CASE OF POITRIMOL v. FRANCE
(Application no. 14032/88)
23 November 1993
In the case of Poitrimol v. France1,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")2 and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr S.K. Martens,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Sir John Freeland,
Mr M.A. Lopes Rocha,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 29 May and 26 October 1993,
Delivers the following judgment, which was adopted on the last-mentioned date:
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).
There appeared before the Court:
- for the Government
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department, Ministry of Foreign Affairs,
Miss M. Picard, magistrat
on secondment to the Legal Affairs Department, Ministry
of Foreign Affairs,
Mr A. Maron, Judge
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;
- for the Commission
Mr A. Weitzel, Delegate;
- for the applicant
Mr A. Marti, avocat, Counsel.
The Court heard addresses by Mr Gain, Mr Weitzel and Mr Marti.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The divorce proceedings
B. The proceedings for failure to return the children
1. At the Marseilles Criminal Court
2. In the Aix-en-Provence Court of Appeal
"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.
3 In the Court of Cassation
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.
II. RELEVANT DOMESTIC LAW
"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
FINAL SUBMISSIONS TO THE COURT
"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".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (c) (art. 6-1, art. 6-3-c)
"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.
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).
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.
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.
II. APPLICATION OF 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."
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.
B. Costs and expenses
(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.
FOR THESE REASONS, THE COURT
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);
2 Holds by eight votes to one that the respondent State is to pay to the applicant, within three months, 109,000 (one hundred and nine thousand) French francs for costs and expenses;
3. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 November 1993.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Ryssdal, Sir John Freeland and Mr Lopes Rocha;
(b) dissenting opinion of Mr Pettiti.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, SIR JOHN FREELAND AND LOPES ROCHA
DISSENTING OPINION OF JUDGE PETTITI
I voted with the minority in support of the view that there had been no violation of Article 6 (art. 6) of the Convention.
In my opinion, the majority’s decision introduces requirements into criminal procedure which go beyond those in Article 6 (art. 6).
The right of everyone charged with a criminal offence to be defended by a lawyer, of his own choosing or assigned officially, does not mean that an accused who, without any legitimate excuse, deliberately avoids appearing at the trial when he has been properly and effectively summoned can instruct counsel to represent him in order to be tried as if inter partes.
The obligation to appear in person is a vital part of criminal procedure; the rights of the victims and civil parties to the proceedings, who would otherwise be deprived of any opportunity of having the accused cross-examined, must be respected. One can imagine having the option of representation for minor offences - each national legislature can lay down the level of sentence at which representation by counsel is or is not permitted.
One can also imagine that at the cassation stage the possibility of appeal on points of law should be available even to those who have not appeared in the Court of Appeal.
If an accused can avoid any appearance in person, he prevents the trial from being fair within the meaning of Article 6 (art. 6) vis-à-vis the complaints, victims and civil parties.
Secondly, the Court’s judgment does not take sufficient account of the fact that as a result of the judgment at first instance there was a warrant out for Mr Poitrimol’s arrest.
Article 6 (art. 6) does not prohibit States from providing that the courts may issue arrest warrants where defendants have unjustifiably failed to appear.
In such cases, criminal procedure in some European States requires that an accused whose arrest has been ordered in a judgment at first instance must surrender to the warrant for his arrest if he is to be able to exercise his rights of appeal.
In my view, the Court should have distinguished the case in which a judgment is given in absentia without any arrest warrant being issued from the case of a judgment in which arrest is ordered.
In absentia proceedings are a major problem in Europe in ensuring the proper administration of criminal justice and in preventing a growing number of defendants from eluding justice altogether (20-25% in France).
Article 6 (art. 6) must be looked at as a whole and as part of the attempt to strike a balance between the interests of the State (through the courts and the prosecution service), the public and the parties.
Equality of arms must be considered not only in the relationship between accused and prosecution but also in the relationship between victims, civil parties and accused. If a defendant is absent because he has refused to appear, it may put the victim or the civil party to the proceedings at a disadvantage.
A criminal trial reflects a particular conception of criminal procedural law, which is in essence punitive. The obligation to appear in person is a major feature of any criminal procedure, subject to force majeure or a legitimate excuse.
Admittedly, national legislation may provide that for certain categories of offence an accused may be represented in his absence by counsel, whether automatically or subject to leave of the court; but the lack of such provision does not in itself amount to a breach of Article 6 (art. 6). Resolution (75) 11 of the Council of Europe’s Committee of Ministers only embodies wishes and recommendations and has no effect on the interpretation of Article 6 (art. 6).
