JOINT DISSENTING OPINION OF JUDGES RYSSDAL AND DE MEYER

We agree with the opinion of the Commission that there has been a breach of Article 6 para . 3 (c) (art. 6-3-c) in this case.

It is not in dispute that, on account of the rest which his doctor had prescribed for him on 15 November 1985, the lawyer briefed by the applicant to present her case in the Court of Cassation was unable for a legitimate reason to appear before that court on 6 December and that he had, on 18 November 1985, requested the Court of Cassation to postpone the hearing for that reason to a later date [1] .

The Court of Cassation left it until 6 December 1985 before deciding to reject the lawyer ’ s request and proceeded to dispose of the case forthwith in the presence of the representative of the prosecuting authority but in the absence of the applicant ’ s lawyer.

The latter can hardly be criticised for failing to take any action [2] , when his doctor had, on 15 November 1985, prescribed "total rest" for him. The Court of Cassation had been in formed of this three days later [3] .

Similarly, it can scarcely be held against the applicant that she failed to adduce any of the grounds which could still have been raised at the hearing [4] , when she was denied the opportunity of participating in the oral proceedings either in person or through her lawyer. Moreover, there is nothing to indicate that she was aware that her lawyer was unable to attend.

Against this background we consider that the rights of the defence were not adequately respected.

[*]  Note by the Registrar: the case is numbered 4/1993/399/477.  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 281-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] Paragraph 16 of the judgment.

[2] Paragraph 30 of the judgment.

[3] Paragraph 16 of the judgment.

[4] Paragraph 28 of the judgment.