JOINT DISSENTING OPINION OF JUDGES MARUSTE, ZAGREBELSKY AND GARLICKI

(Translation)

It is to our regret that we are unable to agree with the opinion of the majority in finding a violation of Article 6 §1 of the Convention on account of the fact that the Rome Court of Appeal held the hearing of 3 November 2000 in the applicant’s absence.

Following the proceedings at first instance, the applicant was found guilty of possessing drugs (heroin) with the intention of selling them. The applicant participated in the hearing, assisted by a lawyer of his own choosing. The circumstances of the case were not disputed, as the applicant had been arrested in flagrante delicto . The applicant’s argument was that he had bought the drugs for his personal use. On appeal, the applicant’s lawyer submitted that the offence of which his client stood accused should be classified as possession of drugs for personal use, and that the quantity of drugs seized – 485 grams, or 8,465 doses, according to the appeal decision – did not suggest an intention to sell. The lawyer argued further that the law penalising the possession of drugs for personal use was in breach of constitutional freedoms.

Notice of the date for the appeal hearing was served on the applicant in prison. The fact that the notice stated that the accused could request leave to be present at the hearing is not disputed. The applicant made no such request. Not until the hearing itself did his lawyer request that the applicant be brought before the Court of Appeal. The latter, however, citing Article 127 of the Code of Criminal Procedure (“the CCP”), proceeded with the hearing in the absence of the defendant, since he had not requested leave to attend. The applicant’s lawyer conducted the case on his client’s behalf.

In our view, it is legitimate to require the defendant and/or his lawyer to make a formal request; there are therefore no grounds for finding a violation of Article 6 of the Convention. There was nothing to prevent the defendant from being present: the only formality to be completed was to request the prison authorities to bring him before the Court of Appeal. Under Italian law, the presence of the defendant at the hearing – even if he is in detention ­ – is a right rather than an obligation.

The majority considered that the applicant might not have understood the instructions contained in the notice informing him of the date for the hearing, as the applicant maintained that he did not understand Italian. However, it is difficult to believe that the applicant, who had already been convicted and had served his sentence in Italy (see his application for release dated 24 February 2000 ) should not have been able to grasp the meaning of the notice or been able to request clarification, at least from his lawyer. In any event, the defendant was assisted throughout the proceedings by a lawyer of his own choosing, who would normally be expected to have offered information and advice to his client. It is therefore reasonable to regard the applicant’s conduct as a failure to act which rules out any breach of duty on the part of the authorities.

It might be added that at the appeal hearing, following a first ‑ instance hearing covering both facts and law and in which the applicant had participated, no witnesses were to be examined and no new evidence was to be taken. The grounds of appeal concerned questions of law, and the powers of the appeal judge were defined by those grounds (see Article 597 of the CCP, quoted in paragraph 22 of the Court’s judgment). Taking into account the nature of the appeal proceedings in the instant case, therefore, the defendant’s presence was not required within the meaning of the Court’s case-law (see, mutatis mutandis , Kremzow v. Austria , judgment of 21 September 1993, Series A no. 268 ‑ B, p. 44 , § § 60-63).