DISSENTING OPINION OF JUDGE JEBENS

I respectfully disagree with the majority that there has been a violation of Article 6 in this case. For the reasons set out below, I am of the opinion that the applicant was afforded a fair trial at the Municipal Court.

I note firstly that the applicant ’ s defence counsel was present at the previous hearings, including the hearing on 6 October 2003, when the applicant gave evidence. He also assisted the applicant at the examination of all witnesses which were heard at the previous hearings. Furthermore, he had ample opportunity to present his views on the facts of the case and all pertaining legal issues in written submissions before the final hearing. During the final hearing no further witnesses were heard. However, the applicant himself was heard once more at that hearing and he also gave the closing arguments.

It is also in my opinion relevant for the assessment of the complaint that the applicant was represented throughout the proceedings before the appellate Court and the Constitutional Court . The applicant ’ s counsel thus had a further opportunity to present his views on the case both in an appeal against the first instance judgment and in a constitutional complaint.

More important is, however, in my opinion the fact that the appellate Court carefully examined whether the absence of the defence counsel could possibly have affected the outcome of the case. It answered that question in the negative, and explained it in a concrete and convincing manner, see the quotation in para 10. I see no reason to doubt the validity of the conclusion reached by the appellate Court, bearing in mind also the principle of subsidiarity , with regard to assessment of questions of fact.

Summing up, a scrutiny of the proceedings as a whole leads me to conclude that the applicant was not denied a fair trial (see, mutatis mutandis, Imbrioscia v. Switzerland , 24 November 1993, § 44, Series A no. 275). In the circumstance of the present case I find that the applicant was able to defend himself through legal assistance to the extent required under the Convention. There has therefore in my opinion not been a violation of Article 6 § 1 taken together with Article 6 § 3 c of the Convention.