Decision; Subjects: CIVIL AND POLITICAL RIGHTS, CRIMINAL PROCEDURE, RIGHT TO A FAIR TRIAL, LEGAL REMEDIES, FRANCE; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.11-42397 (E) 030511 010611
Human Rights Committee
101st session
14 March–1 April 2011
Views
Communication No. 1620/2007
Submitted by:
Mr. John Owen (represented by counsel,
Adam Weiss, AIRE Centre)
Alleged victim:
The author
State party:
France
Date of communication:
4 June 2007 (initial submission)
Document references:
Special Rapporteur’s rule 97 decision,
transmitted to the State party on 12 February
2008 (not issued in document form)
CCPR/C/97/D/1620/2007 – decision on
admissibility dated 7 October 2009
Date of adoption of Views:
23 March 2011
Subject matter:
Allegation of abuse of criminal procedure
and conviction for a non-existent offence
Procedural issue:
Non-exhaustion of domestic remedies
Substantive issues:
Right to an effective remedy, right to a fair
trial
Articles of the Covenant:
2, paragraph 1; 14, paragraphs 2, 3 (a) and (b)
and 5; 15, paragraph 1; and 26
Article of the Optional Protocol:
5, paragraph 2 (b)
On 23 March 2011, the Human Rights Committee adopted the annexed text as the
Committee’s Views under article 5, paragraph 4, of the Optional Protocol in respect of
communication No. 1620/2007.
[Annex]
* Made public by decision of the Human Rights Committee.
United Nations
CCPR/C/101/D/1620/2007
International Covenant on
Civil and Political Rights
Distr.: Restricted*
27 April 2011
English
Original: French
CCPR/C/101/D/1620/2007
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Annex
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights (101st session)
concerning
Communication No. 1620/2007**
Submitted by:
Mr. John Owen (represented by counsel,
Adam Weiss, AIRE Centre)
Alleged victim:
The author
State party:
France
Date of communication:
4 June 2007 (initial submission)
Decision on admissibility:
7 October 2009
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 23 March 2011,
Having concluded its consideration of communication No. 1620/2007, submitted to
the Human Rights Committee on behalf of Mr. John Owen under the Optional Protocol to
the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author
of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1
The author of the communication is Mr. John Owen, a British national born on 24
January 1954. He claims to be the victim of a violation by France of article 2, paragraph 1;
article 14, paragraphs 2, 3 (a) and (b) and 5; article 15, paragraph 1; and article 26 of the
Covenant. The author is represented by counsel, Mr. Adam Weiss (Advice on Individual
Rights in Europe (AIRE) Centre).1
** The following members of the Committee participated in the examination of the present
communication: Mr. Lazhari Bouzid, Mr. Ahmad Amin Fathalla, Mr. Cornelis Flinterman, Mr. Yuji
Iwasawa, Ms. Helen Keller, Ms. Zonke Zanele Majodina, Ms. Iulia Antoanella Motoc, Mr. Gerald L.
Neuman, Mr. Michael O’Flaherty, Mr. Rafael Rivas Posada, Mr. Fabian Omar Salvioli and Ms.
Margo Waterval.
Pursuant to rule 90 of the Committee’s rules of procedure, Committee members, Ms. Christine
Chanet, Sir Nigel Rodley and Mr. Krister Thelin did not participate in the adoption of the present
decision.
1 The Covenant and Optional Protocol thereto entered into force for France on 4 February 1981 and 17
May 1984, respectively.
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1.2
On 12 February 2008, at the State party’s request, the Special Rapporteur on New
Communications and Interim Measures, acting on behalf of the Committee, decided to
consider the admissibility and merits of the communication separately.
The facts as submitted by the author
2.1
In October 1993, the author co-founded a company in France called Riviera
Communications and accepted the honorary title of manager of the company. The author
devoted an average of one hour a month to this job, carrying out simple administrative
tasks. He was never paid and never spent more than an hour a month on the company. In
the 1980s and 1990s, the author occupied various accounting posts in American and British
companies in Europe. From April 1994 to December 1995, he was employed by the French
branch of a British company, Willis Corroon, as an accounting and financial director. He
was laid off on 31 December 1995.
2.2
The author registered as a jobseeker at the French National Employment Agency
(ANPE), and filed a claim for unemployment benefit on 31 January 1996. His entitlement
to benefit started on 28 February 1996. From 10 September 1995 to the end of 1995, the
author sent out 108 job applications. In 1996 and most of 1997, the author frequently
sought guidance from ANPE to help him with his job search, and responded to 811 job
offers. Finally, after two years of intensive job hunting, he found a job that matched his
skills, signed a contract in December 1997, and began working as a financial director for a
company in the United Kingdom. Throughout this period of professional inactivity, from
the end of 1995 to the end of 1997, the author had devoted all his time to looking for a new
job.
2.3
On 10 November 1997, ASSEDIC2 wrote to the author to inform him that, upon
review of his case, on 22 October 1997, it had come to light that he had worked as manager
of Riviera Communications ever since the company’s establishment on 21 October 1993.
ASSEDIC deemed that this unpaid work which he had failed to declare at the proper time
was incompatible with the status of jobseeker. On 14 November 1997, ASSEDIC wrote
again stating that the author was obliged to pay back all the benefits he had received over
the past 20 months within 30 days. The letter also stated that the author could submit an
application for reconsideration to the Joint Committee of ASSEDIC within one month.
