Information Note on the Court’s case-law 44

July 2002

Papon v. France (no. 2) - 54210/00

Judgment 25.7.2002 [Section I]

Article 6

Criminal proceedings

Article 6-1

Access to court

Dismissal of appeal on points of law on account of appellant’s failure to surrender in custody: violation

Article 2 of Protocol No. 7

Review of conviction

Dismissal of cassation appeal against a judgment of an Assize Court: no violation

Facts : The Assize Court found the applicant guilty of aiding and abetting crimes against humanity and sentenced him to ten years’ imprisonment. Having lodged an appeal on points of law against that judgment, the applicant was informed that before his appe al could be considered, he had to comply with the legal obligation to surrender to custody. The relevant provision (Article 583 of the Code of Criminal Procedure) – now repealed – required persons sentenced to a term of imprisonment of more than one year t o give themselves in charge at the latest on the day before their appeal was to be considered by the Court of Cassation, unless exempted. Relying on, among other things, his advanced age (89) and his state of health, the applicant applied for exemption fro m the obligation to surrender to custody. His application was refused on the ground that his health did not appear to preclude detention in a hospital cardiology unit. The applicant failed to surrender to custody and left France to take refuge in Switzerla nd. It was consequently held that he had forfeited his right of appeal.

Law: Article 6 § 1 – The Government had submitted that the instant case could be distinguished from the Khalfaoui precedent (ECHR 1999-IX), which had related to a prosecution for an intermediate offence ( une procédure correctionnelle ) whereas the present case related to a prosecution for a major offence ( une procédure criminelle ). However, the approach adopted in the Khalfaoui judgment had been confirmed by the Court in a case relating to a prosecution for a major offence (see the Krombach judgment, ECHR 2001-II). The fact that the applicant had been prosecuted for and convicted of aiding and abetting crimes against h umanity did not deprive him of the guarantee of his rights and freedoms under the Convention. Furthermore, the facts of the Eliazer v. the Netherlands case (ECHR 2001-X) referred to by the Government had been different, because Mr Eliazer had been under no obligation to surrender to custody in order for the hearing on his objection before the appellate court to be able to take place a nd, moreover, the possibility of lodging an appeal on points of law had been available to him once he had chosen to appear at the objection proceedings. There was therefore no reason to depart from the Court’s conclusion in the Khalfaoui judgment. Accordin gly, the applicant had suffered excessive interference with his right of access to a court and therefore of his right to a fair trial.

Conclusion : violation (unanimously).

Article 2 of Protocol No. 7 – The Court had already had occasion to recognize that t he French system in force at the material time was in principle compatible with Article 2 of Protocol No. 7 (reference to, among other authorities, the Krombach judgment, § 96).

Conclusion : no violation (unanimously).

Article 41 – The Court made an award i n respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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