joint CONCURRING OPINION OF JUDGEs wildhaber, palm, ROZAKIS, tÃœrmen and bÃŽrsan

We voted in favour of a violation of Article 6 § 1 combined with Article 6 § 3 (c) of the Convention in this case because we believe that the Brussels Court of Appeal did not allow the applicant to be represented by a lawyer before that court on a matter where a point of law was at issue and where the presence of a lawyer was more indispensable than the presence of the accused person herself.

To our minds, that was the only issue in this case that raised a problem of conformity of the national proceedings with the requirements of Article 6 and we are not therefore prepared to accept the more general approach which transpires from paragraph 34 of the Court’s judgment, where it is implied that Article 6 may allow an accused person to be absent if he or she is duly represented by a lawyer during criminal proceedings.

We think that such a conclusion is unwarranted for all those cases where the presence of an accused person is necessary for the good administration of criminal justice.

Concurring Opinion of Judge Bonello

I voted with the majority for a finding of violation of Article 6, but reached that conclusion via a more radical approach.

The point of departure of this opinion is that the presence of a defendant during his trial is basically his right, not his obligation [5] . In this case, as in its previous case-law, the Court has presided over a cheerless metamorphosis of a fundamental right into a crushing duty [6] . What the Convention sets forth as the accused’s privilege has been alchemised into a debt due by the defendant to the State. With the baneful consequence that an accused may be denuded of his defence if he chooses to exercise his privilege not to attend his trial or appeal.

Article 6 § 3 (c) heralds the fundamental right of the accused “to defend himself in person or through legal assistance of his own choosing”. The Convention offers a choice to the person accused: to secure his defence either in person or through legal support. The Belgian system has erased this choice. On appeal, the defendant must defend himself in tandem with his lawyer, or not defend himself at all. That system has hijacked from the defendant the options which the Convention devolves exclusively on him. The State acts as the prosecutor of the defendant, and also believes itself to be the sole arbiter of his choice of defence.

Article 6 § 3 (c) is meant to bestow on the defendant an alternative between two possible courses, both tending to maximise his best defence (and the promotion of the accused’s “best defence” is an imperative constituent of the right to a fair hearing). He may opt to exercise that right either by appearing in court or by not appearing; in the first alternative, he may elect to conduct his own defence, or engage the services of a professional lawyer. In the second, the Convention allows his defence to be undertaken by a lawyer of his choice.

The Belgian Court of Appeal, in a pleading meant essentially to scrutinise a technical dispute (time-bar of the criminal action), refused the guiding hand of a professional lawyer, for the sole reason that the applicant had not attended the hearing. It rejected the profitable and the constructive, because of the absence of the unhelpful and the superfluous.

I enquire if the interests of a fair hearing would have been better served by allowing the applicant’s lawyer to plead his brief, or, as happened in this

case, by dismissing the appeal without any hearing at all. I have but little doubt that, discharging the appeal without any hearing was massively more destructive to the well-being of a fair trial than hearing pleadings in the absence of the accused. I am puzzled and disturbed by an appeal system that, in substance, endures convictions to stand in absentia , but proscribes defence or acquittals in absentia . The weighting against the defendant appears manifestly too overbearing. That system allows a lot to the defendant, except a defence.

It is not questioned that the presence of the accused at his trial can be advantageous to the administration of justice. The arguments favouring the defendant’s presence have been skilfully expounded in the Government’s memorial, and I am sensitive to most of them [7] . One decisive consideration which the Government’s inventory however disregards is that, even if present, the defendant has an inalienable right to silence. For the purpose of generating those benefits to the administration of justice listed by the Government, a mute defendant is almost as productive as an absent defendant.

This does not minimise the utility of the accused’s presence at his trial for the proper administration of justice, or challenge that it should be encouraged. What should be discouraged is the transfiguration of a privilege of the defendant into an onerous responsibility, which divests him of his right of defence should he choose not to exercise his fundamental right to attend.

I part with the majority where it advocates a case-by-case approach, in which a balancing of interests between the rights of the defendant and those of the administration of justice is called for, according to the particular circumstances of each case.

In my view, balancing the discordant interests of the individual and those of society is crucial in the application of various other provisions of the Convention, where the text itself explicitly demands such balancing [8] . In the fundamental right to be present at the trial, Article 6 § 3 (c) posits no such balancing, and any excursion into that equilibrating exercise would be both amiss and inadmissible. At best, balancing is subjective and therefore arbitrary. In this case it is also clearly ultra vires . I am generally unhappy with the doctrine of “implied limitations” of fundamental rights, and, in any case, I do not read any convincing “implied limitations” on the exercise of this particular right.

The right of the defendant to be absent from his trial corresponds quite closely to his right to silence. If, in the name of the acknowledged benefits to the administration of justice, the accused’s presence at his trial were to be considered a prerequisite to any defence, substantially the same arguments

could coerce him into renouncing his right to silence – in deference to those same interests of the administration of justice.

In practice, I cannot foresee any case where, in a search for equilibrium between society’s interests and this particular fundamental right of the accused (even were any balancing legitimate), the latter should ever succumb to the former. And I see no utility in what are essentially specious distinctions between the accused’s absence in cases at first instance, and on appeal; nor in distinguishing appeals on facts from appeals on law.

