Bernard v France – 22885/93 [1998] ECHR 31

Mr Bernard challenged psychiatric experts' statements at his assize court trial for armed robbery, claiming they violated his presumption of innocence by expressing opinions on his guilt. The European Court of Human Rights found no violation, holding the statements formed only part of evidence and the trial as a whole was fair.

Facts

Mr Jean-Paul Bernard, a French national, was charged with armed robbery. During the judicial investigation, an investigating judge ordered psychiatric reports from Dr Guggiari and Dr Dumoulin. Dr Guggiari’s report stated: ‘As the subject does not accept that he is either ill or guilty, he cannot be regarded as curable.’ Dr Dumoulin’s report was more extensive, describing Bernard as ‘a gangster’ and a ‘real professional’ criminal, detailing the robbery’s planning and execution, and concluding that Bernard was ‘extremely dangerous’ and ‘can never be rehabilitated.’

The applicant was committed for trial before the Rhône Assize Court by the Indictment Division of the Lyons Court of Appeal on 11 October 1991. At trial on 9 June 1992, after the experts gave evidence, Bernard’s lawyer requested a formal note be entered in the record that the experts had stated opinions on his guilt. The Assize Court dismissed this interlocutory application, finding the phrases did not prove the experts had prejudged the merits or expressed opinions on guilt. Bernard was sentenced to ten years’ imprisonment on 12 June 1992.

Bernard’s appeal to the Court of Cassation was dismissed on 31 March 1993, which held the experts’ comments did not breach their oath to assist the court on their honour and according to their conscience.

Issues

Preliminary Objection

The Government argued Bernard had failed to exhaust domestic remedies by not requesting an independent expert report after the second expert’s filing.

Main Issues

Whether the psychiatric experts’ statements at trial violated Article 6 §§ 1 and 2 of the Convention (right to a fair trial and presumption of innocence).

Judgment

Preliminary Objection

The Court unanimously dismissed the Government’s preliminary objection, noting Bernard had raised his complaint before the Assize Court via interlocutory application and subsequently before the Court of Cassation, thereby exhausting domestic remedies.

Substantive Findings

The Court emphasised that it must consider criminal proceedings as a whole:

“the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1”

The Court noted that psychiatric examinations were intended to determine whether the applicant suffered from mental disorders, any link between such disorders and the alleged offences, and his dangerousness. The experts logically had to work from the hypothesis that Bernard had committed the crimes.

The Court observed that Bernard had opportunities to challenge the expert reports before the Indictment Division but did not do so. At trial, the Assize Court refused to declare the experts’ evidence inadmissible, noting:

“these statements or isolated phrases, even if they were spoken, have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant’s guilt, especially as, while giving their evidence, they were always careful to specify that they were stating their conclusions concerning offences which Bernard Jean-Paul denied committing”

The Court concluded:

“The file shows that the applicant’s conviction was based on all the charges preferred and on the evidence obtained during the investigation and discussed at the hearings in the Assize Court. That being so, the Court cannot regard the statements in issue, which formed only one part of the evidence submitted to the jury, as contrary to the requirements of a fair trial and the presumption of innocence.”

Separate Opinions

Concurring Opinion of Judge Bernhardt

Judge Bernhardt expressed misgivings about the experts’ conduct, stating the excerpts quoted contained statements ‘unacceptable and hardly compatible with the task of a neutral and objective expert,’ but concluded the trial as a whole was not unfair given the defence’s opportunity to respond.

Dissenting Opinion of Judge Lohmus

Judge Lohmus found a violation, reasoning that the experts overstepped their competence by expressing opinions on guilt, and that jurors are highly sensitive to expert opinions. Since no reasons are given in assize court judgments, it cannot be known how much weight jurors gave to these reports.

Implications

This case confirms that expert evidence forming part of criminal proceedings must be assessed in the context of the trial as a whole. While experts must remain within their professional competence, statements that arguably touch upon guilt do not automatically violate fair trial rights if the defendant had procedural opportunities to challenge them and if the conviction rested on a broader evidentiary basis. The case highlights the particular challenges of ensuring fair trial rights in assize court proceedings where juries do not provide reasoned verdicts.

Verdict: No violation of Article 6 §§ 1 and 2 of the Convention (by eight votes to one). The Government’s preliminary objection on non-exhaustion of domestic remedies was unanimously dismissed.

Source: Bernard v France – 22885/93 [1998] ECHR 31