A system of criminal procedure forms a coherent, homogeneous whole, particularly where it provides for proceedings in absentia, setting aside and rehearing (opposition), repeated absence, procedure deemed inter partes and appeal. It must be looked at in its entirety and not divided up into parts considered separately, which would upset its structural balance.
In the French system, proper provision is made in Article 489 for applications to have judgments in absentia set aside and rehearings granted on applications to the courts which gave the judgments. Article 489 applies likewise on appeal (cf. A. Vitu, ‘La réglementation de l’appel et de l’opposition dans le code de procédure pénale’, Juris- Classeur périodique 1959, I, 1486; Cass. Crim. 15 September 1986; Bulletin criminel (Bull.) no. 256).
The French Code of Criminal Procedure contains a whole series of rules which meet the requirements of Article 6 (art. 6).
In particular, the provisions of Articles 410 et seq., 417, 487 and 489 afford a person charged with a criminal offence the opportunity of being tried as if he were present depending on various circumstances and leave him a number of options; if he chooses not to attend, he does so at his own risk if he cannot give a legitimate excuse.
The European Court’s judgment in the case of Colozza v. Italy4 related to a case in which it was impossible for a defendant who wished to appear in person to have a rehearing after a trial in absentia; the circumstances were therefore different.
French case-law, under which, where a defendant chooses to lodge an ordinary appeal (appel) rather than to apply to the original court for its judgment to be set aside and the case reheard, he thereby forfeits the latter possibility (Cass. Crim. 7 February 1984, Bull. Crim. no. 44; D. Poncet, ‘Le jugement par défaut devant les juridictions pénales; quelques considérations de droit comparé’, Revue de Science criminelle et de droit pénal comparé, 1979, pp. 1 et seq.), does not contravene Article 6 (art. 6) of the Convention.
In my view, the various aspects of the problem are not properly assessed in the Court’s judgment. In the first place, the Court’s decision might, wrongly, be interpreted as seeking to give the word "assistance" the meaning of "representation" and even of representation mandatory on the court - which is contrary to the traditional interpretation (cf. J. Velu and R. Ergec, La Convention européenne des Droits de l’Homme, Brussels, 1990, p. 497, para. 603; H. Golsong, W. Karl, H. Miehsler, H. Petzold, K. Rogge, T. Vogler and L. Wildhaber, Internationaler Kommentar zur Europäischen Menschenrechtskonvention, Cologne, 1986, p. 196, to be compared with the studies of trial in absentia by R. Merle and A. Vitu, Traité de droit criminel, third edition, pp. 821 et seq.; G. Stefani, G. Levasseur and B. Bouloc, Précis de procédure pénale, fourteenth edition, pp. 928 et seq.)
Thus "The European Convention on Human Rights does not confer on an accused the right to impose on his lawyer a system of defence which the lawyer considers unsustainable" (Velu and Ergec, op. cit. p. 497, para. 602; application no. 9127/80, decision of 6 October 1981, Decisions and Reports 26, p. 238). Assistance normally presupposes the accused’s presence beside his counsel (Golsong et al., op. cit, p. 191). States are entitled to enact in their legal systems a requirement that defendants appear in person.
In the second place, an accused is not entitled to demand to be represented when he refuses to appear in person.
Criminal law is by its very nature a punitive system which has to reconcile the maintenance of order with the protection of human rights. It is not merely the law of protection of those charged with criminal offences.
Criminal procedure must ensure this balance and cannot isolate one element from the other. It cannot be solely a means of protecting defendants without taking any account of the protection of victims.
Criminal trials must comply with the requirements of criminal law, which, by its philosophical foundation, entails the right to punish. A criminal trial is the manifestation of the values in whose name a society prosecutes and punishes.
Like a rule of law, the rules governing trials confer on parties to a trial precise rights and powers which cannot be separated from each other.
These rules are reciprocal, multilateral, "assigning, mandatory" (Gurvich, Traité de sociologie).
The defendant cannot impose his absence from the trial as he pleases in order to prevent the victim from being confronted with him.
The European Court has based all its case-law hitherto on the principle that it is essential for parties and witnesses to appear in person so that they may be confronted before the court, which the Court has held to be a vital feature of a fair trial.
It cannot be objected that representation by a lawyer makes up for the accused’s absence. What might at a stretch be conceivable in cases where minor penalties and no civil parties are involved is inconceivable where, in order to be able to present his case, the civil party, the victim, needs to be able to challenge, to unmask his opponent, in cross-examination or under Continental procedure. Or else the civil party who is a victim must be given the right to refuse representation by a lawyer in order that equality of arms may be respected.
