CASE OF KHALFAOUI v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. On 20 June 1993 the applicant was informed that he was the subject of a criminal investigation and placed in pre-trial detention on the charge of indecent assault by a person abusing the authority conferred on him by his duties. He was accused of indecently assaulting a woman patient during a vaginal and rectal examination while he was a houseman at a hospital in Montbéliard. 10. The applicant was released under judicial supervision on 24 January 1994. He was required not to enter the urban district of Montbéliard, save in obedience to a summons; to report once a week to Brunoy police station; to hand over his passport and identity card to the registry of the investigating judge; to refrain from entering into contact with the victim; and to deposit 60,000 French francs (FRF) with the registrar of the criminal court. 11. An order of 17 June 1994 partially modifying the conditions of judicial supervision enabled the applicant to travel to Tunisia between July and September 1994. A second application for modification of the conditions of judicial supervision, whereby the applicant sought permission to begin a four-year course of study in Tunisia, was refused by the investigating judge in a decision of 17 October 1994. 12. By an order dated 8 February 1995, the applicant was committed for trial in the Montbéliard Criminal Court. 13. After his trial on 2 June 1995, which the applicant attended in person, the Montbéliard Criminal Court sentenced him to three years’ imprisonment, with one of those years suspended, and ordered him to pay FRF 30,000 in damages to the civil party. The applicant was not present when judgment was delivered on 23 June 1995. 14. In a judgment of 21 November 1995 the Besançon Court of Appeal, after a hearing which was also attended by the applicant, upheld the impugned judgment with regard to the finding of guilt but increased the sentence to four years’ imprisonment, with two of those years suspended, and the damages awarded to the civil party to FRF 40,000. It did not issue a warrant for the applicant’s arrest. 15. On 27 November 1995 the applicant gave notice of an appeal on points of law against the above judgment. 16. By a letter of 20 August 1996, sent to his home in Tunis, the applicant was informed by the Principal Public Prosecutor’s Office at the Besançon Court of Appeal that he was required to surrender to custody on the day before the hearing in the Court of Cassation at the latest, pursuant to Article 583 of the Code of Criminal Procedure, and that the hearing in the Court of Cassation had been set down for 24 September 1996. 17. By a request submitted through his lawyer on 16 September 1996, the applicant applied to the Besançon Court of Appeal, under Article 583 of the Code of Criminal Procedure, for exemption from the obligation to surrender to custody before the hearing at which his appeal on points of law was to be examined by the Court of Cassation. 18. In support of the above request the applicant, who had returned to Tunisia after the Court of Appeal’s judgment of November 1995, produced a medical certificate dated 2 September 1996 from a professor at a Tunis hospital which stated that he had bacilliform pulmonary tuberculosis, first diagnosed in May 1996. This required him to take sick-leave from work and rest for two months, the time needed for intensive treatment of the contagious disease. 19. The applicant asserted that in those circumstances he could not leave Tunisian territory, that his state of health excluded any possibility of his undergoing imprisonment and that making the admissibility of his appeal on points of law depend on his prior incarceration breached Article 6 of the Convention. 20. In a judgment of 19 September 1996, following a hearing which the applicant did not attend, but at which he was represented by his lawyer, the Besançon Court of Appeal, rejecting State Counsel’s submissions, refused the request on the following grounds: “Although the medical certificates produced show the onset of bacilliform pulmonary tuberculosis in May 1996, and the prescription of two months’ rest from 2 September 1996 onwards, they do not establish either that it is impossible for Mr Khalfaoui to travel and to follow a course of treatment appropriate to his condition in France or that any possibility of imprisonment is excluded, as alleged. Article 6 § 3 (c) of the Convention does not give defendants the right to decline to appear before the courts but only the right, if they do appear, to defend themselves in person or with the assistance of a lawyer. Consequently, the provisions of Article 583 of the Code of Criminal Procedure do not appear to be contrary in any way to the principles set out above ...” 21. In a judgment of 24 September 1996 the Court of Cassation declared the applicant’s right to appeal on points of law forfeit, on the ground that he had not surrendered to custody and had not obtained an exemption from the obligation to do so. 22. The relevant provisions of the Code of Criminal Procedure are the following: “Judgments of indictment divisions, and judgments delivered in connection with serious crimes, lesser indictable offences and summary offences against which no ordinary appeal lies, may be quashed in the event of a breach of the law on an appeal on points of law lodged by State Counsel’s Office or by a party affected to his detriment ... The appeal must be lodged with the Criminal Division of the Court of Cassation.” The cases where an appeal on points of law lies for a breach of the law are listed in Articles 593 and 596 as: failure to give reasons, exceeding authority, failure to reply to submissions and, where lesser indictable offences are concerned, imposition of a penalty not prescribed by law. “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.” “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, with or without payment of a surety, exemption 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.” 23. Article 583 of the Code of Criminal Procedure has been amended by Law no. 99-515 of 23 June 1999, which increased the length of the term of imprisonment contemplated therein from six months to one year. The rest of Article 583 is unchanged. Law no. 99-515 also added to the Code a new Article 583-1, which provides: “The provisions of Article 583 are not applicable where a court has convicted a defendant in his or her absence after refusing to apply Article 410 or Article 411. In such a case an appeal on points of law lies only in respect of the legality of the decision in which the court refused to recognise the validity of the excuse put forward by the defendant pursuant to Article 410 or to try him in his absence in accordance with Article 411.”