JOINT DISSENTING OPINION OF JUDGES NUSSBERGER, MØSE AND GROZEV

1. We respectfully disagree with the majority that there has been no violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.

2. It is settled case-law that in the interest of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Poitrimol v. France , 23 November 1993, § 35, Series A no. 277 ‑ A; Lal a v. the Netherlands , 22 September 1994, § 33, Series A no. 297 ‑ A; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria , no. 9808/02, § 56, 24 March 2005, and Hermi v. Italy [GC], no. 18114/02, § 58, ECHR 2006 ‑ XII).

3. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria , 19 December 1989, § 106, Series A no. 168). The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Monnell and Morris v. the United Kingdom , 2 March 1987, § 56, Series A no. 115; Ekbatani v. Sweden , 26 May 1988, § 27, Series A no. 134; and Hermi , cited above, § 60). Nevertheless, the Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant ’ s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani , cited above, § 32; Dondarini v. San Marino , § 27, 6 July 2004; Marcello Viol a v. Italy , § 58, 5 October 2006; Popovici v. Moldova , nos. 289/04 and 41194/04, § 68, 27 November 2007; and Selwiak v. Poland , no. 3818/04, §§ 55-57, 21 July 2009).

4. Furthermore, the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court ’ s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, and Al ‑ Khawaj a and Tahery v. the United Kingdom [GC], nos. 26766/05 a nd 22228/06, § 118, ECHR 2011).

5. In the present case the applicant appealed to the Court of Appeal following his conviction at first instance and requested that his presence be ensured at the hearing. The Court of Appeal granted his request and ordered the bailiffs to bring him to the court hearing. He was taken to the court-house and kept there in a cell the entire day of the appeal hearing, but was not brought to the hearing itself. On the same date, the Court of Appeal, in the presence of the applicant ’ s lawyer, upheld the first-instance judgment (see paragraphs 31-33 of the judgment).

6. It is true that the applicant had attended several first-instance hearings (but not the hearing in which he was sentenced to ten years ’ imprisonment, see paragraph 26 of the judgment) and had been given the opportunity to question witnesses and provide explanations (see paragraph 61 of the judgment). However, the Court of Appeal was called upon to make a full assessment of the question of the applicant ’ s guilt or innocence. In our view, it follows from the Court ’ s case-law that this required a direct assessment of the evidence given in person by the applicant, who claimed that he had not committed the acts of which he had been convicted, and that the Court of Appeal was under a duty to guarantee his right to be present in the courtroom (see paragraphs 2 and 3 above). This was important in view of contradictions in the evidentiary material, such as in the exact dates of the rapes, which had not been clarified (see paragraph 27 of the judgment). It is not for the applicant to demonstrate that there was any necessity to question him during the hearing or that his absence from the courtroom prejudiced his defence. As he had clearly expressed his wish to personally participate, it was not sufficient for the lawyer alone to be present.

7. It should be added that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantee of a fair trial (see Kwiatkowsk a v. Italy (dec.), no. 52868/99, 30 November 200l, and Hermi , cited above , § 73). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol , cited above, § 31). In the present case there is no statement to that effect and no information as to why the applicant was not brought from the cell in the court-house to attend the hearing in the courtroom.

8. Finally, in assessing the overall fairness of the proceedings it is also worth noting that the Court of Appeal did not refer separately to each of the arguments raised in the applicant ’ s appeal, which highlighted contradictions requiring clarification, but simply referred to the evidence in his criminal case file. Furthermore, the Court of Appeal did not question any of the witnesses whose credibility the applicant had challenged in his appeal (see paragraphs 27 and 33 of the judgment).

9. We therefore conclude that there has been a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.