Information Note on the Court’s case-law 17
April 2000
Haser v. Switzerland (dec.) - 33050/96
Decision 27.4.2000 [Section II]
Article 6
Criminal proceedings
Article 6-1
Access to court
Obligation to contest a judgment given in default, in order to obtain a judgment in adversarial proceedings before lodging a cassation appeal: inadmissible
Article 2 of Protocol No. 7
Review of conviction
Impossibility for a person convicted in absentia to lodge a cassation appeal directly: inadmissible
In a judgment in absentia delivered in May 1995, the Bellinzona Assize Court sentenced the applicant to three years’ imprisonment coupled with a ten-year exclusion order for fraud, forgery and uttering, and ordered him to make payment of a very large sum of money in restitution to the injured party. During the trial the applicant had been represented by his lawyer, through whom he also lodged four appeals with various courts. In July 1995 the Federal Court ruled a public-law appeal and an appeal on points of law lodged by the applicant inadmissible on the ground that the channels of appeal within the canton had not been exhausted: a person who had been convicted in absentia had to lodge an objection with the competent cantonal court, obtain a judgment in adversarial proceedings and then, where appropriate, bring the case before the cantonal courts of appeal before bringing it before the Federal Court. The applicant had not lodged an objection as provided by Article 264 of the Code of Criminal Procedure (CCP) of the Canton of Ticino. In September 1995 the Court of Cassation of the Canton of Ticino also declared an appeal by the applicant on points of law inadmissible on the ground that a conviction in absentia must be challenged by means of an objection lodged in accordance with Article 264 CCP. The applicant acted through two lawyers to lodge a public-law appeal with the Federal Court against this judgment, arguing that the obligation to remedy the failure to appear was contrary to Articles 6 of the Convention and 2 of Protocol No. 7. In February 1996 the Federal Court rejected this appeal on the ground that it was unfounded. The fourth appeal, lodged by the applicant with the Cantonal Civil Court of Appeal concerning restitution to the injured party was ruled inadmissible in April 1996, as were the public-law appeals and the appeal lodged with the Federal Court. With respect to the public-law appeal, the Federal Court noted that the applicant could still, within the limitation period pertaining to criminal proceedings, bring an application to have the conviction in absentia set aside pursuant to the procedure prescribed by Article 264 CCP.
Inadmissible under Articles 6 § 1 and § 3 (c): This case was to be distinguished from the cases of Poitrimol, Omar and Khalfaoui against France. Firstly, the inadmissibility of the appeals on points of law in the French cases had been based on the fact that the parties to the proceedings had failed to appear, whereas in this case the reason why the Cantonal Court of Cassation did not consider the substance of the applicant’s appeal on points of law was that a conviction in absentia must be challenged by means of an objection lodged in accordance with Article 264 CCP. Secondly, the French cases had concerned appeals on points of law lodged with the highest national court, and as a result the decisions had deprived the applicants of that level of jurisdiction, whereas in the instant case the appeal on points of law had been lodged with a cantonal court whose decision had not put an end to the proceedings at the domestic level since the applicant still had every opportunity until the expiry of the time-limit for the enforcement of the sentence to lodge an objection with the Cantonal Assize Court in accordance with Article 264 CCP, then, if need be, to lodge an appeal on points of law at the cantonal level and finally to appeal to the Federal Court. Furthermore, the fact that the applicant had been represented before the Assize Court and the fact that, by the terms of Article 264 CCP, a person convicted in absentia could obtain a retrial by lodging an objection were compatible with Article 6. The same was true of legislation requiring the person convicted in absentia to remedy the failure to appear before entering an appeal on points of law. It was true that according to Article 264 CCP the person convicted in absentia could remedy the failure to appear only by being arrested or, as in this case, by appearing at the risk of being arrested on the basis of the prison sentence given. However, the interest in adversarial proceedings in a criminal court of first instance, against whose judgment the only remedy was an appeal on points of law, which was a remedy relating only to application of the law, prevailed over the interest of the person convicted in absentia in being exempted from the requirement to remedy the failure to appear so as to avoid the risk of being arrested. Regard being had to the high importance of the appearance of the person convicted to satisfy the requirement of a fair trial, the dismissal of the applicant’s appeal on points of law could not be considered a “disproportionate sanction” infringing his right of access to a court or his right to a fair trial: manifestly ill-founded.
Inadmissible under Article 2 of Protocol No. 7: The applicant had had the opportunity to challenge his conviction by lodging an objection before bringing an application on points of law at the cantonal level and finally lodging an appeal with the Federal Court. The obligation placed on a person convicted in absentia to lodge an objection before bringing an appeal on points of law pursued a legitimate aim in so far as it permitted trial de novo in the presence of the interested party. Furthermore, such an obligation could not be considered to infringe the very substance of the right of appeal: manifestly ill-founded.
Inadmissible under Article 14 read in conjunction with Article 6 and Article 2 of Protocol No. 7: Even if it were assumed that the applicant had raised this complaint in a domestic court, the situations he had referred to were not similar. Firstly, the case of a person convicted in absentia could not be compared to that of an accused who has had the benefit of adversarial proceedings. Secondly, since procedure varied from one Swiss canton to another, accused persons tried in various cantons, like accused persons convicted in various Contracting States, could not lay claim to the same remedies. The applicant could not therefore complain of discrimination: manifestly ill-founded.
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