Resolution CM /ResDH(2007)52 [1]

Execution of the judgment of the European Court of Human Rights

Tricard against France

(Application No. 40472/98, judgment of 10 July 2001, final on 10 October 2001)

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 referred to as “the Convention” and “the Court”),

Having regard to the judgment in this case 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 the lack of access to a court (violation of Article 6, paragraph 1), due to the application in this case of the rules relating to time-limits for appealing on points of law deprived the applicant - domiciled in French P olynesia and party to criminal proceedings in metropolitan France – of the possibility of seising effectively the Cour de cassation (see details in Appendix);

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 satisfied itself that, the respondent state paid the a p plicant the just satisfaction provided in the judgment (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 judgment, 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 violation;

Having examined the measures taken by the respondent state (see Appendix),

DECLARES 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)52

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

Tricard against France

Introductory case summary

This case concerns an infringement of the applicant ' s right of access to a court (violation of Article 6, paragraph 1). The applicant is domiciled (and actually lives) in French P olynesia and was a party to criminal proceedings in metropolitan France . The Cour de cassation dismissed his appeal on a point of law on the grounds that it was out of time, in application of Articles 568 and 271, paragraph 3, of the Code of Criminal P rocedure. According to these articles and the relevant case-law, the time-limit for lodging such an appeal was five clear days following date upon which the notification of the contested decision was sent. But in the present case the applicant received the notification seven days after it had been sent, i.e. after the expiry of the appeal time-limit, because of the time needed to deliver post to French P olynesia . The European Court said that the interpretation that the Cour de cassation gave to the procedural requirements at issue had infringed the very essence of the applicant ' s right of access to a court.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

30 000 French francs

(4 573,47 euros)

10 000 French francs

(1 524,49 euros)

40 000 French francs

(6 097,96 euros)

P aid on 28 March 2002 + default interests

b) Individual measures

The applicant might have asked for the re-opening of the appeal on basis of Articles 626-1 to 626-7 of the Code of Criminal P rocedure. He did not do so.

II. General measures

The judgment has been sent to the Cour de cassation and to all appeal court judges designated as human rights correspondents. Accordingly the Cour de cassation , which like all French courts applies the Convention and the European Court ' s case-law directly, is in a position to draw conclusions from the Tricard judgment. Although not provided expressly in the Code of Criminal P rocedure, the Criminal Chamber now admits that appeals may be accepted even after the expiry of the time limit if, “due to a case of force majeure or to an insuperable obstacle beyond his/her control, the complainant was unable to comply with the time limit”. Given the exceptional nature of the circumstances, the Cour de cassation has not been seised of any new case concerning this issue since that of Tricard. If a similar case were to occur, the Cour de cassation has indicated that it would invoke the force majeure doctrine in order to accept the appeal.

III. Conclusions of the respondent state

The government considers that the measures adopted gave the applicant the possibility to remedy the consequences of the violation of the Convention found by the European Court in this case. It considers, furthermore, 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 20 April 2007 at the 992nd meeting of the Ministers’ Deputies