Facts
The case concerns a criminal law appeal filed by attorney [B.] on behalf of his client [A.] against a judgment of the Criminal Court of Appeal of the Cantonal Court of the State of Fribourg. [A.] had been convicted by default for a serious violation of road traffic rules to a custodial sentence of 18 months, with 12 months suspended for five years. Attorney [B.], who had acted as A.'s court-appointed defender during the cantonal proceedings, filed an appeal with the Federal Tribunal without having a power of attorney from his client.
The Federal Tribunal invited attorney [B.] to produce a recent power of attorney including the power to appeal, but the attorney responded that he had never met or heard from [A.] since the beginning of the criminal proceedings and that he believed he could act validly without a power of attorney. The Federal Tribunal then drew attorney B.'s attention to the potential consequences of an appeal filed without a power of attorney or a court-appointed mandate and gave him a deadline to withdraw the appeal, which attorney [B.] refused to do.
Considerations
The Federal Tribunal examined the question of whether attorney [B.] could represent [A.] without a power of attorney, given that the criminal case constituted a mandatory defense case at the cantonal level. The Federal Tribunal considered that the FSCA does not recognize the institution of mandatory defense in the sense of art. 130 et seq. CrimPC and that attorney [B.] could not claim to represent [A.] outside of any mandate conferred by the latter.
The Federal Tribunal also examined the question of whether the FSCA presented a gap regarding the situation of a person convicted by default whose attorney cannot obtain a power of attorney. The Federal Tribunal considered that the FSCA does not recognize a gap in this regard, as it allows parties to act alone or to be represented subject to proof of the representative's powers.
The Federal Tribunal finally considered that art. 41 FSCA, which establishes a case of…