2.4
On 26 November 1997, ASSEDIC sent a third letter contradicting the first letter of
10 November 1997. According to the Joint Committee of ASSEDIC, collection of partial
unemployment benefit while receiving income from gainful occupation was possible only
under certain conditions, and under the unemployment benefit rules the author’s position as
manager of Riviera Communications precluded the collection of partial benefit. This clearly
reflects confusion on the part of ASSEDIC since the author did not receive remuneration as
manager of Riviera Communications. His counsel therefore submitted an application for
reconsideration on 19 January 1998. The Joint Committee of ASSEDIC rejected this
application on 15 April 1998, invoking the same grounds as in the ruling of 10 November
1997.
2.5
On 17 March 1998, ASSEDIC summoned the author to appear before the Criminal
Court of Grasse for fraud or making a false statement in order to obtain unemployment
benefits. The summons was ruled invalid in the proceedings of 25 June 1999 on the
grounds that it did not give either the date or period of the events. On 27 September 2000,
ASSEDIC issued a new summons to appear before the Court, stating that the author’s
position as manager of Riviera Communications since its establishment in October 1993
2 French Association for Industrial and Commercial Employment (ASSEDIC).
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was incompatible with the status of jobseeker, notwithstanding the author’s claims that the
position was not a real job and that he had never stopped looking for work. The author
contends that the summons contained two blatant contradictions. Firstly, it stated that he
had collected unemployment benefit while engaged in undeclared gainful employment from
28 February 1996 to 31 October 1997. Secondly, it stated that he had started working again
during the period he was receiving unemployment benefits, without notifying ANPE, and
that he had kept that job since the company’s establishment in 1993.
2.6
During the hearing of 26 January 2001, the ASSEDIC counsel requested a correction
to a factual error contained in the summons, replacing “collected unemployment benefits
while engaged in gainful employment” with “collected unemployment benefits while
engaged in an undeclared activity”. The author was not present during the hearing and
contends that this correction should not simply have appeared in counsel’s submission but
should have led the court to declare the summons invalid. A third summons should thus
have been drawn up. However, the statute of limitations ruled out that possibility. During
the hearing of 25 May 2001, at which the author was not present, ASSEDIC explained for
the first time that the author had replied “No” to the question “Are you currently an agent
(mandataire) of a company, group or association?” in the ASSEDIC form, and that doing
so constituted a false statement.3 However, as neither the author nor his counsel had been
informed in advance of the amendments to the charges in the summons, they were unable to
prepare a new line of defence. On 22 June 2001, the criminal court dismissed the author’s
claim invoking the statute of limitations, and gave him a one-month suspended prison
sentence and a fine of €65,843 for fraud or making a false statement in order to obtain
unemployment benefits.
2.7
The criminal division of the Aix-en-Provence Court of Appeal dismissed the
author’s appeal on 15 May 2003, and on 17 February 2004 the Court of Cassation
dismissed his appeal in cassation. On the assumption that the court had not been apprised,
during the criminal trial, of his efforts to find work, the author applied to the Commission
for the Review of Criminal Convictions on 7 December 2004 for a review of his case in
light of new information, namely a list of 919 job applications. The Commission dismissed
his application in its decision of 3 April 2006 on the grounds that, although a British
citizen, he had lived long enough in France to understand the meaning of the word
mandataire (“agent”) in the questionnaire he had filled out; his argument was thus
“unlikely to raise any doubt as to his guilt”.
2.8
The author claims that his wrongful conviction had forced him to reimburse sums he
had not received, and he was forced to take out additional loans to pay off his debt.
The complaint
3.1
The author claims a violation of article 14, paragraphs 2, 3 (a) and (b) and 5; article
15, paragraph 1; article 2, paragraph 1; and article 26 of the Covenant. He claims that he
was the victim of abuse of criminal procedure, and that he had been convicted of a non-
existent offence.
3.2
The author claims that the summons did not clearly set out the exact charges against
him. He invokes general comment No. 13,4 in which the Committee states that “the specific
requirements of subparagraph 3 (a) may be met by stating the charge either orally — if later
confirmed in writing — or in writing, provided that the information indicates both the law
3 The French terms “mandataire” (agent) and “gérant” (manager) being interchangeable, the French
authorities maintained that the author completed the ASSEDIC form with intent to deceive.
4 General comment No. 13 of 12 April 1984 has been replaced by general comment No. 32 of 23
August 2007.
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and the alleged general facts on which the charge is based”. While the Committee’s case
law on this matter is sparse, the author deems that a bare charge of “fraud or making a false
statement in order to obtain unemployment benefits” fails to meet the requirements set out
by the Committee since the officials in question should have provided him with detailed
information on the grounds for the charge. However, the author had gathered that the basis
of the charge was maintaining gainful employment while collecting unemployment
benefits, and it was on that basis that he and his counsel had prepared their defence.
3.3
The author also claims a violation of his right to have adequate time and facilities for
the preparation of his defence. He contends that the lack of clarity in the summons misled
him and his counsel, preventing them from being able to prepare a suitable defence in time.
3.4
The author contends that, by obliging him to prove that the position of manager was
not an obstacle to actively seeking work, the Criminal Court of Grasse violated his right to
the presumption of innocence, protected under article 14, paragraph 2, of the Covenant.
3.5
The author claims a violation by the State party of article 14, paragraph 5, insofar as
neither the Appeal Court nor the Court of Cassation afforded him the opportunity to air his
grievances.
3.6
The author claims a violation by the State party of article 15, paragraph 1, according
to which no one shall be held guilty of an offence on account of any act that does not
constitute an offence under national law. He had been found guilty of fraud or making a
false statement, yet the mere ticking of a box, according to the French case law of the Court
of Cassation, is not sufficient to establish such an offence.
