CASE OF GUÉRIN v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
John Freeland;N. Valticos
8. Mr Yves Guérin, a French national who was born in 1942, lives in Brest. At the material time, he was a deputy police sergeant. 9. On 28 November 1990 an airport and border police squad based in Menton stopped a vehicle on the motorway between Ventimiglia and Menton. There were six people inside, of whom five did not have valid papers for entry into French territory. 10. The driver, Mr Sérigné Fall, admitted that he had assisted these five to cross the border illegally. 11. He implicated the applicant, who was at that time serving at the Ventimiglia frontier post, alleging that he had allowed him to enter France in exchange for a payment of five hundred French francs (FRF) and the promise of an imitation Rolex watch. 12. On 29 November 1990 the applicant was charged with accepting a bribe and remanded in custody. 13. In a judgment of 6 June 1991 the Nice Criminal Court acquitted Mr Guérin, rescinded the order for his detention and ordered his immediate release. 14. On 11 June 1991 the prosecution appealed. 15. In a judgment of 14 October 1991 the Aix-en-Provence Court of Appeal, giving judgment in the applicant’s absence, set aside the judgment at first instance and sentenced the applicant to two years’ imprisonment. 16. On 28 June 1992 the applicant requested a retrial. 17. The case was heard on 12 October 1992 at a public hearing attended by Mr Guérin. 18. In a judgment of 23 November 1992 the Aix-en-Provence Court of Appeal found the applicant guilty of accepting a bribe, sentenced him to two years’ imprisonment, six months of which were suspended, and issued a warrant for his arrest. Although the applicant had been duly informed of the date of delivery of the judgment, he was not present. 19. On 24 November 1992 Mr Guérin was admitted to a psychiatric institution, where he stayed until 16 December 1992, when the police enforced the warrant for his arrest. 20. On 26 November 1992, acting through a lawyer with the right of audience in the Aix-en-Provence Court of Appeal, the applicant lodged an appeal on points of law within the time-limit of five clear days laid down by Article 568 of the Code of Criminal Procedure (see paragraph 24 below). In his statement of the grounds of appeal the applicant’s lawyer put forward two arguments, one procedural and one substantive, concerning the elements of the offence. He also explained that “as soon as he knew [the Court of Appeal’s decision], the appellant tried to commit suicide”. On the first point, he referred to the report adopted by the Commission on 3 September 1992 in the case of Poitrimol v. France and pointed out that the Commission had referred to the Court the question whether the relevant case-law of the Criminal Division was contrary to Article 6 § 1 of the Convention. On the second point, the lawyer stated that as the applicant lived in Brest he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him. It would also have been materially impossible for him to comply with the warrant for his arrest in the three days between the reading of the judgment and the lodging of the notice of intention to appeal. Moreover, on learning that he had just been convicted, and immediately after instructing his lawyer to lodge an appeal on points of law, he had tried to commit suicide, and for that reason had been treated in a psychiatric institution from 24 November 1992 to 16 December 1992. Having stayed in that institution throughout the period allowed for an appeal on points of law, it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal. Lastly, the arrest warrant had been executed on 16 December 1992 at the clinic where the applicant remained at the disposal of the courts. The lawyer concluded in the following terms: “There is no doubt that in such conditions applying the case-law established in 1846 in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal.” 21. In a judgment of 19 January 1994 the Court of Cassation declared the appeal inadmissible on the following grounds: “It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on 23 November 1992, which was not executed until 16 December 1992. It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. In the present case the appellant has not supplied evidence of any such circumstances.” 22. In French law an appeal on points of law, which is an exceptional remedy, may be lodged by any person who has an interest in doing so and gives notice within the time-limit, against any judicial decision given at last instance. 23. Article 576 of the Code of Criminal Procedure, which lays down the formalities to be observed in connection with appeals on points of law, provides: “Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged. It must be signed by the registrar and by the appellant himself or by an attorney (avoué) of the court which has given judgment or by a specially authorised agent. In the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar… …” 24. Article 568 of the Code of Criminal Procedure provides: “The prosecution and all parties shall have five clear days after the date on which the impugned decision was given in which to lodge an appeal on points of law.” 25. Article 569 of the Code of Criminal Procedure provides: “During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the Court of Appeal shall be stayed, except in respect of orders concerning civil matters, and unless the Court of Appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.” 26. The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute, particularly in the interests of speedier and more effective punishment. That is the case where an arrest warrant has been issued by the trial court (see, to that effect, B. Bouloc, Précis de procédure pénale, Dalloz, 16th edition, 1996, § 739). 27. Article 583 of the Code of Criminal Procedure provides: “If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit. The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing. For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.” 28. The Court of Cassation has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible (Cass. crim. 10 December 1986, Dalloz 1987, p. 165). But the convicted person may give notice himself of his intention to appeal (Cass. crim. 7 November 1989, Bull. crim no. 397), subject to the provisions of Article 583, reproduced above. 29. The Criminal Division of the Court of Cassation considers that an appeal is admissible in the following two situations: (a) where, instead of acting through a representative, the appellant signs the notice of intention to appeal in person (Cass. crim. 28 June 1978, Bull. crim. no. 57) by reporting to the registry before the warrant has been executed (Cass. crim. 7 November 1989, Bull. crim. no. 397) and accepting the risk of being arrested by mentioning his exact address in the notice (Cass. crim. 13 May 1985, Bull. crim. no. 180; Cass. Crim. 7 September 1993, Bull. crim., p. 263, confirmed by a decision of 15 February 1994 published in the Recueil Dalloz, 1994, Somm., p. 187); (b) where, when acting through a representative, in accordance with Article 576 of the Code of Criminal Procedure, he can prove that there were “circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time” (Cass. crim. 21 May 1981, Bull. crim. no. 168; Cass. crim. 19 January 1984, Bull. crim. no. 27; Cass. crim. 8 March 1985; Cass. crim. 8 March 1996, Bull. crim. no. 94).