JOINT DISSENTING OPINION OF JUDGE S JUNGWIERT AND VILLIGER

[(Translation)]

We voted against the majority which found a violation of Article 6 § 1 of the Convention on account of the public prosecutor ' s presence at the Court of Appeal ' s session of 2 November 2005, of which the applicant was not notified. The majority considered that the Criminal Proceedings Act (“the Act”), by having provided only the public prosecutor with a right to be apprised of the Court of Appeal ' s session automatically, while restricting that right for the accused only in case he or she requires so, created a statutory inequality , which in itself was contrary to a fair trial.

We agree that the Act (sections 361 (3) and 362 (1) of the Act, see “Relevant domestic law” above) did not put the public prosecutor and the defendant in equal position as regards the notification about a session of the Court of Appeal. However, we emphasise that the Court ' s role is not to rule in abstracto on the compatibility of the national legislative provisions with the Convention, but to ascertain in concreto what effect the application of the Act had on the applicant ' s rights under Article 6 of the Convention (see, mutatis mutandis , Klass and Others v. Germany , 6 September 1978, § 33 , Series A no. 28 ).

In the present case, it is not disputed that the applicant did not request in his appeal that the Court of Appeal notify him about the date of its session. This requirement did not entail the completion of any particularly complex formalities: a simple indication in his appeal in this respect would have sufficed. Had the applicant made such request in his appeal, the Court of Appeal would have been obliged, ex lege , to notify the applicant about its session. Consequently, his omission to request notification about the date of session could be regarded as an unequivocal, albeit implicit, waiver on his part of the right to attend the appeal session (see, mutatis mutandis , Hermi v. Italy [GC], no. 18114/02, §§ 77-103 , ECHR 2006 ‑ XII ). That he defended himself in person and not through a legal representative was a matter of his own choice and cannot be understood as implying that he was not capable of realising the consequences of this failure.

In the light of the above and taking account of the nature of the Court of Appeal ' s session, as opposed to a hearing (sections 362 (3) and 364 (1) of the Act, see “Relevant domestic law” above), we are of the opinion that the applicant did not do everything that could reasonably have been expected of him in order to assert his right to attend the session of 2 November 2005 before the Skopje Court of Appeal. We cannot therefore agree with the majority that the violation of the principle of equality of arms stemmed directly from the Act.