults committed by certain professionals and to consult a defense association, without that no remuneration is claimed.
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It should be noted in addition, that a personal memory had also been presented by Mr X … which had been rejected by the criminal chamber by judgment of May 6, 1998 in the following terms: ” Although it covers many texts law, its obscurity and imprecision do not allow the means to be released and do not enable the Court of Cassation to examine it “.
By its judgment of May 6, 1998 , the criminal chamber of the Court of Cassation ruled that ” constitutes false advertising within the meaning of article 44-1 of the law of December 27, 1993, now article L. 121-1. of the Consumer Code, any means of information making it possible to form an opinion on the good or the service offered by the advertiser; it is important that the advertisement is not disseminated for profit and does not present commercial “.
– Proceedings before the European Court of Human Rights .
On October 14, 1998, René X … seized the European Commission of Human Rights in application of former article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, alleging in particular a violation of the provisions of Article 6 § 1 of the said convention due to the failure to communicate the report of the rapporteur advisor to the Court of Cassation.
This request was transmitted to the European Court on 1 November 1998, the date of entry into force of Protocol No. 11 to the Convention (Article 5 § 2 of the said protocol).
By judgment of the First Section of 26 June 2003, the Court held that there had been a violation of Article 6 § 1 of the Convention and that the finding of this violation provided in itself sufficient fair compensation for non-pecuniary damage. suffered by the applicant. It awarded Mr X … the sum of € 1,500 for costs and expenses and finally rejected the remainder of the claim for just satisfaction.
– Proceedings before the Commission for the Review of a Criminal Decision
On March 9, 2004, the Commission for the re-examination of a criminal decision was seized by René X … with a request for the re-examination of the appeal he had formed against the judgment of April 29, 1997 of the Bordeaux Court of Appeal.
By decision of November 25, 2004 , the Commission granted the request for re-examination of the appeal and referred the case to the Court of Cassation, ruling in plenary session. It also ruled inadmissible the request for an injunction to the Ministry of Justice to produce administrative documents.
The means are taken of the violation of the legal provisions specifying the constituent elements of the false advertising .
The text in question
Article 44-1 of Law n ° 73-1193 of December 27, 1993 on the orientation of trade and crafts known as the “Royer Law”, codified in Article L. 121-1 of the Consumer Code is thus worded: “Any advertising comprising in any form whatsoever, false or misleading allegations, indications or presentations is prohibited, when these relate to one or more of the following elements; existence, nature, composition, substantial qualities, content of useful principles, species, origin, quantity, method and date of manufacture, properties, price and conditions of sale of goods or services which are the subject of the advertisement, conditions of their use , results that can be expected from their use, motives or processes for the sale or provision of services, scope of the commitments made by the advertiser, identity, qualities or skills of the manufacturer, resellers, promoters or service providers “.
Both the parliamentary work and the law n ° 73-1193 of December 27, 1993, of orientation of the trade and the craft industry which resulted from it were guided by the concern to fight against “processes which harm both consumers. and to traders and artisans “(cf. on this point, National Assembly, 2nd session of October 5, 1973, 4145).
– European law
Directive n ° 84-450 EEC, JOCE, L. 250/17, September 19, 1984 of the Council of the European Communities of September 10, 1984, relating to the approximation of the legislative, regulatory and administrative provisions of the Member States on misleading advertising .
It is clear from that directive that protection against misleading advertising aims primarily to ensure the protection of consumers and individuals who compete in the exercise of a commercial activity.
Article 1 st of that Directive specifies its purpose, which is ” to protect consumers and persons exercising a trade, business, craft or profession and the interests of the general public against misleading advertising and the unfair consequences “.
By a judgment of March 27, 1996 ( Bull. Crim., N ° 319) , the criminal chamber of the Court of Cassation, called upon to rule on whether Article L. 121-1 of the Consumer Code was applicable to a simple individual making an advertisement appear in a newspaper which is likely to mislead, held that the said article was compatible with the aforementioned EEC directive which restrictively defines misleading advertising but does not preclude the maintenance by the Member States of provisions aimed at ensuring a more extensive protection of consumers.
