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You are here: BAILII >> Databases >> European Court of Human Rights >> LALA v. THE NETHERLANDS - 14861/89 [1994] ECHR 30 (22 September 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/30.html
Cite as: [1994] ECHR 30, 18 EHRR 586, [1994] 18 EHRR 586, (1994) 18 EHRR 586
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In the case of Lala v. the Netherlands*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr B. Walsh,
Mr S.K. Martens,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 March and 23 August 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar. The case is numbered 25/1993/420/499. The
first number is the case's position on the list of cases referred to
the Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding originating
applications to the Commission.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 12 July 1993 and by the
Government of the Kingdom of the Netherlands ("the Government") on
30 August, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 14861/89) against the
Netherlands lodged with the Commission under Article 25 (art. 25) by
a Netherlands national, Mr Radjinderpersad Roy Lala, on 8 March 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred only to Articles 44
and 48 (art. 44, art. 48). The object of the request and of the
application was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the
Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. On 23 August 1993 the President of the Court decided, under
Rule 21 para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider both
the instant case and the case of Pelladoah v. the Netherlands
(27/1993/422/501).
4. The Chamber to be constituted for this purpose included
ex officio Mr S.K. Martens, the elected judge of Netherlands
nationality (Article 43 of the Convention) (art. 43), and
Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).
On 25 August 1993, in the presence of the Registrar, the President drew
by lot the names of the other seven members, namely Mr F. Matscher,
Mr B. Walsh, Mr R. Pekkanen, Mr J.M. Morenilla, Mr A.B. Baka,
Mr G. Mifsud Bonnici and Mr J. Makarczyk (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
5. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 26 November 1993 and the applicant's memorial
on 3 December. The Secretary to the Commission informed him that the
Delegate would submit his observations at the hearing.
6. On 3 December 1993 the Commission produced certain documents
from the file on the proceedings before it, as requested by the
Registrar on the President's instructions.
7. In accordance with the decision of the President, who had given
the applicant leave to use the Dutch language (Rule 27 para. 3), the
hearing took place in public in the Human Rights Building, Strasbourg,
on 22 March 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mrs I.M. Abels, Ministry of Justice,
Mrs M.J.T.M. Vijghen, Ministry of Justice, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr B.R. Angad Gaur, advocaat en procureur, Counsel,
Mr C.J. van Woerden, Adviser.
The Court heard addresses by Mr de Vey Mestdagh, Mr Schermers
and Mr van Woerden, and also replies to questions put by several of
its members.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mr Radjinderpersad Roy Lala is a Netherlands national born in
1961 and resident in The Hague.
It appears that in proceedings predating, and unrelated to, the
events complained of he was sentenced to pay a fine, failing which he
was liable to a term of detention (hechtenis).
9. On 19 November 1986, after a trial in absentia, the Hague
Regional Court (arrondissementsrechtbank) convicted Mr Lala of the
indictable offence (misdrijf) of forgery (valsheid in geschrifte) in
that he had concealed an income from work while enjoying social-
security benefits. It sentenced him to four weeks' imprisonment
(gevangenisstraf), two weeks of which were suspended for a probationary
period of three years on condition, inter alia, that he co-operated in
repaying the excess.
10. Mr Lala filed an appeal to the Hague Court of Appeal
(gerechtshof).
Summoned to the hearing of that court on 7 September 1987, he
failed to appear. The official record of the hearing states that
Mr Lala was declared to be in default and contains the following
passage:
"Mr A. G., lawyer in The Hague, is present as counsel of the
accused and states that his client will not appear at the
hearing because he is still liable to pay a fine, which he is
unable to do, and he therefore runs the risk of being arrested
immediately to serve the term of detention to which he is
liable in the event of failure to pay."
11. In its default judgment of 21 September 1987, the Court of
Appeal overturned the judgment of the Regional Court on technical
grounds; it again convicted Mr Lala but reduced the sentence to two
weeks' imprisonment.
12. Through his lawyer, the applicant filed an appeal on points of
law to the Supreme Court (Hoge Raad). Those of his complaints which
are of relevance here may be summarised as follows: firstly, the Court
of Appeal had not allowed the applicant's counsel to speak last, as
required by law; and secondly, not only had the Court of Appeal not
allowed the applicant's counsel to conduct the defence, although the
latter had signalled the wish to do so by his presence, but the Court
of Appeal had also failed to determine whether Mr Lala had had a
compelling and legitimate reason not to appear, in which case his
counsel should have been entitled to conduct the defence in his
client's absence.
