CASE OF GUÉRIN v. FRANCE

1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) and by the French Government (“the Government”) on 27 May and 10 July 1997 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 25201/94) against the French Republic lodged with the Commission under Article 25 by a French national, Mr Yves Guérin, on 11 July 1994.
The Commission’s request referred to Articles 44 and 48 and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46); the Government’s application referred to Article 48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).
3. On 2 June 1997 the President of the Court decided that, in the interests of the proper administration of justice, this case should be considered by the Chamber already constituted to hear the case of Omar v. France [3] (Rule 21 § 7).
4. That Chamber included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention), Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)), Mr A.B. Baka, Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici, Mr K. Jungwiert, Mr P. Kūris, Mr E. Levits and Mr P. van Dijk (Article 43 in fine of the Convention and Rule 21 § 5).
5. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the orders made in consequence, the Registrar received the applicant’s memorials on 15 and 19 December 1997 and the Government’s memorial on 15 December 1997.
6. On 22 October 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51). The Grand Chamber to be constituted included ex officio Mr R. Ryssdal, the President of the Court, and Mr Bernhardt, the Vice-President, together with the members and the four substitutes of the original Chamber, the latter being Sir John Freeland, Mr M. Voicu, Mr J. De Meyer and Mr J. Makarczyk (Rule 51 § 2 (a) and (b)). On 25 October 1997 the President, in the presence of the Registrar, drew by lot the names of the seven additional judges needed to complete the Grand Chamber, namely Mr A. Spielmann, Mr N. Valticos, Mrs E. Palm, Mr I. Foighel, Mr A.N. Loizou, Mr L. Wildhaber and Mr V. Butkevych (Rule 51 § 2 (c)). Mr Ryssdal, who died on 18 February 1998, was replaced as President of the Grand Chamber by Mr Bernhardt, and Mr P. Jambrek joined the Chamber as a full member. Subsequently Mr J. Casadevall replaced Mr Valticos, who was unable to take part in the further consideration of the case.
On 12 February 1998 the Commission produced certain documents from the proceedings before it, as requested by the Registrar on the President’s instructions.
7. In accordance with the President’s decision, the hearing in the present case and the case of Omar v. France took place in public in the Human Rights Building, Strasbourg, on 23 March 1998. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the GovernmentMr J.-F. Dobelle, Deputy Director of Legal Affairs, Ministry of Foreign Affairs, Agent, Mrs M. Dubrocard, Mr B. Nédélec, magistrats, on secondment to the Legal Affairs Department, Ministry of Foreign Affairs, Advisers;
(b) for the CommissionMr L. Loucaides, Delegate;
(c) for the applicantMr A. Lyon-Caen, lawyer practising in the Conseil d’Etat and the Court of Cassation, Counsel;
(d) for Mr C. Omar, Mr K. Omar and Mr H. OmarMr J.-L. Cacheux, Mr L. Boré, lawyers practising in the Lyons Court of Appeal, Counsel.
The Court heard addresses by Mr Loucaides, Mr Lyon-Caen, Mr Cacheux, Mr Boré and Mr Dobelle, and the latter’s reply to a question from one judge.
I. the CIRCUMSTANCES OF THE CASE
8. Mr Yves Guérin, a French national who was born in 1942, lives in Brest. At the material time, he was a deputy police sergeant.
A. The investigation proceedings
9. On 28 November 1990 an airport and border police squad based in Menton stopped a vehicle on the motorway between Ventimiglia and Menton. There were six people inside, of whom five did not have valid papers for entry into French territory.
10. The driver, Mr Sérigné Fall, admitted that he had assisted these five to cross the border illegally.
11. He implicated the applicant, who was at that time serving at the Ventimiglia frontier post, alleging that he had allowed him to enter France in exchange for a payment of five hundred French francs (FRF) and the promise of an imitation Rolex watch.
12. On 29 November 1990 the applicant was charged with accepting a bribe and remanded in custody.
13. In a judgment of 6 June 1991 the Nice Criminal Court acquitted Mr Guérin, rescinded the order for his detention and ordered his immediate release.
14. On 11 June 1991 the prosecution appealed.
2. In the Aix-en-Provence Court of Appeal
15. In a judgment of 14 October 1991 the Aix-en-Provence Court of Appeal, giving judgment in the applicant’s absence, set aside the judgment at first instance and sentenced the applicant to two years’ imprisonment.
16. On 28 June 1992 the applicant requested a retrial.
17. The case was heard on 12 October 1992 at a public hearing attended by Mr Guérin.
18. In a judgment of 23 November 1992 the Aix-en-Provence Court of Appeal found the applicant guilty of accepting a bribe, sentenced him to two years’ imprisonment, six months of which were suspended, and issued a warrant for his arrest. Although the applicant had been duly informed of the date of delivery of the judgment, he was not present.
