Resolution CM /ResDH(2007)154 [1]

Execution of the judgments of the European Court of Human Rights

in the case of P oitrimol against France

and in 3 other cases regarding the right to a fair trail

P oitrimol (Application No. 14032/88, judgment of 23 November 1993)

Omar (Application No. 24767/94, judgment of 29 July 1998)

Guérin (Application No. 25201/94, judgment of 29 July 1998)

Van P elt (Application No. 31070/96, judgment of 23 May 2000, final on 23 August 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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns a breach to the right of access of the applicants to a court and thus to the right to a fair trial, on account of the declaration of inadmissibility ipso jure of their appeals by the Cour de cassation because they had not complied with an arrest warrant issued against them by a decision of an appeal court against which they had lodged an appeal; the cases of P oitrimol and Van P elt also concern the right of an applicant to the assistance of a lawyer of his choice in an appeal procedure where he applicant himself is not present;

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 judgments;

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 satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix and having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 732nd meeting of the Ministers ' Deputies ( 18 December 2000 ) for the cases of Omar and Guérin , at the 775th meeting of the Ministers ' Deputies ( 17 December 2001 ) for the case of P oitrimol, the decision taken at the 798th meeting of the Ministers ' Deputies ( 24 June 2002 ) for the case of Van P elt,

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM /ResDH(2007)154

Information about the measures to comply with the judgments

in the case of P oitrimol against France

and in 3 other cases regarding the right to a fair trail

Introductory case summary

These cases concern a breach to the right of access of the applicants to a court and thus to the right to a fair trial, on account of the declaration of inadmissibility ipso jure of their appeals by the Cour de cassation because they had not complied with an arrest warrant issued against them by a decision of an appeal court against which they had lodged an appeal; the cases of P oitrimol and Van P elt also concern the right of an applicant to the assistance of a lawyer of his choice in an appeal procedure where the applicant himself is not present.

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

P oitrimol

14032/88

_

_

109 000FF

109 000FF

P aid

Omar

24767/94

_

_

60 000FF

60 000FF

P aid on 25/11/98, default interests paid on 19/07/99

Guérin

25201/94

_

20 000FF

48 722FF

68 722FF

P aid on 25/11/98, default interests paid on 19/07/99

Van P elt

31070/96

_

_

70 388FF

70 388FF

P aid on 17/05/01, default interests paid on 17/01/02

b) Individual measures

Section 626-1 of Law No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and victims ' rights 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.”

On the basis of this provision, Mr Van P elt requested a review of the proceedings pertaining to him.

The other applicants did not avail themselves of this possibility.

II. General measures

In the first instance, judgments were published in the Bulletin des arrêts de la Cour de cassation . Then, case law changes put the French Law in conformity with the Convention.

With regard to the applicant ' s right to the assistance of a lawyer of his choice in appeal proceedings in which he himself failed to be present

In a decision by the P lenary Assembly of 2 March 2001 (Dentico judgment), the Cour de cassation , in respect of Article 6.1 and Article 6.3c and Articles 410, 411 and 417 of the Code of Criminal P rocedure, quashed a judgment by the Aix-en- P rovence Appeal Court and held that “the right to a fair trial and the right of every person accused to be represented by counsel are opposed to a court ' s judging an accused who fails to be present without excuse, without giving a hearing to the accused person ' s counsel, if present in the court .”

Shortly following this judgment, this significant case-law was brought to the attention of all principal state prosecutors in a memorandum from the Justice Ministry.

These measures will prevent any further violations of the right to the assistance of a lawyer of one ' s choice in appeal proceedings.

With regard to the right of access to a court, in the present cases the Cour de Cassation

In a judgment of 30 June 1999 (Rebboah case), the Cour de cassation held that even though the accused had not complied with an arrest warrant issued against him by a decision of an appeal court against which he had lodged an appeal, “in the absence of any express provisions in the law setting out an exemption, where a court warrant has been issued, from the application of the formal conditions provided for in Article 576 of the Code of Criminal P rocedure, an appeal shall be admissible” .

It should also be pointed out that in the wake of the Khalfaoui case ( cf. CM /ResDH(2007)153) Law No. 2000-516 of 15 June 2000 (cf. Section 121) abrogated former Article 583 of the Code of Criminal P rocedure which provided that convicted persons given a custodial sentence of more than 6 months who failed to surrender to custody at the latest the day before the appeal hearing in the Cour de cassation without obtaining an exemption forfeited the right to appeal on points of law.

These measures will prevent further violations of the right of access to the Cour de cassation .

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 in these cases that these measures will prevent new, similar violations 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