DISSENTING OPINION OF Mr. K. HERNDL

JOINED BY MM. B. CONFORTI and C. BÃŽRSAN

It is with regret that I am obliged to state that I cannot concur with the

views expressed by the majority of my distinguished colleagues of the

Commission, who held that in the present case Article 6 para. 1 taken together

with Article 6 para. 3 (c) of the Convention has been violated.

The following are my reasons for dissenting from the majority.

In determining that the applicant "did not have a fair hearing in the

criminal proceedings against him, in particular as, at the trial for rehearing

his case after his conviction in absentia, he was deprived of his right to be

defended by counsel" (para. 37 of the report) the majority rely heavily if not

exclusively on the judgments of the Court in the cases of Lala v. the

Netherlands (Series A, No. 297-A) and Pelladoah v. the Netherlands (Series A,

No. 297-B). They base their view in particular on the Court's dictum in those

cases to the effect that "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 of the Convention to

be defended by counsel" (Lala judgment, loc. cit., para. 33, Pelladoah judgment,

loc. cit., para. 40). The present case, however, differs from the Lala and

Pelladoah cases in several important aspects.

While Lala and Pelladoah had been convicted in absentia and appealed to

the higher court (and in the last analysis even to the Supreme Court) we are

dealing here only with a first instance case which, so to speak, went through

two stages. It must be emphasized that the applicant's complaint concerns

exclusively the procedure before the trial court, ie. the Feldkirch District

Court and not the subsequent appeal proceedings before the higher court, ie. the

Feldkirch Regional Court.

What then are the basic facts of the case? The applicant was summoned to

stand trial before the Feldkirch District Court on 26 January 1993 for a minor

offence. It was at this stage that the applicant had the possibility of being

present and defending himself personally or of defending himself through legal

assistance of his own choice, as provided for in Article 6 para. 3 (c) of the

Convention. At the trial hearing, neither the applicant nor his legal

representative appeared. Accordingly, the applicant was sentenced in absentia on

the basis of S. 459 of the Code of Criminal Procedure. Thereupon, the applicant

seized the trial court, ie. the same court, with an objection against the

judgment in absentia alleging that he had not been properly summoned to the

hearing. As the Commission notes in its report (para. 19) in these proceedings

the applicant was represented by counsel. In fact, it was the applicant's

counsel who drafted and signed the objection on the applicant's behalf.

The trial court ordered another hearing for 18 May 1993. In summoning the

applicant to that hearing, the court explicitly drew his attention to the fact

that if he were not to appear at the hearing, his objection would have to be

considered as void and the contested judgment in absentia would become final.

This legal consequence in case of non-appearance of the accused is provided for

by S. 478 (3) of the Code of Criminal Procedure.

It is uncontested that the applicant was properly summoned to the hearing

of 18 May 1993. The summons was indeed received by the applicant's counsel as is

shown by the latter's presence at the hearing. Although the legal consequences

of any absence of the applicant were clear to the applicant's counsel, and hence

to the applicant himself, the applicant did not appear at the hearing. The

inescapable result, entirely foreseeable for the applicant's counsel, and hence

the applicant himself, was that his objection had to be declared void whereupon

the original judgment in absentia became final by virtue of S. 478 (3) of the

Code of Criminal Procedure.

I believe that this result, unfortunate as it may be for the applicant, is

primarily imputable to the conduct of the applicant and his legal representative

for which the Republic of Austria cannot be held responsible. The applicant had

all means at his disposal to defend himself in person or through counsel at the

hearing of 26 January 1993, and subsequently to contest the judgment in

absentia. He furthermore enlisted the help of an experienced counsel whose duty

it was to explain the legal situation to him.

The fact that domestic law in such a case would insist on the personal

presence of the accused at the hearing and would make his personal presence a

condition for the legal evaluation of an objection against a judgment in

absentia (S. 478 (3) of the Code of Criminal Procedure), cannot be said to be in

violation of Article 6 of the Convention and in particular para. 3 (c) of that

Article. On the contrary: the importance which the domestic law in such a case

attaches to the personal presence of an accused would seem to be completely in

line with the basic tenets of Article 6.

Nor would the sanction for non-appearance - namely considering as void an

objection such as the one lodged by the applicant - seem to be disproportionate

if one takes into account the essential element of Article 6, namely that the

accused ought to be present in person at Court hearings in criminal cases.

The applicant and in particular his lawyer were fully aware of the legal

consequences of a non-appearance at that stage of the proceedings, but

apparently had made their choice. In view of this I cannot see that the decision

of the Feldkirch District Court to declare the applicant's objection void, was

in violation of Article 6 para. 1 taken together with Article 6 para. 3 (c) of

the Convention.