JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN, MYJER AND ZIEMELE

(Translation)

1. Notwithstanding the fact that we agree with the majority’s reiteration of the general principles which apply regarding the right of the defendant to take part in the hearing and to be informed of the charges against him, and the waiver of the right to appear (see paragraphs 58-76 of the judgment), we cannot subscribe to the manner in which the judgment applies these principles to the instant case.

2. Let us recall the facts.

First of all, the applicant was informed that the appeal hearing had been set down for 3 November 2000. However, at no point was he informed of any requirement to state his intention of taking part in the hearing. The letter entitled “Notice to appear in appeal proceedings before the court sitting in private” simply stated that “appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them ...”.

3. The rule requiring the defendant to request expressly that evidence be heard from him in person actually results from an interpretation of Italian case-law. In judgment no. 6665 of 24 April 1995 in Visciano , the Court of Cassation articulated the following legal principle: “A defendant who is in prison or under house arrest must also be given a hearing ... in appeal proceedings against a judgment given [following] summary proceedings in accordance with Article 442 of the CCP, but only if he or she so requests within the time-limit laid down by Article 127 § 2 of the CCP (that is, at least five days before the hearing), in accordance with the reference in the last paragraph of Article 443 of the CCP to Article 590, the first paragraph of which refers, in turn, to the ‘formalities provided for in Article 127’ for proceedings conducted in private” (see paragraph 33 of the present judgment).

4. We would point out that, at the hearing of 3 November 2000, one of the lawyers objected to the proceedings being continued in his client’s absence and requested that the latter be brought from the prison to the hearing room.

5. Next, it should be stressed that the hearing before the Court of Appeal was devoted to establishing whether the drugs found in the applicant’s possession had been intended for his own personal use and whether the first ‑ instance court had interpreted the relevant legislation in a manner which penalised drug users not involved in trafficking. The appeal court had full jurisdiction and was free to examine the case as to the facts and the law.

6. Finally, the applicant was a foreign national with only a limited knowledge of the Italian legal system. His command of Italian was probably not sufficient to enable him to familiarise himself with the finer points of Italian criminal procedure. In any event, we consider it largely irrelevant whether the applicant had the necessary language skills to grasp the meaning of the notice informing him of the date of the appeal court hearing, since the notice made no mention of the steps to be taken in order to attend the hearing.

7. Granted, the conduct of the applicant’s lawyers was not above reproach. We can readily subscribe to the reasoning of the majority in criticising the lawyers’ lack of diligence. If communication between the lawyers and the applicant had been better and the lawyers had taken steps to ensure that the applicant attended the appeal hearing, no issue would have arisen under the Convention.

8. However, the conduct and shortcomings of the lawyers do not absolve the authorities of their responsibilities.

While the “summary procedure” which was applied in the instant case has certain exceptional features, it has to be said that it does not expressly restrict participation in any stage of the proceedings. It is sometimes said in jest, rightly or wrongly, that prisoners know their rights and the rules of criminal procedure better than many lawyers. However, that does not exempt the authorities from the obligation to inform prisoners of their basic rights.

9. Our Court’s case-law is clear.

As paragraph 58 of the judgment rightly points out: “In the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Lala v. the Netherlands , 22 September 1994, § 33, Series A no. 297 ‑ A; Poitrimol v. France , 23 November 1993, § 35, Series A no. 277 ‑ A; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria , no. 9808/02, § 56, 24 March 2005).”

These principles accord with the text of Article 6 of the Convention. As the Court observes in paragraph 59 of the judgment: “Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person ‘charged with a criminal offence’ is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to ‘everyone charged with a criminal offence’ the right ‘to defend himself in person’, ‘to examine or have examined witnesses’ and ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in court’, and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy , 12 February 1985, § 27, Series A no. 89, and Sejdovic [ v. Italy [GC], no. 56581/00], § 81[, ECHR 2006-II]).”

10. In paragraphs 64 and 65 of the judgment, the Court reiterates: “where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino , no. 50545/99, § 27, 6 July 2004).” The judgment continues: “Applying these principles in Ekbatani ([ v. Sweden , 26 May 1988], § 32[, Series A no. 134]), the Court took the view that the presence of the defendant at the appeal hearing was required, as the case could not be properly determined without a direct assessment of the evidence given in person by the applicant and by the complainant, since the defendant’s guilt or innocence was the main issue for determination before the appellate court. That finding was not altered by the fact that the appeal court could not increase the sentence imposed at first instance (see, mutatis mutandis , Dondarini , cited above, § 28, and De Biagi v. San Marino , no. 36451/97, § 23, 15 July 2003).”

11. In the present case the appellate court was called upon precisely to examine the case as to the facts and the law and to make a full assessment of the applicant’s guilt or innocence. In addition – as our colleague Judge Zupančič points out in his dissenting opinion – it is not easy to separate the “law” from the “facts”.

12. As regards the waiver of the right to appear, the Court has always required any such waiver to be “unequivocal”. Moreover, it reiterates this principle in paragraph 76:

“In view of the prominent place held in a democratic society by the right to a fair trial (see, among many other authorities, Delcourt v. Belgium , 17 January 1970, § 25 in fine , Series A no. 11), Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself of the date of the hearing and the steps to be taken in order to take part where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis , Somogyi v. Italy , no. 67972/01, § 72, ECHR 2004-IV). This applies equally in the context of simplified procedures such as the summary procedure, where the accused has waived a number of his or her rights .” [1]

13. We are therefore of the opinion that the applicant had the right to take part in the proceedings before the court of appeal. That right, which existed in Italian law, is guaranteed, moreover, by Article 6 of the Convention. The general principles of our case-law should have been applied in full, it being clear that this case bears closer resemblance to Dondarini than to Kamasinski v. Austria (19 December 1989, Series A no. 168).

14. The applicant had not waived his right to appear in an unequivocal manner. While the Rome Court of Appeal observed that the applicant had not informed the authorities in advance that he wished to take part in the appeal proceedings, and the Court of Cassation simply reiterated that the defendant had not expressed a wish to attend the hearing, neither of these courts made any reference to a waiver on the part of the applicant of his right to appear. For an explicit waiver to exist, the authorities would at least have had to inform the applicant officially that if he did not contact them within a certain period he would be deemed to have explicitly waived his right to appear.

15. The present case concerned a serious matter, in terms of both the nature of the offence and the potential sentence. In such circumstances, domestic courts have a duty to be particularly vigilant in ensuring that all the procedural guarantees are complied with. This was all the more necessary in the instant case since the applicant, who was in detention pending trial, was dependent on the public service for his transport from the prison to the hearing room.

16. Furthermore, the request to postpone the hearing would not have presented any insurmountable problems in the instant case. In that regard, it should be borne in mind that the hearing room where the appeal was to be examined was situated in Rome, the same city in which the applicant was in prison. Postponing the hearing would have enabled the applicant to be brought from the prison to the hearing room without difficulty. Given that the two locations were close together, he could have been brought there at very short notice.

17. In conclusion, we believe that there has been a violation of Article 6 of the Convention.