DISSENTING OPINION OF JUDGE BONELLO

1. I agree with the majority’s view that the national authorities enjoy a wide margin of appreciation in identifying means for giving effect to the fair hearing guarantees enshrined in Article 6. With the rest I do not. I certainly cannot agree that even the most overstretched margin of appreciation should ever serve to provide an alibi to abort completely the protection of those guarantees.

2. In the present case the applicant was tried in absentia in Switzerland , and condemned to four years’ imprisonment at a time when he was in the physical impossibility of being present at his own trial. He was then being detained in the United States by operation of a “restraining order” issued by a court in South Carolina at the request of a third party; that court had also ordered the confiscation of his passport. When his trial in absentia was under way in Geneva, the applicant had formally, but unsuccessfully, attempted to have the United States restraining order removed 1 . On his return to Switzerland he requested a retrial, as provided for by the Geneva Code of Criminal Procedure in cases of trials in absentia when the accused shows that his absence was not his fault. His request was turned down.

3. The Court had previously held – self-evidently in my view – that “although this is not expressly mentioned in paragraph 1 of Article 6, the object and the purpose of that Article as a whole show that a person ‘charged with a criminal offence’ is entitled to take part in the hearing ” 2 (emphasis added). The Court also held that “the personal appearance of the defendant did not take the same crucial significance for an appeal hearing as it did for the trial hearing” 3 .

4. This, after all, only reiterates the mandatory injunction of Article 14 § 3 (d) of the International Covenant on Civil and Political Rights: “In the determination of any criminal charge against him, everyone shall be entitled ... to be tried in his presence.”

5. A Resolution of the Committee of Ministers of the Council of Europe has asserted that “the presence of the accused at his trial is of vital importance”, adding that “a person tried in his absence, but on whom a summons has been properly served, is entitled to a retrial, in the ordinary way, if that person can prove that his absence ... was due to reasons beyond his control” 4 .

6. The present judgment has gone as far as it could go to abrogate and render virtually devoid of content this fundamental credo. The majority upheld the validity of the applicant’s conviction in absentia , finding that he had, to a considerable extent, contributed to create a situation which hindered his ability to appear before the Geneva Assize Court .

7. This is hardly borne out by the facts. It is as true as it is irrelevant that the applicant had grossly misrepresented to the United States court the fairness of the Geneva legal system. The undeniable fact, however, remains that the restraining order on the applicant not to leave the United States was not due to this misrepresentation, but was the consequence of a request made by a third party, in safeguard of that party’s rights. The distortions by the applicant seem to have carried absolutely marginal weight, if any at all, in the confiscation of his passport by the United States authorities. He was prevented from being present at his trial in Geneva not because the Swiss penal system had been caricatured by him as inadequate, but because his presence in South Carolina was obligatory to guarantee the rights of others in the United States . The applicant simply had no choice as to whether he should stay in the United States or return to Geneva to face trial.

8. The Court, flying in the face of its own case-law, has endorsed the regularity of a criminal trial carried out behind the accused’s back, when the possibility of his participating in it lacked none of the substance and powers of a chimera. Ad impossibilia omnes tenentur ! The Court gave no redress against the Swiss authorities’ impregnable firmness that in the applicant’s trial everyone should be heard. Everyone, that is, except the applicant himself.

9. In Ekbatani it had been underscored that “the notion of a fair trial [implies] that a person charged with a criminal offence should, as a general principle, be entitled to be present at [their first-instance] trial hearing” 5 . In faultless synchronism with this fundamental principle, the Court could then examine the fairness of the second- or third-instance hearing (not in public, in the absence of the accused) provided that the accused had participated in the first-instance proceedings 6 . I could detect no trace of this line of thought in the majority.

10. I second Judge Rozakis’s dissent in all its substance.

11. Like the majority I too am all for judicial moderation. Less so when a fundamental right, certified as “crucial” by the Court, is moderated into non-existence.

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1. See paragraph 58 of the judgment.

2. Colozza v. Italy , judgment of 12 February 1985 , Series A no. 89, p. 14, § 27.

3. Kamasinski v. Austria , judgment of 19 December 1989 , Series A no. 168, pp. 44-45.

4. Resolution (75) 11 on the criteria governing proceedings held in the absence of the accused.

5. Ekbatani v. Sweden , judgment of 26 May 1988 , Series A no. 134, p. 12.

6. Jan-Ã…ke Andersson v. Sweden , judgment of 29 October 1991, Series A no. 212-B, pp. 44-46, and Fejde v. Sweden , judgment of 29 October 1991, Series A no. 212-C, pp. 67-69.