EHRM, 27-07-2021, nr. 72631/17

As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, amongst many other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).

It is the Court's established case-law that, although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person ‘charged with a criminal offence’ is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to ‘everyone charged with a criminal offence’ the right ‘to defend himself in person’, ‘to examine or have examined witnesses’ and ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in court’, and it is difficult to see how he could exercise these rights without being present (see, among many others, Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR 2006 II; see also Colozza v. Italy, 12 February 1985, § 27, Series A no. 89, and Hokkeling v. the Netherlands, no. 30749/12, § 57, 14 February 2017). Indeed, and as the Court has also held, it is of capital importance in the interests of a fair and just criminal process that the accused should appear at his trial, 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 Hermi v. Italy [GC], no. 18114/02, § 58, 18 October 2006).

The Court has, however, also held that 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. 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. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court, provided that a public hearing was held at first instance. However, in the latter case, the underlying reason was that the courts concerned did not have the task of establishing the facts of the case, but only of interpreting the legal rules involved. Nonetheless, even where the court of appeal has jurisdiction to review the case both as to facts and as to law, Article 6 does not always require a right to a public hearing, still less a right to appear in person. In order to decide this question, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant's interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see Hermi, cited above, §§ 60-62, with further references).

Where the appellate court is competent to modify, including to increase, the sentence imposed by the lower court and when the appeal proceedings are capable of raising issues involving an assessment of the accused's personality and character and his or her state of mind at the time of the offence, which make such proceedings of crucial importance for the accused, it is essential to the fairness of the proceedings that he or she be enabled to be present at the hearing and afforded the opportunity to participate in it (see Zahirović v. Croatia, no. 58590/11, §§ 57 with further references, 59 and 62, 25 April 2013; Cani v. Albania, no. 11006/06, §§ 61 and 63, 6 March 2012; and, by contrast, Fejde v. Sweden, no. 12631/87, §§ 29 and 33, 29 October 1991).

The Convention leaves the Contracting States wide discretion as regards the choice of the means put in place to ensure that their legal systems are in compliance with the requirements of Article 6. The Court's task is to determine whether the result called for by the Convention has been achieved. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to escape trial (see Medenica v. Switzerland, no. 20491/92, § 55, ECHR 2001-VI, and Somogyi v. Italy, no. 67972/01, § 67, ECHR 2004-IV).

The Court has also stated that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes or by the accused. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal aid scheme or privately financed (see Sejdovic, cited above, § 95, with further references).

Turning to the present case, the Court notes at the outset that it is of no relevance whether or not documentary proof of the applicant's projected absence on 20 July 2015 was submitted to the Court of Appeal, since the Court of Appeal did not reject the applicant's counsel's request for an adjournment of the hearing on the ground that such proof had not been submitted (see paragraph 16 above).

The Court further notes that the applicant neither waived her right to attend the hearing of the Court of Appeal, nor attempted to evade justice; indeed, the opposite is true (see paragraphs 12–13 above), and the Government do not argue otherwise. It is also the case that the applicant's counsel, Mr S. at the time, made a professional mistake in agreeing to a hearing on a date on which the applicant would be unable to attend (see paragraph 14 above).

The Court of Appeal was called upon to consider, according to the policy laid down in the Country-wide Adjournment Protocol (see paragraph 27 above), whether the reason given by the applicant for her absence was sufficiently urgent and credible and whether her interest in the adjournment sought should take precedence over the interest of the proper administration of criminal justice. Apparently accepting as given the credibility of the reasons stated, the Court of Appeal weighed the applicant's interest against ‘the interest of society in an effective and expeditious trial and the interest of a proper organisation of judicial proceedings’, finding it ‘significant’ that the hearing had been adjourned once already for the same reasons (see paragraph 16 above).

The Court observes, however, that the Court of Appeal did not set out in its judgment for what reason(s) the interests to which it had regard outweighed the applicant's interest in being able to exercise her right to attend the hearing of her appeal in person (compare, mutatis mutandis, Hokkeling, cited above, § 62). In this context the Court has taken note of the recent case-law of the Supreme Court according to which trial courts are to provide sufficient reasoning when they reject a request for an adjournment (see paragraphs 29–30 above).

Given the relative brevity of the length of time during which the appeal proceedings had been pending — the first-instance judgment had been pronounced on 30 January 2015, less than six months earlier (see paragraph 6 above) — and considering that there would have been no need for the requested adjournment to be of a long duration as it was known to the Court of Appeal that the applicant would be available to attend a hearing between 27 July and the end of August 2015 (see paragraph 12 above), it appears to the Court that the weight of the interests indicated by the Court of Appeal was relatively modest. By contrast, the applicant had reasoned her wish to attend the hearing by explaining why this was important to her, for which reason she had, moreover, declined to authorise her counsel to conduct the defence on her behalf (see paragraphs 13–14 above).

While it is true that in the present case it was not in doubt that the applicant had committed a criminal offence (see also paragraph 5 above), the Court observes that, in accordance with Article 350 of the CCP, which provision equally applied in the appeal proceedings, the Court of Appeal was also called upon to deliberate on the criminal liability of the applicant and on the imposition of the punishment (see paragraphs 24–26 above). It was thus for the appellate court to establish her guilt and to determine the sentence to be imposed, which it could reduce or increase and which sentence could involve imprisonment (see paragraphs 23 and 25 above), a type of penalty which carries a significant degree of stigma (see Talabér v. Hungary, no. 37376/05, § 27, 29 September 2009). The applicant was clearly worried about the consequences for her employment which the imposition of an unsuspended, or the execution of a previously suspended, prison sentence would entail (see paragraphs 14 in fine and 20 above) and the outcome of the proceedings before the Court of Appeal was therefore of crucial importance to her.

The Court further observes that in its determination of the sentence the Court of Appeal attached relevance to an advisory opinion according to which the applicant did not want to cooperate with treatment within the framework of probation and social rehabilitation, and the Advocate General had stated at the hearing that the applicant had a history of evading care (see paragraphs 18 and 15 above). As the Court of Appeal had been informed, the applicant wished to address that court in person in order to explain the causes of her reoffending and also her willingness to prevent further occurrences of shoplifting and to elaborate on the aspects that had helped her not to reoffend since her last arrest (see paragraph 13, 14 in fine and 39 above). In the light of the case-law set out in paragraphs 43-46 above, the Court takes the view that she should have been enabled to do so.

While the interests cited by the Court of Appeal were undoubtedly relevant, the Court considers that in the circumstances of the present case they were not sufficient to outweigh the applicant's right to attend the hearing of her appeal in person.

There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.