3.7
Lastly, the author contends that the treatment he received from the Commission for
the Review of Criminal Convictions constitutes a violation by the State party of, it must be
assumed, article 26 of the Covenant,5 amounting as it does to discrimination, which in itself
is a violation of article 2, paragraph 1, of the Covenant. In finding that the author’s British
origins were no excuse for confusing the terms mandataire (“agent”) and gérant
(“manager”), the Commission failed to show impartiality. According to the author, no other
case of making a false statement tried in French courts had ever been as unfavourable to the
accused. All the other cases happened to involve French nationals, which proves
discrimination on the basis of nationality by the national court.
State party’s observations
4.1
In a note verbale dated 4 February 2008, the State party contested the admissibility
of the communication on grounds of non-exhaustion of domestic remedies. Referring to the
facts as submitted by the author, the State party points out that, following the ASSEDIC
decision to suspend its degressive single unemployment benefit and request the
reimbursement of the sums the claimant had received from 28 February 1996 to 29 October
1997, the author had brought the case before the Joint Committee of ASSEDIC, yet he fails
to produce the ruling the Committee is said to have rendered.
4.2
The State party argues that domestic remedies have not been exhausted in this case.
Citing the Committee’s case law,6 the State party emphasizes that the author must first set
out his claim before the national courts “in substance”, before bringing it to the Committee.
Indeed, before individuals can assert a State party’s failure to apply the law, they must first
invoke the law in question before national courts, to give the State the opportunity to
remedy the contentious situation itself.
5 The author does not refer explicitly to article 26 of the Covenant.
6 Communication No. 661/1995, Triboulet v. France, Views adopted on 19 August 1997;
communication No. 1118/2002, Deperraz v. France, Views adopted on 10 May 2005.
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4.3
In the present case, the State party contends that there is nothing to show that the
author has brought his claims before national courts. Yet, the rights supposedly disregarded
were and are protected, and thus fully justiciable in the domestic courts.
4.4
The ruling of the Criminal Court of Grasse, which takes up the procedural plea and
the author’s arguments, makes no mention of any allegation of omissions on the part of the
French authorities, as the author claims before the Committee. The State party further notes
that the author did not bring these claims before the Aix-en-Provence Court of Appeal
because the Court had declared the appeal inadmissible, a situation for which the author
himself was to blame for failing to lodge his appeal within the deadline, a fact he does not
mention in his communication. Nor did he bring these claims before the Court of Cassation
or the Review Commission. The author should have been able to bring his claims before
national courts, since he was assisted by counsel at every stage of the proceedings. The
State party thus concludes that, as the author has not invoked the alleged claims of
violations of the Covenant even in substance, before national courts, he has not given
French officials the opportunity to redress them.
Author’s comments on the State party’s submission
5.1
On 23 May 2008, the author argued that he could not have claimed violations of
article 14, paragraphs 2, 3 (a) and (b); article 15, paragraph 1; article 2, paragraph 1; and, it
is assumed, article 26 of the Covenant, before they had taken place. The irregularities in
question are alleged to have occurred in the Criminal Court of Grasse and the Review
Commission. While it would have been appropriate, as the State party notes, for the author
to invoke these irregularities in his appeal, he had been deprived of the opportunity to do
so, since the Aix-en-Provence Court of Appeal had declared the appeal inadmissible.
5.2
The author deems that he is not to blame for this situation. In fact, he had not been
represented by his counsel during the hearing before the Criminal Court on
25 May 2001, contrary to what is stated in the ruling of 22 June 2001. Since the author was
not represented by his initial counsel, but by another who was not properly authorized to
represent him, the 10-day deadline for lodging an appeal under domestic law could only
begin to run from the time of notification of the judgement to the author.7 Yet, as the author
never received such notification, he considers that the 10-day period never started running.
Moreover, since the Criminal Court of Grasse did not indicate in its judgement that the
author had not been represented by counsel, the Aix-en-Provence Court of Appeal had no
choice but to declare the appeal inadmissible. The Court of Cassation subsequently
confirmed the Court of Appeal’s dismissal based on this same erroneous assumption.
5.3
To clarify his lawyer’s role in this matter, the author contends that his counsel was
not present at the hearing of 25 May 2001 before the Criminal Court of Grasse and
neglected to submit to the judge the documents attesting to the author’s job search, which
the author believes constitute crucial evidence for his case. This professional negligence,
for which the author instituted civil proceedings, was recognized by the Aix-en-Provence
7 The author cites article 498 of the Code of Criminal Procedure, which states that, “the time-limit for
appeal runs only from the service of the judgement, however this was carried out [...], for any party
not present or represented at the hearing when the judgement was handed down, but only where such
party or representative was not notified of the day when the judgement would be handed down”. The
author adds that a recent amendment to article 498 of the Code of Criminal Procedure (made
subsequent to the situation described in the present case) explicitly accorded protection which had
been implicit at the time of the alleged offence. According to this amendment, “the time-limit for
appeal runs only from the service of the judgement, however this was carried out […], for any
defendant tried in their absence but in the presence of an advocate to conduct their defence, and where
the advocate has no representation order signed by the defendant”.
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Court of Appeal in its ruling of 29 April 2008. The author’s counsel, Ms. Cohen-Seat,
appealed to the Court of Appeal against the ruling of the Regional Court of Grasse of 12
June 2007, which had found in favour of the author in civil proceedings against his counsel
for professional negligence, instituted on 26 January 2006.
