Information Note on the Court’s case-law 27

February 2001

Krombach v. France - 29731/96

Judgment 13.2.2001 [Section III]

Article 6

Article 6-3-c

Defence through legal assistance

Refusal to allow representation of an absent appellant: violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Arrest by or surrender to the authorities after having been tried in abstentia not considered as a remedy to be exha usted: preliminary objection dismissed

Article 2 of Protocol No. 7

Review of conviction

Exclusion of cassation appeal following conviction in absentia : violation

Facts : In July 1982 the applicant and his wife invited the latter’s daughter from a previous marriage with a French national to stay with them near Lake Constance. One morning the fourteen-year-old girl was found dead. The evening before, the applicant had inje cted her with a substance containing iron, which was intended for the treatment of anaemia. On finding her dead, he attempted to resuscitate her by administering various injections. The German police immediately opened an investigation against a person or persons unknown in connection with the girl’s death. In the light of the post-mortem findings, the Kempten Public Prosecutor’s Office decided to take no further action. The investigation was reopened three times on the initiative of the victim’s father, an d on each occasion it was decided not to prosecute. The final decision not to prosecute was upheld by the Principal Public Prosecutor at the Munich Court of Appeal in May 1986 and in a subsequent decision of the Munich Court of Appeal in September 1987. Me anwhile, in January 1984, the victim’s father had lodged a complaint against a person or persons unknown with the Paris investigating judge, alleging manslaughter and applying to join the proceedings as a civil party. Following the completion of the invest igation in February 1991, the applicant was charged with the offence of unintentionally causing death by violence. In March 1993 the applicant and his counsel failed to appear at the hearing in the Indictment Division. In a decision of 8 April 1993 the Ind ictment Division of the Paris Court of Appeal committed the applicant to stand trial for murder at the Paris Assize Court and issued a warrant for his arrest. On 4 May 1993 the applicant was notified of the decision by service of the judgment on the German prosecuting authorities. The applicant did not comply with any of the summonses to undergo a preliminary examination to establish his identity. He appealed on points of law against the decision to commit him for trial, alleging in particular that there ha d been a breach of the principles of non bis in idem and res judicata . In a judgment of 21 September 1993 the Court of Cassation dismissed the applicant’s appeal on the ground that it was based on a new argument: the applicant had not maintained in the Indictment Division that the German authorities had decided not to prose cute him for the same acts. The applicant’s French lawyer was duly informed of the date of the hearing in the Assize Court and, assisted by a German colleague, filed pleadings, seeking leave to represent the applicant in his absence and to submit argument in support of the res judicata objection; he also requested the court to rule on that objection of its own motion and to order an extension of the investigation with a view to obtaining the file on the investigation conducted by the German authorities and determining the scope of the decisions not to prosecute. In a judgment delivered in absentia in March 1995 the Assize Court found the applicant guilty of intentionally inflicting violence on his stepdaughter, thereby unintentionally causing her death, and sentenced him to fifteen years’ imprisonment, stating that if he had appeared in court, the trial in absentia would have been discontinued and he would have had the opportunity to submit any arguments that might have been beneficial to his case. It also re minded the applicant’s lawyers, who were present at the hearing, that under Article 630 of the Code of Criminal Procedure, an absent defendant was not entitled to representation, and declared their submissions inadmissible. In a civil judgment, also delive red in absentia , the Assize Court ordered the applicant to pay damages to the victim’s father. In June 1995, pursuant to Article 636 of the Code of Criminal Procedure, the President of the Court of Cassation ruled that the applicant’s appeals on points of law against the Assize Court’s judgments were inadmissible.

Law : Preliminary objection (non-exhaustion) – Although conviction in absentia was not final, subsequent retrial could not be regarded as a “remedy” in the usual sense, since it might be entirely c ontingent on an objective circumstance, namely the arrest of the accused, which by definition was not a deliberate act on his part. The accused could also be retried following conviction in absentia if he gave himself up; however, complying with this requi rement for the reopening of proceedings did not amount to the normal exercise of a domestic remedy. Moreover, a retrial would not have the effect of eliminating or redressing any violations that had occurred during the trial in absentia , such violations be ing precisely in issue in this application. Lastly, retrials following conviction in absentia were not subject to any procedural requirements or time-limits and might ultimately be hypothetical if the accused was not arrested or did not give himself up bef ore the expiry of the time-limit for enforcing the sentence. The Government’s preliminary objection should therefore be dismissed.

