CCPR/C/39/D/219/1986

adopted on 25 July 1990, at the thirty-ninth seagion)

Submitted by: Dominique Guesdon (represented by counsel)

Alleged victim: The author

State party concerned: France

Date of communication: 11 December 1986 (date of initial letter)

Date of decision on admiaribility: 25 July 1989

, established under article 28 of the Intwrnational

Covenant on Civil and Political Rights,

Meeting on 25 July 1990,

ite consideration of communication No. 219/1986, submitted to

the Committee by Dominique Guesdon under the Optional Protocol to the International

Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the

author of the communication and by the State party,

Adopts the following:

Views under article 5. paragraph 4. of the Optional Protodol*

1. The author of the communication (initial letter of 11 December 1986 and

subsequent currespondence) is Dominique Guesdon, a French citizen born in 1959,

employed as an electrician and residing in Paimpont, France. He claims to be a

victim of violations of articles 14, paragraphs 1, 3 (e) and (£)) 19, paragraph 2)

26, and 27 of the Covenant by France. He is represented by counsel.

2.1 The author states that he is a Breton and that his mother tongue is Breton,

which is the language in which he can express himself best, although he also speaks

French. On 11 April 1984, before the Optional Protocol entered into force for

France (17 May 1984), he appeared before the Tribunal Correctionnel of Rennes on

charges of having damaged public property by defacing road signs in French. He

admits that militant Bretons who advocate the use of the Breton language painted

over some road signs in order to manifest their desire that road signs be

henceforth bilingual. The author never admitted his participation in the offences

he was charged with, and claims that he was convicted in the absence of any proof,

" Pursuant to rule 85 of the Committee's rules of procedure,

Ms. Christine Chanet did not participate in the examination of the communication or

in the adoption of the Committee's views.

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2.2 On 11 April 1984, the day of the hearing, he requested that 12 witnesses be

heard on his behalf. He indicated that all the witnesses and he himself wished to

give testimony in Breton, which was the language used daily by most of them and in

which they could most easily express themselves for the purposes of his defence.

He therefore requested that their testimony be heard through the assistance of an

interpreter. This request was refused by the court. He appealed the decision not

to provide for interpretation to the President of the Court of Appeal who, on

24 April 1984, rejected the appeal on the ground that Mr. Guesdon was capable of

defending himself without interpretation before the trial court. The merits of the

case were woxamined by the Tribunal Correctionnel on 20 June 1984 (after the

Optional Protocol had entered into force for France) at which time the defendant

and the witnesses on his behalf again sought in vain to be allowed to express

themselves in Breton. The court refused to hear them, as they were not willing to

express themselves in French, and the author was given a four months' suspended

sentence and ordered to pay a fine of 2,000 French francs. On appeal he reiterated

his request for the same witnesses on hia behalf to be heard. The Court of Appeal

refused the request and, on 25 March 1985, sentenced him to a prison term of four

months, suspended, and ordered him to pay a fine of 5,000 French francs. The

author then appealed to the Court of Cassation on the ground that his defense

rights had been violated. The appeal was dismissed by the Court of Cassation on

2 October 1985.

2.3 The author claims that the French courts violated his rights to a fair

hearing, his right to have witnesses heard on his behalf, his right to have the

assistance of an interpreter, hie right to freedom of expression, his right to

equal treatment and the enjoyment of minority rights, such as the use of a minority

language.

3. Without transmitting the communication to the State party, the Human Rights

Committee requested the author, by decision of 9 April 1987, under rule 91 of the

rules of procedure, to clarify whether he and each of the witnesses who intended to

testify on his behalf before the trial court and the Court of Appeal, understood

and spoke French. By letter dated 2 June 1987, counsel for the author replied in

the affirmative, adding, however, that some of those called as witnesses might have

preferred to express themselves in Breton.

4. By further decision of 20 October 1988, the Working Group of the Human Rights

Committee transmitted the communication to the State party, requesting it, under

rule 91 of the rules of procedure, to provide information and observations relevant

to the question of the admissibility of the communication.

5.1 In its submission under rule 91, dated 15 January 1989, the State party

provides a detailed account of the facts of the cage and concedes that, on the

basis of that account, domestic remedies must be coneidered to have been exhausted

following the dismissal, on 2 October 1985, of the author's appeal by the Court of

Cassation.

5.2 Concerning the author's allegation that he was a victim of a violation of

article 14, paragraph 1, of the Covenant, the State party contends that it was the

author's own fault that he was not heard and assisted by counsel] before the judge

of first instance, because he refused to express himself in French. It adds that

at the hearing on 5 March 1985 before the Court of Appeal, the author expressed

himself without difficulty in French, and his counsel delivered his pleadings in

French.

