JOINT DISSENTING OPINION OF JUDGES RYSSDAL, SIR JOHN FREELAND AND LOPES ROCHA

1. We formed part of the minority which voted against the finding of a violation of Article 6 (art. 6) of the Convention in this case.

2. At the proceedings before the Marseilles Criminal Court on 3 March 1986, the applicant was, with the leave of the court, represented by two counsel who filed pleadings and made submissions on his behalf. He had chosen to remain abroad with his two children despite an earlier order by a civil court that he should return at least temporarily, with those children, to France . No complaint of unfairness is made by the applicant about the criminal trial, which resulted in the imposition on him of a sentence of a year ’ s imprisonment and the issue of a warrant for his arrest.

3. Notwithstanding this outcome, the applicant remained abroad with the children and, although twice summoned by the Aix-en-Provence Court of Appeal to appear, did not attend at the hearings before that court. In his absence his lawyer asked to be authorised to represent him, but this request was refused by the court as being ill-founded in French law where, as in his case, a warrant had been issued for the defendant ’ s arrest and the defendant had absconded.

4. Similarly, when the applicant appealed to the Court of Cassation, on points of law, against the Court of Appeal ’ s judgment his appeal was dismissed on the grounds that a convicted person who had not complied with a warrant issued for his arrest was not, according to the relevant case-law, entitled to be represented or to give instructions for an appeal on points of law to be lodged on his behalf against his conviction.

5. In the view of the majority of the Court, the refusal of the request for legal representation before the Court of Appeal and the dismissal by the Court of Cassation of the appeal to it, on the grounds stated in each case, were "disproportionate" and thus amounted to breaches of Article 6 (art. 6). It is, however, not contested that the applicant, who must be assumed to have acted throughout with the benefit of legal advice, chose of his own volition and in defiance of the French courts (which were, of course, concerned not only with his own personal situation but also with rights of his former wife and the children) not to return to France. Had he done so and had he attended, as summoned, before the Court of Appeal he would have been entitled to the assistance of counsel there; and had he surrendered to the warrant for his arrest, the grounds on which his appeal to the Court of Cassation was dismissed would not have existed. The remedy was, in other words, at all material times in his own hands, and we do not see how it was "disproportionate" for the French system of justice to leave it there. Given that he must be taken to have been advised of the legal position it should not avail him now to say that, although he remained outside the jurisdiction of his own accord, he asked for legal assistance before the Court of Appeal and to be legally represented for an appeal to the Court of Cassation. In circumstances such as those of this case, where no taint of unfairness is alleged against the criminal trial at first instance, the conditions imposed in relation to the appeals to the Court of Appeal and the Court of Cassation were not in our view such as to justify a finding against the French Republic of violation of the Convention.

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority in support of the view that there had been no violation of Article 6 (art. 6) of the Convention.

In my opinion, the majority ’ s decision introduces requirements into criminal procedure which go beyond those in Article 6 (art. 6).

The right of everyone charged with a criminal offence to be defended by a lawyer, of his own choosing or assigned officially, does not mean that an accused who, without any legitimate excuse, deliberately avoids appearing at the trial when he has been properly and effectively summoned can instruct counsel to represent him in order to be tried as if inter partes.

The obligation to appear in person is a vital part of criminal procedure; the rights of the victims and civil parties to the proceedings, who would otherwise be deprived of any opportunity of having the accused cross-examined, must be respected. One can imagine having the option of representation for minor offences - each national legislature can lay down the level of sentence at which representation by counsel is or is not permitted.

One can also imagine that at the cassation stage the possibility of appeal on points of law should be available even to those who have not appeared in the Court of Appeal.

If an accused can avoid any appearance in person, he prevents the trial from being fair within the meaning of Article 6 (art. 6) vis-à-vis the complaints, victims and civil parties.

Secondly, the Court ’ s judgment does not take sufficient account of the fact that as a result of the judgment at first instance there was a warrant out for Mr Poitrimol ’ s arrest.

Article 6 (art. 6) does not prohibit States from providing that the courts may issue arrest warrants where defendants have unjustifiably failed to appear.

In such cases, criminal procedure in some European States requires that an accused whose arrest has been ordered in a judgment at first instance must surrender to the warrant for his arrest if he is to be able to exercise his rights of appeal.

In my view, the Court should have distinguished the case in which a judgment is given in absentia without any arrest warrant being issued from the case of a judgment in which arrest is ordered.

In absentia proceedings are a major problem in Europe in ensuring the proper administration of criminal justice and in preventing a growing number of defendants from eluding justice altogether (20-25% in France ).

Article 6 (art. 6) must be looked at as a whole and as part of the attempt to strike a balance between the interests of the State (through the courts and the prosecution service), the public and the parties.

Equality of arms must be considered not only in the relationship between accused and prosecution but also in the relationship between victims, civil parties and accused. If a defendant is absent because he has refused to appear, it may put the victim or the civil party to the proceedings at a disadvantage.

