DISSENTING OPINION OF JUDGE ZUPANČIČ

I agree with the joint dissenting opinion of Judges Rozakis, Spielmann, Myjer and Ziemele. However, to the extent that the decision in this case hinges on the distinction between facts and law – that is, to the extent that the Rome Court of Appeal would have been justified in dispensing with the presence of the defendant on the assumption that only legal issues were to be decided – I would like to contribute my own opinion concerning the relative nature of the distinction between factual and legal issues.

Legal issues cannot easily be separated from factual considerations either in abstracto or in concreto .

The reason for this is very simple. In abstracto it may be said that the choice of the norm ( la qualification du cas ) in relation to which the fact pattern is to be considered clearly determines which facts are going to be considered as legally relevant and which are not. A different choice of legal characterisation brings different facts to the fore, or at least a different interpretation of the same facts. Even an extreme Hobbesian position is tenable in this respect, that is, that there simply are no legally relevant facts unless there is a prior legal norm (of criminal law) under which these facts become legally relevant [2] . To cite one example, the killing of the pawnbroker woman described by Dostoyevsky in his novel Crime and Punishment can only be called “murder” because there was a pre-existing norm of substantive criminal law that described and punished such conduct as “murder”.

In Continental jurisdictions, under the formula iura novit curia , criminal courts are not usually bound by the legal characterisation of the facts put forward by the prosecutor. The prosecution advances its evidence of a certain fact pattern (a past event) and proposes the legal characterisation which in its opinion best describes it. The defence will normally attempt to have that legal characterisation rejected. The court will settle for one of the two – or find its own.

It is thus fair to say that this dialectic operates through the mutual conversion of the facts into normative choice and normative choice into the selection of the relevant facts. Thus, which norm will initially be selected depends on the primary perception of the facts. Thereafter and conversely, the perception of the relevant facts may in turn determine the choice of (a different) norm. This mental loop will often be repeated several times in order to arrive at the optimal characterisation of the fact pattern. This mental process is silent, that is to say, it is not usually reflected in the final reasoning (grounds) of the judgment. It is nevertheless real and decisive. A first tentative legal characterisation is put forward by the police; it is then corrected by the prosecution, reacted to by the defence and adopted, or rejected, by the trial and appellate courts according to the principle iura novit curia .

Thus, all three parties attempt to find the legal characterisation that most adequately describes the fact pattern at hand. This can even be generalised in so far as we can say that in all legal reasoning – no matter at what instance of judicial decision-making – the winner is the one who most persuasively advances the most concise and otherwise appropriate legal characterisation. Inasmuch as it can be said that the outcome of this mental exercise is objectively predetermined and not subject to arbitrary preferences on the part of the judges, it makes sense to speak of the rule of law (as opposed to the supremacy of the judges).

In any event, legal reasoning at the appellate level – just as much as in the first-instance court – deals with the subsuming of the ascertained facts into the chosen legal norm. A different legal characterisation at the appellate level, in other words, will mean that facts other than those which were hitherto decisive will become legally relevant.

True, at the appellate level these “facts” are more likely to be various procedural violations. Here at the European Court of Human Rights we continue to make the point that we are not a fourth ‑ instance court and that we do not wish to deal with any facts which are subject to the guiding principle of immediacy in a trial. Nevertheless, a new major premise in legal terms will always call for new elements making up the minor premise, that is, some kind of facts.

This dialectical interaction between the choice of the major premise (the norm) and the perception of the minor premise, that is, the determination of certain facts as legally (ir)relevant, is an antinomy. The norms are created to govern conduct. They must therefore be different and separate from the facts. The antinomy stems from the fact that the choice of facts which are to become legally relevant depends on the choice of legal norm, and vice versa. In other words, because there simply are no independent facts out there waiting for the legal norm to be applied to them, the result is a merger of the facts and the law. In the end it cannot be said that the norms and the facts are different and separate. Out of the millions of “facts” which were necessary conditions for the occurrence of the event in question, only a few will come to the fore and be retained as legally relevant. However, they come to the fore and are retained only because we have chosen a particular legal norm into which we wish to subsume them.

An additional complication arises in this mental exercise. The chosen norm (characterisation of the case) is not simply one paragraph of one article in the criminal code. A combination of several norms is needed in order adequately to cover the fact pattern. Issues such as criminal culpability (from the general part of the criminal code) combine with the choice of the specific charges (in the special part of the criminal code) – to say nothing of the requisite absence of affirmative defences (insanity, necessity, errors of fact and so forth).

In other words, the major premise is always a combination of different provisions of the criminal code. This makes it all the more patent that the rigour of the principle of legality is not , as it is usually understood to be, a one ‑ dimensional subsuming of an obvious fact pattern into an obvious, single and exclusive norm. The choice of the combination of norms that best describes the fact pattern is in itself a complex mental exercise in which, like in a chess game, different combinations are considered before a final choice is settled upon.

In this context it is simply untenable to maintain that the “facts” can easily be separated from the “law”.

The question, however, whether in this particular case the Court of Appeal could have decided the case without the defendant’s input concerning the facts is somewhat superfluous. In abstracto , Italian law itself provides the possibility for the defendant to participate precisely because it is sensitive to the complexity spelled out above.

In concreto , the Second Criminal Division of the Court of Appeal decided that it could dispense with the defendant’s presence. I would dare to assume that, even in terms of domestic procedural norms, this decision – to dispense with the presence of the defendant despite the absence of an express and unequivocal waiver resulting from his informed consent – ran counter to the spirit of the applicable Article 599 § 2 of the Italian Codice di procedura penale . In my view, the fact that the notice did not provide either for an express waiver or for the automatic transfer of the defendant to the Court of Appeal was a simple clerical oversight caused by careless drafting of the printed form.

The consequence of that, however, is that we do not know whether the applicant’s absence from the hearing before the Rome Court of Appeal was the result of his informed consent, his lawyers’ omission or some other factor. Given the spirit of both Article 599 § 2 of the Italian Codice di procedura penale and our own case-law, I would hold that the onus was on the Italian Government to convince us that the waiver was express and unequivocal.

Since the Government did not succeed in doing so, I feel that I was justified in voting for, rather than against, a violation of Article 6 of the Convention.

[1] , Emphasis added.

[2] . “From this relation of sin to the law, and of crime to the civil law, may be inferred ... [s]econdly, that the civil law ceasing, crimes cease ; for there being no other law remaining but that of nature, there is no place for accusation, every man being his own judge and accused only by his own conscience and cleared by the uprightness of his own intention. … Thirdly, that when the sovereign power ceaseth, crime also ceaseth ; for where there is no such power, there is no protection to be had from the law; and therefore every one may protect himself by his own power” (Thomas Hobbes, L eviathan, Ch. XXVII (3), “Of Crimes, Excuses, and Extenuations”) .