Whence it would follow that if the accused never wished to appear and if the victim never wanted him to be represented, society would no longer be in a position to ensure the operation of criminal justice. By a perverse aberration, it would then be the accused who controlled the trial and took the place of the prosecution and the court in conducting it - which would have the result of disarming the State in its major function of dispensing justice.
If civil parties to criminal proceedings or victims are deprived of equality of arms, the field is open to applications from them for breaches of Article 6 (art. 6).
The applicant’s reasoning would have the following consequence, for example: a Mafia boss, drug-trafficker, terrorist or arsonist, duly summoned, refuses to appear in person and demands to be represented by his lawyer.
On this account, the trial will be curtailed, all identification by the victim under adversarial procedure will be impossible. The lawyer has only to contest guilt or challenge identification in order to prevent a conviction, to the detriment of the victim or civil party and to the detriment of the prosecution of the case. Such an option might conceivably be restricted to offences to which small penalties attach, but would that not be to add to the existing Convention?
In that eventuality would there not be discrimination between States - those which make criminal appeal (appel) subject to leave (which may be conditional on appearing in person at the trial) and those which give defendants an unrestricted right of appeal as in the French Code of Criminal Procedure. This would be a two-speed Europe in terms of criminal justice.
When a court issues an arrest warrant, this is not intended as a means of coercion against a defendant who has failed to appear but a legitimate application of the Criminal Code in order to uphold public policy (ordre public).
To maintain that failure to appear could be sanctioned by imposing a fine without any other form of coercion is not to the point. Someone who wishes to elude justice will not fear a fine, which will not induce him to appear in court.
The arrangement of making appeals on points of law conditional on the convicted person surrendering to custody, pursuant to the warrant for his arrest, is another problem.
It is not connected with the problem of trial in absentia because warrants are also issued in proceedings which are fully inter partes.
This condition is comparable to the leave to appeal on points of law required in certain States. Abolishing such a requirement is conceivable, but would that not be to add to the Convention as it currently stands?
Does the Convention require that a court’s right to issue an arrest warrant must be abolished or that a defendant must have an absolute, unlimited right to appeal on points of law even without surrendering to a warrant for his arrest?
As regards the issue of appeal on points of law and the conditions attaching to it where an accused has not surrendered to a warrant for his arrest, the Court of Cassation’s reasoning refers to the general principles of the Code of Criminal Procedure, whereby "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".
Such a rule may be regretted in respect of appeals based specifically on points of law; however, it does not appear from Article 6 (art. 6) that such a rule is in itself a breach of the Convention, even if some writers would like to see the Code of Criminal Procedure reformed in this regard.
The impact of the Court’s judgment is, admittedly, attenuated by the fact that the Court has not expressly determined the issue of arrest ordered in a judgment and the consequences of such a system in relation to the conditions for representation by a lawyer - a situation which, obviously, differs from the case of a defendant summoned to appear before the Court of Appeal and whose arrest has not been ordered in the judgment of a lower court and who seeks leave to be represented by a lawyer in the Court of Appeal in his voluntary absence.
But at all events, in my view, the Court has not taken sufficient account of the principle of balance underlying Article 6 (art. 6) or of the needs of a criminal policy whose aim is to avoid conferring any impunity or privilege on persons seeking deliberately to evade justice.
Criminal law is by definition punitive law. Its purpose is to punish those guilty of causing social disorder. Mr Salas has written "a trial is the place where the social fact is expressed". The philosophical and social choice of favouring at any cost an absent defendant and of making an absolute solely of the defendant’s choice (as to whether or not to appear at the trial) may be a proposition in a Foucault-type conception of criminal justice; but in that case we should have to give up the traditional conception of punitive criminal law and replace it by a new system for which no State offers a model. But that would be to make procedural requirements not provided for in the European Convention. Even Committee of Ministers Resolution (75) 11, which has no binding effect on member States, does not go as far as that; indeed, it implies that the Convention allows States to restrict the rights of those seeking to elude justice.
In this sphere of criminal procedure the spirit of the European Convention seems to me to correspond to the prevailing opinion of criminal-law specialists that victims and accused should be afforded safeguards of identical scope.
1 The case is numbered 39/1992/384/462. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2 As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.
3 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 277-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.
4 Note by the Registrar: judgment of 12 February 1985, Series A no. 89.