19. On 24 November 1992 Mr Guérin was admitted to a psychiatric institution, where he stayed until 16 December 1992, when the police enforced the warrant for his arrest.
20. On 26 November 1992, acting through a lawyer with the right of audience in the Aix-en-Provence Court of Appeal, the applicant lodged an appeal on points of law within the time-limit of five clear days laid down by Article 568 of the Code of Criminal Procedure (see paragraph 24 below).
In his statement of the grounds of appeal the applicant’s lawyer put forward two arguments, one procedural and one substantive, concerning the elements of the offence. He also explained that “as soon as he knew [the Court of Appeal’s decision], the appellant tried to commit suicide”.
In a supplementary pleading on the question of admissibility, he asked the Court of Cassation to declare the appeal admissible, either by departing from its case-law to the effect that a convicted person who has not complied with a warrant for his arrest is not entitled to act through a representative in order to lodge an appeal on points of law, or by making the rule more flexible and not applying it in the particular circumstances of the case.
On the first point, he referred to the report adopted by the Commission on 3 September 1992 in the case of Poitrimol v. France and pointed out that the Commission had referred to the Court the question whether the relevant case-law of the Criminal Division was contrary to Article 6 § 1 of the Convention.
On the second point, the lawyer stated that as the applicant lived in Brest he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him.
It would also have been materially impossible for him to comply with the warrant for his arrest in the three days between the reading of the judgment and the lodging of the notice of intention to appeal. Moreover, on learning that he had just been convicted, and immediately after instructing his lawyer to lodge an appeal on points of law, he had tried to commit suicide, and for that reason had been treated in a psychiatric institution from 24 November 1992 to 16 December 1992. Having stayed in that institution throughout the period allowed for an appeal on points of law, it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal. Lastly, the arrest warrant had been executed on 16 December 1992 at the clinic where the applicant remained at the disposal of the courts. The lawyer concluded in the following terms:
“There is no doubt that in such conditions applying the case-law established in 1846 in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal.”
21. In a judgment of 19 January 1994 the Court of Cassation declared the appeal inadmissible on the following grounds:
“It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on 23 November 1992, which was not executed until 16 December 1992. It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. In the present case the appellant has not supplied evidence of any such circumstances.”
ii. relevant domestic law and practice
22. In French law an appeal on points of law, which is an exceptional remedy, may be lodged by any person who has an interest in doing so and gives notice within the time-limit, against any judicial decision given at last instance.
23. Article 576 of the Code of Criminal Procedure, which lays down the formalities to be observed in connection with appeals on points of law, provides:
“Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged.
It must be signed by the registrar and by the appellant himself or by an attorney ( avoué ) of the court which has given judgment or by a specially authorised agent. In the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar…
24. Article 568 of the Code of Criminal Procedure provides:
“The prosecution and all parties shall have five clear days after the date on which the impugned decision was given in which to lodge an appeal on points of law.”
B. Suspensive effect of an appeal on points of law
25. Article 569 of the Code of Criminal Procedure provides:
“During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the Court of Appeal shall be stayed, except in respect of orders concerning civil matters, and unless the Court of Appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.”
26. The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute, particularly in the interests of speedier and more effective punishment. That is the case where an arrest warrant has been issued by the trial court (see, to that effect, B. Bouloc, Précis de procédure pénale, Dalloz, 16th edition, 1996, § 739).
C. Forfeiture of the right to appeal on points of law
27. Article 583 of the Code of Criminal Procedure provides:
“If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit.
The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing.
For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.”
D. Conditions of admissibility of an appeal on points of law
28. The Court of Cassation has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible (Cass. crim. 10 December 1986, Dalloz 1987, p. 165). But the convicted person may give notice himself of his intention to appeal (Cass. crim. 7 November 1989, Bull. crim no. 397), subject to the provisions of Article 583, reproduced above.
29. The Criminal Division of the Court of Cassation considers that an appeal is admissible in the following two situations:
(a) where, instead of acting through a representative, the appellant signs the notice of intention to appeal in person (Cass. crim. 28 June 1978, Bull. crim. no. 57) by reporting to the registry before the warrant has been executed (Cass. crim. 7 November 1989, Bull. crim. no. 397) and accepting the risk of being arrested by mentioning his exact address in the notice (Cass. crim. 13 May 1985, Bull. crim. no. 180; Cass. Crim. 7 September 1993, Bull. crim., p. 263, confirmed by a decision of 15 February 1994 published in the Recueil Dalloz, 1994, Somm., p. 187);
(b) where, when acting through a representative, in accordance with Article 576 of the Code of Criminal Procedure, he can prove that there were “circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time” (Cass. crim. 21 May 1981, Bull. crim. no. 168; Cass. crim. 19 January 1984, Bull. crim. no. 27; Cass. crim. 8 March 1985; Cass. crim. 8 March 1996, Bull. crim. no. 94).
