Judgment Nejjar v. Switzerland - Use of legal fiction that applicant had withdrawn challenge to conviction

issued by the Registrar of the Court   ECHR 293 (2025)   11.12.2025   European Court finds unfair “deemed withdrawal” of applicant from Swiss   criminal proceedings   In today’s Chamber judgment1 in the case of Nejjar v. Switzerland (application no. 9087/18) the   European Court of Human Rights held, unanimously, that there had been:   a violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights.   The case concerned the applicant’s challenge to a summary penalty order from the public prosecutor’s   office imposing a fine on her. She complained that, on account of her absence from the hearing before   the Police Court, her application to that end had been regarded as withdrawn, in accordance with   Article 356 § 4 of the Code of Criminal Procedure. Under that provision, “where the applicant fail[ed]   to attend the hearing without being excused, and without being represented, his or her application   [was] deemed to have been withdrawn”.   The Court held that, in itself, the procedure for summary penalty orders provided for in Articles 352   et seq. of the Code of Criminal Procedure was not incompatible with the right to a court, for the   purposes of Article 6 § 1 of the Convention. In the case at hand, however, the use of the legal fiction   that the application had been withdrawn under Article 356 § 4 of the same Code had   disproportionately restricted the applicant’s ability to exercise that right.   In particular, the Court noted that the use of that legal fiction had amounted to an indisputable   presumption that the applicant had withdrawn her application, despite the fact that it had been clear   that she had intended to pursue the matter and obtain a judicial examination of the criminal charges   against her.   A legal summary of this case will be available in the Court’s database HUDOC (link).   Principal facts   The applicant is a Moroccan national who was born in 1972 and lives in Switzerland.   By a summary penalty order of 12 May 2016, the Lausanne district public prosecutor’s office found   the applicant guilty of breaching the Federal Aliens and Integration Act and of handling stolen goods,   for having accommodated two irregular immigrants in her home and having accepted items stolen by   one of them. It sentenced her to a day-fine of 30 Swiss francs for a period of 100 days.   The following day the applicant lodged an application challenging the matter, relying on Article 354 of   the Code of Criminal Procedure. A few days later the public prosecutor sent the case file to the Police   Court, where the applicant was summoned to appear in person at 9 a.m. on 5 May 2017.   As the applicant did not appear at the hearing of 5 May 2017, the Police Court considered that her   application had been withdrawn. It further noted that the summary penalty order of 12 May 2016 had   become final and enforceable, in accordance with Article 356 of the Code of Criminal Procedure.   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.   The applicant appealed against the decision, alleging, among other things, a violation of Article 6 of   the Convention. In support of her claim, she submitted a “report of assault” drawn up by a doctor   from the emergency department of a hospital she had visited on 10 May 2017. The report noted   injuries and stated that, according to the applicant, she had been attacked and beaten at her home at   around 8 a.m. on 5 May 2017, approximately one hour before the hearing.   On 30 June 2017 the Criminal Appeals Division of the Cantonal Court dismissed the applicant’s appeal,   finding that she had not shown that she had been prevented through no fault of her own from   appearing before the Police Court. The applicant lodged an appeal with the Federal Supreme Court,   but it was dismissed.   Complaints, procedure and composition of the Court   Relying on Article 6 § 1 (right of access to a court), the applicant complained that her application   challenging the summary penalty order of 12 May 2016 had been deemed to have been withdrawn   on account of her absence from the hearing of 5 May 2017 before the Police Court, in accordance with   Article 356 of the Code of Criminal Procedure.   The application was lodged with the European Court of Human Rights on 16 February 2018.   Judgment was given by a Chamber of seven judges, composed as follows:   Kateřina Šimáčková (the Czech Republic), President,   Georgios A. Serghides (Cyprus),   Gilberto Felici (San Marino),   Andreas Zünd (Switzerland),   Diana Sârcu (the Republic of Moldova),   Vahe Grigoryan (Armenia),   Sébastien Biancheri (Monaco),   and also Martina Keller, Deputy Section Registrar.   Decision of the Court   The procedure for summary penalty orders enabled the public prosecutor’s office to establish the guilt   of an accused and to impose a criminal sanction. The sanction could take the form of a fine, a day-fine   for a period of up to 180 days or a custodial sentence of up to six months.   The Court reiterated that it was not inconsistent with the Convention for the prosecution and   punishment of minor offences to be primarily a matter for the administrative authorities. That applied   especially to criminal sanctions imposed by the public prosecutor’s office. However, there had to be   the possibility of review by a court which satisfied the requirements of Article 6 § 1 of the Convention.   