Court : France right to use phone tap transcript in judge’s disciplinary proceedings

Today, judges confirmed that France did not breach European human rights law when it used a transcript of a telephone conversations in disciplinary proceedings against a judge.

In its judgment in the case of Terrazzoni v. France (application no. 33242/12) the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 8 (right to respect for private life and correspondence) of the European Convention on Human Rights.

The case concerned the use, in the context of disciplinary proceedings against a judge, of the transcript of a telephone conversation that had been intercepted by chance in criminal proceedings in which the judge had not been involved.

The applicant, Dominique Terrazzoni, is a French national who was born in 1962 and lives in Toulon. She was appointed as a judicial officer by a decree of 14 December 1988.

In July 2000 she took up a position at the Toulon District Court, and then became a judge at the Toulon tribunal de grande instance (TGI) in January 2008.

On 6 September 2008, pursuant to letters rogatory issued by an investigating judge of the Nice TGI in connection with a criminal investigation concerning drugs offences, a telephone conversation was intercepted between Terrazzoni and F.L., an individual known to the police and the owner of the line being tapped.

Having been informed of the content of that conversation, the Principal Public Prosecutor at the Aix-en-Provence Court of Appeal alerted the public prosecutor at the Marseilles TGI and the President of the Aix-en-Provence Court of Appeal.

The latter summoned Terrazzoni to appear before him on 29 October 2008. He informed her of the telephone tapping, summarised the content of her remarks and questioned her about the nature of her relations with F.L., the content of their conversation and the proceedings which they had mentioned.

The president informed the Judicial Services Department of the Ministry of Justice of Terrazzoni’sconduct. On 7 November 2008 the Minister of Justice requested the National Legal Service Commission (CSM) to suspend Terrazzoni temporarily from duty. By decision of 18 December 2008 the CSM temporarily suspended Terrazzoni from her duties at the Toulon TGI pending a final decision in the disciplinary proceedings.

Terrazzoni lodged an appeal on points of law which was declared inadmissible by the Conseil d’État.

On 20 February 2009, the Justice Minister referred Terrazzoni’s case to the CSM.

Terrazzoni submitted grounds of nullity in relation to the administrative disciplinary proceedings, concerning in particular the conduct of the administrative investigation and the admissibility in evidence of the tapped telephone conversation.

On 5 May 2010, the CSM imposed on Terrazzoni the penalty of compulsory retirement. By decree of 30 August 2010 the French President ordered Terrazzoni’s removal from office.

In February 2011, the Director of Judicial Services dismissed an appeal lodged by Terrazzoni. The Conseil d’État declared inadmissible an appeal on points of law by Terrazzoni against the CSM’s decision.

The court found in particular that the interference complained of had been in accordance with the law and had been aimed at establishing the truth both in relation to the initial criminal proceedings against F.L. – an individual known to the police and the owner of the telephone line being tapped – and in relation to the ancillary criminal proceedings concerning the judge, Terrazzoni.

The court observed that the telephone-tapping operation had been ordered by a judge and carried out under his supervision, and that the telephone conversation had been transcribed subsequently in the context of a preliminary investigation, at the request of a judge and under the latter’s supervision.

The court noted, firstly, that Terrazzoni had been given several opportunities to present her account of the telephone conversation in question, and, secondly, that she could have requested that the transcript of the conversation be excluded from the disciplinary proceedings; lastly, the Conseil d’État had examined her ground of appeal concerning the lawfulness of the telephone tapping.

The court therefore concluded that there had been effective scrutiny capable of limiting the interference in question to what was necessary in a democratic society.

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