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Judgment Chong Coronado v. Andorra - Obligation For People Convicted in Their Absence To Appear in Person Before Being Able To Appeal
Judgment Chong Coronado v. Andorra - Obligation For People Convicted in Their Absence To Appear in Person Before Being Able To Appeal
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),
2
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.
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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.