Omar v. France (43/1997/827/1033) 29 July 1998: appeal on points of law

France – inadmissibility of appeal on points of law on ground that convicted defendants had not complied with warrants for their arrest

Reference to Court’s case-law on right of access to a court.
Where an appeal on points of law is declared inadmissible solely because appellant has not surrendered to custody pursuant to judicial decision challenged in the appeal, which cannot be considered final, this ruling impairs very essence of the right of appeal – disproportionate burden imposed on appellant, upsetting fair balance that must be struck between legitimate concern to ensure that judicial decisions are enforced and right of access to Court of Cassation and exercise of rights of defence.
Crucial role of proceedings in cassation, which form a special stage of criminal proceedings whose consequences may prove decisive for accused.
In its Poitrimol judgment, the Court had said "The inadmissibility of the appeal on points of law, on grounds connected with the applicant’s having absconded, … amounted to a disproportionate sanction…"
That finding was even more valid in the present case: none of the three applicants had attempted to evade enforcement of arrest warrants - they had not been in court for delivery of judgment, but no statutory provision obliged them to attend - police could have apprehended them at any time, and indeed did apprehend one of them - excessive restriction of their right of access to a court, and therefore of their right to a fair trial.

Conclusion: violation (eighteen votes to three).

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