13. In its judgment of 27 September 1988, the Supreme Court dealt
with the applicant's second complaint first in the following terms:
"In cases where the accused has not appeared but his counsel
is present at the beginning of the court hearing, the court
may proceed on the assumption that if counsel for the accused
wishes to act as such despite the absence of his client, he
will make this known to the court. As the record of the
hearing of the Court of Appeal contains nothing from which it
might be deduced that counsel made it known to the Court of
Appeal that he wished to act in that capacity - neither his
own presence nor his explanation of his client's absence will
serve this purpose - it must be assumed that he has failed to
do so. Under these circumstances the Court of Appeal was not
obliged to allow counsel to act as such in the course of the
hearing of the criminal case against his client."
As to the first complaint, the Supreme Court held that it
appeared from the official record of the hearing that the lawyer had
stated the reasons for his client's absence, but not that he had acted
as counsel during his client's trial. Consequently, that it had to be
assumed that he had not so acted. Accordingly, the Court of Appeal had
been under no obligation to allow the lawyer to speak last.
II. Relevant domestic law and practice
A. Trial in absentia
14. In general, the accused - if he is not a juvenile
(section 500 h of the Code of Criminal Procedure (Wetboek van
Strafvordering, CCP)) - is not under an obligation to appear at the
hearing.
The court must examine of its own motion the validity of the
summons (geldigheid der dagvaarding - section 348 CCP). If, in spite
of having been properly summoned, the accused does not appear at
the hearing, the court will declare him to be in default (verstek
verlenen) and proceed with the case in his absence. This is the rule
even if the accused gives prior notice of his absence and asks for the
hearing to be adjourned (see, inter alia, the judgment of the Supreme
Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands
Law Reports) 1985, 567) or submits his defence in writing (see the
judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even
if the accused cannot be blamed for his absence (see, inter alia, the
judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and
10 October 1989, NJ 1990, 293). The court has the power to order the
accused to appear or to be produced before them by the police
(section 272 CCP) but it is rarely made use of unless the accused is
a juvenile.
15. An accused who has been convicted in his absence by the
first-instance court may file an objection (verzet - section 399 (1)
CCP); this is an ordinary legal remedy in Netherlands law. Such an
objection entitles the accused to a full retrial by the same court
(section 403 CCP).
An objection may not be filed by an accused who has, or has
had, the opportunity to appeal to a higher court with jurisdiction as
to both fact and law (hoger beroep - section 399 (2) CCP). This means
that the possibility of an objection is limited to those cases in which
the law does not admit of such an appeal, i.e. where the sentence is
nothing more serious than a small fine or where a regulatory offence
(overtreding) has been dealt with in first instance by the Regional
Court.
It follows from section 339 (1) CCP that no objection may be
filed against a default judgment given on appeal.
B. Rights of the defence in the absence of the accused
1. Representation
16. In certain cases the accused may be represented in his absence.
In cases which are dealt with at first instance by the Regional Court,
this possibility exists if the criminal offence with which the accused
is charged does not carry a prison sentence. However, the
representative must be a lawyer who must state that he has been
specifically empowered to act as such (bepaaldelijk daartoe
gevolmachtigd - section 270 CCP).
At the hearing the procedural position of the representative
is that of the accused himself, i.e. - even if the representative is
a lawyer - not that of counsel (see, inter alia, the judgment of the
Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the
accused, he may be cross-examined by the court and the prosecution and
his statements may be used as evidence (see the judgment of the Supreme
Court of 13 February 1951, NJ 1951, 476); he may also be assisted by
a lawyer - or another lawyer - as counsel.
If representation is allowed at first instance before the
Regional Court, it is also allowed on appeal before the Court of Appeal
(section 415 CCP).
2. Conducting the defence
17. The question - which was in dispute among learned writers -
whether the defendant, having been declared in default, is entitled to
have his defence conducted for him by counsel was decided by the
Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293).
Although the Procurator General (procureur-generaal) had suggested an
answer in the affirmative, the Supreme Court came to the opposite
conclusion. It reasoned that, were such an entitlement to be
recognised, trial in absentia would take on an adversarial character
incompatible with the basic idea of the Code of Criminal Procedure that
a defendant who had been declared in default and convicted might always
file an objection if he felt that he would not have been convicted had
the court heard his defence. The Supreme Court went on to hold that
it was true that since the introduction of the Code of Criminal
Procedure the right to file an objection had been considerably
curtailed, but pointed out that in so doing the legislature had not
changed the character of trial in absentia. In conclusion, no section
of the Code of Criminal Procedure nor any principle of unwritten law
entitled a defendant who had been declared in default to have his
defence conducted in his absence by counsel.
