CASE OF POITRIMOL v. FRANCE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the French Republic ("the Government") on 26 October and 11 December 1992, within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 14032/88) against France lodged with the Commission under Article 25 (art. 25) by a French national, Mr Bernard Poitrimol, on 21 April 1988.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government ’ s application referred to Article 48 (art. 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 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c).
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 30 October 1992, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr C. Russo, Mr S.K. Martens, Mr I. Foighel, Mr R. Pekkanen, Mr A.N. Loizou, Sir John Freeland and Mr M.A. Lopes Rocha (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, 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 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant ’ s memorial on 5 April 1993 and the Government ’ s memorial on 6 April. On 7 May 1993 the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.
5. On 20 April 1993 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President ’ s instructions.
6. In accordance with the President ’ s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26 May 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department, Ministry of Foreign Affairs,
on secondment to the Legal Affairs Department, Ministry
of the Versailles Court of Appeal,
Mrs M. Ingall-Montagnier, magistrat
on secondment to the Department of Criminal Affairs and
Pardons, Ministry of Justice, Counsel;
The Court heard addresses by Mr Gain, Mr Weitzel and Mr Marti.
I. THE CIRCUMSTANCES OF THE CASE
7. Mr Bernard Poitrimol married Miss Catherine Bisserier in February 1973. There were two children of this marriage, born on 23 January 1974 and 18 February 1975.
8. On a petition by the applicant ’ s wife, the Paris tribunal de grande instance granted a divorce on 5 January 1982 on the grounds of fault by her husband, awarded her custody of the children and allowed Mr Poitrimol the right to have them visit him or stay with him.
9. On 20 February 1984 the Paris Court of Appeal varied that decision. It pronounced divorce on the grounds of fault by both spouses and upheld the other provisions after studying a social inquiry report on the children ’ s living conditions with their mother.
10. The applicant did not appeal on points of law against the Court of Appeal ’ s judgment but lodged a complaint against his former wife alleging that she had committed forgery and uttering during the divorce proceedings. On 7 July 1988 the Paris Court of Appeal sentenced Mrs Poitrimol to a fine of 10,000 French francs (FRF) for having produced four false certificates supposedly from her employers.
11. In September 1984, when exercising his right of access to the children, the applicant had left French territory and taken his two children to Turkey.
12. Mr Poitrimol applied to the matrimonial causes judge at the tribunal de grande instance in Marseilles, where the applicant ’ s former wife now lived, for custody of the children. On 24 October 1985 the judge awarded custody to both parents jointly and made an order that the father should return at least temporarily to France, within three months at most, in order that the children should be interviewed. If, for reasons other than circumstances beyond his control, the applicant did not comply with the time-limit, the mother would continue to have sole custody.
B. The proceedings for failure to return the children
13. On 8 October 1984 Mrs Poitrimol lodged a complaint alleging failure to return children.
1. At the Marseilles Criminal Court
14. On 19 December 1985 the investigating judge committed the applicant for trial at the Marseilles Criminal Court.
15. Mr Poitrimol did not return to France but sought leave to avail himself of Article 411 of the Code of Criminal Procedure (see paragraph 23 below). The court gave leave and he was represented at the trial on 3 March 1986 by two counsel, who filed pleadings in which they asked for their client and his children to be examined on commission and, in the alternative, for him to be acquitted. They submitted that the defendant had acted under irresistible mental duress owing to the risk of harm to the physical health and psychological balance of his children, having regard to the behaviour of their mother and her lovers.
16. In a judgment delivered after proceedings deemed to be inter partes the court sentenced him on the same day to a year ’ s imprisonment and issued a warrant for his arrest.
2. In the Aix-en-Provence Court of Appeal
17. On 5 March 1986 counsel for Mr Poitrimol lodged an appeal and the prosecution immediately did likewise.
18. Although he had been summoned to the hearing on 10 September 1986, the applicant did not appear in person. His lawyer, Mr Schmerber, said that his client wished to be tried in absentia and defended in court by his counsel; he proceeded to make submissions similar to those he had filed at the trial. In an interlocutory judgment the Aix-en-Provence Court of Appeal adjourned the case to 4 February 1987 and, under the third paragraph of Article 411 of the Code of Criminal Procedure, ordered that Mr Poitrimol should be summoned again as it considered his presence in court to be necessary.
19. The applicant did not attend the new hearing, but Mr Schmerber did and made supplementary submissions asking the court to uphold his pleadings of 10 September and authorise him to represent his client.
