CEDH · CASELAW;CLIN;ENG — 18 octobre 2005

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France (dec.) - 50018/99 Decision 18.10.2005 [Section II] Article 6 Criminal proceedings Article 6-1 Fair hearing Person retained abroad and tried in absentia whose cassation appeal against an indictment, which was not notified to him personally, was rejected for non-respect of the time-limit: inadmissible   Fair hearing Equality of arms Person retained abroad and tried in absentia whose cassation appeal against an indictment, which was not notified to him personally, was rejected for non-respect of the time-limit: inadmissible   The applicant, a citizen of Djibouti and leader of a political party in opposition to the regime then in power in his country, was suspected of being one of the organisers of a bombing in Djibouti in September 1990 in which a number of French nationals were killed. Two parallel sets of criminal proceedings were opened in Djibouti and in France. In the first, the applicant was placed under judicial supervision in Djibouti in 1998 and his passport was confiscated. In 2001 the Djibouti criminal court convicted him, in a final judgment, of aiding and abetting murder and aiding and abetting attempted murder. He was given a six-year suspended prison sentence. In France, the authorities attempted for a number of years to trace the applicant and took a number of measures to that end, but were unsuccessful. On 13 October 1997 the applicant was indicted by the Indictment Division of the Paris Court of Appeal and committed for trial, together with a number of other individuals, before the Paris Assize Court sitting in the special composition used for terrorism cases. On 17 November 1997 the judgment of the Indictment Division, at the request of the Principal Public Prosecutor at the Paris Court of Appeal, was deemed to have been served on the applicant, with the indication that his address was unknown and that he was currently a “fugitive”, by delivery of a copy to the Principal Public Prosecutor at the Paris Court of Appeal on the ground that the “circumstances [made] it impossible to serve the notice on the addressee”. On 2 September 1998 the President of the Assize Court ruled that the applicant had forfeited his right of appeal and the decision was served on the Public Prosecutor’s office on 9 September 1998 in accordance with the statutory requirements. On 6 November 1998 the applicant appealed on points of law, claiming that the judgment of 13 October 1997 had only been brought to his attention shortly before and by indirect means, since it had not been served on him personally and directly. In February 1999 the Court of Cassation declared the appeal inadmissible as it had been lodged out of time and the applicant was committed to stand trial for aiding and abetting murder before the Paris Assize Court, which, on 29 November 1999, accepted that the refusal by the Djibouti authorities to give him back his passport made it absolutely impossible for him to appear before the French courts. It decided to defer its decision on his case. The applicant’s lawyer subsequently invoked the non bis in idem rule, relying on the judgment already given by the Djibouti criminal court. At the time of the present decision, the case had still not been scheduled for hearing in the Assize Court. Inadmissible under Article 6 – Ineffectiveness of the appeal on points of law: In determining whether a fair hearing has been afforded, the proceedings must be assessed as a whole. In the present case, the Assize Court had acknowledged that it was impossible for the applicant to appear before it and decided to defer its decision. The proceedings were still pending when the present decision was adopted. Moreover, the case was to undergo a new investigation prior to trial before the Assize Court and, in that connection, the applicant would be able to resubmit all the grounds on which his appeal was based. His lawyer had also applied for the discontinuance of the prosecution on the basis of the non bis in idem rule, as the applicant had been convicted of the same offences by a final judgment of the Djibouti criminal court. In addition, recent changes to French law had opened the way for appeals against Assize Court judgments and allowed an absent defendant to be represented by a lawyer. Accordingly, after considering the proceedings as a whole, the Court found that the applicant’s complaint was premature and should be dismissed. Equality of arms : The applicant’s main argument here was that the prosecution had served the judgment “on itself”, with the five-day time limit for the appeal on points of law running from the date of service on the prosecutor. But the rules governing time-limits for appeal sought to provide guarantees of the proper administration of justice and of legal certainty. The right of access to a court did not prevent Contracting States from providing for a procedure to address situations where a person concerned by judicial proceedings could not be traced, provided the rights of those concerned were duly protected. That was the situation in the present case, because the French authorities had taken measures in an attempt to trace the applicant and he remained entitled to submit his arguments to the trial court. The principle of equality of arms had not therefore been infringed: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes