DISSENTING OPINION OF JUDGE MYJER

1 . I do not agree with the majority. In my opinion the majority did not sufficiently take into account the very specific circumstances of the present case.

Let me explain. When I was a permanent judge in the Court I would always ask myself: does the proposed outcome feel right to me? If the answer was yes and the proposed reasoning was in conformity with the Court ’ s case-law, I would vote in favour of the proposed outcome without hesitation. If not, I would try to find a reason for my instinctive reaction and, if need be, to find another solution that did not cause me such uneasiness.

In this particular case I agree that the reasoning in the judgment is in line with the general case-law ( Hermi v. Italy [GC], no. 18114/02, ECHR 2006 ‑ XII) and, at first sight, appears convincing. Still, the outcome does not feel right to me.

2 . My instinctive reaction to the majority ’ s solution has to do with the following. As is the case in many other countries, people in the street are very worried about the possibility of terrorist violence. But the increasing frequency of violent acts and liquidations in the organised drugs scene comes a close second. Gangland murders of this type, mostly in public places and involving the use of heavy firearms, are now reported on a monthly or even a weekly basis.

This case has to be seen against that background. The victim was kidnapped and tortured (one of the rare cases where it could in fact be established that a kidnapped person had been tortured) and his dead body was left at a building site. It was clear that this had to do with organised drugs crime. Apparently a quantity of hashish had been stolen from a gang of criminals; this gang had tried to extort information as to the whereabouts of the stolen hashish from the victim. There came a point when the police had reason to believe that the applicant was heavily involved in this case of kidnapping/torture/infliction of injuries/drugs trafficking.

The applicant was arrested on 11 April 2006. He claimed to be innocent. It turns out in practice that these organised drugs crime cases are the most difficult to solve: suspects tend to invoke their right to remain silent. So it took quite a while before the case was finalised at first instance. The applicant was found guilty and handed a prison sentence of 4 years and 6 months. He was acquitted on one part of the charges. The public prosecutor had sought a prison sentence of 8 years.

Both the applicant and the prosecutor appealed. On appeal, the case of the applicant was considered in parallel with cases against certain other individuals suspected of involvement in the same crimes, and who had appealed as well. In the appeal proceedings the applicant and his (new) counsel asked for several witnesses to be heard. Apparently the Court of Appeal ordered that these witnesses should first be heard by the investigating judge.

On 26 March 2009 the applicant was released in accordance with Article 15 of the Netherlands Criminal Code, since he had served two-thirds of the prison sentence imposed on him by the court of first instance. After his release he appeared at the next hearing in his case, on 18 May 2009. It turned out that some witnesses had still to be heard, and so the hearing in his case (and that of the co-defendants) was adjourned until 27, 29 and 30 October 2009. The applicant was told to be present on that date without further notice. I would add that the very fact that the Court of Appeal had again reserved three days for the final hearing shows that they actually intended to proceed with the case. It goes without saying that reserving three days in the schedule of a court impinges on the working capacity of that court.

3 . To me the crucial point (making the circumstances in this case very exceptional) is as follows.

The applicant was subsequently arrested in Norway on 4 October 2009 in connection with the smuggling of 9 kg of amphetamines and roughly 47 kg of cannabis resin. According to the judgment of the Borgarting Court of Appeal (Norway), which later convicted and sentenced the applicant:

“Hokkeling travelled to Norway to arrange for and control receipt of the consignment of drugs, which had been transported over the borders to Norway in a trailer truck, which during the last stage had been driven by R.B. ... The day before delivery of the drugs Hokkeling took a plane from Copenhagen to Galdermoen and was met at the airport by T., who was driving a Volkswagen Caravelle. ... The police tailed both of them during the entire period and their phones were tapped. On Sunday 4 October 2009 at around 19.00, the car with the two men in it arrived at an are a beside the Shell petrol station on highway E6 near Klofta. ... Hokkeling and T. transferred eleven boxes from the trailer truck directly over into T. ’ s car.”

4 . In that connection I would like to make the following two comments.

Firstly, if the arrest in Norway had been connected with “old” suspicions in “old” cases, the situation would have been more or less comparable to that in F.C.B. v. Italy (28 August 1991, Series A no. 208 ‑ B) – a judgment on which the majority place heavy reliance as precedent. In general, in such circumstances the applicant would not have incurred any blame for travelling to Norway.

Secondly, had the new suspicion against the applicant been a general one, of a kind where he could easily have denied all involvement, that also would have been a different case. Such lingering doubt would have made it preferable to await the judgment of at least the court of first instance in Norway.

But here the applicant, having been notified in person that he was expected to appear before the Amsterda m Court of Appeal on 27 October 2009, travelled to Norway three weeks before that date to oversee the handover of illegal drugs in person, and he was caught red-handed while transporting these drugs in Norway. That is a situation in which, in my opinion, he himself is totally responsible for not being able to appear on 27 October. And these are circumstances in which the presumption of innocence cannot reasonably prevent any court from finding that the applicant has been arrested under circumstances which fall within his responsibility.

5 . Given that the applicant had been arrested in Norway, his case – and, be it noted, the cases of the co-defendants – were not brought to a conclusion by the Amsterdam Court of Appeal on 27 October 2009 or the following days. At that time the applicant ’ s Dutch lawyer had not yet had access to his client, who was detained in Norway and whose contacts with the outside world were severely restricted. The case was again adjourned, this time until 4 June 2010 – more than seven months later. In the meantime the Advocate-General at the Amsterdam Court of Appeal attempted by all legal means to have the applicant brought to the Netherlands in accordance with the applicable international treaties so that the applicant could at least be present at the adjourned hearing in Amsterdam. That turned out to be impossible. By that time it had, however, been possible for the applicant ’ s Dutch lawyer to make contact with his client. When it was clear that the applicant would not be in any position to come to Amsterdam in person to attend his trial, the Amsterdam Court of Appeal eventually gave a reasoned decision to proceed with the case in his absence. The applicant ’ s counsel conducted the defence (capably and at length). The Court of Appeal held as follows:

“If a request is made to adjourn the hearing on the merits, all relevant interests should be weighed up, including the right of the accused to be present, the interest of not only the accused but also of society in a speedy determination of the charges, and the interest of proper organisation of the judicial system. In so doing, the court of Appeal will base its decision on the following facts and circumstances (for these facts and circumstances see § 23 of the judgment).”

Thus the Court of Appeal made it clear that a balancing exercise was necessary, weighing up the interests of the applicant and the interests of society as a whole, together with the interest of proper organisation of the judicial system. And yes, that is what the Supreme Court of the Netherlands has always said, in line with Strasbourg case-law: that in this balancing act, other factors (including the interests of the victim ’ s family) may also be of importance.

It seems that the Court of Appeal additionally considered it important that the cases of the co-accused were also pending. And I might add that, if the Court of Appeal had severed the applicant ’ s case from those of the co-defendants, the demands of impartiality would have made it necessary for an entire new chamber of the Court of Appeal, composed of different judges, to be set up specifically for the case of the applicant.

The Court of Appeal then found the applicant guilty of complicity in causing grievous bodily harm resulting in death, abduction and transporting and possessing an unspecified quantity of drugs, and acquitted him of threatening grievous bodily harm. The Court of Appeal went on to say that the facts thus proven were so shocking and abhorrent that a prison sentence of 8 years (as also sought by the Advocate-General at the Court of Appeal) was appropriate.

Again, this is the kind of case where it was in the interest not just of the victim ’ s next-of-kin, but also of the public at large, that the case should finally be brought to a conclusion.

6 . In the judgment it is suggested that the case bears a resemblance to that of F.C.B. v. Italy (cited above). The Government relied on Medenic a v. Switzerland , no. 20491/92, ECHR 2001 ‑ VI. Just for the record, Medenic a is a case with “Case Reports” status. Since that case is a later case than F.C.B. I quote the principles as set out in Medenica :

“53. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).

