French cheating case: federation cannot use text messages as proof

The French Chess Federation is not allowed to use SMS text messages as proof for their claim that GMs Hauchard and Feller and IM Marzolo have cheated during the Khanty-Mansiysk Olympiad. This was ruled by a Nanterre court judge on Thursday.It's been more than a month since we updated our readers on the French cheating case. Yesterday, however, there was news, brought by the French Chess Federation on its website. You can download their PDF here for the official, French version. Here's our translation:

On December 22, 2010, the French Chess Federation (FFE) initiated disciplinary action against Sébastien Feller, Arnaud Hauchard and Cyril Marzolo, following suspicions of “organized cheating during the Chess Olympiad that took place in Khanty-Mansiysk (Russia), September 21 to October 3, 2010”. The complaint was declared admissible by the Commission of Appeal and Federal Ethics (CADE), who appointed an examining magistrate; the case is now in the hands of the Disciplinary Committee of the FFE. Concurrently, during a hearing on February 24, 2011, the judge of the Nanterre court considered the request of the FFE to obtain "the appointment of a bailiff" to "transcribe incoming and outgoing messages" from the telephone line of Mr Cyril Marzolo to the telephone lines of Mr. Sebastien Feller and Arnaud Hauchard during the Khanty-Mansiysk Olympiad. The FFE’s request was motivated by the fact that "Ms. Joanna Pomian, Vice-President of the Federation, had realized that this phone line, which she had allowed Mr Marzolo to use, was used by the latter to exchange text messages with Mr. Hauchard who (...) provided wrongful assistance to M Feller while the latter was participating in the competition." It was up to the federation, in strict compliance with the legislation and case law governing the confidentiality of correspondence, to obtain further documentation for the dossier that will be presented to the Disciplinary Committee of the FFE. The judge ruled: - Firstly, that "although he is not himself the subscriber to the telephone line [in question], Mr Marzolo enjoys the right to the confidentiality of the correspondence exchanged via this line, since its permanent use had been granted to him by the owner of the line, Ms. Pomian." - Secondly, that "no legal provision gave him the authority to waive this confidentiality”, unless the infringement involved “criminal or security matters." - Finally, the magistrate judged that "it would be unfair for Mr. Marzolo, Feller and Hauchard (...) to bear the full cost of the proceedings," and he ruled that the FFE should reimburse part of the fees. As it announced in a press release on January 27th, the FFE reserves the right to turn to the criminal courts, which could lift the confidentiality of correspondence. Nevertheless, in light of the judge’s ruling, the FFE, which notes the categorical refusal of the defendants to allow these items to be handed to a bailiff, has waived its request to solicit the messages, which would, in any case, only have supplemented the other elements of the disciplinary case. In any event, in his ruling the judge only expressed an opinion about the possibility of obtaining the communication contained in the exchange of text messages, without addressing the merits of the case. Indeed, it is the Disciplinary Committee alone that has to decide on the question of alleged cheating during its hearing on Saturday, March 19, 2011 at 10.30, in Paris. The FFE also emphasises that it had an absolute obligation to institute such proceedings, in order: - firstly, to clear Ms. Pomian from any potential liability as the owner of the telephone line in question - and secondly, to respect, in accordance with the commitments made to regulators, the sporting and ethical values which are the basis of its existence. The Federal Bureau of the FFE

To start with, it's finally become clear (and public) what the FCF had based their claims on. As it turned out, they had obtained insight from several incoming and outgoing SMS text messages between Mr. Hauchard, Mr. Feller and Mr. Marzolo, between 18 September 2010 and October 5, 2010 (the period of the Olympiad in Khanty-Mansiysk). How? Well, during the Olympiad Marzolo had borrowed a phone from Vice-President Ms. Joanna Pomian. Later, the federation appears to have obtained - presumably deleted - messages with the help of the phone company. And apparently the content of the messages, or perhaps the time of sending and receiving (during the rounds!?) were enough reason for the federation to accuse the players. Feller, Hauchard and Marzolo refused to make the text messages available to the federation, arguing that the messages are covered in Article 1 of the secrecy of correspondence Act of July 10, 1991. Only in criminal cases or security situations can this secrecy be lifted. And yesterday, the Nanterre judge said they were right. Even though they hadn't used their own phone, the text messages were still private, and so the federation didn't have the right to obtain them with the help of the phone company. As Europe-Echecs reports, the result of the ruling was that the French Chess Federation, on the basis of Article 700 of the Code of Criminal Procedure, was ordered to pay:

• Mr. Marzolo the sum of 2500 Euro
• Mr. Feller to the sum of 2500 Euro
• Mr. Hauchard the sum of 2000 Euro
• the SFR service client (the phone company) the sum of 500 Euro

The ruling seems to be a major setback for the French Chess Federation: it has become clear that in France, text messages cannot be used as proof in a civil case. However, as mentioned above, the federation reserves the right to turn to the criminal courts, which could lift the confidentiality of correspondence. We've got the feeling that the last word hasn't yet been spoken.

Update: Delinquncy points out the following in the comments:

(...) [I]t seems Ms. Pomian can access old SMS messages to/from her phone via some user feature on their website. The phone company was officially dropped from the suit, and the FFE and Pomian both requested that either she be allowed to do this, or a court-appointed bailiff be sent to transcribe the messages from the website, with the phone company no longer requested to retrieve the messages themselves. The legal issue then became ownership (Pomian) versus possession (Marzolo) of the phone line vis-a-vis secrecy, and the judge ruled possession was the intent of the law.