18. The Supreme Court has accepted, however, that a trial court
may, at its discretion, allow counsel to speak in defence of an accused
who has been declared in default. This discretion is quite frequently
made use of. The Supreme Court strictly maintains the rule that if in
such cases a trial court allows counsel to speak at all, it must allow
him all rights available to the defence. It may not impose any
limitations as to what subjects he may address (judgment of
19 May 1987, NJ 1988, 217); it may not deny him the right to speak last
(judgment of 22 March 1988, NJ 1989, 13); if there are witnesses,
counsel must be permitted to cross-examine them (judgment of
28 May 1991, NJ 1991, 729).
19. In principle the Supreme Court has held to its rule (see
paragraph 17 above) that a defendant who has been declared in default
is not entitled to have his defence conducted by counsel, but since its
judgment of 26 February 1980 (NJ 1980, 246) it is its established
case-law that there is one exception: in that judgment, it ruled, on
the basis of, inter alia, Article 6 (art. 6) of the Convention, that
a trial court is obliged to allow counsel to conduct the defence of an
accused who has been declared in default if it is of the opinion that
"compelling reasons" (klemmende redenen) prevent the accused from
appearing at the hearing and it sees no reason to defer its examination
of the case. The Supreme Court has accepted the corollary that counsel
should in any case, if he so requests, be allowed the opportunity to
argue that such reasons exist (judgments of 10 October 1989, NJ 1990,
293, and 19 December 1989, NJ 1990, 407).
20. The Supreme Court, in its judgment of 16 February 1988
(NJ 1988, 794), has held that a "compelling reason" exists not only if
it is impossible for the accused to appear, but also if such an
important interest is at stake for the accused that - in view of all
circumstances that may be considered relevant - he cannot reasonably
be expected to appear for trial and may therefore expect either that
his trial will be adjourned until some later time when he will be able
to attend or that his counsel will be allowed to conduct the defence.
The Supreme Court has consistently refused to accept the
possibility of the accused being arrested as a "compelling reason" for
his absence (see, inter alia, its judgments of 24 November 1988,
NJ 1988, 638, of 9 February 1992, DD (Delikt en Delinkwent, Offence and
Offender) 93.292, and 4 May 1993, DD 93.396, in addition to its
judgment in the instant case).
21. If counsel wishes to act for the defence in the absence of his
client, he should expressly ask permission to do so. His presence
alone is not sufficient (see, inter alia, the judgments of the Supreme
Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987,
686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145;
14 December 1993, DD 94.166). Nor does a request made by counsel for
the hearing to be deferred suffice, as was held in, inter alia, the
Supreme Court's judgment of 21 December 1993 (DD 94.176).
PROCEEDINGS BEFORE THE COMMISSION
22. Mr Lala applied to the Commission on 8 March 1989. Relying on
Article 6 paras. 1, 2 and 3 (c) (art. 6-1, art. 6-2, art. 6-3-c) of the
Convention, he alleged that he had not had a fair trial in that his
counsel had not been heard by the Court of Appeal and his conviction
had been based exclusively on prosecution evidence.
23. The Commission declared the application (no. 14861/89)
admissible on 21 October 1992. In its report of 4 May 1993
(Article 31) (art. 31), the Commission expressed the unanimous opinion
that there had been a violation of Article 6 para. 1 taken in
conjunction with Article 6 para. 3 (c) (art. 6-1, art. 6-3-c), and that
there was no separate issue under Article 6 para. 2 (art. 6-2).
The full text of the Commission's opinion is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 297-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
24. In their memorial, the Government concluded that "there [had]
... been no question, in the case of Mr Lala, of any violation of
Article 6 para. 3 (c) (art. 6-3-c) or of Article 6 para. 1 (art. 6-1)
of the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (c) (art. 6-1,
art. 6-3-c)
25. Mr Lala complained that at the appeal hearing before the Court
of Appeal of The Hague his counsel had not been allowed to conduct the
defence in his absence. He relied on Article 6 paras. 1 and 3 (c)
(art. 6-1, art. 6-3-c) of the Convention, which provide:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing ..."
The Government rejected this submission but the Commission
accepted it.
26. As the requirements of paragraph 3 of Article 6 (art. 6-3) are
to be seen as particular aspects of the right to a fair trial
guaranteed by paragraph 1, the Court will examine the complaints under
both provisions taken together (see, as the most recent authority, the
Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A,
p. 13, para. 29).
27. In its report, the Commission considered that the right to
defend oneself through legal assistance cannot be invoked only by
defendants who are themselves present at their trial. The Commission
was therefore of the opinion that the position adopted in Netherlands
law, namely that an accused who does not attend his trial in person
loses the right to defend himself through counsel, is incompatible with
the respect for the fundamental guarantees which every person charged
with a criminal offence should enjoy. The need to secure the
attendance of the accused at the trial could not, in their opinion,
justify proceeding to judgment against him without hearing the defence
he wishes to put forward through his counsel.
At the hearing before the Court the Delegate of the Commission
stressed that the principle of equality of arms enshrined in Article 6
(art. 6) required the arguments of the defence to be heard as far as
possible in addition to those of the prosecution. While accepting that
it was important that the accused should be present at his trial, which
was the view expressed by the Court in its Poitrimol judgment referred
to above (ibid., p. 15, para. 35), he considered it inherently wrong
that the threat of "forfeiture of human rights" should be used to
compel him to attend.
28. The applicant stressed that he did not complain of having been
prevented from defending himself, but from being defended by his
counsel, who in fact attended the hearing of the Court of Appeal. He
acknowledged the importance of the accused's attendance at trial, but
contended that if, as in his case, the accused did not appear because
of a reasonable fear of being arrested, it was disproportionate to
penalise non-appearance by preventing his counsel, who was prepared to
defend him, from doing so.
He maintained that his counsel had specifically requested the
court to be allowed to conduct his defence (the official record was
incomplete in this respect), while pointing out that in any case his
counsel had appeared in court at the appointed time, fully robed, and,
as was self-evident, for no other reason than to conduct the defence.
29. The Government contended in the first place that it did not
appear from the official record of the hearing that the applicant's
counsel had explicitly requested permission to conduct the defence, as
he should have done under the pertinent rules of Netherlands criminal
procedure (see paragraph 21 above).
Furthermore, they maintained that the rule adopted by the
Supreme Court, according to which a defendant who had been declared in
default was not entitled to have his defence conducted by counsel
unless there appeared to be compelling reasons for his absence (see
paragraph 19 above), purported to dissuade those charged with a
criminal offence from not attending trial. They stressed the
importance of the accused's attendance. The system was in their view
well balanced and not incompatible with Article 6 paras. 1 and 3 (c)
(art. 6-1, art. 6-3-c). The latter provision in no way implied that,
contrary to the relevant provisions of domestic law, the accused always
had the right to be absent from the hearing while his counsel conducted
the defence.
30. The Court notes at the outset that the present case does not
concern the question whether trial in the absence of the accused is
compatible with Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c):
the applicant's complaint is not that the appeal was heard in his
absence - he had not availed himself of his right to attend - but
rather that the Court of Appeal decided the case without his counsel,
whom he had charged to conduct the defence and who attended the trial
with the clear intention of doing so, being allowed to defend him.
31. In addition, the Court notes that, like the Poitrimol case, the
present case concerns a criminal appeal by way of rehearing, which is
the last instance where, under domestic law, the case could be fully
examined as to questions of both fact and law.
32. The present case differs in several respects from the Poitrimol
case, one important difference being that under Netherlands law the
accused is, as a rule, not under an obligation to attend his trial, the
exception to that rule being immaterial in the present context (see
paragraph 14 above).
Accordingly, when the Netherlands Supreme Court gave its ruling
that a defendant who has been declared in default is not entitled to
have his defence conducted by counsel unless there appear to be
compelling reasons for his absence, it did not suggest that this
doctrine sought to discourage unjustified absences of the accused, but
based it - initially at least - strictly on the drafting history of the
Code of Criminal Procedure (see paragraphs 17 and 19 above).
33. The case-law in question may however - as the Government
argued - well be understood to serve the above purpose, because, as
this Court pointed out in its Poitrimol judgment (loc. cit., p. 15,
para. 35), in the interests of a fair and just criminal process it is
of capital importance that the accused should appear at his trial. As
a general rule, this is equally true for an appeal by way of rehearing.
