JOINT CONCURRING OPINION OF JUDGE S POWER ‑ FORDE AND NUSSBERGER

We have voted with the majority in finding a violation, but nonetheless we think that it is worth reconsidering the Court ’ s frequently criticised and controversial case-law on Article 6 § 3 (c) of the Convention, [1] which, in our view, obliges States to initiate reforms of criminal procedure that are neither necessary nor helpful.

Article 6 § 3 (c) of the Convention defines as a minimum standard in criminal procedure that everyone who is charged with a criminal offence has the right “to defend himself in person or through legal assistance of his own choosing”.

Whereas the right to “legal assistance” is clearly intended to secure to an accused person the support of a lawyer, the Court has interpreted this provision as a right for the accused to be absent from trial and to be replaced by a lawyer. While this might be acceptable in respect of legal systems where the law on criminal procedure allows trials in absentia and thus does not secure the accused person ’ s right to be heard, this approach cannot be transferred to legal systems which do not allow trials in absentia , but which link certain consequences or sanctions to a defendant ’ s unexcused absence from second-instance proceedings, after the case has already been fully heard by the court of f irst instance.

Admittedly, it is one of the most essential features of the guarantees under Article 6 of the Convention that the accused be heard. The other side of the coin, however, is that the accused must listen, not only to the questions put to him, but also to the charges, the witnesses ’ and experts ’ statements and – in particular – to the victim ’ s report of his or her suffering. A personal confrontation with and awareness of the public discussion on the defendant ’ s crime and guilt must be seen as a precondition for effective rehabilitation and reintegration into society, which is the basic aim of punishment. Although the lawyer is able to advance arguments in defence of the accused at the trial, he cannot replace his client. If the accused does not attend the trial, where all the questions of fact and law are discussed, the trial loses its main purpose.

For this reason, the Court has always emphasised “ that it is of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim, whose interests need to be protected, and of the witnesses. The legislature must accordingly be able to discourage unjustified absences” (see Poitrimol v. France , 23 November 1993, § 35, Series A no. 277 ‑ A).

In our opinion, however, it is not correct to balance this duty on the part of the legislature to discourage unjustified absences against the accused person ’ s right to be adequately defended. This would mean failing to distinguish the right to legal assistance from the right to be absent from trial. It is undisputed that, had the accused been present at his trial, he would have had the right to defend himself “through legal assistance”. Thus, we do not share the Court ’ s view that the accused would lose his right to be defended by a lawyer as guaranteed by Article 6 § 3 (c) of the Convention. He is merely denied the right to be replaced by a lawyer, a right which is not guaranteed by the Convention.

The Court ’ s case-law is perplexing: on the basis of the accused person ’ s wish for a retrial, everybody must be present and witnesses can even be obliged to attend the hearing; meanwhile, the accused himself is permitted to be absent. It is difficult to imagine how the repetition of a full examination of the facts and law of a case at second instance, without the presence of the accused, could better serve the purpose of establishing the truth and fixing a fair penalty than the same examination at first instance, in the presence of the accused.

[1] Se e the dissenting opinions of Judge s Ryssdal, Freeland and Lopes Rocha and Judge Pettiti in Poitrimol v. France ; Judge Matscher in Lala v. The Netherlands ; Judge Pellonpää in Van Geysegheim v. Belgium ; and the concurring opinions of Judges Wildhaber, Palm, Rozakis, Türmen and Bîrsan in Van Geysegheim v. Belgium , all of which criticise the Court’s interpretation of Article 6 § 3 (c) of the Convention.