20. On 25 February 1987, pursuant to Article 410 of the Code of Criminal Procedure (see paragraph 23 below), the Court of Appeal, taking its decision after proceedings deemed to be inter partes, delivered a judgment in which it refused the latter request on the following grounds:
"While a defendant summoned for an offence punishable, as in the instant case, by a term of imprisonment of less than two years may, by letter to the presiding judge, apply to be tried inter partes in his absence but represented by counsel, pursuant to the first and second paragraphs of Article 411 of the Code of Criminal Procedure, it is a principle, and is apparent from the general scheme of the Code of Criminal Procedure, that this is a right which does not apply where, as in Mr Poitrimol ’ s case, a warrant has been issued for the defendant ’ s arrest and the defendant has absconded and is accordingly not entitled to instruct counsel to represent and defend him ...;
That being so, the Court will try the case on the merits without the defendant, Bernard Poitrimol, being able to be represented by Mr Schmerber."
It also ruled that the pleadings of 10 September 1986 were inadmissible and upheld the impugned judgment in its entirety.
21. Through a member of the Conseil d ’ Etat and Court of Cassation Bar the applicant appealed on points of law against the Court of Appeal ’ s judgment. In substance he argued that Article 411 previously cited was incompatible with the Convention.
On 21 December 1987 the Court of Cassation declared the appeal inadmissible on the grounds that a convicted person who had not surrendered to a warrant issued for his arrest was not entitled to instruct counsel to represent him and lodge an appeal on points of law on his behalf against his conviction.
22. Mr Poitrimol submitted a petition for pardon, which was rejected by the French President on 21 November 1989.
23. The main provisions of the Code of Criminal Procedure mentioned in the case are the following:
"An accused on whom a summons has been served personally in the proper manner must appear unless he provides an excuse that is accepted as valid by the court before which he has been summoned. An accused shall be under the same obligation where it is established that, even though the summons was not served on him personally, he was made aware by the means provided for in Articles 557, 558 and 560 that he had been properly summoned.
If these conditions are satisfied, an accused who fails to appear and has not been excused from doing so shall be tried as if he were present."
The Court of Cassation has held this provision to be compatible with the Convention (Beltikhine, 16 December 1985) but sometimes quashes judgments in which no ruling has been made on whether there was a valid excuse as argued by the defendant (Grenier, 9 June 1993) or no finding made as to whether the defendant had been made personally aware of the date of the hearing (Tourtchaninoff, 10 June 1992).
"An accused summoned in connection with an offence punishable by a fine or a term of imprisonment of less than two years may, by letter to the presiding judge which shall be placed in the file on the proceedings, apply to be tried in absentia.
In that case his counsel shall be heard.
However, if the court considers it necessary for the accused to appear in person, he shall be summoned again, at the instance of the prosecution, to a hearing on a date which shall be fixed by the court.
An accused who fails to comply with this summons shall be tried as if he were present.
He shall likewise be tried as if he were present in the eventuality provided for in the first paragraph of this Article."
According to the case-law of the Court of Cassation, where an accused who fails to appear and has not been excused from doing so is tried as if he were present, his counsel can neither be heard nor file pleadings (Criminal Division, 29 October 1970, Bulletin criminel (Bull.) no. 284; 5 May 1970, Bull. no. 153).
It is not possible to apply to a court to set aside a judgment it has given in the accused ’ s absence and rehear the case (opposition) (see Articles 489 and 512 below) where the judgment was given after proceedings deemed to have been inter partes.
"An accused who appears may instruct counsel to assist him.
If he has not done so before the hearing and nevertheless asks to be assisted, the presiding judge shall assign counsel officially.
Counsel may be chosen or appointed only from among the members of a Bar ...
The assistance of counsel is compulsory where an accused suffers from an infirmity of a kind likely to jeopardise his defence."
"A judgment in absentia shall be null and void in all its provisions if the accused applies to the court which gave it to set it aside and rehear the case.
"The rules laid down in respect of the Criminal Court shall apply in the Court of Appeal ..."
"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 applicant himself or by an attorney (avoué) of the court that 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 ...
"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 applicant 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 chief warder of that prison shall take him into custody 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."
The Court of Cassation has already decided on several occasions that it follows from the general principles underlying the Code of Criminal Procedure that a convicted person who has not surrendered to a judicial warrant for his arrest and has evaded execution of it is not entitled to appeal on points of law against the decision whereby he was convicted (Criminal Division, 30 November 1976 and 26 June 1978, Juris- Classeur périodique 1980, II, 19437; 24 April 1985, Bull. no. 157; 10 December 1986, Recueil Dalloz-Sirey 1987, p. 165). It has pointed out, however, that the situation may be different where a convicted person can show that circumstances made it impossible for him to surrender to custody in good time (Criminal Division, 21 May 1981, Bull. no. 168).
