Vidberg v. France

Prosecutors’ refusals to open criminal proceedings—to investigate or to prosecute—constitute obstacles to access to justice for victims and may lead to impunity, in particular for victims of international crimes and corruption-related cases. Therefore, prosecutors’ decisions must be guided by appropriate safeguards.

Today, as a matter of strengthening the rule of law, there is a broad international and regional consensus that victims should be able to ask for an independent judicial review of prosecutors’ decisions not to investigate or prosecute.

Facts

Fabienne Vidberg, the widow of a service man who committed suicide while in duty in Lebanon, filed a complaint with the prosecutor in France, claiming that her husband was victim of harassment at work. After a preliminary investigation, the prosecutor dismissed the complaint on the grounds that the facts were not sufficiently characterized as a criminal offence. Vidberg filed then a complaint before the investigative judge (constitution de partie civile devant le juge d’instruction) that also dismissed the case, stating that the prosecutor has, according to French law, a monopoly over initiating criminal proceedings for crimes committed by military personnel engaged in an external operation. 

The French Constitutional Council ruled on September 27, 2019, that such prosecutor’s monopoly doesn’t violate the right to an effective remedy, nor the principle of equality before the law. The Court of Cassation confirmed this approach in a decision on March 16, 2021.

On August 2, 2021, Vidberg lodged a complaint with the European Court of Human Rights (ECtHR), claiming, in particular, that her right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and her right to an effective remedy under article 13 of the ECHR had been violated.

Open Society Justice Initiative Involvement

The Justice Initiative submitted an amicus brief emphasizing the importance of prosecutorial accountability to guarantee the rule of law. The brief describes the problems of access to justice and impunity arising from the absence of an independent judicial review of prosecutors’ decisions not to initiate criminal proceedings, especially in the context of international crimes and corruption-related crimes. The brief provides then an overview of the international standards calling for such independent review and how such review can also be considered as required under Articles 6 and 13 of the ECHR.

Arguments

Holding prosecutors accountable is a key component of the rule of law and protection of human rights.

International and regional bodies have reached a broad consensus about the need to guarantee the accountability of prosecutors as a fundamental component of the rule of law and the administration of justice. There is a need to ensure effective oversight of prosecution services and increase their transparency: an over-powerful prosecution service without accountability can endanger judicial independence and the protection of human rights. 

Prosecutorial accountability requires in particular checks and balances on decisions not to investigate or not to prosecute. Indeed, when they are not reviewable, such decisions of prosecutors, which often end with no consequences for the alleged offender, are particularly sensitive: they carry substantial risks of abuse, corruption, impunity, or unequal treatment of victims and accused. The problem is even exacerbated when the independence of the prosecution office is not fully guaranteed and the crimes appear politically sensitive, such as international crimes or corruption.

Prosecutorial monopoly on initiating proceedings creates obstacles to access justice and impunity for victims of international crimes.

 In various countries of the Council of Europe, the prosecutor has the discretion whether to open investigations or prosecutions on allegations of serious international crimes committed outside of the state’s territory. Victims have no possibility to ask for judicial review of these decisions, nor to file a petition to an investigative judge as a civil party. These restrictive procedural rules have been identified as real barriers to access to justice for victims and may lead to impunity.

Prosecutorial monopoly on initiating proceedings creates an increased risk of impunity for corruption-related crimes.

Prosecutors play a key role in fighting corruption and financial crimes. Yet, in many Council of Europe Member States, they face a series of challenges, especially with regard to high-level corruption, since politicians or cronies may seek to exert illegal influence. As a consequence, in numerous cases where evidence of corruption would seem to warrant prosecution, prosecutors decline to act and don’t bring prosecution which ought to be brought. Accountability mechanisms for individual decisions are therefore crucial.

Prosecutors’ decisions must be subjected to an independent judicial review 

Today, there is a broad international and regional consensus that victims should have the possibility to ask for an independent review of prosecutors’ decisions not to investigate or prosecute, in order to strengthen the rule of law. Many European and international authorities have underscored the need for judicial review by an independent and impartial court.

Prosecutors’ decisions not to initiate criminal proceedings fall under the scope of Article 6 of the ECHR guaranteeing the right to a fair trial  

The ECtHR has previously ruled that the Convention does not confer any right to have third parties prosecuted or sentenced for a criminal offense. Yet, the Justice Initiative submits that prosecutors’ decisions not to investigate or prosecute may implicate Article 6 of the Convention under its civil limb. The right to reparation under civil rights includes indeed not only compensation but also the right to truth in cases of human rights violations. In addition, as stated by the Inter-American Court of Human Rights, the right to a fair trial includes the right of the victim’s relatives to have crimes effectively investigated and those responsible prosecuted and punished. Victims must therefore have access to an independent court in order to challenge prosecutors’ decisions.

Victims must have an effective remedy to challenge Prosecutors’ decisions not to initiate criminal proceedings under Article 13 of the ECHR 

Pursuant to Article 13 of the Convention, everyone whose Convention rights and freedoms have been violated must have access to an effective remedy before a national authority. And where a right of such fundamental importance as the right to life or the prohibition of torture is at stake, the ECtHR has already stated that Article 13 requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure. 

Victims must therefore have access to an independent judicial review of prosecutors’ decisions not to investigate or prosecute. The practice in various jurisdictions has demonstrated that a review by a superior prosecutor is ineffective in an overwhelming number of cases, and in any event, does not offer the guarantees of a fair trial. Such an appeal can therefore not be considered an effective remedy under Article 13. And, in the absence of investigations conducted by a prosecutor, a request for reparation to civil courts is not an effective remedy since serious or complex crimes, such as corruption or international crimes, require acts of investigation that can often not be conducted by a civil judge or by the parties themselves.