The condition that a defendant convicted in absentia appear in person during the retrial does not constitute a disproportionate burden

JUDGMENT

Chong Coronado v. Andorre 23.07.2020 (application no. 37368/15)

see here 

SUMMARY

The case concerned criminal proceedings leading to the applicant’s conviction in absentia at first
instance. The applicant complained that he had not been able to lodge an appeal as he would first
have had to travel to Andorra in person to appear before the first-instance court which had
convicted him. He argued that, if he had done so, he would have immediately been imprisoned.

The Court found in particular that the obligation imposed on the applicant to appear in person in
connection with a recurs d’audiència (application for a retrial) was not a disproportionate burden
that could upset the fair balance between the legitimate concern of ensuring the enforcement of
judicial decisions and the right of access to a court together with the exercise of defence rights. Such
a system sought to strike a fair balance between the interests at stake and could not be regarded as
lacking in fairness.

PROVISION

Article 6

PRINCIPAL FACTS

The applicant, Ernesto Emilio Chong Coronado, is a Panamanian national who was born in 1978. He
lives in Panama.

In April 2014 the Tribunal de Corts convicted the applicant in absentia, for money laundering as part
of an organised criminal group, and sentenced him to five years’ imprisonment (of which two were
suspended) and a fine of 600,000 euros. The court also ordered his expulsion from the Principality of
Andorra and a 20-year ban on re-entry into the country.

The applicant’s appeal was dismissed by the High Court of Justice, which found that it had no
jurisdiction to consider the appeal at this stage. Since the applicant had been convicted in absentia
at first instance, the High Court of Justice considered that he should first lodge an application for a
retrial (recurs d’audiència) with the Tribunal de Corts, which had convicted him. The applicant then
applied to have that decision annulled, arguing that if he appeared in person before the Tribunal de
Corts he would run the risk of being immediately deprived of his liberty. His action was dismissed.
Finally, the applicant lodged an emparo appeal with the Constitutional Court, complaining that his
fundamental rights had been violated. In January 2015 the Constitutional Court dismissed the
appeal, holding that the High Court of Justice had applied the law by declaring the appeal
inadmissible on the grounds that no application for a retrial had been lodged beforehand. It also
ruled that there was merely a potential risk of the applicant being deprived of his liberty if he
appeared before the Tribunal de Corts.

Relying on Article 6 (right to a fair trial), the applicant complained of a violation of his right of access
to a court, stating that in order to appeal against his conviction he was obliged first to appear in
person before the same court as the one which had convicted him. He therefore argued that his
right to defend himself and his right of appeal had been breached, in so far as he would necessarily
have been deprived of his liberty if he had appeared before the Tribunal de Corts. In his view, the
domestic court should not have required him to appear in person or should have guaranteed that he
would not be taken into custody

THE DECISION OF THE COURT…

Article 6 (right to a fair trial / right of access to a court)

Andorran legislation provided any person convicted in absentia at first instance with the possibility
of a fresh determination of the merits of the case by the same court, in fact and in law, after hearing
the person’s defence. This avenue remained open even if the person convicted in absentia had
waived his or her right to appear and to plead a defence or had wilfully absconded. The personal
appearance of the person concerned was the only condition for such a retrial. The person simply had
to appear before the competent judicial body (Tribunal de Corts) or be staying in Andorra in order to
obtain a fresh examination on the merits after lodging the application known as recurs d’audiència.
The Court took the view that it had to determine whether the obligation to appear in person,
imposed on a person convicted in absentia, in the context of a recurs d’audiència, constituted a
disproportionate burden with regard to the right to a fair trial.

Although the applicant claimed not to have travelled to Andorra because his freedom was at risk,
the Court found that the State’s interest in ensuring the physical presence of defendants at their trial
could outweigh their fear of being arrested on that occasion.

Furthermore, in the context of a recurs d’audiència, the convicted person was entitled to request a
stay of execution of any custodial measure until the court had ruled on the case. This had been
granted by the national authorities in many cases (around 80%). This practice in itself showed that
the applicant had not been obliged to surrender to custody in order to have his case re-examined,
both in fact and in law, following his conviction in absentia. However, the convicted person was
required to appear in person in order to set aside the in absentia conviction and for the case to be
fully re-examined. Moreover, a decision to deprive the convicted person of his or her liberty, which
could only be taken by the court (the Tribunal de Corts), could still be appealed against
independently before the High Court of Justice.

Furthermore, the investigating judge had ordered the applicant’s detention after he had absconded
at the start of the criminal proceedings. The applicant had not appealed against that decision, even
though it had been appealable.

He had systematically refused to appear before the national judicial authority. He had therefore
wilfully absconded from the justice system. He had even refused to make a statement before a
Panamanian judge following an international letter of request issued by an Andorran investigating
judge. That fact was difficult to reconcile with his alleged willingness to cooperate fully with the
courts in the criminal proceedings against him. Given that no international arrest warrant had been
issued against him (there was no international extradition treaty between Andorra and Panama), the
Court failed to see any compelling reason why he could not have appeared before the Panamanian
judicial authority.

The Court took the view that the applicant had not intended to appear or cooperate with the
Andorran courts and that, as a result, he had absconded from the justice system. Thus, in view of his
conduct, he could reasonably have foreseen the legal consequences for him, in particular the
obligation to travel to Andorra to have his case retried because of his deliberate absence at the first
trial.

Moreover, the applicant had intended to raise a defence on appeal which concerned only the factual
circumstances and the assessment of the evidence by the first-instance court, and not points of law.
This type of challenge, strongly linked to the principle of immediacy, was likely to prove futile
without the physical presence of the appellant.

Lastly, it was still possible to have the case re-examined because the applicant had not yet travelled
to Andorra in person to be notified of the first-instance judgment.

Consequently, and having regard to the margin of appreciation afforded to the national authorities
in such matters, the Court took the view that the obligation for the applicant to appear in person in
connection with a recurs d’audiència was not a disproportionate burden that could upset the fair
balance between the legitimate concern of ensuring the enforcement of judicial decisions and the
right of access to a court together with the exercise of defence rights. Such a system sought to strike
a fair balance between the interests at stake and could not be regarded as lacking in fairness.

There had not therefore been a violation of Article 6 of the Convention.


ECHRCaseLaw

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