Information Note on the Court’s case-law 18

May 2000

Van Pelt v. France - 31070/96

Judgment 23.5.2000 [Section III]

Article 6

Criminal proceedings

Article 6-3-c

Defence through legal assistance

Refusal to allow representation of an absent appellant: violation

Article 6-1

Access to court

Dismissal of cassation appeal due to appellant's failure to comply with arrest warrant: violation

Facts : In 1987, in connection with an international drug trafficking inquiry, the applicant was extradited to France, where he was charged with a drugs offence. A major judicial investigation, covering a group of people of different nationalities and countries of resiedence, was conduc ted. This required thirteen international requests for assistance and the questioning of the various accused on 25 occasions. In 1990, at the end of the judicial investigation, the applicant was committed for trial in the tribunal de grande instance , which sentenced him to 18 years’ imprisonment and ordered his permanent exclusion from French territory. In 1991, the court of appeal acquitted him after allowing him the benefit of the doubt. In 1992, on appeal by the principal public prosecutor, the Court of Cassation quashed the court of appeal’s judgment and referred the case to a different court of appeal. The case was adjourned several times so that the applicant could be summoned and served with the judgment of the Court of Cassation. He was nevertheless able to appear, assisted by his lawyers, and file an application for witnesses to be heard and for further investigative measures. When the proceedings were resumed, in December 1996, the applicant’s lawyers produced two medical certificates attesting to t he fact that the applicant had just been taken into hospital in the Netherlands and was accordingly unable to appear in court. They therefore requested an adjournment. The assistant principal public prosecutor and one of the lawyers then made oral submissi ons on the application for an adjournment. It does not appear that the applicant’s lawyers were able to make submissions on the merits of the case at that hearing. In January 1994 the court of appeal refused the application for an adjournment and upheld th e applicant’s conviction at first instance. A warrant was issued for his arrest. An appeal on points of law by the applicant against the above decision was dismissed by the Court of Cassation on the ground that the applicant, who had not complied with the arrest warrant, had not been able to furnish evidence of any circumstance which made it absolutely impossible for him to surrender to custody at the appropriate time.

Law : Article 6 § 1 and § 3: With regard to the fact that the applicant’s lawyers had been unable to argue his case in his absence, it was of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim, whose interests had to be protected, and of the witnesses; the legislature therefore had to be able to discourage unjustified absences (Poitrimol judgment of 23 November 1993). However, it was also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal. It was for the courts to ensure that counsel who attended trial for the apparent purpose of defending the a ccused in his absence was given the opportunity to do so (Lala and Pelladoah judgments of 22 September 1994). Moreover, the right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the basic features of a fair tri al. An accused did not lose this right merely on account of not attending a court hearing. Even if the legislature had to be able to discourage unjustified absences, it could not penalise them by creating exceptions to the right to legal assistance (Van Ge yseghem judgment of 21 January 1999). In the present case the applicant’s lawyers had been able to present argument only on the application for an adjournment, not on the merits.

Conclusion : violation (unanimously).

Article 6 § 1: With regard to the inadmi ssibility of the applicant’s appeal on points of law, the Government had submitted at the hearing that since the Court of Cassation had departed from its case-law on the basis of which the applicant’s appeal, among others, had been ruled inadmissible, ther e was no longer any point in discussing the issue. It was clear from the Guérin v. France judgment that, where an appeal on points of law was declared inadmissible solely because the appellant had not surrendered to custody pursuant to the judicial decisio n challenged in the appeal, that ruling compelled the appellant to subject himself in advance to the deprivation of liberty resulting from the impugned decision, although it could not be considered final until the appeal had been decided or the time allowe d for lodging an appeal had expired. This impaired the right of appeal by imposing a disproportionate burden on the appellant, thus upsetting the fair balance that had to be struck between the legitimate concern to ensure that judicial decisions were enfor ced, on the one hand, and the right of access to the Court of Cassation and exercise of the rights of the defence on the other. The applicant had therefore suffered an excessive restriction of his right of access to a court when he lost his right to appeal because he had not complied with the warrant for his arrest.

Conclusion : violation (unanimously).

Article 41: the Court awarded the applicant a certain sum for costs and expenses.

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

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