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oe

et a me ce

5.3 With respect to the alleged violations of article 14, paragraphs 3 (e)

and (£), the State party contends that these provisions cannot be construed as

encompassing the right of the accused to express himself in the language of his

choice. Thus, the author cannot pretend that his right "to obtain the attendance

and examination of witnesses on his behalf under the aame conditions as witnesses

against him" was not observed, to the extent that tha refusal of the witnesses

called on his behalf to express themselves in French made it impossible for the

judge to hear them. Concerning article 14, paragraph 3 (f), the State party

recalls that thie provision merely provides for the assistance of an interpreter if

the accused “cannot understand or speak the language used in court". The State

party submits that it was evident that the author and the witnesses on his behalf

were perfectly capable of expressing themselves in French, and pointe out that

article 407 of the Code of Penal Procedure, which stipulates that French is the

official Court language, is not only compatible with article 14, paragraph 3 (f),

but actually 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 do not sufficiently master the French language.

5.4 Concerning the alleged violation of article 19, paragraph 2, oi tae Covenant,

the State party objects to the "abusive" interpretation by the author of the notion

of “freedom of expression". It states that the author was never prevented from

expressing himself before the courts: rather, it waa, initially, hie own decision

not to present his case. Subsequently, before the Court of Appeal, on

25 March 1985, the author used his right under artivle 19, paragraph 2, as he was

able to do throughout the judicial proceedings.

5.5 Concerning the alleged violation of article 26, the State party argues that if

it were possible to speak of discrimination in the case, it is imputable directly

and solely to the author's behaviour in court. The State party explains that the

prohibition of discrimination laid down in article 26 dues uot extend to the right

of the accused to choose, in the proceedings againet him, whatever language he sees

fit to uses rather, it impiies that all the partiee to a case accept and submit to

the same constraints, that is, in the instant case, to inherent language

constraints, and express themselves in the officisl court language, pursuant to the

relevant provisions of the Code of Penal Procedure.

5.6 Finally, with respect to the alleged violation of article 27, the State vyarty

recalls that upon ratification of the Covenant, the French Government entered 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 ig irrelevant in the case in point, and cannot be held against 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 ...'."

t.1 In his comments, dated 6 May 1989, author's counsel notes that the State party

does not contest the odmissibility of the communication. He claims that the

defiguration of road signs of which the author was accused should be essen as a

reaction to the State party's systematic refusal to recognise the Bretor language.

Counsel recalls that in the Declaration of San José of December 1981, \NESCO termed

policies similar to those pursued by the State party as “ethnocide", and affirms

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that the criminal acts imputed to the author are acts of legitimate defense

vig-A-via o crime under international law.

6.2 Counsel reiterates that the author was denied a fair trial, in violation of

article 14, paragraph 1, bvause he was unable to call witnesses and to present his

version of tne facts as well as his statewent of defense. Similarly, before the

Court of Appeal, he claims that he did not have a fair hearing, owing to his

inability to have witnesses examined. Concerning article 14, paragraphs 3 (e)

and (f), it is eubmitted that the Tribunai Correctionnel and the Court of Appeal

failed to even ask the witnesses whether they accepted to express themselves in

French. Furthermore, it is submitted that the courts wrongfully denied an

interpreter to the author and his witnesses. In that context, counsel claims that

the notion of a fair hearing implies that the parties be enabled to express

themselves with ease (avec le maximum d'aisance) and in the language which they

normally speak. Some of the witnesses, according to the author, would have

experienced difficulties in expressing themselves in French; the court, however,

aliegedly did not attempt to verify their proficiency in the French language.

6.3 In as much as the general prohibition of discrimination in article 26 is

concerned, counsel notes that numerous international conventions prohibit any form

of discrimination before the tribunals. He refers to article 5 (a) of the

International Convention on the Elimination of All Forms of Racial Discrimination,

which recognises a right to equal treatment before the tribunals and all other

organs administering justice. In this context, he recalls that crticle 1 of the

Convention against Discrimination in Education, adopted by the UNiLSCO on

14 December 1960 (in force 22 May 1962; France is a State party), defies

“discrimination” as “any distinction, exclusion, limitation of preference which,

being based on race, colour, sex, language, religion, political or other opinion,

national or social origin, economic condition or birth, has the effect of

nullifying or impairing equality of treatment ..." He further refers to

article 1 (c) of the Resolution adopted by the European Parliament with respect to

the European Community Charter on Regional Languages and Cultures, which invites

governments to guarantee to minorities the possibility to use their own language,

particularly before the judicial instances. He finally refers to article 20,

paragraph 2, of the Draft International Convention on the Protection of Ethnic

Groups and Minorities (draft submitted by the Minorities Rights Group, a

non-governmental organization, to the Commission on Human Rights in January 1979,

Doc. E/CN.4/NGO/231), which stipulates that “linguistic autonomy should

particularly be observed with regard to the rights of personal liberty, of fair

trial and in all matters of social welfare."

