JOINT DISSENTING OPINION OF JUDGES TÃœRMEN AND MARUSTE

To our regret, we cannot share the majority’s opinion that there has been no violation of Article 6 § 1 of the Convention.

I. In a great number of cases where the exercise of rights guaranteed by Article 6 of the Convention was made dependent on a defendant’s surrender to the authorities or on the defendant’s personal presence at his or her trial, the Court has found a violation of Article 6 of the Convention (see Poitrimol v. France , judgment of 23 November 1993, Series A no. 277-A; Lala and Pelladoah v. the Netherlands , judgments of 22 September 1994, Series A nos. 297-A and 297-B; Omar and Guérin v. France , judgments of 29 July 1998, Reports of Judgments and Decisions 1998-V; Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999-I; Khalfaoui v. France , no. 34791/97, ECHR 1999-IX; Krombach v. France , no. 29731/96, ECHR 2001-II; and Goedhart v. Belgium , no. 34989/97, 20 March 2001, unreported).

Although each of these cases has its own particular characteristics, they contain certain fundamental principles that may be applicable to cases where a trial in absentia is involved.

The only case concerning proceedings held in absentia in which the Court rejected a complaint under Article 6 §§ 1 and 3 as manifestly ill-founded is the decision on admissibility of 27 April 2000 taken in Haser v. Switzerland ((dec.), no. 33050/96, unreported). It seems the majority’s position is greatly influenced by this decision. However, in our opinion, the situation in Haser fundamentally differs from the situation in the present case in a number of respects:

1. In the Swiss cantons of Ticino and Neuchâtel the judicial system consists of two instances. In the Netherlands Antilles , it consists of three instances.

2. Recourse to the second-instance court in the aforementioned cantons is not an appeal, but a “ pourvoi ”. In the Netherlands Antilles recourse to the Joint Court of Justice against the decision of the First-Instance Court is not confined to points of law or procedural conformity, but is a full appeal.

3. The remedy offered by the second-instance court in the two Swiss cantons is a very limited one. It can examine the facts only from the angle whether the first-instance court’s assessment was arbitrary or not. The examination of the second-instance court is based on the file. The procedure in principle is a written one, holding a hearing is exceptional, and the accused is not obliged to appear before the court. Unlike the above situation,

the Joint Court of Justice of the Netherlands Antilles and Aruba is a trial court of appeal. It examines both the facts and law. In fact, it is the Joint Court of Justice which convicted the applicant.

4. In view of the differences between the two systems, the interests that are protected also differ. In Haser , the remedy that is offered by the second-instance court is very narrow. Therefore, a defendant’s personal appearance before the court is important for a just and equitable trial. In its decision taken in Haser , the Court did in fact base itself on this particular characteristic. On page 9 of its decision on admissibility, it is stated:

“However, the Court considers that a defendant’s interest in being tried adversarially in a criminal court of first instance against whose judgment no appeal lies on the facts but only on points of law takes precedence over the interest of a person convicted in his absence by such a court in being absolved from the obligation to appeal against his conviction in absentia so as to avoid the risk of being arrested. In such a case the convicted person’s appearance in court is of vital importance in view of the requirement of a fair criminal trial conducted with due regard to the defendant’s rights.”

However, such considerations are not valid in the present case. Mr Eliazer appeared before the First-Instance Court . At the next stage, his lawyer attended the hearing held by the Joint Court of Justice and conducted his defence. He wanted to file an appeal in cassation to obtain an opinion from the Supreme Court as to the unlawfulness of the search of his house, that is an argument raised by the defence that had in fact been examined and rejected by the Joint Court of Justice. Under such circumstances, we are of the opinion that Mr Eliazer’s interests in having the right to file an appeal in cassation outweighed the public interest in having him appear before the Joint Court of Justice.

II. Furthermore, the applicant did not act contrary to any obligation under domestic law when he chose not to appear at his trial before the Joint Court of Justice. This court did not issue an order for his appearance or an order that he be forcibly brought before it. If there is no general obligation for accused to attend their trial, a failure to appear cannot be regarded as unlawful. Consequently, if an accused opts not to appear, he or she should not be penalised for this choice by losing further defence opportunities – an appeal in cassation – which opportunities other accused, who have made a different choice, still have. Where the law allows a choice, availing oneself of the possibility to choose whether or not to attend trial proceedings cannot be taken as a justified reason for making a difference in treatment to the detriment of those accused who in all legality have chosen not to appear. In the present case, the applicant has lost his right to appeal in cassation and, in our opinion, this constitutes an unjust difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia .

Having regard to the scope of an appeal in cassation and to the reasons given by the legislature in the explanatory memorandum to the Cassation Regulations for excluding an appeal in cassation for accused who have not attended their trial – which reasons appear to have been mainly based on organisational considerations in respect of proceedings before an overseas court –, we are of the opinion that to deprive the applicant, merely on account of not having attended his trial, of the possibility to file an appeal in cassation is incompatible with his rights of defence and with the principle of the rule of law in a democratic society. This is not altered by the fact that the applicant could have filed an objection against the judgment handed down by the Joint Court of Justice, since such an objection would be declared defunct if he failed to appear at the hearing on this objection and, consequently, render final the judgment forming the object of the objection.

Having regard to all the circumstances of the case, we consider that the applicant suffered an excessive restriction of his right of access to a court and therefore his right to a fair trial. Accordingly, we conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention and of Article 14 of the Convention taken in conjunction with Article 6.