Information Note on the Court’s case-law 5

April 1999

Mohr v. Luxembourg (dec.) - 29236/95

Decision 20.4.1999 [Section II]

Article 6

Criminal proceedings

Article 6-1

Access to court

Lodging of a memorial by the applicant's lawyer, marked as concerning the cassation appeal against the judgment in the applicant's case, but without expressly stating that it was lodged on for and on behalf of the applicant: ina dmissible

On an appeal in criminal proceedings that had been brought against him, the applicant, who had been convicted at first instance, was acquitted on some counts although his conviction on other counts stood. He appealed against that decision to the Court of Cassation by making a declaration to the registry of the prison where he was detained pending the appeal. Three weeks later his lawyer lodged written submissions with the registry of the Court of Cassation. The Court of Cassation held that the app eal was invalid as, under the relevant domestic legislation, persons appealing to the Court of Cassation after conviction were required to lodge written submissions with the registry. In the instant case, although the applicant’s lawyer had lodged written submissions, no notice of appeal had been lodged by or on behalf of the applicant. The applicant maintained that the Court of Cassation had applied the relevant legislation in a questionable and unforeseeable way and that it had been quite clear that the l awyer had lodged the submissions on his behalf.

Inadmissible under Article 6 § 1: An appeal to the Court of Cassation is a special stage in criminal proceedings which may be of capital importance for the accused. Rules laying down a prescribed form were in tended to ensure proper administration and parties had to expect them to be applied. However, neither the rules concerned nor their application should prevent defendants from using available remedies. In the present case, there was nothing to suggest that the reason the lawyer had failed to state on whose behalf he was lodging the written submissions was because he was exempted from the obligation to do so rather than, as the Government said, he had chosen not to. Given the special nature of the Court of Ca ssation's role, the Court was able to accept that the procedure followed before it might be more formal. Furthermore, the applicant’s case had been considered by two bodies having full jurisdiction and the fairness of the proceedings before those bodies ha s not been called into question before the Court. Regard being had to the proceedings as a whole and the applicable domestic law, the decision in issue could not be said to have been unforeseeable. Given the margin of appreciation which the States have to determine the rules governing the admissibility of appeals, the Court found that the applicant had not suffered a disproportionate interference in his right of access to a court: manifestly ill-founded.

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

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