54. The Court has previously stated that it is of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses. The legislature must accordingly be able to disco urage unjustified absences (see Poitrimol v. France , judgment of 23 November 1993, Series A no. 277-A, p. 15, § 35, and Krombach v. France , no. 29731/96, § 84, ECHR 2001-II). Proceedings that take place in the accused ’ s absence will not of themselves be incompatible with the Convention if the accused may subsequently obtain, from a court which has heard him, a fresh determination of the merits o f the charge (see Colozz a v. Italy , judgment of 12 February 1985, Series A no. 89, p. 15, § 29, and Poitrimol , cited above, pp. 13-14, § 31).

55. The Contracting States enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6, while at the same time preserving their effectiveness. The Court ’ s task is to determine whether the result called for by the Convention has been achiev ed. As the Court pointed out in Colozza , the resources available under domestic law must be shown to be effective where a person “charged with a criminal offence” has neither waived his right to appear and to defend himself nor sought to escape trial (see Colozza , cited above, pp. 15-16, § 30).

56. In the instant case the Court notes that by an order of 19 April 1989 the President of the Canton of Genev a Assize Court dismissed the applicant ’ s application for an adjournment of the trial, on the ground that his absence was due to his own culpable conduct. In a judgment of 26 May 1989 it convicted him in absenti a and sentenced him to four years ’ imprisonment. The prese nt case is distinguishable from Poitrimol (cited above), Lal a and Pelladoah v. the Netherlands (judgments of 22 September 1994, Series A nos. 297- A and B, respectively), and Van Geyseghem and Krombach (both cited above), in that the applicant was not penalised for his absence by being denied the right to legal assistance, since the applicant ’ s defence at the trial was conducted by two lawyers of his own choosing.

57. It is true that Article 331 of the Genev a Code of Procedure in principle allows persons convicted in absenti a to have the proceedings set aside and to secure a rehearing of both the factual and the legal issues in the case. However, in the instant case, the Canton of Genev a Court of Justice dismissed the applicant ’ s application to have the conviction quashed on the grounds that he had failed to show good cause for his absence, as required by that provision, and that there was nothing in the case file to warrant finding that he had been absent for reasons beyond his control (see paragraph 32 above). That judgment was upheld by the Genev a Court of Cassation and the Federal Court. In the Court ’ s view, there is nothing to suggest that the Swiss courts acted arbitrarily or relied on manifest ly erroneous premises (see also Van Pelt v. France , no. 31070/96 , § 64, 23 May 2000, unreported).

58. In the light of the circumstances taken as a whole, the Court likewise considers that the applicant had largely contributed to bringing about a situation that prevented him from appearing before the Genev a Assize Court. It refers, in particular, to the opinion expressed by the Federal Court in its judgment of 23 December 1991 that the applicant had misled the American court by making equivocal and even knowingly inaccurate statements – notably about Swiss procedure – with the aim of securing a decision that would make it impossible for him to attend his trial.

59. In the light of the foregoing, and since the instant case did not concern a defendant who had not received the summons to appea r (see the following judgments: Colozza , cited above, pp. 14-15, § 28; F.C.B. v. Italy , 28 August 1991, Series A no. 208 ‑ B, p. 21, §§ 33-35; and T. v. Italy , 12 October 1992, Series A no. 245 ‑ C, pp. 41-42, §§ 27-30), or who had been denied the assistance of a lawyer (see the follow ing judgments, all cited above: Poitrimol , pp. 14-15, §§ 32-38; Lala , pp. 13-14, §§ 30-34; Pelladoah , pp. 34-35, §§ 37-41; Van Geyseghem , §§ 33-35; and Krombach , §§ 83-90), the Court considers that, regard being had to the margin of appreciation allowed to the Swiss authorities, the applicant ’ s conviction in absenti a and the refusal to grant him a retrial at which he would be present did not amount to a disproportionate penalty.

