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On n/a, Ms. Fernandez was informed by a notice of December 15th 2006 that she was suspected of speeding at n/a on the road n/a in n/a on September 13th 2006 at n/a (art. R413-14 of the road code).

On n/a, she had to deposit €180 to get her non-guilty plea registered by the prosecutor (art.530 of the code of penal procedure).

On January 7th 2008, the applicant appeared in court without being able to get access to the prosecution file of evidence of her case. She was not assisted by a lawyer and wasn’t informed when the judgment will be given (art.462 of the code of penal procedure). On n/a, the judge found her guilty of n/a and condemned her to a fine of €135, to administrative cost of €22. Following the condemnation, she automatically lost 1 point out of her 12 points driving license.

On February 18th 2008, she filed an appeal to the supreme court (Cour de cassation) against the judgement. On May 3rd 2010, she was informed that on September 17th 2008 the supreme court ruled her appeal inadmissible (art.605 of the code of penal procedure) for a violation of article 568 of the code of penal.

On October 29th 2010, she filed an application to the ECHR on the ground that the lack of access to the prosecution file of evidence was a violation of article 6-1 of the Convention. She added that the lack of formal notification of the judgment of Montpellier was a violation of article 6-1 and 13, and that the requirement to file in person her appeal to the supreme court, was a violation of article 6,13 and 14 of the Convention. She stated that the prosecutor was not required to file in person his appeal.

On January 17th 2012, the 5th section of the Court ruled her application inadmissible on the surprising ground that because the administrative judge Fernandez was condemned to a fine of €135, “the applicant has not suffered significant disadvantage regarding her right to a fair trial” (art.35-3-b) of the Convention).

On October 6th 2011, the 5th section of the Court ruled in judgment Wagner v. Luxembourg (43490/08) that the allegation of violation of article 6-1 during proceedings following which the applicant lost 4 points out of his 12 points driving license, was admissible (§25).

On March 18th 1997, the Court found in judgment Foucher v. France (22209/93) that the lack of access of the accused to the prosecution file of evidence was a violation of article 6-1 and 6-3 of the Convention. In this case, Mr. Foucher was condemned to a fine of €457 for insults.

On July 5th 1950, Mr. Raymond Mis and  Mr. Gabriel Thiennot were sentenced  to 15 years of hard labor for the murder of an employee of a wealthy landowner. They claimed to have been tortured by military police officers (gendarmes) during 6 days until they signed a written “confession“.

In 1954, the French president pardoned them and they were released from prison. They both served more than 7 years in prison.

On November 1st 1988, the protocol no 7 to the Convention for the Protection of Human Rights and Fundamental Freedom entered into force.  Article 3 of the protocol no 7 states :

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

The applicants made 5 unsuccessful attempts to have their conviction reversed. Each time, they were not authorized by a commission to bring their case to the supreme court (Cour de cassation) competent under articles 625 and 626  of the code of penal procedure to reverse the conviction and award damages.

On September 12th 2007, the applicants submitted their case to the E.C.H.R arguing of  the violations of articles 6 and 13Me Jean-Paul Thibault represented both applicants.

On May 12th 2009, Judge Jungwiert (Czech Republic), Judge Berro-Lefevre (Monaco) and Judge Villiger (Liechtenstein) ruled their application inadmissible under article 35-3 of the Convention on the ground that the application was “manifestly ill-founded“.

According to the Court, the proceeding before the commission was not related to the determination of  any of the civil rights and obligations of the applicants or of any criminal charge against them.


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