Article 6 § 1 taken together with Article 6 § 3 (c) – The applicant’s situation was comparable to that examined by the Court in the cases of Poitrimol v. France (Series A no. 277-A), Lala and Pelladoah v. the Netherlands (Series A no. 297-A and B) and Van Geyseghem v. Belgium (ECHR 1999-I), in which it had found that the defendant’s failure to appear, in spite of his having been properly summoned, could not – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 (c) of the Convention to be defended by counsel. There did not appear to be any reason to depart from that approach on the ground that the case concerned proceedings in an assize court, rather than a court dealing with less serious offences. The holding of a retrial following conviction in absentia only had an impact on the accused’s right to a fair hearing if he was arrested. In such an eventuality, the authorities were under a positive obligation to afford him the right to have a full re-examination of his case in his presence. However, there could be no question of forcing an accused person to give himself up in order to secure the rig ht to be tried in accordance with the requirements of Article 6. It remained to be determined whether, in the case under consideration, the fact that the applicant’s defence lawyers had been prevented from submitting argument on his behalf at the hearing i n the Paris Assize Court had breached his right to a fair trial. It followed from the wording of Article 630 of the Code of Criminal Procedure that the prohibition on any defence representation in the accused’s absence was an absolute one and could not be disregarded by the Assize Court. The Court nonetheless found that the Assize Court, sitting without a jury, should have been entitled to authorise the applicant’s lawyers to put forward his case at the hearing, even in his absence, since the grounds of def ence which they intended to raise were concerned with a point of law, namely an objection based on the principles of res judicata and non bis in idem . Indeed, the Government had not argued that, even if the Assize Court had permitted the applicant’s lawyer s to raise that objection, it would not have had jurisdiction to consider it. Lastly, the applicant’s lawyers had not been permitted to represent their client at the Assize Court hearing concerning the civil claim either. Penalising the applicant’s failure to attend the hearing by imposing such an absolute prohibition on any defence representation appeared manifestly disproportionate.

Conclusion : violation (unanimously).

Article 2 of Protocol No. 7 – By derogation from the general provisions of criminal law which had been in force at the material time and which satisfied the requirements of Article 2 of Protocol No. 7, Article 636 of the Code of Criminal Procedure expressly provided that an accused who had been tried in his absence had no right of appeal to the Court of Cassation. Accordingly, no “appeal” to a court in the usual sense lay against the applicant’s conviction in absentia after the case had been considered at only one level of jurisdiction. The point at issue was the impossibility of lodging an a ppeal on points of law in respect of the shortcomings of trial in absentia itself. The possibility of a retrial following conviction in absentia was not decisive in this regard, since its fundamental purpose was to ensure observance of the adversarial prin ciple and the right of all persons accused of a criminal offence to due process. For the applicant, this had entailed both putting forward his case on the merits and raising a preliminary procedural objection. He had not been able to secure a review, at le ast by the Court of Cassation, of the lawfulness of the Assize Court’s refusal to allow the defence lawyers to make submissions. Pursuant to Articles 630 and 639 of the Code of Criminal Procedure taken together, the applicant could neither be defended by c ounsel in the Assize Court nor appeal to the Court of Cassation because, having been convicted in absentia , he had been deprived of the right to be defended at first instance and the right to have his conviction reviewed by a higher court.

Conclusion : viol ation (unanimously).

Article 41 – No causal link had been established between the alleged pecuniary damage and the violations found. Furthermore, the non-pecuniary damage had been sufficiently made good by the findings of violations. The Court awarded a sp ecified sum for costs and expenses incurred in the domestic proceedings and before the Convention institutions.

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

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