60. Consequently, there has been no violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (c).”

As I said before, F.C.B. v. Italy (HUDOC importance level 2) deals with the situation where it transpires that the applicant cannot appear since he is detained elsewhere. And there the Court ruled (§ 35):

“... the applicant ’ s conduct may give rise to certain doubts but the consequences which the Italian judicial authorities attributed to it are - in the light of the information available to the Milan Assize Court of Appeal on 9 April 1984 - manifestly disproportionate, having regard to the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see the above-mentioned Colozz a judgment, Series A no. 89, p. 16, para. 32).

In the instant case, the Court therefore does not have to determine whether and under what conditions an accused can waive exercise of his right to appear at the hearing (see the same judgment, p. 14, para. 28).”

However, neither the F.C.B. situation nor the Medenic a situation is similar to what happened in the case of the present applicant. In F.C.B. the applicant was acquitted. The prosecution appealed. Years passed before it became clear that the Supreme Court had quashed that judgment and that the case had to be reheard. In the meantime the applicant had moved abroad and was, two years later, arrested for some subsequent crimes. He was still in detention in the Netherlands when the Italian judiciary wanted to reopen the trial.

In Medenic a the applicant had managed by his conduct to obtain a judgment in the US A that prevented him from going to Switzerland, where he was supposed to stand trial.

So the lesson to be learned from Medenic a is that where a defendant has largely contributed to bringing about a situation that prevented him from appearing at his trial, the Government cannot be blamed for the need ultimately to decide the case in his absence.

7 . In this particular case, the applicant admittedly did not have any interest in getting himself arrested and detained in Norway. It is true that he emphasised that he wanted to be present at his trial in the Netherlands. Nevertheless, he not only largely contributed to the situation that prevented him from appearing before the Amsterdam Court of Appeal (compare Medenica ), but in my opinion bears full responsibility for bringing it about. He was the one who, because of his very conduct, was arrested in Norway. Not by chance or because of something he could not have expected, but because he was caught red-handed handling illegal drugs. He got involved in that business at a time that he was fully aware that three weeks later his presence would be required by the Court of Appeal for a rehearing of his case in Amsterdam. The Court of Appeal nonetheless adjourned it again, to see if there was any chance that he might turn up. When that proved impossible they pressed ahead with the case, acknowledging that the main rule was that the applicant should be able to be present at the hearing, but also reflecting that this was not an absolute right and that there came a time when it was necessary to weigh other interests in the balance. The Court of Appeal also took into account the fact that the applicant had been present at the beginning of the trial, had named the witnesses he wanted to have examined, and had been in contact with his Dutch lawyer.

8 . In my opinion the line of reasoning in the present judgment should accordingly have been, firstly, that the applicant himself was not largely but fully responsible for bringing about a situation that prevented him from appearing before the Amsterdam Court of Appeal; secondly, that the Court of Appeal nevertheless tried to see if there were still legal possibilities (based on international treaties) of having him brought to the Netherlands and for that reason again adjourned the case; thirdly, that the Court of Appeal took into consideration the fact that at least the applicant had been allowed contact with his Dutch lawyer in Norway.

To put it differently, the Amsterdam Court of Appeal did everything it could to guarantee the Article 6 rights of the accused as far as possible. The only thing it did not do was order yet another adjournment until the applicant was finally able to leave Norway and return to the Netherlands.

9 . I am fully aware that crooks have human rights too. Even crooks who are suspected of having abducted and tortured a victim and left him for dead on a building site. But that does not mean that this applicant has an absolute right to take control of the way the proceedings against him should be handled and of the time when hearings should take place. It was his own behaviour which prevented him from attending a court hearing of which he had been duly notified. It had nothing to do with force majeure or with anything unexpected. The only thing is that he apparently did not expect the Norwegian police to catch him red-handed.

10 . And although this may sound slightly exaggerated, I repeat that the judgment does not feel right to me. Worse still, I will have great difficulty explaining to others that in the particularly egregious circumstances of this case, Article 6 has been violated.

[1] . Rectified on 27 February 2017: the letter A has been deleted from the title ( A. Da mage );

[2] . Rectified on 2 7 February 2017: the title “B. Default interest” has been dele ted, as h as paragraph 69 in its entirety.