PROCEEDINGS BEFORE THE COMMISSION
30. Mr Guérin applied to the Commission on 11 July 1994. He alleged that the decision to rule his appeal on points of law inadmissible had infringed his right to a court, one of the elements of the right to a fair trial guaranteed by Article 6 § 1 of the Convention.
31. On 24 June 1996 the Commission declared the application (no. 25201/94) admissible. In its report of 11 April 1997 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 (twenty-nine votes to one). The full text of the Commission’s opinion and of the two separate opinions contained in the report, one concurring and one dissenting, is reproduced as an annex to this judgment [4].
32. In their memorial the Government asked the Court to “dismiss the application introduced by Mr Guérin as manifestly ill-founded in so far as he complains that there has been a violation of Article 6 § 1 of the Convention”.
33. The applicant asked the Court to hold that there had been a breach of that Article.
I. alleged violation of Article 6 § 1 of the Convention
34. Mr Guérin submitted that the decision to declare his appeal on points of law inadmissible on the ground that he had not complied with the warrant for his arrest had infringed his right of access to a court, one of the elements of the right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…”
The applicant pointed out that in its Poitrimol v. France judgment of 23 November 1993 the Court had held that the inadmissibility of an appeal on points of law was a disproportionate sanction “having regard to the signal importance of the rights of the defence and of the principle of the rule of law in a democratic society” (Series A no. 277-A, p. 15, §§ 38–39). Such inadmissibility was not prescribed by law but had been introduced by case ‑ law and was contrary to the “presumption of innocence”, since it was based on the idea that the accused had deliberately sought to evade justice. In the present case, however, the applicant had never tried to withhold information about where he was living, which appeared in the Court of Appeal’s judgment convicting him and was perfectly well known to the police. In addition, there was no law which obliged him to attend the Court of Appeal in person on the day appointed for the reading of the judgment, five weeks after the hearing. As soon as he had learned of his conviction he had instructed his lawyer to lodge an appeal on points of law, and had then attempted to commit suicide. His family had thereupon had him admitted to a psychiatric clinic, where the arrest warrant was enforced three weeks later. In the present case, therefore, the sanction was disproportionate to the public-policy requirements relied on.
35. The Government submitted that the Court of Cassation’s ruling that the applicant’s appeal was inadmissible satisfied the criteria laid down by the Court’s case-law, in so far as the limitation concerned did not “restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right [was] impaired”. Access to the Court of Cassation was not denied to an absconding defendant but only made subject to certain conditions intended to ensure a fair balance between the protection of public interests and respect for the rights of the defence. In the present case the applicant had deliberately failed to comply with the warrant for his arrest, since he had not attended the hearing for the delivery of the Court of Appeal’s judgment, the date of which had been duly notified to him, and had had himself admitted to a psychiatric clinic without informing the Court of Appeal and without giving the address. The ruling that the appeal was inadmissible had thus been proportionate to the aim pursued, which was to make it possible to enforce the court’s order against Mr Guérin, regard being had in addition to the level of the court which had ruled it inadmissible. Moreover, unlike Mr Poitrimol, the applicant had had the benefit of adversarial procedure at first instance and on appeal, so that the Court’s conclusion in its judgment in that case (see paragraph 34 above) could not be transposed to the present case. Lastly, scrutiny of the criminal proceedings against the applicant as a whole showed that his right to a fair trial had been respected.
36. The Commission considered that the finding the Court had reached in its Poitrimol judgment should be even more applicable in the case of a defendant who was not seeking to evade justice, but was in hospital, and who had complied with the arrest warrant as soon as he came out of hospital, the Court of Cassation’s attention having been duly drawn to his particular situation. On this point it expressed the view that for the Government to demand that this situation be explained in the notice of appeal itself would be too formalistic, regard being had to the repercussions and consequences of that requirement for respect of the right of access to a court, which was an essential element of a fair trial as guaranteed by the Convention.
37. The Court reiterates that the right to a court, of which the right of access is one aspect (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24–25, § 57). However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49–50, § 65; the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 78–79, § 59; the Bellet v. France judgment of 4 December 1995, Series A no. 333-B, p. 41, § 31; and the Levages Prestations Services v. France judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1543, § 40).
