issued by the Registrar of the Court

ECHR 225 (2020)

23.07.2020

Obligation for people convicted in their absence to appear in person before

being able to appeal is not disproportionate

In today’s Chamber judgment¹in the case of Chong Coronado v. Andorra (application no. 37368/15)

the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.

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.

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.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Complaints, procedure and composition of the Court

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 application was lodged with the European Court of Human Rights on 29 July 2015.

Judgment was given by a Chamber of seven judges, composed as follows:

Ksenija Turković (Croatia), President,

Krzysztof Wojtyczek (Poland),

Linos-Alexandre Sicilianos (Greece),

Aleš Pejchal (the Czech Republic),

Armen Harutyunyan (Armenia),

Pere Pastor Vilanova (Andorra),

Pauliine Koskelo (Finland),

and also Renata Degener, Deputy Section Registrar.

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.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.