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Poitrimol applied to the Commission on 21 April 1988. Relying on Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention, he alleged that he had not had a fair trial in that his counsel had not been heard by the Court of Appeal and that he had not validly been able to appeal on points of law.
25. The Commission declared the application (no. 14032/88) admissible on 10 July 1991. In its report of 3 September 1992 (made under Article 31) (art. 31), it expressed the opinion by fourteen votes to one that there had been a violation of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) taken together during the proceedings in the Court of Appeal and a violation of paragraph 1 of that Article (art. 6-1) at the stage of the proceedings in the Court of Cassation. The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].
26. In their memorial the Government asked the Court to dismiss the two complaints raised by Mr Poitrimol.
27. The applicant requested the Court to
"Hold that, more especially in the Aix-en-Provence Court of Appeal, [he] ha[d] not had a fair trial and, in particular, had not had the right to defend himself, in accordance with the provisions of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention;
Hold that the Court of Cassation ha[d] violated Article 6 para. 1 (art. 6-1), and in particular the right to ... a fair hearing, by holding the applicant ’ s appeal to be inadmissible".
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (c) (art. 6-1, art. 6-3-c)
28. Mr Poitrimol complained that the Aix-en-Provence Court of Appeal had convicted him in absentia without his counsel being able to put the case for the defence. He also complained that he had been refused access to the Court of Cassation on the ground that he had not surrendered to the warrant for his arrest. He alleged a breach of paragraphs 1 and 3 (c) of Article 6 (art. 6-1, art. 6-3-c) of the Convention, which provide:
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing ...;
The Government rejected this submission but the Commission accepted it.
29. As the requirements of paragraph 3 of Article 6 (art. 6-3) are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (art. 6-1), the Court will examine the complaints under both provisions taken together (see, among many other authorities, the F.C.B. v. Italy judgment of 28 August 1991, Series A no. 208-B, p. 20, para. 29).
30. This case differs from the Goddi, Colozza, F.C.B. and T. v. Italy cases (judgments of 9 April 1984, Series A no. 76, p. 10, para. 26; 12 February 1985, Series A no. 89, p. 14, para. 28; 28 August 1991, previously cited, Series A no. 208-B, p. 21, paras. 30-33; and 12 October 1992, Series A no. 245-C, p. 41, para. 27) in that the applicant was notified of each of the hearing dates, including the one of the Court of Appeal hearing on 4 February 1987, and decided of his own accord not to appear.
31. Proceedings held in an accused ’ s absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact (see, mutatis mutandis, the Colozza judgment previously cited, Series A no. 89, p. 14, para. 27, and p. 15, para. 29). It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see the Pfeiffer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227, pp. 16-17, para. 37).
32. In the present instance the applicant had clearly expressed his wish not to attend the appeal hearings on 10 September 1986 and 4 February 1987 and thus not to defend himself in person. On the other hand, it is apparent from the evidence that he intended to be defended by a lawyer instructed for the purpose, who would attend the hearings.
The question accordingly arises whether an accused who deliberately avoids appearing in person remains entitled to "legal assistance of his own choosing" within the meaning of Article 6 para. 3 (c) (art. 6-3-c).
33. The Government pointed out that the provision in question referred to "assistance" and not "representation". In French law, they continued, the former term meant that the accused was present beside his counsel, whereas the latter term meant that he was legally replaced by the lawyer. In criminal matters, appearance in person was the rule, as set out in Article 410 of the Code of Criminal Procedure. Choosing not to appear meant declining to defend oneself. Mr Poitrimol, who was aware of the consequences of his attitude, had of his own volition put himself in the position of being tried by the Court of Appeal without his counsel, Mr Schmerber, being heard and he bore the responsibility for this. If judgments delivered in absentia could be set aside and rehearings granted on applications to the courts which gave them from individuals who had absconded, criminal proceedings would never end and the victims would suffer by that.
The applicant submitted that this argument ran counter to Resolution (75) 11 of the Council of Europe ’ s Committee of Ministers "on the criteria governing proceedings held in the absence of the accused". Under the fifth of the nine "minimum rules" that member States were recommended to apply, "Where the accused is tried in his absence, evidence must be taken in the usual manner and the defence must have the right to intervene". For the Aix-en-Provence Court of Appeal and the Court of Cassation to have given judgment without affording the applicant any opportunity to be represented, to file submissions through his counsel and to have them taken into consideration was contrary to the letter and spirit of Article 6 para. 1 (art. 6-1) of the Convention. The system was a coercive one, because it was designed to compel the accused to appear and thus lay himself open to execution of the warrant for his arrest.
