Information Note on the Court’s case-law 13

December 1999

Khalfaoui v. France - 34791/97

Judgment 14.12.1999 [Section III]

Article 6

Criminal proceedings

Article 6-1

Access to court

Dismissal of cassation appeal due to appellant's failure to surrender into custody: violation

Facts : The applicant was charged and placed in detention on remand for indecent assault by a person in authority. He was accused of ha ving assaulted a patient while working as a houseman in a hospital. The applicant was released under judicial supervision in January 1994. In an order of February 1995 he was committed for trial at a criminal court, which sentenced him to three years’ impr isonment, with one year suspended, and ordered him to pay the civil party 30,000 francs in damages. The Court of Appeal upheld the conviction but increased the sentence to four years, with two years suspended, and the damages to 40,000 francs. No arrest wa rrant was issued against him. In a statement of November 1995 the applicant lodged an appeal on points of law. The public prosecutor’s office of the Court of Appeal which had delivered the judgment in question informed him in a letter sent to his residence in Tunis, where he had gone in the meantime, that, under Article 583 of the Code of Criminal Procedure, he had a duty to surrender to custody at the latest the day before the appeal hearing in the Court of Cassation listed for 24 September 1996. The appli cant, who was then in Tunisia, requested the Court of Appeal, under the above Article of the Code of Criminal Procedure, to grant him an exemption and submitted in support of his request a medical certificate dated 2 September 1996 prescribing two months’ sick leave and rest on grounds of a contagious condition. The applicant argued that he could not leave Tunisia in such conditions, that his state of health precluded his imprisonment and that it was contrary to Article 6 of the Convention to compel someone to surrender to custody in order to avoid forfeiting their right to appeal on points of law. In a judgment of 19 September 1996 the Court of Appeal refused to follow the public prosecutor’s submissions and dismissed the application for an exemption. In a judgment of 24 September 1996 the Court of Cassation ruled that the applicant had forfeited his right to appeal on the ground that he had not surrendered to custody and had not obtained an exemption from the duty to surrender to custody.

Law : Article 6 § 1 : The compatibility of the limitations provided for in domestic law with the right of access to a court depended on the particular features of the proceedings in question; all the proceedings conducted in the domestic legal system and the role played by th e Supreme Court had to be taken into account, but the conditions of admissibility of an appeal on points of law could be stricter than those of an ordinary appeal. Ultimately, cassation proceedings were a crucial stage in criminal proceedings since they we re decisive for the accused.

In the instant case the obligation to surrender to custody, as provided for in the Code of Criminal Procedure, obliged the applicant to submit to the deprivation of freedom imposed by the impugned decision even though under Fre nch law an appeal on points of law was of suspensive effect and the judgment being appealed against was not yet irrevocable. Thus the sentence did not become enforceable until and unless the appeal was dismissed. Although the concern referred to by the Gov ernment to enforce court judgments was in itself legitimate, the authorities had other means at their disposal by which they could ensure that an accused appeared for trial either before or after the appeal on points of law was examined. In practice, the o bligation to surrender to custody was designed to replace procedures conducted by the police with an obligation incumbent on the accused, non-compliance with which, moreover, was punished by forfeiture of his right to lodge an appeal on points of law. Last ly, the obligation to surrender to custody could not be justified by the special features of the examination of an appeal on points of law. The proceedings in the Court of Cassation, to which an appeal could be made only on points of law, were mainly writt en and it had not been submitted that the applicant’s presence at the hearing was necessary.

As regards forfeiture of the right to appeal, there was no substantial difference between, on the one hand, automatic inadmissibility, the only source of which was the case-law of the Criminal Division of the Court of Cassation for failure to comply with an arrest warrant, as in the case of Poitrimol (judgment of 23 November 1993) and the cases of Omar and Guérin (judgments of 29 July 1998), and, on the other hand, forfeiture of the right to appeal as expressly provided for in Article 583 of the Code of Criminal Procedure. An appeal on points of law, which anyone convicted of a criminal offence was entitled to bring, was not examined in either case. In view of the im portance of the review undertaken by the Court of Cassation in criminal matters and the stakes involved in that review for those who had been sentenced to lengthy custodial sentences, it was a particularly severe penalty in the light of the right of access to a court. Respect for the presumption of innocence, taken together with the suspensive effect of an appeal on points of law, made it wrong to oblige a defendant left at liberty to surrender to custody, for however short a period of incarceration.

As regards the possibility of requesting an exemption from the obligation to surrender to custody, the fact that after his request for an exemption had been dismissed by the Court of Appeal – the court which had, moreover, tried and convicted him – he did not surrender to custody did not imply any waiver on his part since forfeiture was automatic. Waiver of a right guaranteed under the Convention had to be conclusively established. Furthermore, the small number of exemptions actually granted suggested that the courts applied strict criteria, as in the instant case, when examining applications. Lastly, rejection of an application was not subject to appeal. Thus the possibility of requesting an exemption from the obligation to surrender to custody was not a fa ctor which made forfeiture less disproportionate.

Conclusion: violation (6 votes to 1).

Article 41 - The Court awarded the applicant FRF 20,000 for non-pecuniary damage. It also awarded him FRF 13,898 for costs and expenses in the national courts and FRF 3 0,000 for costs and expenses 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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