European Court of Human Rights

Resolution CM/ResDH(2011)212¹

Execution of the judgments of the European Court of Human Rights

Krombach and Mariani against France

(Application No. 29731/96, judgment of 13/02/2001, final on 13/05/2001;

Application No. 43640/98, judgment of 31/03/2005, final on 01/07/2005)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern first the impossibility of being represented by a lawyer in Assizes Court proceedings in absentia (violation of Article 6, paragraphs 1 and 3 c) in Krombach, and violation of Article paragraphs 1 and 3 c), d) and e) in Mariani) and, secondly, the impossibility of appeal on points of law following proceedings in absentia (violation of Article 2 of Protocol No. 7 in both cases) (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 judgments;

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

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)212

Information on the measures taken to comply with the judgments in the cases of

Krombach against France and Mariani against France

Introductory case summary

These cases concerne the impossibility for the applicants to be represented by a lawyer in absentia proceedings in before assize courts, according to the letter of Article 630 of the Code of Criminal Procedure in force at the material time. In the Krombach case, the applicant had clearly signified his wish not to attend the assize court hearing and intended to be defended by his lawyers, who were nevertheless forbidden to speak at the hearing (violation of Article 6§§1 and 3 c)). In the Mariani case, the applicant had not refused to attend but was materially incapable of appearing because of the sentence which he was serving at the time in Italy (violation of Article 6§§1 and 3 c), d) and e)).

These cases also concerned the impossibility for the applicants, under the terms of Article 636 of the Code of Criminal Procedure in force at the material time, to appeal on points of law following their trial in absentia (violation of Article 2 of Protocol No. 7), which made it impossible for them to ask the Court of cassation to review the refusal of the Assizes Court to authorise their lawyers to plead their case (§100 Krombach judgment, cited at § 45 Mariani judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The two applicants claimed to have incurred pecuniary damage owing to the violations undergone, but the Court dismissed their claims in that regard for want of a causal link between the alleged damage and the violations found. As to their non-pecuniary damage, the Court deemed it to be adequately redressed by its findings of violations. Furthermore, the applicants had the opportunity to request the review of the proceedings against them under Articles 626-1 et seq. of the Code of Criminal Procedure. Consequently, no further individual measure was considered necessary.

II. General measures

Articles 630 and 636 of the Code of Criminal Procedure, in force at the material time, were annulled by Law No. 2004-204 of 9 March 2004 “for the adaptation of justice to trends in crime”. More generally, the “in absentia” procedure was replaced the procedure of “criminal default” (Article 379-2 et seq. of the Code of Criminal Procedure).

The Krombach and Mariani judgments were moreover published on the Légifrance public website and circulated (via the website of the Department of European and International Affairs) to all the national courts which directly apply the European Convention of Human Rights as interpreted by the Court. The Krombach judgment has also been the subject of numerous comments in specialist journals and has been presented at seminars (in particular the colloquy on “Trial in absentia (criminal default) in Europe” organised at the Cour de cassation on 13 May 2005).

III. Conclusions of the respondent state

The government considers that no individual measure is required in these cases, apart from payment of the just satisfaction, that the general measures adopted will prevent similar violations, and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.