A criminal trial reflects a particular conception of criminal procedural law, which is in essence punitive. The obligation to appear in person is a major feature of any criminal procedure, subject to force majeure or a legitimate excuse.

Admittedly, national legislation may provide that for certain categories of offence an accused may be represented in his absence by counsel, whether automatically or subject to leave of the court; but the lack of such provision does not in itself amount to a breach of Article 6 (art. 6). Resolution (75) 11 of the Council of Europe ’ s Committee of Ministers only embodies wishes and recommendations and has no effect on the interpretation of Article 6 (art. 6).

A system of criminal procedure forms a coherent, homogeneous whole, particularly where it provides for proceedings in absentia, setting aside and rehearing (opposition), repeated absence, procedure deemed inter partes and appeal. It must be looked at in its entirety and not divided up into parts considered separately, which would upset its structural balance.

In the French system, proper provision is made in Article 489 for applications to have judgments in absentia set aside and rehearings granted on applications to the courts which gave the judgments. Article 489 applies likewise on appeal (cf. A. Vitu, ‘ La réglementation de l ’ appel et de l ’ opposition dans le code de procédure pénale ’ , Juris- Classeur périodique 1959, I, 1486; Cass. Crim. 15 September 1986; Bulletin criminel (Bull.) no. 256).

The French Code of Criminal Procedure contains a whole series of rules which meet the requirements of Article 6 (art. 6).

In particular, the provisions of Articles 410 et seq., 417, 487 and 489 afford a person charged with a criminal offence the opportunity of being tried as if he were present depending on various circumstances and leave him a number of options; if he chooses not to attend, he does so at his own risk if he cannot give a legitimate excuse.

The European Court ’ s judgment in the case of Colozza v. Italy [*] related to a case in which it was impossible for a defendant who wished to appear in person to have a rehearing after a trial in absentia; the circumstances were therefore different.

French case-law, under which, where a defendant chooses to lodge an ordinary appeal (appel) rather than to apply to the original court for its judgment to be set aside and the case reheard, he thereby forfeits the latter possibility (Cass. Crim. 7 February 1984, Bull. Crim. no. 44; D. Poncet, ‘ Le jugement par défaut devant les juridictions pénales; quelques considérations de droit comparé ’ , Revue de Science criminelle et de droit pénal comparé, 1979, pp. 1 et seq.), does not contravene Article 6 (art. 6) of the Convention.

In my view, the various aspects of the problem are not properly assessed in the Court ’ s judgment. In the first place, the Court ’ s decision might, wrongly, be interpreted as seeking to give the word "assistance" the meaning of "representation" and even of representation mandatory on the court - which is contrary to the traditional interpretation (cf. J. Velu and R. Ergec, La Convention européenne des Droits de l ’ Homme, Brussels, 1990, p. 497, para. 603; H. Golsong, W. Karl, H. Miehsler, H. Petzold, K. Rogge, T. Vogler and L. Wildhaber, Internationaler Kommentar zur Europäischen Menschenrechtskonvention, Cologne, 1986, p. 196, to be compared with the studies of trial in absentia by R. Merle and A. Vitu, Traité de droit criminel, third edition, pp. 821 et seq.; G. Stefani, G. Levasseur and B. Bouloc, Précis de procédure pénale, fourteenth edition, pp. 928 et seq.)

Thus "The European Convention on Human Rights does not confer on an accused the right to impose on his lawyer a system of defence which the lawyer considers unsustainable" (Velu and Ergec, op. cit. p. 497, para. 602; application no. 9127/80, decision of 6 October 1981, Decisions and Reports 26, p. 238). Assistance normally presupposes the accused ’ s presence beside his counsel (Golsong et al., op. cit, p. 191). States are entitled to enact in their legal systems a requirement that defendants appear in person.

In the second place, an accused is not entitled to demand to be represented when he refuses to appear in person.

Criminal law is by its very nature a punitive system which has to reconcile the maintenance of order with the protection of human rights. It is not merely the law of protection of those charged with criminal offences.

Criminal procedure must ensure this balance and cannot isolate one element from the other. It cannot be solely a means of protecting defendants without taking any account of the protection of victims.

Criminal trials must comply with the requirements of criminal law, which, by its philosophical foundation, entails the right to punish. A criminal trial is the manifestation of the values in whose name a society prosecutes and punishes.

Like a rule of law, the rules governing trials confer on parties to a trial precise rights and powers which cannot be separated from each other.

These rules are reciprocal, multilateral, "assigning, mandatory" (Gurvich, Traité de sociologie).

The defendant cannot impose his absence from the trial as he pleases in order to prevent the victim from being confronted with him.

The European Court has based all its case-law hitherto on the principle that it is essential for parties and witnesses to appear in person so that they may be confronted before the court, which the Court has held to be a vital feature of a fair trial.

