CCPR/C/101/D/1620/2007/Rev.1

GE.11-44723 (E) 260811 300811

Human Rights Committee

101st session

14 March–1 April 2011

Views

Communication No. 1620/2007

Submitted by:

Mr. J. O. (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/Rev.1

International Covenant on

Civil and Political Rights

Distr.: Restricted*

11 August 2011

English

Original: French

CCPR/C/101/D/1620/2007/Rev.1

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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. J. O. (represented by counsel,

Adam Weiss, AIRE Centre)

Alleged victim:

The author

State party:

France

Date of communication:

4 June 2007 (initial submission)

Decision of 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. J. O. 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. J. O., 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.

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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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

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 J. O. 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

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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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.

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

J. O. 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

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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

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.

10 The State party cites communication No. 16/1977, Mbenge v. Zaire, Views adopted on 25 March

1983.

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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

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

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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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

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

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GE.11-44723

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

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. O.

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

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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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

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

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GE.11-44723

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

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

17 CCPR/C/GC/32, para. 31.

18 See also communication No. 16/1977, Mbenge v. Zaire, Views adopted on 25 March 1983, para. 14.1.

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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

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

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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GE.11-44723

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

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.]