5.4
Notwithstanding the Committee’s case law by which any breach or inaction on the
part of counsel cannot be ascribed to the State party,8 the author notes that, in the present
case, the difficulties he encountered in attempting to exhaust domestic remedies could in
fact be ascribed to the State party as well as to counsel. The civil division of the Aix-en-
Provence Court of Appeal clearly recognized that the author’s conviction was the result of
both negligence on the part of counsel and miscarriage of justice. The Court of Appeal
indeed held that, with regard to the substantive nullity of the ASSEDIC summons, this was
“not just a purely factual error, but a matter which went to the very heart of the definition of
the offence, insofar as John Owen should have been given the opportunity to prepare his
defence on an informed basis”.
5.5
As to the legality of the criminal conviction, the Court of Appeal stated that “simply
replying ‘no’ to the question whether he was currently an agent of a company” was not
sufficient to constitute fraud. Consequently, it was up to ASSEDIC to prove that the
author’s position as manager prevented him from looking for full-time work. In the view of
both the author and the Court of Civil Appeal, by reversing the burden of proof, the
Criminal Court of Grasse violated the principle of the presumption of innocence.
5.6
The author refutes the State party’s argument that he could have asserted his right to
a fair trial before the Review Commission. The Commission procedure9 does not allow for
that. The Commission’s role is limited to determining whether new elements have come to
light during the proceedings which would warrant reconsideration by the trial court. It is not
the Commission’s role to find procedural irregularities. Consequently, the author could not
avoid first lodging his claims of violations of the Covenant before the Committee rather
than first lodging them before national courts.
5.7
Since the author was materially unable to contest the procedural irregularities
committed by the Criminal Court of Grasse or the violations committed by the Review
Commission, he asks the Committee to include in his claims a violation of article 14,
paragraph 5, of the Covenant.
Decision on admissibility
6.1
On 7 October 2009, at its ninety-seventh session, the Committee considered the
admissibility of the communication.
6.2
The Committee noted the State party’s argument that the communication was
inadmissible for non-exhaustion of domestic remedies. It further noted that, according to
the State party, the non-exhaustion of domestic remedies was due to the author’s own
inaction in failing to lodge an appeal within the time established in domestic law and that
the appeal in cassation was not open to the author for the same reason. The Committee
noted the State party’s argument that the rights which had allegedly been disregarded had
been and still were protected by the Covenant and that the ruling of the Criminal Court of
Grasse made no mention of any allegation of omissions on the part of the French
authorities.
8 Communication No. 433/90, A.P.A. v. Spain, Views adopted on 25 March 1994.
9 Article 622 of the Code of Criminal Procedure.
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6.3
The Committee noted the author’s argument that he could not have claimed
violations of the Covenant before they took place; and that the omissions on the part of the
Criminal Court of Grasse and the Review Commission could not at any stage have been
subject to appeal. The Committee further noted the author’s claim that the difficulties he
had encountered in attempting to exhaust domestic remedies could in fact be ascribed to the
State party as well as to counsel; and that, in the author’s civil claim against his counsel
(see paragraph 5.3 above), the civil division of the Aix-en-Provence Court of Appeal had
clearly recognized that the author’s conviction had been the result of both negligence on the
part of counsel and miscarriage of justice. The Court of Appeal had indeed held that, with
regard to the substantive nullity of the ASSEDIC summons, it was “not just a purely factual
error, but a matter which went to the very heart of the definition of the offence, insofar as
John Owen should have been given the opportunity to prepare his defence on an informed
basis”.
6.4
The Committee noted in that regard that the State party had not commented on the
ruling of the civil division of the Aix-en-Provence Court of Appeal even though that Court
had established that the non-exhaustion of domestic remedies could be attributed not only
to the author’s counsel but also to the criminal courts. In those circumstances and in the
absence of a counter-argument from the State party on that specific matter, the Committee
found the communication admissible under article 5, paragraph 2 (b), of the Optional
Protocol.
6.5
As to the alleged discrimination against the author under article 26 of the Covenant,
the Committee did not find the author’s claim that the Review Commission had
discriminated against him on grounds of nationality sufficiently substantiated for purposes
of admissibility. The Committee thus considered that part of the communication
inadmissible under article 2 of the Optional Protocol.
6.6
As to the allegations of violations under article 14, paragraphs 2, 3 (a) and (b) and 5;
article 15, paragraph 1; and article 2, paragraph 1; the Committee found that the author had
sufficiently substantiated his claims for purposes of admissibility.
State party’s observations on the merits
7.1
On 21 May 2008, the State party submitted its preliminary observations on the
merits, which it subsequently asked the Committee to disregard since the Committee had
decided to consider the admissibility of the communication separately from the merits. On
25 May 2010, the State party informed the Committee that, since the communication had
been declared admissible, it would be grateful if the Committee would transmit those
observations to the author.
7.2
In its preliminary observations on the merits, the State party first of all disputes the
claim that the author was not given sufficient time to prepare his defence. The file shows
that the author was aware of the summons on 25 January 2001, when he sent a fax
appointing counsel to represent him, saying that he could not attend the hearing owing to
his professional obligations and the distance between the court and his current location. The
summons had been served on 27 September 2000, and the hearing was scheduled for 26
January 2001, four months after the summons had been served, in accordance with article
552 of the Code of Criminal Procedure. The author claims that he had been residing outside
France for two years and therefore could not have known about the summons. The State
party notes that when the author contested the legality of the summons, at no point did he
invoke his change of address as a reason. The State party points out that under article 392-1
of the Code of Criminal Procedure, the court must first determine the sum that the civil
party must deposit with the court office to guarantee the payment of any civil fine. The first
hearing therefore concerns only the deposit, not the merits of the case. Between the time of
the deposit hearing on 26 January 2001 and the hearing on the merits on 25 May 2001, the
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author had a four-month period to prepare his defence. Furthermore, the author’s counsel
never mentioned the alleged lack of time at the hearing on 25 May 2001, even though she
did submit a written defence. The State party stresses that if this aspect had posed a
problem for counsel, it would have been mentioned in the statement of defence, which was
not the case.