However, it is also of crucial importance for the fairness of the
criminal justice system that the accused be adequately defended, both
at first instance and on appeal, the more so if, as is the case under
Netherlands law, no objection may be filed against a default judgment
given on appeal.
In the Court's view the latter interest prevails.
Consequently, the fact that the defendant, in spite of having been
properly summoned, does not appear, cannot - even in the absence of an
excuse - justify depriving him of his right under Article 6 para. 3
(art. 6-3) of the Convention to be defended by counsel.
34. Nor can the Court accept the Government's argument that the
applicant cannot claim to be a victim of an interference with his
rights under the said provisions because his counsel failed to ask the
court's permission, in accordance with the relevant rule of Netherlands
criminal procedure, to defend the accused (see paragraph 21 above).
Everyone charged with a criminal offence has the right to be defended
by counsel. For this right to be practical and effective, and not
merely theoretical, its exercise should not be made dependent on the
fulfilment of unduly formalistic conditions: it is for the courts to
ensure that a trial is fair and, accordingly, that counsel who attends
trial for the apparent purpose of defending the accused in his absence,
is given the opportunity to do so.
35. In conclusion, there has been a violation of Article 6
para. 1 taken together with Article 6 para. 3 (c) (art. 6-1,
art. 6-3-c).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2)
36. Before the Commission the applicant complained that his
conviction had been based exclusively on evidence which he had not been
able to challenge. He relied on Article 6 para. 2 (art. 6-2), which
reads:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
This complaint was not repeated before the Court. In view of
its finding set out in paragraph 34 above, the Court sees no need to
address the matter of its own motion.
III. APPLICATION OF ARTICLE 50 (art. 50)
37. According to Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
The applicant made no claim in respect of costs and expenses.
He did, however, claim compensation for loss of opportunities,
alleging that if his counsel had been allowed to conduct the defence
he would probably have been sentenced to community service instead of
imprisonment. He named no figure, leaving it to the Court to determine
the amount ex aequo et bono.
The Government considered it unlikely that the sentence of the
Court of Appeal would have been much different if the applicant's
counsel had been allowed to conduct the defence. The Commission
suggested that a "modest financial satisfaction" might be appropriate.
38. In view of all the circumstances of the case, the Court
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage the applicant
may have suffered.
FOR THESE REASONS, THE COURT
1. Holds, by eight votes to one, that there has been a violation
of Article 6 para. 1 of the Convention taken together with
Article 6 para. 3 (c) (art. 6-1, art. 6-3-c);
2. Holds, unanimously, that it is not necessary to consider the
allegation of a violation of Article 6 para. 2 (art. 6-2);
3. Holds, unanimously, that the above finding of a violation
constitutes in itself sufficient just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 September 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Ryssdal, joined by
Mr Mifsud Bonnici;
(b) dissenting opinion of Mr Matscher.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE RYSSDAL
JOINED BY JUDGE MIFSUD BONNICI
In its judgment the Court has made several references to the
Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A.
In that case I dissented and found no violation of the Convention. The
present case differs, however, in several respects from the Poitrimol
case and can in my opinion certainly be distinguished from that case.
I agree that it is important for the fairness of criminal
justice that the accused be adequately defended both at first instance
and on appeal. I further agree that it is for the courts to ensure
that the trial is fair, and that defence counsel who attends is given
the opportunity of defending the accused in his absence.
DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
In my opinion, a system of criminal procedure that is designed
to encourage the accused to be present at his trial and at the hearing
of any appeal and which does not allow an absent offender to be
represented by his counsel unless there are valid reasons for his
absence is not - in principle - contrary to the Convention.
It is only in criminal cases of some seriousness that the
interests of justice may require that the accused should always be
present or represented, if need be by counsel assigned officially (see,
mutatis mutandis, the Kremzow v. Austria judgment of 21 September 1993,
Series A no. 268-B, pp. 44-45, paras. 65-69, and the Poitrimol
v. France judgment of 23 November 1993, Series A no. 277-A).
The present case is a fairly run-of-the-mill one. Deliberately
and without any plausible justification the applicant, who was moreover
on the spot, attended neither the trial nor the appeal hearing;
furthermore, his counsel had not sought leave to represent him. That
being so, the applicant's conviction in absentia did not infringe
Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.
Accordingly, contrary to my position in the Pelladoah v. the
Netherlands case, which is to be classified rather with the Kremzow and
Poitrimol cases, I have voted against finding that there was a breach
in this case.