PARTIALLY DISSENTING OPINION OF Mrs. J. LIDDY

Having found a violation of Article 6 paras. 1 and 3 (c) of the Convention on account of the applicant’s absence at the hearing on his appeal against sentence, for the reasons given in the Report, I was unable to agree that there was no violation of those provisions on account of his absence at the hearing on his plea of nullity. I would have preferred to say that in the circumstances of this case it was not necessary to make a finding on this issue.

The circumstances are that a new official defence counsel was appointed at some unspecified date between the filing of the applicant’s plea of nullity and appeal and the hearing before the Supreme Court. According to the applicant this happened only shortly before the hearing and his new official defence counsel failed to contact him. It appears therefore that while, as stated in the Report, nullity proceedings are primarily concerned with questions of law that arise in regard to the conduct of the trial, the new official defence counsel’s assessment of any questions of law that might be raised was formulated without any contact with the applicant or first-hand impressions of the facts underlying the purely legal points to be raised. At issue was a conviction for a very serious offence entailing life imprisonment and the new counsel apparently based his legal arguments purely on a reading of the papers without consultation with his client.

The first time the applicant raised this point about lack of contact was in his observations of 27 August 1997. It raises two questions: (1) Is it a factor which would justify a distinction to be drawn between the present case and the Court’s finding in the Kremzow case (judgment of 21 September 1993, Series A No. 268-B) that there was no violation of the Convention by reason of Mr. Kremzow’s absence at a hearing of a plea of nullity? (2) Is it a factor which casts doubt on the effectiveness of his representation at that hearing (cf. mutatis mutandis Eur. Court HR, Daud v. Portugal, judgment of 21 April 1998, paras. 39 and 42)? In the absence of legal submissions by both parties on such matters I would have preferred not to reach a definitive conclusion of non-violation but rather find that in the light of the earlier conclusion of violation in relation to the appeal it was not necessary to determine this aspect of the case.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.