7.3
As to the alleged violation of article 14, paragraph 3, of the Covenant, the State
party points out that that provision guarantees that every individual accused of an offence is
informed promptly and in detail in a language which they understand of the nature and
cause of the charge against them.10 In the present case, the author had been summoned on
27 September 2000 to appear before the Criminal Court of Grasse at the hearing of 26
January 2001, at the request of the Alpes Maritimes branch of ASSEDIC. The accusation is
clearly outlined in the summons, as is the legal basis for the criminal proceedings: “[the
author] collected unemployment benefit while engaged in undeclared gainful employment
from 28 February 1996 to 31 October 1997. Specifically, by fraudulent means [the author]
improperly obtained unemployment benefits in the amount of X francs from the Alpes
Maritimes branch of ASSEDIC. Accordingly, these acts constitute an offence of fraud or
making a false statement to obtain unemployment benefits, which is a punishable offence
under article L. 365-1 of the Labour Code”. The State party therefore considers the author’s
allegation on that matter to be unfounded.
7.4
With regard to the legal status of the offence, the State party cites article L. 365-1 of
the French Labour Code in force from 21 December 1993 to 1 January 2002, which states
that “anyone found guilty of fraud or making a false statement for the purpose of
wrongfully obtaining, helping someone obtain, or attempting to help someone obtain
unemployment benefits or the benefits referred to in article L. 322-4 shall be subject to 2
months’ imprisonment and/or a fine of 25,000 francs, without prejudice to any penalties
arising under other applicable laws. The court may also order the restitution of the sums
improperly obtained”. The criminal division of the Court of Cassation stated in its decision
of 27 February 1996 that “anyone who engages in an activity, even unpaid, that prevents
them from taking positive steps to seek work has fraudulently obtained unemployment
benefits”. The State party adds that while French law no longer calls for imprisonment as
punishment for such acts, they are still defined as an offence under article L. 5429-1 of the
Labour Code, which states that “unless the act is found to constitute the offence of fraud as
defined and punished under articles 313-1 and 313-3 of the Criminal Code, the act of
obtaining or attempting to obtain by fraudulent means the unemployment benefits defined
in this Code, including the flat-rate benefit established by article L. 5425-3, is punishable
by a fine of €4,000. The act of helping or attempting to help someone obtain the
aforementioned benefits by fraudulent means is liable to the same penalty”. The State party
thereby concludes that the charges against the author did in fact constitute an offence and
that there is therefore no violation of article 15, paragraph 1, of the Covenant.
7.5
Regarding the author’s claims under article 2, paragraph 1, of the Covenant, the
State party expresses serious doubts about the author’s inability to understand the French
language to the extent that he could not distinguish between the terms mandataire (“agent”)
and gérant (“manager”). The author worked in France as an accounting and financial
director for an insurance and reinsurance broker in a French branch of a British company.
Furthermore, the other documents submitted by the author show that he has a perfect
command of French. For example, his employment contract, written in French, had been
10 The State party cites communication No. 16/1977, Mbenge v. Zaire, Views adopted on 25 March
1983.
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signed on 4 March 1994 with the added handwritten note “lu et approuvé” (read and
approved).
7.6
Regarding the obligation to notify an individual of a judgement handed down in
absentia, the State party points out that the criminal division of the Court of Cassation
rejected the appeal on the grounds that the contested judgement had correctly applied
articles 411, paragraphs 1 and 2,11 and article 498 of the Code of Criminal Procedure.12 The
Court of Cassation stated that “the authorization that the defendant addressed to the court
granted his counsel the authority to represent him at each hearing to which the case was
assigned, unless the defendant appeared in person before the court, until a judgement was
pronounced”. It also said that “when a defendant is represented by counsel, the deadline for
lodging an appeal is counted from the moment the decision is pronounced”. The State party
considers this position to be in full conformity with the Court of Cassation’s case law
regarding the validity of an authorization for counsel to represent a defendant and regarding
compliance with the audi alteram partem rule when a judgement is pronounced in the
absence of a defendant and the defence has been heard. The criminal division of the Court
of Cassation has repeatedly pointed out that “counsel is invested with a general right to
assist and represent without having to prove that they have a specific authority to act, and
that this appointment of judicial representation is valid for the duration of the legal
proceedings”.13 Secondly, the Court has repeatedly judged that, when the counsel of an
absent defendant has been heard, “the appeal must be lodged within 10 days after the
judgement is pronounced”.14 The State party thereby concludes that the author’s claim is
unfounded.
7.7
In its additional submission dated 7 May 2010, the State party pointed out that the
Committee had asked the State party in its 7 October 2009 decision on admissibility to
comment on the ruling of the civil division of the Aix-en-Provence Court of Appeal, which
had found a miscarriage of justice on the part of the criminal courts. The State party notes
that the Aix-en-Provence Court of Appeal’s decision of 29 April 2008, which dealt
11 Article 411 of the Code of Criminal Procedure in force at the time of the events in question stipulates
that “the defendant accused of an offence punishable by a fine or by less than two years’
imprisonment may, by means of a letter sent to the president and which will be attached to the case
file, request to be tried in absentia.
The same applies in the case of private prosecution by the civil party, regardless of the duration of the
penalty incurred.
In both cases the defendant’s counsel shall be heard.
However, if the court considers it necessary that the defendant appear in person, the district
prosecutor then issues a new summons to the defendant to appear at a hearing on a date set by the
court.
Any defendant who does not answer this summons may be tried adversarially.
