Individual Application

The Facts

The applicant, who had been tried by the incumbent assize court for allegedly committing the offences of forming and leading a criminal organisation, aggravated robbery, intentional injury, incitement to assault with a weapon, and other various offences, was convicted of some of these offences including forming and leading a criminal organisation, while acquitted of the remaining ones including incitement to assault with a weapon and aggravated robbery.

On the applicant’s request for an appeal on points of facts and law, examined without holding a hearing by the criminal chamber of the Regional Court of Appeal (criminal chamber), the criminal chamber partially quashed the first-instance decision and dismissed the appeal request on the merits insofar as it related to certain offences. At the end of the retrial conducted following the quashing decision, the applicant was sentenced to imprisonment respectively for incitement to assault with a weapon, aggravated robbery, and threat. The applicant once again appealed the decision, which was however dismissed on the merits, with no right of appeal, by the criminal chamber.

The applicant’s subsequent requests for a cassation appeal against the final decision was also dismissed.

The Applicant’s Allegations

The applicant maintained that his right to access to a court was violated due to his inability to exercise the right to appeal, as the appellate review had not been conducted in accordance with the procedure prescribed by law.

The Court’s Assessment

In Article 280 § 1 of the Code of Criminal Procedure no. 5271, the decisions that may be issued by the criminal chambers of the regional court of appeal following an examination of the case-file are divided into four categories: “dismissal of the appeal request on the merits”, “dismissal of the appeal request on the merits with a minor amendment”, “quashing of the decision” and “remittal of the case for retrial”. The circumstances under which the criminal chambers may decide to quash the first-instance decisions are listed exclusively in Article 280 § 1 (e) and (f) of Code no. 5271. In consideration of these grounds laid down in the Code, it appears that these limited circumstances -whereby the regional court of appeal may quash a decision and the incumbent first-instance court may be bound by the quashing decision- are not matters related to the merits of the case, but rather the cases of gross and manifest breaches of procedural rules. 

In the present case, in quashing the first-instance decision, the criminal chamber failed to rely on one of the limited statutory grounds, which justifies the quashing of a first-instance decision. After examining the appeal request on the basis of the case-file and assessing the available evidence, the criminal chamber quashed the decision insofar it acquitted the applicant of certain offences –for a ground other than those on which a quashing decision may be made–, stating that the applicant should have been convicted of these offences, or the first-instance court should have made necessary inquiries. It has been accordingly concluded that such matters must be addressed by the regional court itself rather than the remittal of the case to the lower courts.

The quashing of the decision by the criminal chamber for a ground other than those exclusively listed in Code no. 5271 entails significant consequences for the applicant. As a matter of fact, the criminal chamber should have decided on the case by holding a hearing under Article 280 § 1 (g) of Code. 5271 where it should have assessed the available evidence in the presence of the parties. However, the criminal chamber rendered its decision on the basis of the case-file. It thus deprived the applicant of his right to oral proceedings before the regional court of appeal and other related procedural safeguards, along with his right to access to a court.

The impugned procedure adopted by the criminal chamber had important consequences also in terms of the right to appeal. In this sense, in the event that the criminal chamber orders a retrial which ultimately leads to a conviction, the individual concerned would normally have the right to appeal this decision. However, in the present case, the applicant was deprived of the opportunity to lodge a cassation appeal, as the criminal chamber quashed the decision with no right of appeal.

In the light of these findings, the Court has concluded that the criminal chamber caused an interference -lacking a proper legal basis- with the applicant’s right to access to a court, stating that its interpretation of the rules concerning the appellate review procedure was foreseeable for individuals and was contrary to the wording of the law.

Consequently, the Court has found a violation of the right to access to a court within the scope of the right to a fair trial.