38. In the present case the Court of Cassation declared the appeal on points of law inadmissible on the grounds that “[i]t follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. In the present case the appellant has not supplied evidence of any such circumstances” (see paragraph 21 above).
39. The Court must therefore determine whether, in the circumstances of the present case, the fact that the applicant’s appeal on points of law was automatically declared inadmissible because he had not complied with the warrant for his arrest infringed his right of access to a court.
40. The Court notes in the first place that the obligation for a defendant sentenced to a non-suspended term of imprisonment accompanied by a warrant for his arrest to surrender to custody at the time when he gives notice of his intention to appeal on points of law, that is within five days of delivery of the Court of Appeal’s judgment (see paragraph 24 above), is derived from the very long-established and consistent case-law of the Criminal Division of the Court of Cassation (see paragraph 28 above).
41. At the hearing the Agent of the Government emphasised that this rule had an essentially moral basis and was underpinned by the idea “that it would be shocking to allow a person who has deliberately failed to comply with a court order to appeal on points of law”. It was not absolute and was no longer applied where the appellant’s good faith could be presumed, as, for example, when he came in person to sign his notice of appeal (see paragraph 29 above).
42. However, some French legal writers have criticised the rule, arguing that the decision, when considering an appeal on points of law, to declare it inadmissible ipso jure when the convicted person has not surrendered to custody within the five-day time-limit is based on a presumption that he is at fault, whereas his fault is not necessarily intentional.
43. The Court can only note that, where an appeal on points of law is declared inadmissible solely because, as in the present case, the appellant has not surrendered to custody pursuant to the judicial decision challenged in the appeal, this ruling compels the appellant to subject himself in advance to the deprivation of liberty resulting from the impugned decision, although that decision cannot be considered final until the appeal has been decided or the time-limit for lodging an appeal has expired.
This impairs the very essence of the right of appeal, by imposing a disproportionate burden on the appellant, thus upsetting the fair balance that must be struck between the legitimate concern to ensure that judicial decisions are enforced, 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.
44. In that connection, the Court emphasises the crucial role of proceedings in cassation, which form a special stage of criminal proceedings whose consequences may prove decisive for the accused. “Article 6 § 1 of the Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6” (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, p. 14, § 25).
45. In its Poitrimol judgment the Court held that “the inadmissibility of the appeal on points of law, on grounds connected with the applicant’s having absconded, … amounted to a disproportionate sanction, having regard to the signal importance of the rights of the defence and of the principle of the rule of law in a democratic society” (judgment cited above, p. 15, § 38).
46. That finding is even more valid in the present case. Whereas Mr Poitrimol had left French territory and was on the run abroad with his two children, the applicant did not attempt to evade enforcement of the arrest warrant. Living in Brest, he was acquitted at first instance and travelled to Aix-en-Provence to attend the hearings in the Court of Appeal. He was not in court for the delivery of the judgment, but no statutory provision obliged him to attend, since in French law such attendance is a right not an obligation.
The day after the judgment of the Court of Appeal he was admitted to a psychiatric institution. The police could have apprehended him at any time, and indeed did so on 16 December 1992 at the hospital he was in (see paragraph 19 above).
47. Having regard to all the circumstances of the case, the Court considers that the applicant suffered an excessive restriction of his right of access to a court, and therefore of his right to a fair trial.
There has accordingly been a breach of Article 6 § 1.
II. application of Article 50 of the Convention
48. Under Article 50 of the Convention,
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
49. Mr Guérin claimed FRF 150,000 for non-pecuniary damage on account of the fact that he had been deprived of any opportunity to submit his arguments to the Court of Cassation and to have that court quash the conviction he sought to challenge.
50. The Government submitted that a finding that there had been a violation would constitute sufficient just satisfaction.
51. The Delegate of the Commission did not express an opinion on the question.
52. The Court considers that Mr Guérin undeniably sustained non-pecuniary damage on account of the breach of the Convention found in the present judgment. Taking the various factors into account and making its assessment on an equitable basis, as required by Article 50, it awards him FRF 20,000.
53. The applicant also claimed FRF 50,000 for the costs and expenses he had incurred before the Court of Cassation and the Convention institutions, in addition to any sums he might be awarded in legal aid.
54. The Government left this question to the Court’s discretion, while pointing out that the applicant had received legal aid before the Convention institutions.
55. The Delegate of the Commission did not express an opinion.
56. Making an assessment on an equitable basis and in the light of the criteria it applies on this issue, the Court awards the applicant FRF 60,000, minus the FRF 11,278 paid by the Council of Europe in the form of legal aid before the Court.
57. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum.
1. Holds by twenty votes to one that there has been a breach of Article 6 § 1 of the Convention;