The defendant shall also be tried adversarially in the case set out in the first paragraph of this article”.
12 Article 498 of the Code of Criminal Procedure in force at the time of the events in question stipulates
that “except in the case described in article 505, the appeal shall be lodged within 10 days after the
judgement is pronounced. However, the time-limit for appeal runs only from the service of the
judgement, however this was carried out: (1) for any party not present or represented at the hearing
when the judgement was handed down, but only where such party or representative was not notified
of the day when the judgement would be handed down; (2) for any party who requested to be tried in
absentia under the conditions set forth in article 411, paragraph 1; (3) for any party who did not
appear, under the conditions set forth in article 411, paragraph 4. The same applies in the cases set
forth in articles 410 and 494-1”.
13 The State party cites the decision of the criminal division of the Court of Cassation dated 27 October
1999.
14 Court of Cassation, criminal division, decision of 27 November 1978.
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exclusively with the professional responsibility of the author’s counsel, had in no way held
the criminal courts responsible for the failure to exhaust domestic remedies. When the
Court of Appeal indicated on page 6 of its decision that the failure to apply to have the
summons set aside on 26 June 2000 or 25 May 2001, together with the lack of a possibility
of appeal, had twice deprived the author of any reasonable prospect of having it set aside,
both omissions were attributed to the author’s counsel, not the criminal courts. Indeed, the
Court of Appeal found that it was counsel’s error that had deprived the author of any
chance of acquittal and that it was appropriate to award damages.
7.8
The State party stresses that at no point is it stated that the criminal court failed to
meet its obligations in respect of the manner in which the author was notified of its
judgement. In other words, while it is true that the Court of Appeal’s decision criticizes the
decision of the criminal court, it does so only to demonstrate counsel’s professional
responsibility, as she alone was responsible for not having sought to have the summons set
aside, as she could — and, according to the Court of Appeal, should — have done, and for
not giving her client the possibility of appealing within the time allowed. The State party
thus concludes that the criminal courts bear no responsibility for the failure to exhaust
domestic remedies.
7.9
The State party further points out that the Court of Appeal found that the author’s
counsel, in failing to meet her professional obligations, was to blame for depriving the
author of any real prospect of avoiding conviction. The author had received compensation
from the Court in this regard, as his counsel had been ordered to pay €60,000 in damages.
Author’s comments
8.1
In his comments dated 5 July 2010, the author rejects the State party’s argument that
the Court of Appeal’s decision on 29 April 2008 dealt exclusively with the professional
responsibility of the author’s counsel. He considers that in order to evaluate the
consequences of counsel’s negligence, the Court of Appeal was obliged to consider the
author’s guilt and thus imagine the outcome of the proceedings if the author had been able
to appeal his conviction. It is in that context that the Court of Appeal concluded that the
author had not committed the offence of which he was accused, that it confirmed his
counsel’s negligence and that it underlined the criminal court’s failure to apply French
criminal law. The author repeats that the Court’s finding of an omission on the part of the
criminal court, which resulted in failure to apply domestic criminal law and thus a violation
of the Covenant, was an integral part of the Court of Appeal’s decision of 29 April 2008.
The author refers to his comments on that issue in paragraphs 5.4 and 5.5. He explains that
he does not consider that responsibility is shared by the courts in all cases of counsel
negligence, but in the present case the omissions of the criminal court were sufficiently
serious to conclude that the failure to exhaust domestic remedies was also attributable to the
State party authorities. Given the manifest errors highlighted by the civil division of the
Court of Appeal, the author doubts that the State party is sincere when it asserts that the
criminal courts bear no responsibility for the failure to exhaust domestic remedies.
8.2
The author further notes that the State party did not answer his point that the
criminal court’s judgement of 22 June 2001 did not mention the fact that Ms. Cohen-Seat,
the author’s counsel, was not present at the hearing on 25 May 2001. In such
circumstances, the 10-day time limit for appealing the decision can only begin to run from
the time of notification of the judgement to the author, yet, since the author never received
a notification, the appeal lodged on 3 September 2001 was in time. Even though the
criminal court was aware that the author was not represented by his initial counsel at the
hearing, it failed to mention that fact in its decision, as it should have done, so the author
did not have proof of the change of counsel at the hearing on 25 May 2001 until November
2006, when he was given access to his file at the Criminal Court of Grasse. The criminal
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court’s decision should have included this information about the change of counsel. The
author notes that the State party gave no comment or clarification regarding this claim.
8.3
Regarding the compensation the author received in the civil courts, where his
counsel was ordered to pay €60,000 in damages for professional negligence, the author
points out that this sum corresponds to the amount he received in unemployment benefits
from 1996 to 1997 and was forced to pay back when he was convicted by the criminal court
on 22 June 2001. This sum cannot be considered compensation for his wrongful conviction.
The author considers that a civil court decision cannot be considered an effective remedy
within the meaning of article 2, paragraph 3, of the Covenant. The author remains guilty in
the eyes of the French justice system, following legal proceedings that did not apply the
Covenant guarantees. This wrongful conviction continues to prevent the author from
working as a qualified accountant, thereby jeopardizing his ability to provide for his family.
