European Court of Human Rights

Resolution CM/ResDH(2010)91¹

Execution of the judgment of the European Court of Human Rights

Harizi against France

(Application No. 59480/00, judgment of 29 March 2005, final on 29 June 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to a fair trial in criminal proceedings because he had been denied representation in the court of appeal on account of his failure to appear (Article 6, paragraphs 1 and 3c) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken in the Harizi case at the 982nd meeting of the Ministers’ Deputies (5 December 2006), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)91

Information about the measures to comply with the judgment in the case of

Harizi against France

Introductory case summary

The case concerns a breach of the right to a fair trial in criminal proceedings against the applicant for failing to comply with a deportation order (violation of Article §§ 1 and 3 d).

The European Court found that there had been a breach of the rights of the defence because in 1999 the court of appeal, pursuant to the domestic law in force at the time, had denied the applicant representation because of his failure to appear before the court. Although he had expressed his wish to attend the proceedings before the court of appeal, he could not do so without breaking French law because the deportation order issued against him had been finally applied and the authorities had not issued him with a laissez passer allowing him to return to France. In a default judgment of 15 October 1999 the applicant was sentenced to six months’ imprisonment and excluded from French territory for ten years.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The applicant filed no objection to the Paris Court of Appeal’s judgment of 15/10/1999. The sentence against him became time-barred on 21/01/2005, so could no longer be executed. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The European Court also referred to the Dentico judgment delivered by the plenary assembly of the Cour de Cassation on 2/3/2001, that is after this case had come before the European Court. According to this judgment, "the right to a fair trial and the right of every person accused to be represented by counsel are incompatible with a court’s judging an accused who fails to be present without excuse, without giving a hearing to the accused person’s counsel, if present in the court".

In view of the critical importance of the accused being present at hearings (§ 49 of the judgment) and of the need for the applicant to be allowed entry into French territory to attend the hearing as he wished, the judgment has also been sent to the relevant authority in this case, namely the office of the Paris Public Prosecutor.

III. Conclusions of the respondent state

The government considers that no individual measures are necessary in this case, that the general measures adopted will prevent similar violations and that France has accordingly fulfilled its obligations pursuant to Article 46, paragraph 1, of the Convention.