The Court, I believe, should have professed this forthrightly, pre-empting the possibility of future balancing exercises which may lead to findings in which the defendant’s right to be present at his trial becomes his tombstone.

Dissenting Opinion of Judge Pellonpää

I voted against finding a violation of Article 6 in the present case.

I admit that the Brussels Court of Appeal’s decision of 13 September 1993 to refuse the applicant’s counsel leave to represent her may at first sight appear problematic from the point of view of Article 6 § 3 (c).

That decision, however, should not be looked at in isolation, without regard to the proceedings as a whole and the purpose and function of the guarantees enumerated in paragraph 3 of Article 6.

As stated by the (former) Court in the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 15, § 32, the various rights guaranteed in paragraph 3 are “specific applications of the general principle stated in paragraph 1 of the Article”, with the consequence that “[w]hen compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots”. Or, to quote the European Commission of Human Rights, the guarantees of Article 6 § 3 are “not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings” (Can v. Austria judgment of 30 September 1985, Series A no. 96, opinion of the Commission, p. 15). Sometimes a broad interpretation of paragraph 3 may be called for, if that is required in order to guarantee the fairness of the proceedings as a whole. Sometimes, however, it is not necessary to read into the specific provisions of paragraph 3 more than the words indicate, if a literal interpretation is sufficient from the point of view of the overall fairness of the proceedings.

In assessing this overall fairness, one should not lose sight of considerations concerning the general function of criminal law and proceedings and the role of the various participants, including the accused, in such proceedings. The respondent Government advanced a number of reasons (see paragraph 31 of the judgment) which justify a system in which a person accused of serious offences is obliged to appear personally before the court. That not all the reasons are present in a particular case is not necessarily decisive for the assessment of the case under Article 6. As a general rule, such a system and the application of it are acceptable as long as the Convention does not guarantee as a human right an accused’s right to be absent from criminal proceedings against him or her. Correspondingly, as was stated in the Poitrimol case, “the legislature must ... be able to discourage unjustified absences” (see the Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A, p. 15, § 35).

Where this legitimate policy of discouraging unjustified absences is pursued, the rights of the defence must of course be taken into account. Even so, the position of the accused cannot be a consideration that unconditionally overrides all the other interests involved. In my view, this should be taken into account also in the interpretation of the specific guarantees contained in Article 6 § 3.

If the proceedings against the applicant are assessed against this background, the first impression is that they were, as a whole, prima facie fair. After having been convicted in absentia on 10 December 1992, the applicant applied to set aside the conviction. This led to new first-instance proceedings conducted in the applicant’s presence and to a reduction of her sentence in the judgment of 7 May 1993. As this remained the final judgment, her sentence to three years’ imprisonment and fines resulted from fully adversarial first-instance proceedings. This is one – though not a decisive – difference between the present case and the Poitrimol case cited above and the cases of Lala v. the Netherlands and Pelladoah v. the Netherlands (judgments of 22 September 1994, Series A no. 297-A and B).

Furthermore, the applicant had the possibility of appealing and she did appeal. As the applicant did not appear before the Court of Appeal, the court, in her absence, upheld the judgment of 7 May 1993. Unlike the situation in the cases just mentioned, the applicant also had a remedy against this judgment in absentia in that she could ask for it to be set aside. This she did. Again she did not appear before the court, nor did she adduce any evidence of reasons preventing her from attending in person. The question is whether in these circumstances the refusal of the Court of Appeal to grant the applicant’s counsel, who appeared before the court, leave to represent her amounts to a violation of Article 6 § 3 (c) read in conjunction with paragraph 1 of that Article.

In this respect it is of importance that even at the appeal level the applicant had two possibilities of presenting her case. By being present, as required by Belgian law, on one of the two occasions, she would have been able to enjoy the right to be assisted in accordance with Article 6 § 3 (c). She would also have had the possibility of being granted that right if she had adduced evidence of force majeure preventing her from attending in person. The applicant, however, is in effect claiming on the basis of the Convention not just a right to be assisted but rather a right to be absent from criminal proceedings and the corollary right to be defended in such proceedings by a representative. Although in specific circumstances fairness requires that such representation be allowed, as a general rule neither Article 6 § 3 (c) (which refers to “assistance”) nor any other provision of the

Convention guarantees such a right. In view of this and of the fact that the Belgian system afforded the applicant ample opportunity to enjoy all the benefits of Article 6, I conclude that the system as applied in her case did not violate that Article.

I voted in favour of the conclusion that the judgment constitutes in itself just satisfaction for the claim based on alleged non-pecuniary damage. The reason for that vote was that, in accordance with my earlier conclusion, I do not consider that there has been any non-pecuniary damage. I also voted with the majority as regards the award for costs and expenses. Since the majority has found a violation, I consider it proper that the applicant should be compensated for her legal expenses.

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] Notes by the Registry

1. Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11.

[3] 2. Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No. 9.

[4] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.

[5] 1. See the opinion of the Commission in the case of Colozza and Rubinat v. Italy, appended to the judgments of 12 February 1985, Series A no. 89, p. 29, § 118, and the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 12, § 25.

[6] 2. Notably in the Poitrimol, Lala and Pelladoah judgments referred to by the Court.

[7] 1. Paragraphs 21 to 25.

[8] 2. For example, Articles 8 § 2, 9 § 2, 10 § 2, 11 § 2.