8.4
As to his claims under article 14, paragraph 3 (a), of the Covenant, the author
complains that the State party simply quotes the summons, which states that “Mr. Owen
collected unemployment benefit while engaged in undeclared gainful employment from 28
February 1996 to 31 October 1997.” As the author previously stated in his initial
submission, that summons does not reflect reality because he had never received
remuneration as manager of Riviera Communications (see para. 2.4). The State party did
not comment on this discrepancy, confining itself to arguing that the author had been
“clearly” informed of the charges against him. The issue is not the clarity, but the accuracy,
of the charges. The author stresses that the charges in the summons, while clear, did not
reflect the actual accusations against him. The author again refers to his claim under article
14, paragraph 3 (a) as set out as part of the complaint, in paragraph 3.2 of this
communication, and to which the State party has given no response. To support his
argument, the author refers to the case law of the European Court of Human Rights in the
case of Pélissier and Sassi v. France, in which the Court considered that “particulars of the
offence play a crucial role in the criminal process, in that it is from the moment of their
service that the suspect is formally put on notice of the factual and legal basis of the charges
against him”. The Court goes on to say that “the Convention affords the defendant the right
to be informed not only of the cause of the accusation, that is to say the acts he is alleged to
have committed and on which the accusation is based, but also the legal characterization
given to those acts, ... [which should] be detailed”.15 The Court emphasizes that “in criminal
matters the provision of full, detailed information concerning the charges against a
defendant, and consequently the legal characterization that the court might adopt in the
matter, is an essential prerequisite for ensuring that the proceedings are fair”.16
8.5
Regarding his claim under article 14, paragraph 3 (b), the author refers to his initial
argument and repeats that the alleged violation derives from the fact that he was not
informed of the real factual basis of the charges against him, which were explained in detail
only at the hearing. The State party’s arguments on this point are therefore not relevant.
8.6
Regarding article 15, paragraph 1, the author points out that the State party
misquotes the Court of Cassation’s decision in the case of X … René of 27 February 1996.
That decision states that “even though the defendant’s work during the period in question
[...] was performed on a voluntary basis, the fact that it was full-time [...] still made it
impossible for him to look for other work”. The Court concluded that “the trial courts
determined that the defendant engaged in an activity that did not allow him to take positive
steps to look for work”. This decision suggests that the authorities must also prove that the
15 Pélissier v. France, application No. 25444/94, judgement of 25 March 1999 (Grand Chamber), para.
51.
16 Ibid., para. 52.
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defendant’s voluntary work precludes him from actively looking for a job, yet in the present
case, both the prosecution and the criminal court failed to ascertain, as they should have
done, whether the author’s voluntary work prevented him from actively looking for work.
In his complaint (para. 3.7), the author said that, in similar cases of false statements made
for the purpose of obtaining unemployment benefits, the Commission for the Review of
Criminal Convictions had considered that the false statements in question were not blatant
enough to warrant the defendant being unable to receive the aforementioned unemployment
benefits. Neither this comparison made by the author nor his related claims have been
countered by the State party.
8.7
The author reiterates his arguments concerning article 2, paragraph 1, in particular
regarding the differential treatment he suffered.
8.8
The author points out that the State party did not comment on his claims under
article 14, paragraphs 2 and 5, even though the Committee declared them admissible. The
author maintains his previous arguments regarding those provisions.
8.9
On 26 November 2010, the author submitted additional comments to the effect that
on 1 April 2010 he had petitioned the Minister of Justice under article 620 of the Code of
Criminal Procedure to order the Procurator-General of the Court of Cassation to ask the
criminal division of the Court of Cassation to set aside the rulings of the Criminal Court of
Grasse, dated 22 June 2001, and of the Aix-en-Provence Court of Appeal, dated 15 May
2003, as contrary to French law. That petition was based on the arguments the author had
previously submitted to the Committee. The Minister of Justice rejected the request on 15
October 2010. The author stresses that such a petition does not conflict with the
Committee’s decision on admissibility of 7 October 2009 insofar as the remedy provided by
article 620 of the Code of Criminal Procedure cannot be considered as an effective remedy
within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. In his comments,
the author also explains that he submitted not one but two requests for revision, the second
following the judgement pronounced in the civil proceedings of the Aix-en-Provence Court
of Appeal on 29 April 2008. In this second request, the author argued that the Court of
Appeal’s 2008 decision addressed not only the negligence of the author’s counsel but also
the miscarriage of justice by the Criminal Court of Grasse, and that consequently the
criminal proceedings should be reviewed in the light of the civil court’s findings. The
second request for revision was rejected on 29 September 2009. A careful reading of the
second rejection by the Commission for the Review of Criminal Convictions led the author
to conclude that the evidence submitted in support of his request for revision was sufficient
to merit new criminal proceedings.
Consideration of the merits
9.1
The Committee has considered the present communication in the light of all the
written information made available to it by the parties, as provided for in article 5,
paragraph 1, of the Optional Protocol.
9.2
The Committee notes the author’s allegation under article 14, paragraph 3 (a), in
which he claims that the summons dated 27 September 2000 contained an error that the
criminal courts could not consider as a simple “factual error”, in stating that the author was
accused of having collected unemployment benefit while engaged in “undeclared gainful
employment”. The author considers that the error failed to reflect the actual accusations and
charges against him. The Committee recalls its general comment No. 32 on article 14,17
which guarantees the right of all persons charged with a criminal offence to be informed
17 CCPR/C/GC/32, para. 31.
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promptly and in detail of the nature and cause of the charge against them. The specific
requirements of subparagraph 3 (a) may be met by stating the charge either orally — if later
confirmed in writing — or in writing, provided that the information indicates both the law
and the alleged general facts on which the charge is based.18 It must therefore be
determined whether, in the present case, the summons dated 27 September 2000 meets the
requirements of article 14, paragraph 3 (a), of the Covenant. The Committee is of the view
that the State party has not clarified this point, as it simply reproduced the wording of the
summons of 27 September 2000 without providing the necessary explanation.
