CONCURRING OPINION OF JUDGE RYSSDAL JOINED BY JUDGE MIFSUD BONNICI

In its judgment the Court has made several references to the Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A. In that case I dissented and found no violation of the Convention. The present case differs, however, in several respects from the Poitrimol case and can in my opinion certainly be distinguished from that case.

I agree that it is important for the fairness of criminal justice that the accused be adequately defended both at first instance and on appeal. I further agree that it is for the courts to ensure that the trial is fair, and that defence counsel who attends is given the opportunity of defending the accused in his absence.

DISSE NTING OPINION OF JUDGE MATSCHER

(Translation)

In my opinion, a system of criminal procedure that is designed to encourage the accused to be present at his trial and at the hearing of any appeal and which does not allow an absent offender to be represented by his counsel unless there are valid reasons for his absence is not - in principle - contrary to the Convention.

It is only in criminal cases of some seriousness that the interests of justice may require that the accused should always be present or represented, if need be by counsel assigned officially (see, mutatis mutandis, the Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, pp. 44-45, paras . 65-69, and the Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A).

The present case is a fairly run-of-the-mill one. Deliberately and without any plausible justification the applicant, who was moreover on the spot, attended neither the trial nor the appeal hearing; furthermore, his counsel had not sought leave to represent him. That being so, the applicant ’ s conviction in absentia did not infringe Article 6 paras . 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.

Accordingly, contrary to my position in the Pelladoah v. the Netherlands case, which is to be classified rather with the Kremzow and Poitrimol cases, I have voted against finding that there was a breach in this case.

[*]  Note by the Registrar.  The case is numbered 25/1993/420/499.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 297-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.