6.4 With respect to the alleged violation of article 19, paragraph 2, the author

reiterates that he did not enjoy the right to freely express himseif, since he was

not allowed to express himself in Breton. He claims that the French Covernmunt

appears to consider that "freedom of expression" does not encompass the right to

express oneself in the language of one's ancestors. He cites the names of several

politicians said to have made remarks to this effect and adds that such statements

run counter to the Conventions ratified by the French Government and other

statements of French officials, who are accused of displaying a "double standard"

in this respect. It is submitted that the notion of "freedom of expression" must

necessarily be defined in the light of international conventions and resolutions

adhered to by the State party, not in the light of the etatements made by a few

officials. Counsel rsfers to several instriments adopted by the Council of Europe,

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Be ee eee

i

the Euro; 9an Parliament and the United Nations General Assembly which recognise the

right of minorities to express themselves in their own lanquage.

6.5 As to France's “reservation” with regari] to article 27 of the Covenant,

counsel affirms that France made a "declaration" in respect of this provision.

He further claims that in spite of the State party's contention that there are no

minorities within its territory, draft legislation on the promotion of the

languages and cultures of France has obtained the support of many pariiamentarians,

and that the President of the Republic himself has deplored the destruction of the

minorities’ cultures and affizmed that all forms of bilinguism should be encouraged.

7.1 When deciding on the question of admissibility of the communication, as it is

required to do under rule 87 of its rules of procedure, the Human Rights Committee

noted that the requirements of article 5, paragraph 2 (a) and (b), were met.

7.2 As to the author's claim that he had been denied his freedom of expression,

the Committee observed that the fact of not having been able to speak the language

of his choice before the French courts raised no issues under article 19,

paragraph 2. The Committee therefore found that this aspect of the communication

was inadmissible under article 3 of the Optional Protocol as incompatible with the

provisions of the Covenant. With respect to the alleged violations of articles 14

and 26, the Committae considered that the author had made reasonable efforts

sufficiently to substantiate his allegations for purposes of admissibility.

7.3 In respect of the author's claim of a violation of article 27 of the Covenant,

the Committee did not find it necessary to address the scope of the French

“@eclaration" concerning article 27 of the Covenant in this case, as the facts of

the communications did not raise issues under this provision. a/

7.4 On 25 July 1989, the Human Righte Committee, accordingly, declared the

communication admissible in so far as it raised issues under articles 14 and 26 of

the Covenant.

8.1 In its submission under article 4, paragraph 2, of the Optional Protocol,

dated 17 April 1990, the State party reiterates that the author's allegations in

respect of violations of articles 14, paragraphs 1 and 3 (e) and (f), are

411-founded. It argues that the notion of "fair trial" (procés équitable) within

the meaning of article 14, paragraph 1, cannot be determined abstractly but must be

examined in the light of the particular circumstances of any given case.

Concerning the judicial proceedings in the author's case, it affirms that it is

inexact to pretend that the Tribunal Correctionnal of Rennes did not seek to

ascertain whether the witnesses called by the defence spoke and understood French;

on the contrary, the President of the tribunal expressly requested information on

whether they mastered French sufficiently. The State party asserts that in reply

the author's representatives claimed not to know the answer, or indicated that some

of the witnesses preferred expressing themselves in Breton. This led the court to

conclude that it was not shown that the accused or the witnesses called did not

master the French language, and that the sole reason for requesting an interpreter

lay in the desire of the accused and the witnesses to express themselves in Breton

60 as to promote the use cof that language. The State party reiterates that on

various occasions during the judicial proceedings, the author clearly established

that he was perfectly capable of expressing himself in French. He did so notably

during the enquiry that resulted in his conviction by the Court of Appeal on

23 March 1985.

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8.2 The State party submits that criminal proceedings are not an appropriate venue

for expreseging demands linked to the promotien 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 statementi' being reproduced inezactly, 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.

8.3 The Stats party affirms that in the light of the above considerations, the

President of the Tribunal of Rennes was perfectly justified not to apply

article 407 of the French Penal Code, as requested by the author. This provision

stipulates that whenever the accused or a witness do not gufficiently mester

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

exercises 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. b/

8.4 The State party recalls that the author and all the witnesses called on his

behalf were francophone, a fact which was confirmed by author's counsel in his

submission of 2 June 1987 to the Committee (see para. 3 above). Accordingly, the

State party submi.s, there can be no question of a violatiun of article 14,

paragraph 3 (f).

