Komentarz (w j. angielskim) autorstwa Bénédicte Buisson do wyroku ETPCz w sprawie Krombach przeciwko Francji, w której Trybunał stwierdził naruszenie przez Francję przepisów art. 6 § 1 Europejskiej Konwencji Praw Człowieka w związku z art. 6 § 3 (c) oraz stwierdził naruszenie art. 2 Protokołu 7 do Konwencji. 

European Convention on Human Rights and the legal system:
CASE OF KROMBACH v. FRANCE Strasbourg judgment, 13 February 2001

In order of showing the implementation of the European Convention on Human Rights in the French legal system, I have chosen to talk about the case Krombach v France. In this case, the man who was accused of his stepdaughter death was judged in absentia. This procedure was condemned by the Court and consequently reformed.

I The fact

1)    The origin of the case
In 1977, the applicant, a German national is remarried with a French national who had two children from a previous marriage with a French national. During the summer of 1982, the fourteen years old daughter of his wife was found dead at the applicant’s home near Lake Constance where they were on holidays. The applicant said that he injected her with a preparation because she complained that she was not as tanned as she would have liked. When he found her dead he made an attempt to revive her injecting her with various products.

2)    Procedure
The victim's father complained in Germany. The German public prosecutor’s office decided four times to take no further action in the case because of the lack of proof.
The victim’s father lodged a criminal complaint for involuntary homicide in France as well, based on article 689-1 of the French Code of Criminal Procedure, which lays down that "aliens who commit a serious crime outside the territory of the Republic may be prosecuted and tried under French law if the victim is a French national."
After many investigations and requests from the French authorities, in 1995 the applicant was required to appear before Paris Assize Court several times.  He argued that the "non bis in idem" principle had been contravened; no prosecution could lie if there had been a final judgment overseas. Furthermore, he said that he was willing to attend the hearing if he received an assurance that he would remain at liberty throughout the duration of the trial, if it was not possible he wanted to be represented by his lawyer. The authorities refused, that's why he had deliberately chosen not to appear because he feared he would be arrested. Consequently; the French judicial authorities had to judge him in absentia.

3)    The judgment in absentia
By the "in absentia" judgment of 9 March 1995 delivered by the Paris Assize Court the applicant was found guilty of voluntary assault on his stepdaughter unintentionally causing her death and sentenced to fifteen years’ imprisonment.
An "in absentia" trial, named in France "a trial by contumace", is a trial at which the defendant is not present. The provisions concerning this procedure are in the French Code of Criminal Procedure. The article 270 provides for the accused to be tried in absentia if he or she cannot be apprehended and does not attend the trial. The article 627 specifies that if the accused failed to appear he "shall be declared an outlaw, the exercise of his or her rights as a citizen shall be suspended, his or her assets shall be sequestered for the duration of the contempt, and he or she shall not be entitled to take part in any court proceedings during that period".
What's putted into question is the article 630: “No lawyer may attend on behalf of an accused who is in contempt" and the Article 636 explains that: “Persons in contempt shall not be entitled to appeal on points of law.” Concerning the purge, the article 639 provides “If the person in contempt surrenders to custody or is arrested before the time allowed for enforcing the sentence has expired, the judgment and the procedural steps taken after the order requiring the accused to report shall be automatically null and void and the proceedings will continue under the ordinary procedure". This type of procedure is an exception to the common law. Indeed the accused is judged only by professional magistrates instead of a court half composed by a jury. Furthermore, the procedure is only written.
The procedure for the accused’s trial in absentia forms the subject matter of this application before the court, because of the bar on an accused being defended or appealing to the Court of Cassation against an assize-court judgment delivered in absentia.

II the Court decision

1)    the violation of the article 6 § 3 (c) of the convention
The applicant complained that he was barred by Article 630 of the Code of Criminal Procedure from being represented and defended by his lawyers. According the article 6 &1 of the convention "everyone is entitled to a fair hearing by an independent and impartial tribunal" and with the article 6&3 "Everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing".
The Government maintains the need for the accused’s attendance in person in criminal cases. It is a guarantee for the proper administration of justice. It is important to prevent deliberate absenteeism on the part of defendants, and "discourage criminals not to attend hearings or to make arrangements to take refuge overseas while their lawyers pleaded on their behalf ". The Government notices also that Article 6 § 3 (c) of the Convention spoke of “assistance”, not of “representation”. Withdrawing the accused’s right is not a disproportionate measure, as far as it is justified in the interests of the proper administration of justice, permitting to complete the investigation within a reasonable period and to avoid the operation of the statute of limitations and the deterioration of evidence (Colozza v Italy case).
The Government maintained that the purge being automatic once the accused was in the hands of the authorities and a new trial replaced it with the right to be defended. For the applicant, such judgments were not provisional. Indeed, the civil party had sought to enforce the judgment on the civil claims in Germany, while the French authorities had issued a warrant for his arrest and also requested his extradition from Austria.
Does the bar on defense for the applicant at the trial before the Paris Assize Court affected his right to a fair hearing?  The right of everyone charged with a criminal offence to be effectively defended by a lawyer, is one of the fundamental features of a fair trial. That's why the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c), considering that penalizing "the applicant’s failure to appear by such an absolute bar on any defense appears manifestly disproportionate".

2°) the violation of article 2 of protocol No. 7
According the article 2 of Protocol No. 7 to the Convention "Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal".
The applicant wanted to appeal against the judgment in absentia but it was impossible to appeal to the Court of Cassation against a conviction by an assize court after a trial in absentia (Article 636 of the Code of Criminal Procedure). He couldn’t complained both personal and pecuniary consequences produced by the judgment delivered after a trial in absentia.
The Government said that a special remedy replaced the appeal for the trial in absentia: the purge. In such circumstances, there would be a new trial and, if he is convicted, the applicant would then be entitled to appeal to the Court of Cassation in the usual way. The possibility of an appeal subsisted as long as the purge is possible, that is to say twenty years.
The Court said that even if that the "Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised", "any restrictions contained in domestic legislation on the right to a review mentioned in that provision must pursue a legitimate aim and not infringe the very essence of that right". Therefore, there has also been a violation of Article 2 of Protocol No. 7 to the Convention.
Through the condemnation of the France by the Court about this case, it condemns France for the procedure in absentia as such.

III The implementation of the decision in the domestic level
With the Perben II act (on March 9th 2004), the procedure in absentia was abrogated. Instead the procedure" by default" was created.
The article 379-2 provides " the accused who is absent for the audience opening without valid justification is judged by default."  With the article 379-3 "if a lawyer is present to carry out the defense of the accused, the procedure is normal with an oral debate". Article 379 notices "if the accused gives himself up or if he is arrested before that the punishment being subject to limitation by lapse of time, the ruling of the assize court is declared null and there will be a new judgment".
The former procedure had been the object of criticism for a long time. But the condemnation has made the reform necessary; the procedure was contrary to the Human Right principle defined by the Convention. The procedure by default doesn't take part to the exceptional procedures like before but it's a procedure of common law, with some adjustment due to the accused absence. The current procedure guarantees the effective right of the defense. It meets the requirement of a fair trial and in the same time permits the good-functioning of the Justice and the security imperatives.

This case displays the importance of the Court in the protection of the Human Right. Indeed the Court checks if the domestic legislation acts in conformity with the Human Rights. This Court decision permitted to improve the domestic legislation, preventing that the same problem happens several times, extending the protection of the Human Rights.


Bénédicte Buisson