– The case law of the criminal chamber of the Court of Cassation .
– By the judgment of May 6, 1998 , it stated that ” constituted an advertisement within the meaning of article 44-1 of law n ° 73-1193 of December 27, 1973, now article L. 121-1 of the Code of consumption, any means of information making it possible to form an opinion on the good or the service offered by the advertiser; it is important that the advertisement is not distributed for profit and does not present commercial “.
– The doctrine has not been unanimous on this interpretation .
In their treatise on business criminal law, Jacques-Henri Robert and Haritini Matsopoulou criticize the solution adopted by the judgment with regard to the principle of the strict interpretation of criminal law laid down by article 111.4 of the Criminal Code .
They consider that the criminalization provided for by the 1973 legislator only concerns advertising which pursues a profit-making purpose, the law aimed at “the sale of goods or services” (cf. JH Robert and H. Matsopoulou, Traite de droit penal des affairs, PUF 2004, n ° 217, p. 355).
Mr. Jeandidier agrees (see W. Jeandidier, Business Criminal Law, Dalloz, 3 rd edition, 2003, No. 411, p. 518). The latter considers that the criminalization provided for by L. 121.1 of the Consumer Code only concerns commercial advertising which pursues a profit-making purpose.
On the other hand, the anonymous commentator of the same judgment in the review RJDA, 10/98, n ° 1165, editions Francis Lefebvre) asks himself the question of knowing, since it is a text resulting from a law orientation of trade and crafts and included today in a chapter of the Consumer Code entitled “Regulated commercial practices” if it applies only to traders and craftsmen or indifferently to any person carrying out an advertisement.
The Court of Cassation had already ruled, it notes, that article 44-1 did not subordinate criminal liability for advertising likely to mislead to the professional nature of the acts in question and therefore applied to even if the advertiser was a private individual ( Crim., March 24, 1987, Bull. crim., n ° 139 ).
It is underlined in these observations that ” apart from the fact that the incriminating text does not make any distinction in this respect, the lucrative or non-profit nature cannot constitute a satisfactory criterion, whether it is applied to the advertiser or to the good or service offered “.
Indeed, in many cases, associations offer their services for a fee or reserve them for members who have paid a membership fee.
Likewise, the good or service offered is often misrepresented as free, while its obtaining is subject to conditions.
In a column dealing with false or misleading advertising published in the Revue de Sciences criminelles (January March 1999, p. 116), M. Giudicelli summarizing the past year concerning the offense foreseen by the Article L. 121-1 of the Consumer Code, i.e. around thirty decisions rendered by the Cour de cassation and the courts subject to its control during the period from October 1997 to September 1998 , notes that, with regard to the material element of the offense several judgments testify that the tendency in jurisprudence is to retain a broad questioning of the concept of “publicity”, already considered in all its aspects in article L. 121-1 of the Code of the consumption .
Often defined as “a means of information intended to allow a potential customer to form an opinion on the good or the service offered (Agen, January 15, 1998, court n ° 040 689; Crim., May 6, 1998 to be compared with Crim., March 23, 1994, Bull. Crim., N ° 114), advertising can be disseminated by means of any medium such as “a tariff prospectus” (above-mentioned Agen) or a leaflet distributed on the public highway, as in the present case.
It can also be the act of a private individual as well as of a professional (Crim., March 24, 1987, JCP 1998, II, 21017, Heidsick note; Crim., March 27, 1996, RSC, 1-1997, p. 122 ).
Mr. Giudicelli, with regard to the judgment rendered on May 6, 1998, considers that the criminal chamber went further in considering that it was of little importance that the advertisement “not be broadcast for profit and not present any character. commercial”.
In this regard, “if it is not contestable” admits the amplifying memorandum, that the law known as Royer adopted, compared to the previous legislation, a very broad conception of the object of the advertisement – all “good or service “- it does not prevent, he maintains, that there could be good or service, and therefore publicity within the meaning of the law only when the thing or the proposed service have a lucrative character.
In support of this analysis are cited MM. Merle and Vitu, according to which advertising is a “technique of psychological action exerted on the public for profit”. (Treaty of Criminal Law, Special Criminal Law, TI, Mental Advertising, 1st edition 1982, n ° 846).