8.5 The State party rejects the author's argument that he did not benefit from a

fair trial in that the court refused to hear the witnesses called on his behalf, in

violation of article 14, paragraph 3 (e), of the Covenant. Rather, Mr. Guesdon 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 proven 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 due to the behaviour of the witnesses themselves that the court did

not hear them.

8.6 In respect of the alleged violation of article 26, the State party recalls

that the prohibition of diccrimination is enshrined in article 2 of the French

Constitution. It affirms that the author's argument that an imperfect knowledge of

French legal terminology justified his refusal to express himself in French before

the courts is irrelevant for purposes of article 26: the author was merely

requested to express himself in "basic" French. Furthermore, article 407 of the

Penal Code, 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. Finally, the State party charges that the principle of

yenire contra factum proprium is applicable to the author's behaviour: he refused

to express himself in French before the courts under the pretext that he did not

master the language sufficiently, whereas his submissions to the Committee are made

in impeccable French.

9.1 In his comments, dated 11 May 1990, counsel takes issue with the State party's

presentation of the facts. Thus, he indicates that the Tribunal Correctionnel only

asked the author's representatives but not the witnesses whether the latter spoke

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French. Counsel notes that the rules of procedure of the Bar of Rennes stipulate

that lawyers may not advise or influence witnesses on behalf of their clients

(interdiction de solliciter des témoins), and that only the accused may call

witnesses or provide his representative with the names of witnesses. Accordiug to

counsel, it should have been obvious that the court could not obtain dispositiva

anewers from the representatives on the question whether the witnesses spoke

French; had it been otherwise, the lawyers would have inplicitly acknowledged that

they had violated professional ethics. Counsel argues that it was the tribunal's

duty to ascertain by other means whether the witnesses were proficient in French.

9.2 Counsel reiterates that the notion of "fair trial” implies that any witness

unable to express himself with ease in the official court language must be allowed

to address the court in his mother tongue. Furthermore, this right extends to all

the stages of the judicial procedure. Counsel recalls that before the Court of

Appeal, the accused reiterated his request that the witnesses called on his behalf

be heard. ‘The Court of Appeal did not, however, consider this request, and failed

to ascertain whether the witnesses would agree, at this stage, to express

themselves in French. Counsel concludes that the court denied the author the right

to have witnesses heard on his behalf.

10.1 The Human Rights Committee has considered the present communication in the

light of the information provided by the parties. It bases its views on the

following considerations.

10.2 The Committee has noted the author's 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 in the language in which he

normally expresses himself, and that the denial of an interpreter for himself and

his witnesses constitutes a violation of article 14, paragraphs 3 (e) and (£). The

Committee observes, as it has done on a >revious occasion, c/ 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 lauguage by States parties to the Covenant does not, in the

Committee's opinion, violate article 14. Nor does the requirement of a fair

hearing mandate States parties to make available to a citizen whose mother tongue

differs from the official court language, the services of an interpreter, if this

citizen is capable of expressing himself adequately in the official language. Only

if the accused or the defence witnesses have difficulties in understanding, or in

expressing themselves in the court language, must the services of an interpreter be

made available.

10.3 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 author has not shown that he, or

the witnesses called on his behalf, were unable to address the tribunal in simple

but adequate French. In this context, the Committee notes that the notion of a

fair trial in article 14, paragraph 1, juncto parayraph 3 (f), does not imply that

the accused be afforded the possibility to express himself in the language which he

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 is sufficiently proficient in the court's language, it

ie not required to ascertain whether it would be preferable for the accused to

express himself in a language other than the court language.

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10.4 French Jaw does not, as such, give everyone a right to speak hia 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 author

had the facts required it; as they did not, he suffered no discrimination under

article 26 on the ground of his language.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the Internationsl] Covenant on Civil and Political Rights, ie

of the view that the facts as submitted do not sustain the author's claim that he

ie a vircim of a violation of article 14, paragraphs 1 and 3 (e) and (f), ox of

aerticly 26 of the Covenant.

(Dou.e in English, French, Russiar, and Spanish, the English text being the original

version. }

Notes

aA/ Following the decision on admissibility in this case, the Committee

decided at its thi.:ty-seventh seasion that France's declaration concerning

article 27 had to be interpreted as a reservation (I, K. v. France, No.220/1987,

paras. 6.5 and 8.6) H, K. v. France, No.222/13.7, paras. 7.5 and 7.6).

b/ See, e.g., the judgment of the Criminal Chamber of the Cour de Cassation

of 30 June 1981 (Fayomi).

c/ See communication No. 273/1986 (B. 4d, B. v. Netherlands, decision on

inadmiesibility of 30 March 1989, paragraph 6.4).