The procedure for summary penalty orders was therefore reconcilable with the right to a court, for   the purposes of Article 6 § 1 of the Convention, but only in so far as the accused had the possibility of   subsequently having access to a court with full jurisdiction to determine the criminal charge against   him or her.   Under Swiss law, an accused who had been the subject of a summary penalty order could apply to the   public prosecutor’s office to challenge the matter. In the event that the public prosecutor decided to   maintain the order, the case was referred to the court of first instance for trial. If the accused was   then convicted at first instance, he or she had the possibility of appealing. The requirements of the   right to a court, as guaranteed by Article 6 § 1 of the Convention, were thus met.   Article 356 of the Code of Criminal Procedure laid down the principle that an application challenging   a summary penalty order was “deemed to have been withdrawn” if the applicant failed to attend the   2 hearing before the court of first instance without being excused or represented. That principle had   been applied in the present case. In this regard, the Court reiterated that neither the letter nor the   spirit of Article 6 of the Convention prevented a person from waiving of his or her own free will, either   expressly or tacitly, the entitlement to the guarantees of a fair trial.   However, such a waiver had to be established in an unequivocal manner and be attended by minimum   safeguards commensurate with its importance. A waiver needed not be explicit, but it had to be   voluntary and constitute a knowing and intelligent relinquishment of a right.   In the present case, the applicant had appealed against the Police Court’s judgment, submitting an   explanation for her absence. By using the remedy provided for in domestic law, in compliance with   the formal requirements and time-limits, she had clearly and expressly stated her wish to maintain   her application challenging the summary penalty order and to obtain a judicial examination of the   merits of the criminal charge against her.   It was not for the Court to rule on the truthfulness or credibility of the applicant’s excuse for her   absence from the hearing of 5 May 2017. It was sufficient to note that she had not voluntarily   abandoned her application challenging the summary penalty order of 12 May 2016 and waived her   right to a court.   The Court then reiterated that the right to a court could be subject to limitations, but that they should   not restrict exercise of the right in such a way or to such an extent that the very essence of the right   was impaired. They had to pursue a legitimate aim and there had to be a reasonable relationship of   proportionality between the means employed and the aim sought to be achieved.   The Government had stated that the purpose of the legal fiction that an application had been   withdrawn, under Article 356 § 4 of the Code of Criminal Procedure, was to avoid a large backlog of   cases in which the defendants had no real interest. That was a legitimate aim, in that it was linked to   the proper administration of justice.   However, the present case concerned the limitation of access to a court of first instance with   jurisdiction to examine the merits of a criminal charge. It therefore affected the very essence of the   accused’s right to a court in criminal matters.   Furthermore, the use of the legal fiction that an application had been withdrawn could result in the   imposition, by non-judicial means and with final effect, of a relatively severe criminal sanction, since   it could entail a six-month custodial sentence or a day-fine for a period of 180 days. The applicant had   thus been sentenced to a day-fine of the equivalent of about 30 euros for a period of 100 days, which   could have led to a 100-day custodial sentence had she failed to pay.   Lastly, in the present case, maintaining the legal fiction had amounted to an indisputable presumption   that the applicant had withdrawn her application, despite the fact that it had been clear, once she had   appealed against the Police Court’s judgment of 5 May 2017, that she had intended to pursue the   matter and obtain a judicial examination of the criminal charges against her. The aim relied on by the   Government to justify the legal fiction of the withdrawal under Article 356 § 4 of the Code of Criminal   Procedure had therefore become irrelevant.   The Court concluded that, in itself, the procedure for summary penalty orders provided for in   Articles 352 et seq. of the Code of Criminal Procedure was not incompatible with the right to a court,   for the purposes of Article 6 § 1 of the Convention. In the case at hand, however, the use of the legal   fiction that the application had been withdrawn under Article 356 § 4 of the same Code had   disproportionately restricted the applicant’s ability to exercise that right. There had accordingly been   a violation of Article 6 § 1 of the Convention.   Just satisfaction (Article 41)   The Court held that Switzerland was to pay the applicant 4,800 euros in respect of costs and expenses.   3 The judgment is available only in French.   This press release is a document produced by the Registry. 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