34. The Court cannot adopt the Government ’ s narrow interpretation of the word "assistance". Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial (see the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 45, para. 99, and, mutatis mutandis, the Goddi judgment previously cited, Series A no. 76, p. 12, para. 30, and the F.C.B. judgment previously cited, Series A no. 208-B, p. 21, para. 33). In the instant case it must be determined whether the Aix-en-Provence Court of Appeal was entitled under Article 411 of the Code of Criminal Procedure to deprive Mr Poitrimol of this right, given that he had been summoned personally and had provided no excuse acknowledged as valid for not attending the hearing.
35. It is 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 need to be protected - and of the witnesses.
The legislature must accordingly be able to discourage unjustified absences. In the instant case, however, it is unnecessary to decide whether it is permissible in principle to punish such absences by ignoring the right to legal assistance, since at all events the suppression of that right was disproportionate in the circumstances. It deprived Mr Poitrimol, who was not entitled to apply to the Court of Appeal to set aside its judgment and rehear the case, of his only chance of having arguments of law and fact presented at second instance in respect of the charge against him.
36. As to the Court of Cassation, the Government said that access to it was subject to rules designed to achieve a fair balance between the rights of society and of civil parties to criminal proceedings and the rights of the defence. In the light of the Ashingdane v. the United Kingdom judgment of 28 May 1985 (Series A no. 93, pp. 24-25, para. 57), the formal rules of which the applicant complained were compatible with Article 6 (art. 6).
37. Under the case-law of the Criminal Division of the Court of Cassation, which was followed in this case, a convicted person who has not surrendered to a judicial warrant for his arrest cannot be represented for the purposes of an appeal on points of law. The applicant could not validly lodge such an appeal without giving himself up at a prison (Article 583 of the Code of Criminal Procedure).
38. The Court considers that the inadmissibility of the appeal on points of law, on grounds connected with the applicant ’ s having absconded, also 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. Admittedly, the remedy in question was an extraordinary one relating to the application of the law and not to the merits of the case. Nevertheless, in the French system of criminal procedure, whether an accused who does not appear may have arguments of law and fact presented at second instance in respect of the charge against him depends largely on whether he has provided valid excuses for his absence. It is accordingly essential that there should be an opportunity for review of the legal grounds on which a court of appeal has rejected such excuses.
39. In the light of all these considerations, the Court finds that there was a breach of Article 6 (art. 6) both in the Court of Appeal and in the Court of Cassation.
II. APPLICATION OF ARTICLE 50 (art. 50)
40. Under Article 50 (art. 50),
"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."
41. Mr Poitrimol sought, firstly, compensation in the amount of FRF 1,288,010.78 for pecuniary damage. He said he had suffered a loss of opportunities in the French courts and in his everyday life on account of the need to live abroad. To this was to be added non-pecuniary damage, quantified at FRF 50,000, which he had suffered as a result of his forced exile.
In the Government ’ s submission, it ill became the applicant to blame the French authorities for the damages arising from his allegedly having had to leave France and his job, since the proceedings in issue arose precisely on account of his absconding.
The Delegate of the Commission considered the allegations of a loss of opportunities to be justified but not those of pecuniary damage stemming from the applicant ’ s departure for Turkey. He expressed no view as to non-pecuniary damage.
42. The Court cannot speculate as to what the Court of Appeal ’ s conclusion would have been had it given the applicant leave to be represented. Furthermore, no causal link has been established between the breach of the Convention found in this case and the items of alleged damage caused by his absconding. The claims under this head must therefore be dismissed.
43. In respect of costs and expenses, Mr Poitrimol sought:
(a) FRF 53,688 for counsel instructed by him in the Court of Appeal proceedings;
(b) FRF 9,000 for the appeal on points of law; and
(c) FRF 130,000 for his being represented in the proceedings before the Commission and the Court.
44. Like the Government, the Court finds that the applicant would have incurred legal costs in the Court of Appeal even if that court had given him leave to be represented by counsel. This item of the claim must accordingly be disallowed. On the other hand, the claim appears justified in respect of the proceedings in the Court of Cassation.
45. Under the head of the Strasbourg proceedings the Court, making its assessment on an equitable basis, awards the applicant FRF 100,000, having regard to the circumstances of the case.
1. Holds by five votes to four that there has been a breach of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c);