DISSENTING OPINION OF JUDGE ROZAKIS

With great regret I am unable to join the majority of the Chamber in finding a non-violation of Article 6 § 3 (c) of the Convention in the circumstances of the present case. The reasons which have convinced me to depart from their judgment are, analytically, the following:

1. The Convention attaches substantial importance to the presence of an accused person in criminal proceedings against him. The rule enshrined in Article 6 § 3 (c) that every person has the right to defend himself is intended, of course, primarily to serve the legitimate interest of enabling the accused to conduct his own defence before a court as well as possible. But, as with many other rules of the Convention, the importance of this protective clause goes far beyond merely safeguarding an individual’s interests: the relevant paragraph may also serve the more general interests of justice by making it easier for criminal courts to acquire a better and more complete picture of the reality of the facts of a case and of the personality of the accused through constant interaction between the accused and the other protagonists at the trial (judges, witnesses and exhibits). The European Court has repeatedly accepted the importance of this rule in previous judgments (see, inter alia , Poitrimol v. France , judgment of 23 November 1993 , Series A no. 277-A).

2. The reference made in Article 6 § 3 (c) to the assistance of the defendant by a lawyer should not be seen as creating an alternative means of defence in all circumstances, namely whenever an accused person is absent. It seems to me that the intention of the drafters was not to weaken the right of personal appearance but to enhance it by the cumulative presence of experts able to contribute to a better presentation of the defendant’s case.

3. The Court, it is true, has developed a “negative” case-law, finding violations in cases where domestic courts, in the absence of a defendant, denied him the right to be duly represented by a lawyer (see the recent judgment of the Third Section in Van Pelt v. France , no. 31070/96, 23 May 2000, unreported), following Lala and Pelladoah v. the Netherlands (judgments of 22 September 1994, Series A nos. 297-A and B, respectively). Yet, there is no case-law dealing directly with the absence of an accused person – who was represented by his lawyers – particularly at the stage of a first-instance determination of criminal responsibility. It should be noted that, in all the cases in which the European Court has found a violation of Article 6 because the accused has been denied legal representation, the proceedings were at the appeal stage.

4. It seems to me that the rule of Article 6 § 3 (c) acquires greater importance when we are confronted with criminal proceedings at first instance. There the domestic court determines the facts of the case on the basis of an incremental assessment of the evidence by hearing witnesses, examining exhibits, and hearing all those involved in the criminal act, and also decides on the applicable law. The first-instance proceedings have a determinative impact for all the other stages of the proceedings; it may be said that they exercise a decisive influence on the appeal proceedings, even in cases where the appellate court examines the case afresh, both as regards the facts and the law. It goes without saying that the more serious the case – the more serious the penalties faced by the accused – and the more the latter’s presence becomes necessary.

5. Against this background there is undoubtedly the interest of the proper administration of justice which must not be hindered by undue and intentional abuses of the rights of the defence. For this reason, the case-law of the European Court has accepted that the right of personal appearance is not unlimited, and that the legislature may discourage unjustified absences which may lead to the alteration of evidence, the prescription of a crime or a denial of justice (see, inter alia , Colozza v. Italy , judgment of 12 February 1985, Series A no. 89).

6. Yet, it is clear that the European Court ’s case-law restricts the limitations to instances of unjustified absences. But “unjustified” to whom? To the domestic courts deciding the case or to the European Court supervising the application of the relevant safeguard in the domestic order? It seems to me that the value judgment on whether the absence was justified cannot indiscriminately be left to the domestic courts. As in many instances where value judgments are involved, the European Court has the right to scrutinise the evaluation of the domestic authorities. Indeed, that was done in the present case, in which the Court agreed with the Swiss courts’ assessment (see paragraph 58 of the judgment).

7. Moreover, there is a safety-valve in the case-law against possible arbitrariness on the part of the domestic courts: the possibility of a retrial of a case initially tried in absentia . Indeed, the case-law enunciates that there is no incompatibility per se with Article 6 if a person convicted in absentia can be retried in his presence by another jurisdiction that will hear argument on both the facts and the law (see Colozza , cited above).

With these general principles in mind I now turn to the specifics of the present case. The elements which should be retained, in these circumstances, and compared with the above observations are the following:

(a) The case of the applicant pending before the Swiss national courts was of a serious nature. The applicant was accused of grave offences and, in the end, was convicted to four years’ imprisonment.

(b) The impugned procedure was at first instance. The establishment of the facts – which proved to be final – and the determination of the applicable law were made in his absence, only his lawyers being present.

(c) The applicant asked for an adjournment of these proceedings on the basis of an impediment caused by a restraining order by an American court. It is difficult for us, an international court, not to accept that a restraining order coming from another jurisdiction of a country with similar legal and cultural traditions to ours represents an objective impediment to the applicant’s presence in the Swiss criminal proceedings, and, hence, to conclude that his absence was justified. It is, moreover, difficult for us, an international court, to circumvent the objective reality of a restraining order and to enter into the dubious exercise of replacing the American judge’s assessment of the circumstances which led him to impose a restraining order on the applicant with our own, particularly when we do not have to hand all the elements that convinced the American judge to make an order restraining the applicant from leaving the country. However that, unfortunately, is what the majority of the Chamber has done through its conclusions in paragraph 58 of the judgment.

(d) Swiss law, through Article 331 of the Code of Criminal Procedure, allows any accused person who is convicted in absentia through no fault of his own to challenge the judgment, to have the proceedings set aside and, consequently, to secure a retrial. That Article clearly complies with our case-law which encourages retrials when an accused person has firstly been convicted in absentia . The applicant made numerous attempts to be retried and to be allowed to travel to Geneva once the restraining order was lifted.

Under these circumstances, namely the fact that (a) the criminal charge was a serious one, (b) that it was pending before a court of first instance, (c) that there was an objective impediment to the applicant being present in Geneva, and (d) that the applicant sought a retrial in accordance with Swiss law, I believe that there has been a violation of Article 6, mainly because the Swiss courts denied him the right to be retried in his presence.