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To our knowledge, the criminal chamber of the Court of Cassation has not had the opportunity since 1998 to rule on the question of whether the criminalization provided for by Article L. 121-1 of the Consumer Code involves whether or not the advertisement was for profit.
Moreover, no decision of the Court of Appeal has been put online in the various databases since that date.
It should, however, be noted that in two judgments, the Court of Appeal of Paris (March 24, 1982, Dalloz 1982, p 486, notes G. Pair;. 13 th bedroom, July 9, 1984, Gazette du Palais in 1985 , 1, jur., P. 151) considered that no provision of the law of December 27, 1973 excluded from its scope declared non-profit associations .
The commentator of the first judgment, which approved this solution, estimated that ” taking into account the invasion by advertising of more and more numerous and varied fields, the field of advertising attractions has, for a century in France, considerably enlarged , for example advertisements in favor of various public or private organizations, in favor of associations or works, such charities of mutual aid, relief, entertainment, sports activities, certain cultural activities, etc. .. so that the extension of the field of application of the law on false advertising appears more than ever necessary and justified “(Dalloz 1982, p. 486) .
The judgment of May 6, 1998, which retains a largo sensu conception of false advertising is in any case in line with the case law of the criminal chamber which considered that Article L. 121-1 of the Consumer Code was applicable to private individuals placing an advertisement in a newspaper.
(Crim., March 24, 1987, Bull. Crim., N ° 319
Crim., June 13, 1991, Bull. Crim., N ° 256
Crim., March 27, 1996, Bull. Crim., N ° 139
judgments which n ‘ have not been criticized by the doctrine,
see not G. Heidsick, JCP, ed. 1988, II, 21017; RTDC, com., 1988, p. 149, Boujat observations; note G. Paire, Dalloz 1992, jur. , p. 430).
It appears that the sentence pronounced by the Bordeaux Court of Appeal on April 29, 1997 has so far been amnestied.
After the deposit of my initial report, I requested the delivery of the bulletin n ° 1 of the criminal record of Mr X …, which includes the mention “nil”.
Secondly, I requested the registry of the Bordeaux Court of Appeal to issue a copy of the judgment referred to the Plenary Assembly.
The said judgment, a copy of which was delivered to me on June 3, 2005, now includes the words ” Amnesty after payment of the fine “.
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Your assembly is seized by a decision of the Review Committee following the condemnation of France by the European Court of Human Rights.
This re-examination procedure is an extraordinary remedy instituted by the legislator in order to restore the convicted person to the situation in which he was before the judgment at the origin of the condemnation of France by the European Court of Human Rights. man.
Before the creation of this procedure, which originated in the law of June 15, 2000, a conviction of France by the European Court was likely to lead to changes in case law and legislation, but had no impact on the case having gave rise to the finding of a violation of the Convention.
Initially, it was envisaged that the re-examination procedure would constitute a fifth case of opening of the revision procedure (cf. the amendment presented at second reading by Mr Lang during the vote on the law of June 15, 2000).
This solution was not retained because of the differences between the review procedure and the review procedure, the review regarding errors of fact and review those of law, being observed that the powers of the Review Court were totally different from those of the Review Board.
The legislator therefore created an autonomous Title III, dealing with the review of a criminal decision following the delivery of a judgment of the European Court of Human Rights in the chapter of the Code of Criminal Procedure relating to extraordinary remedies.
It is certain that the recourse for revision of an amnestied sentence is possible, article 22 of the law n ° 95-884 of August 3, 1995 relating to amnesty providing that ” the amnesty cannot in any case prevent rehabilitation. nor to the action for revision before any competent court tending to establish the innocence of the convicted person “.
Moreover, article 625 of the Code of Criminal Procedure expressly considers the case of amnesty by providing that in such a case, it is impossible to proceed to new debates and that therefore the Court of Revision must rule itself. even on the merits and not to return the case, itself annulling the convictions which it considers to be unjustified.
With regard to the review procedure before the Court, it should be noted that no provision of the Code of Criminal Procedure provides that referral to the Commission removes a conviction from its final character.
