EHRM, 08-06-2021, nr. 61591/16

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).

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 further held that although the defendant's participation in the proceedings by videoconference is not as such contrary to the Convention, it is incumbent on it to ensure that recourse to this measure in any given case serves a legitimate aim and that the arrangements for the giving of evidence are compatible with the requirements of respect for due process, as laid down in Article 6 of the Convention (see Marcello Viola v. Italy, no. 45106/04, § 67, 5 October 2006, and Bivolaru v. Romania (no. 2), no. 66580/12, § 138, 2 October 2018).

Turning to the facts of the present case and taking into account the particular circumstances, the Court accepts without question that the applicant, who was detained as a criminal suspect in Peru, was unable to return to the Netherlands to physically attend the hearing of the Court of Appeal as he might have wished.

The Court observes in this respect that the Government state that Peruvian law prevented the extradition or temporary surrender to foreign powers of persons who were detained as criminal suspects in Peru itself (see paragraph 44 above). They base their statement on information obtained by a liaison officer in Peru from a Peruvian public prosecutor (see paragraph 20 above). The applicant relies heavily on the Advocate General's failure to seek a formal decision on extradition or mutual legal assistance (see paragraph 39 above) but does not attempt to deny that this information is correct. Accordingly, although a formal decision by the competent Peruvian authority would have dispelled all possible doubt, the Court is satisfied that for reasons of Peruvian law it was not possible at the relevant time to obtain the cooperation of the Peruvian authorities with a view to securing the applicant's physical presence, from which it follows that a formal request would have been pointless. It should be noted in this regard that the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, referred to by the applicant, in its Articles 6 § 5 and 7 § 15 d) permits the requested state to refuse extradition or mutual legal assistance, respectively, for reasons based on its own domestic law (see paragraph 34 above). Consequently, it cannot be said that the Netherlands authorities did not display due diligence in pursuing the possibilities of international legal assistance (compare and contrast, mutatis mutandis, Ben Moumen v. Italy, no. 3977/13, §§ 50-51, 23 June 2016, in which the Italian authorities failed to seek the attendance of a witness believed to be resident on Moroccan territory for cross-examination but the Court held their inability to provide the Moroccan authorities with that witness's address not to be an ‘insurmountable obstacle’).

In the circumstances, and also taking into account that the proceedings at issue were part of a substantial and complex criminal trial in which seven suspects were involved who all resided in different countries at that time (see paragraphs 6 and 8 above), the Court therefore takes the view that the Court of Appeal was entitled to substitute a hearing in which the applicant participated by videoconference — as permitted by domestic law (see paragraph 32 above) and indeed, in principle, by Article 6 of the Convention (see Marcello Viola, cited above, § 67) — for a hearing at which the applicant could be physically present. It follows that there was a realistic option open to the applicant to take part in the hearing of his appeal (see also Bivolaru, cited above, §§ 138-39 and 144–45).

It is the position of the Government that the applicant validly waived his right to take part in the hearing by videoconference (see paragraph 48 above).

As the Court has held on many occasions, 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 guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Furthermore, it must not run counter to any important public interest (see, among many other authorities, Hermi, cited above, § 73; Sejdovic, cited above, § 86; Dvorski v. Croatia [GC], no. 25703/11, § 100, 20 October 2015; and Murtazaliyeva v. Russia [GC], no. 36658/05, § 117, 18 December 2018).

Turning to the facts of the present case, the Court cannot but have regard to the applicant's initial refusal — as stated by his counsel at the Court of Appeal's hearing of 25 November 2013 — to cooperate in any hearing by videoconference, whether as a witness or as an accused (see paragraph 14 above). The Court further notes that the applicant's consent to be heard by videoconference, communicated by his counsel on 16 October 2014, related only to his giving evidence as a witness in the proceedings against one of his co-accused; the applicant did not withdraw his refusal to participate by videoconference in his own case (see paragraph 21 above). Even as late as the opening of the appeal hearing on 20 October 2014 the applicant's counsel restated this refusal on the applicant's behalf (see paragraph 23 above). Only at the close of the hearing, on 29 October 2014, did the applicant's counsel announce that the applicant had changed his position and was prepared to take part in the hearing by videoconference (see paragraph 25 above).

In the Court's opinion, the applicant's repeated and unambiguous refusal — which was maintained over a period of eleven months, until the closing address of the appeal hearing — cannot be construed otherwise than as a waiver of the right to take part in the hearing in his own case. Moreover, since the applicant's refusal was twice stated by his counsel in open court (see paragraphs 14 and 23 above), it cannot be found that this waiver was not attended by guarantees commensurate with the importance of the right thus waived. Finally, the applicant has not pointed to any public interest, let alone any important one, that would be affected by his waiver.

In the circumstances of the present case, therefore, the Court of Appeal was entitled to disregard the request made by the applicant's counsel in his closing speech to prolong the proceedings yet again so that the applicant could participate by videoconference.

This conclusion makes it unnecessary for the Court to address the parties' further arguments, notably the Government's argument that by travelling to Peru of his own free will, the applicant had contributed to creating the impossibility to attend the hearing in person (see paragraph 47 above; see also, for instance and mutatis mutandis, Medenica, cited above, § 58, where, in the specific circumstances of that case, the Court came to the conclusion that the applicant had largely contributed to bringing about a situation that prevented him from appearing before the domestic court).

There has accordingly been no violation of Article 6 of the Convention.