CEDH · CASELAW;CLIN;ENG — 14 juin 2001

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Switzerland - 20491/92 Judgment 14.6.2001 [Section II] Article 6 Article 6-3-c Defence in person Conviction in absentia of an accused prevented from attending his trial by decision of a foreign court: no violation   Facts : The applicant, a doctor, practised in Switzerland until 1984. He then emigrated to the United States where he acquired American nationality and continued to practise as a doctor. In 1982 criminal proceedings were instituted against him by the Swiss authorities, mainly for fraud. In 1988 the applicant was summoned to appear in the Assize Court on 17 April 1989. However, he was unable to appear at the hearing, as one of his American patients, who was suffering from cancer, had requested and obtained an order from an American judge preventing the applicant from leaving the United States unless he could be replaced by another doctor, on account of the consequences his departure might have for the patient’s treatment. The applicant had to surrender his passport to the American authorities. The Swiss judicial authorities were informed of the American judge’s order by the applicant’s lawyers, who applied for an adjournment of the trial. The President of the Assize Court refused to adjourn the trial, on the ground that the applicant had failed to justify his absence, and expressed reservations about the American judge’s order preventing the applicant from leaving the country, noting in addition that the applicant had neither lodged an appeal against the decision nor made serious endeavours to find a replacement doctor, although he had had advance notice of the hearing date. The applicant applied to set aside the order preventing him from leaving the United States. However, while that application was being examined, the hearings in the Swiss Assize Court took place on the dates originally scheduled. He was therefore unable to attend, but was represented by his lawyers. The court sentenced him in absentia to a term of imprisonment. The applicant lodged appeals against the Assize Court judgment, submitting, in particular, that his absence had been justified and that his conviction in absentia had been unlawful. His appeals were dismissed by various courts, including the Federal Court, which held that he had misled the American judge by making inaccurate statements, especially about the course of the proceedings in Switzerland, in an attempt to obtain a judgment that would make it impossible for him to attend the trial. He had alleged that he had been unlawfully detained for sixteen months in Geneva and that he feared he would be sentenced to death in Switzerland. He had also maintained that his lawyers had not had access to the case file and had been unable to take part in the earlier proceedings. The court added that the applicant had omitted to appeal effectively against the American judge’s order by challenging it in a court that might have found in his favour. Law : Article 6 § 1 and § 3 (c): The applicant had not been punished for his absence in a manner that infringed his right to legal assistance; at the hearing he had been defended by two lawyers of his own choosing. Under the Geneva Code of Criminal Procedure, persons convicted in absentia could in principle have the proceedings set aside and apply for a retrial both of the merits and of the legal issues. However, the Swiss authorities had rejected the applicant’s application on the grounds that he had not provided any valid excuse for his failure to appear, as required by the relevant provision of the aforementioned Code, and that there was nothing in the file to warrant the conclusion that his absence had been due to circumstances beyond his control. There was no reason to believe that the Swiss courts had acted arbitrarily or had based their decision on inaccurate information. Furthermore, regard being had to the circumstances of the case as a whole, the applicant had to a considerable extent helped to create a situation in which it was impossible for him to appear in the Swiss courts. That was clear from the decision of the Federal Court in particular, which had found that the applicant had misled the American judge by making equivocal or deliberately untrue statements, especially about the proceedings in Switzerland, in an attempt to obtain a judgment that would make it impossible for him to attend the trial. Ultimately, since it was not a case in which the accused had not received a summons or had been denied legal assistance, and in view of the Swiss authorities’ margin of appreciation, the applicant’s conviction in absentia and the refusal to grant him a retrial which he would be able to attend did not amount to a disproportionate penalty. Conclusion : no violation (five votes to two).   © 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