SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

I cannot agree with paragraphs 106-108 of the reasons or with paragraph 3 of the judgment ’ s operative provisions.

I consider that the applicant ’ s fundamental rights were also violated before the Supreme Court in that he was not allowed to appear in person at the appeal hearing, whereas the "civil parties" were summoned to appear and he would have had to be summoned himself i f he had not been in custody [1] .

In my opinion, this difference of treatment was justified neither by "the special features of the appeal procedure ... and the particular circumstance s of Mr Kamasinski ’ s appeal" [2] , n or by the "nature of things" [3] , nor by the "special technical arrangements" that have to be made if a "convicted person" [4] is to appear in court.

In the instant case the appeal related to questions of fact which were potentially of some importance for assessing the degree of the applicant ’ s guilt and for fixing his sentence [5] .

The "nature of things" requires rather that a defendant in custody should have as much opportunity as a defendant not in custody or a "civil party" to be present at a hearing relating to matters of this kind.

Lastly, the "special technical arrangements" needed for a prisoner to be able to appear personally before an appeal court are not essentially different from those needed for the personal appearance of a prisoner during a preliminary judicial investigation or at trial.

[*]  Note by the Registrar.  The case is numbered 9/1988/153/207.  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.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume no 168 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Paragraphs 38 and 54 of the judgment.

[2] Paragraph 106 of the judgment.

[3] Paragraph 107 of the judgment.

[4] Ibid.

[5] Paragraph 39 of the judgment.