In this regard, we can only note that according to article 626-5 of the Criminal Procedure Code ” the suspension of the execution of the sentence may be pronounced at any time during the review procedure by the Commission or the Court of Cassation. “.
Referral to the Review Commission does not therefore terminate the enforcement of the criminal conviction, and if we consider that the review procedure does not at any time lose its final character to a criminal decision, it cannot be disputed that in the case which is submitted to us, the sentence imposed on Mr X … in 1997 is amnestied.
The question for the Court, therefore, is to determine what are the implications of the amnesty for the review process .
It should be remembered that this procedure takes place in two stages.
It begins with the referral to the Commission and continues, as the case may be, before a referring court which may be the Court of Cassation ruling in plenary assembly or a lower court depending on the court before which a violation has been found. the European Convention on Human Rights.
At the end of the provisions of article 626-4 of the Code of Criminal Procedure, the role of the Review Commission is to determine whether the applications are admissible and well founded.
It can render three kinds of decisions: either inadmissibility, or rejection or referral to a court when it considers that the request is justified.
Its decision is not subject to appeal.
Exceptionally, in the case provided for by article 626-4 of the Code of Criminal Procedure, which refers to paragraphs 3 and 4 of Article 625 of the Code of Criminal Procedure, when the violation of the European Convention on Human Rights was found by the European Court at the level of a lower court and that it is impossible to proceed to new debates, in particular in the event of amnesty, death or dementia, the Review Committee may, after the ” have expressly noted, rule on the merits and annul those convictions which appear unjustified to him.
It is clear that the legislator did not foresee the hypothesis which is submitted to the plenary assembly.
Given the referral to the Plenary Assembly by the Review Committee and the finding that the conviction for the appeal to be examined is amnestied on account of the payment of the fine, several options are possible.
A decision of the Plenary Assembly of June 11, 2004 ruled that when it is seized in application of articles 626-3 and 626-4 of the Code of Criminal Procedure for the purpose of re-examining an appeal, ” the Court of Cassation rules , apart from the case where a plea had to be raised ex officio, in the state of the only briefs filed during the initial examination of this appeal “.
The first option would therefore consist in raising ex officio the plea alleging the termination of public proceedings due to the amnesty, in application of article 6 of the Code of Criminal Procedure.
This solution would be in accordance with the case law of the criminal division, but does not a priori fulfill the objective of the re-examination procedure, which is to put the convicted person back in the situation he was in before the original decision was rendered. of the finding of a violation of the European Convention on Human Rights.
When the Court of Cassation ruled in 1998, the conviction by the Bordeaux Court of Appeal was not amnestied since, on appeal, it was not final.
However, the amnesty in question is acquired only after final conviction and payment of the fine.
What Mr X wants is to be able to benefit from a new examination of his case.
Limiting himself to noting the amnesty of the 1997 decision does not put him back in the state he was in before the rejection judgment of 6 May 1998 since in the meantime he has in fact paid the fine, apparently if the ‘we refer to its reply, in the context of seizure proceedings.
To fully fulfill the function that the legislator has assigned to the review procedure, it is therefore necessary that the Plenary Assembly does not automatically raise the plea based on the amnesty which makes it lose the possibility of recovering the amount of the fine he paid.
A second option is available to our Court, which could find that it follows from the dispatch of the judgment of the Bordeaux Court of Appeal that the conviction of Mr X … was amnestied after payment of the fine and that consequently his appeal must be declared inadmissible, even if it was admissible in 1997.
It is in fact settled case-law that ” when the judgment of the Court of Appeal declares the facts prosecuted amnestied, due to the nature of the offense, the accused is not allowed to criticize this judgment and his appeal is inadmissible . ” (Cf. in particular, Crim., January 10, 1983, Bull. Crim., N ° 9).
A third option would consist in considering that the amnesty imposed on the judgment rendered by the Bordeaux Court of Appeal on April 29, 1997 does not constitute an obstacle to the examination of Mr X’s appeal … since it concerns an amnesty acquired by reason of the payment of the fine which was not acquired at the date of the appeal.