9.3
The Committee therefore decided to examine the content of the summons, a copy of
which was provided by the author. It notes first of all that the summons dated 27 September
2000 (that is, before it was amended by the criminal court at the hearing of 26 January
2001) is contained in a six-page document that specifies the offence and the applicable
legal provisions as well as the allegations of fact. Those allegations state that the author
registered as a jobseeker on 31 January 1996; that he had received unemployment benefits
from 28 February 1996 to 31 October 1997; that the author had stated that he had been fully
unemployed since 31 December 1995; that the file had been reviewed following an
application by the author for employment under a cooperation agreement between the
unemployment insurance and a private company; and that it had then come to light that the
author had held a managerial position with Riviera Communications since the company’s
foundation on 21 October 1993. The summons further states that, in light of this activity,
which was unpaid but also had not been declared at the proper time, the author’s file had
been submitted to the Joint Committee of ASSEDIC, which had decided that this activity
was incompatible with the status of jobseeker. The Committee notes that it is only after this
long statement of the facts that the contested passage appears, and it refers to gainful
employment rather than undeclared activity. It must be said that the summons from which
the Committee has cited the relevant passages does not seem confusing, despite the factual
error highlighted by the author. The Committee therefore concludes that article 14,
paragraph 3 (a), has not been violated in the present case.
9.4
Regarding the complaints concerning article 14, paragraph 3 (b), the Committee
notes that the factual error in the summons had been pointed out by ASSEDIC and then
amended by the criminal court at the hearing on 26 January 2001, four months prior to the
hearing on the merits of the case. The Committee concludes that, if the author was not
given an appropriate defence, the responsibility rests with his counsel, who did not use the
time available to prepare a defence. The Committee concludes that the facts before it do not
show any violation of article 14, paragraph 3 (b), of the Covenant.
9.5
Concerning the claim under article 14, paragraph 2, the Committee notes the
author’s argument that it was up to ASSEDIC to prove that the managerial position he held
prohibited him from looking for full-time work, and that by reversing the burden of proof
the Criminal Court of Grasse violated the principle of the presumption of innocence. The
Committee notes the State party’s argument that the author was accused of fraud or making
a false statement in order to obtain unemployment benefits and that the charges against the
author therefore constituted an offence under article L. 365-1 of the French Labour Code.
The Committee notes that in its judgement of 22 June 2001, the criminal court stated that in
his ASSEDIC application of 31 January 1996, the author had replied “No” to the question
“Are you currently an agent (mandataire) of a company, group or association?”; that under
articles L. 351 et seq. of the Labour Code, in order to receive unemployment benefits, it is
necessary to have been unemployed and to be engaged in a full-time, effective job search;
that the author has not proved that during the period in question, his position as manager of
18 See also communication No. 16/1977, Mbenge v. Zaire, Views adopted on 25 March 1983, para. 14.1.
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Riviera Communication allowed him to engage in a full-time, effective job search; and that
consequently he must have been aware that his sworn statement on 31 January 1996 had
been false.
9.6
The Committee recalls its general comment No. 32 on article 14,19 which states that
the presumption of innocence, which is fundamental to the protection of human rights,
imposes on the prosecution the burden of proving the charge, guarantees that no guilt can
be presumed until the charge has been proved beyond reasonable doubt, ensures that the
accused has the benefit of doubt, and requires that persons accused of a criminal act must
be treated in accordance with this principle.20 In this case, it is undeniable that the author
was not given a proper defence owing to his lawyer’s lack of diligence. Nor has it been
denied that during the hearing of 25 May 2001, the author was represented not by his
counsel, but by another who was not authorized to do so; and that it was during this hearing
that the content of the summons to appear before the court, and thus of the charges against
the author, was explained in detail. At this hearing, the criminal court simply stated that the
author had failed to prove that he had not violated articles L. 351 et seq. of the Labour
Code, without offering any evidence in support of this accusation. In view of the limited
opportunity for defence available to the author, the Committee considers that the State
party’s courts placed a disproportionate burden of proof on the author and did not prove
beyond a reasonable doubt that he was guilty of the offences of which he was accused. The
Committee therefore considers that the State party has violated article 14, paragraph 2.
9.7
As to the author’s claims under article 14, paragraph 5, the Committee considers that
failure to notify the author of the ruling in first instance, when he had not been represented
by the counsel who was authorized to do so, denied him his right of appeal. The Committee
concludes that the facts before it reveal a violation of article 14, paragraph 5, of the
Covenant.
9.8
Regarding the author’s claim that article 15, paragraph 1, of the Covenant was
violated because the alleged false statements were not sufficiently blatant to establish an
offence under French criminal law, the Committee notes that the act of which the author
was convicted, namely fraud, in fact constituted a criminal offence under the French
Criminal Code at the time the act was committed.21 The Committee therefore considers that
article 15, paragraph 1, of the Covenant was not violated in the present case.
10.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
information before it discloses a violation by the State party of article 14, paragraphs 2 and
5 of the Covenant, in conjunction with article 2 of the Covenant.
11.
Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that
the State party is under an obligation to provide the author with an effective remedy,
including a review of his criminal conviction and appropriate compensation. The State
party is also under an obligation to ensure that similar violations do not occur in the future.
12.
Bearing in mind that, by becoming party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to guarantee an effective and
19 CCPR/C/GC/32, para. 30.
20 General comment No. 32 on the right to equality before courts and tribunals and to a fair trial.
21 See communication No. 1157/2003 Patrick Coleman v. Australia, Views adopted on 17 July 2006,
para. 6.4.
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enforceable remedy when a violation has been established, the Committee wishes to receive
from the State party, within 180 days, information about the measures taken to give effect
to its Views. The State party is also requested to publish the Committee’s Views.
[Done in English, French and Spanish, the French text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]