Resolution CM /ResDH(2007)153 [1]

Execution of the judgment of the European Court of Human Rights

Khalfaoui against France

(Application No. 34791/97 , judgment of 14 December 1999 , final on 14 March 2000 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach to the right of access of the applicant to a court on account of the forfeiture of his appeal on points of law in application of Article 583 of the code of criminal procedure, because he had not obtain an exemption from surrendering to custody and did not surrender to custody before the examination of his appeal on points of law;

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with France ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having taken note of the information given by the respondent state as regards the payment of the just satisfaction provided in the judgment (see details in Appendix),

Whereas there is no indication that, in the circumstances of the present case, the attachment procedure of the just satisfaction awarded to the applicant constitutes/amounts to an unjustified interference in the applicant ' s rights according to the Convention and that in particular the Committee of Ministers noted that the attachment / seizure was done in favour of an individual;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 819th meeting of the Ministers ' Deputies ( 17 December 2002 ), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM /ResDH(2007)153

Information about the measures to comply with the judgment in the case of

Khalfaoui against France

Introductory case summary

This case concerns a breach to the right of access of the applicant to a court on account of the forfeiture of his appeal on points of law, in application of Article 583 of the code of criminal procedure, because he had not obtain an exemption from surrendering to custody and did not surrender to custody before the examination of his appeal on points of law.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

20 000 FRF

63 989 FRF

A payment order was issued on 11 July 2000 but the sums were retained by the Treasury following an attachment to a third party. These sums were attached to Maître Levantal, the creditor.

b) Individual measures

Section 89-I of Law No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and victims ' rights which modifies Article 626-1 of the Code of criminal proceedings provides that “review of a final criminal court decision may be requested on behalf of any person found guilty of an offence where it emerges from a judgment delivered by the European Court of Human Rights that sentence was passed in a manner violating the provisions of the Convention for the P rotection of Human Rights and Fundamental Freedoms or of the protocols thereto, if the nature and the gravity of the violation found are such as to subject the sentenced person to prejudicial consequences that could not be remedied by the just satisfaction awarded on the basis of Article 41 of the Convention.”

Section 89-II of the same Law also provided that “As a transitional measure, applications for review submitted in accordance with Section 626-1 et seq. of the Code of Criminal P rocedure and founded on a judgment delivered by the European Court of Human Rights prior to publication of this law in the Official Gazette of the French Republic may be made within one year following publication.”

The applicant did not prevail himself of this possibility.

II. General measures

Section 121 of Law No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and victims ' rights abrogated Articles 583 and 583-1 of the Code of Criminal P rocedure concerning the forfeiture of the right to appeal on points of law for a person given a custodial sentence of more than six months, for failure to surrender to custody or in the absence of an exemption from surrendering to custody.

This law entered into force on 16 June 2000.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court, will prevent new, similar violations in these cases and that France has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 19 December 2007 at the 1013th meeting of the Ministers’ Deputies