It cannot be objected that representation by a lawyer makes up for the accused ’ s absence. What might at a stretch be conceivable in cases where minor penalties and no civil parties are involved is inconceivable where, in order to be able to present his case, the civil party, the victim, needs to be able to challenge, to unmask his opponent, in cross-examination or under Continental procedure. Or else the civil party who is a victim must be given the right to refuse representation by a lawyer in order that equality of arms may be respected.

Whence it would follow that if the accused never wished to appear and if the victim never wanted him to be represented, society would no longer be in a position to ensure the operation of criminal justice. By a perverse aberration, it would then be the accused who controlled the trial and took the place of the prosecution and the court in conducting it - which would have the result of disarming the State in its major function of dispensing justice.

If civil parties to criminal proceedings or victims are deprived of equality of arms, the field is open to applications from them for breaches of Article 6 (art. 6).

The applicant ’ s reasoning would have the following consequence, for example: a Mafia boss, drug-trafficker, terrorist or arsonist, duly summoned, refuses to appear in person and demands to be represented by his lawyer.

On this account, the trial will be curtailed, all identification by the victim under adversarial procedure will be impossible. The lawyer has only to contest guilt or challenge identification in order to prevent a conviction, to the detriment of the victim or civil party and to the detriment of the prosecution of the case. Such an option might conceivably be restricted to offences to which small penalties attach, but would that not be to add to the existing Convention?

In that eventuality would there not be discrimination between States - those which make criminal appeal (appel) subject to leave (which may be conditional on appearing in person at the trial) and those which give defendants an unrestricted right of appeal as in the French Code of Criminal Procedure. This would be a two-speed Europe in terms of criminal justice.

When a court issues an arrest warrant, this is not intended as a means of coercion against a defendant who has failed to appear but a legitimate application of the Criminal Code in order to uphold public policy (ordre public).

To maintain that failure to appear could be sanctioned by imposing a fine without any other form of coercion is not to the point. Someone who wishes to elude justice will not fear a fine, which will not induce him to appear in court.

The arrangement of making appeals on points of law conditional on the convicted person surrendering to custody, pursuant to the warrant for his arrest, is another problem.

It is not connected with the problem of trial in absentia because warrants are also issued in proceedings which are fully inter partes.

This condition is comparable to the leave to appeal on points of law required in certain States. Abolishing such a requirement is conceivable, but would that not be to add to the Convention as it currently stands?

Does the Convention require that a court ’ s right to issue an arrest warrant must be abolished or that a defendant must have an absolute, unlimited right to appeal on points of law even without surrendering to a warrant for his arrest?

As regards the issue of appeal on points of law and the conditions attaching to it where an accused has not surrendered to a warrant for his arrest, the Court of Cassation ’ s reasoning refers to the general principles of the Code of Criminal Procedure, whereby "a convicted person who has not surrendered to a judicial warrant for his arrest and has evaded execution of it is not entitled to appeal on points of law".

Such a rule may be regretted in respect of appeals based specifically on points of law; however, it does not appear from Article 6 (art. 6) that such a rule is in itself a breach of the Convention, even if some writers would like to see the Code of Criminal Procedure reformed in this regard.

The impact of the Court ’ s judgment is, admittedly, attenuated by the fact that the Court has not expressly determined the issue of arrest ordered in a judgment and the consequences of such a system in relation to the conditions for representation by a lawyer - a situation which, obviously, differs from the case of a defendant summoned to appear before the Court of Appeal and whose arrest has not been ordered in the judgment of a lower court and who seeks leave to be represented by a lawyer in the Court of Appeal in his voluntary absence.

But at all events, in my view, the Court has not taken sufficient account of the principle of balance underlying Article 6 (art. 6) or of the needs of a criminal policy whose aim is to avoid conferring any impunity or privilege on persons seeking deliberately to evade justice.

Criminal law is by definition punitive law. Its purpose is to punish those guilty of causing social disorder. Mr Salas has written "a trial is the place where the social fact is expressed". The philosophical and social choice of favouring at any cost an absent defendant and of making an absolute solely of the defendant ’ s choice (as to whether or not to appear at the trial) may be a proposition in a Foucault-type conception of criminal justice; but in that case we should have to give up the traditional conception of punitive criminal law and replace it by a new system for which no State offers a model. But that would be to make procedural requirements not provided for in the European Convention. Even Committee of Ministers Resolution (75) 11, which has no binding effect on member States, does not go as far as that; indeed, it implies that the Convention allows States to restrict the rights of those seeking to elude justice.

In this sphere of criminal procedure the spirit of the European Convention seems to me to correspond to the prevailing opinion of criminal-law specialists that victims and accused should be afforded safeguards of identical scope.

[*]  The case is numbered 39/1992/384/462.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 277-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Note by the Registrar: judgment of 12 February 1985, Series A no. 89.