The Right to be Present at Trial in Summary Proceedings at a Session of the Appellate Court
In cases No. U-I-122/19, Up-700/16 and No. U-I-123/19, Up-1550/18 (both Decisions dated 28 May 2020, Official Gazette RS, No. 97/20), the Constitutional Court considered the constitutional complaints of complainants who alleged a violation of their right to be present at trial determined by the second indent of Article 29 of the Constitution because the Higher Court did not notify them of the appellate session. It also reviewed the constitutionality of Article 445 of the Criminal Procedure Act, which determines that a second instance court shall notify parties to proceedings of a panel session only if it establishes that their presence would help clarify issues.
The Constitutional Court reviewed the challenged regulation from the viewpoint of consistency with the right to be present at trial determined by the second indent of Article 29 of the Constitution. The right to be present at trial enables the defendant to have direct insight into the progress of the proceedings, to actively participate therein, and to exercise various entitlements that are part of the right to a defence. The right of a defendant to (also) conduct his or her own defence is not restricted to the stage of the trial before the court of first instance. The purpose of the defendant’s presence at the Higher Court session is to enable him or her to clarify the standpoints stated in the appeal or in his or her response to the appeal and to allow him or her to gain direct insight into the progress of the proceedings also by following the report of the judge-rapporteur and requesting that it be complemented. The defendant’s presence at the appellate session is thus ultimately important also from the perspective of the right to an effective legal remedy determined by Article 25 of the Constitution. The Constitutional Court stressed that defendants do not always have the right to be present at trial at the appellate level; the particularities of the concrete proceedings namely have to be taken into account. It established that the recent case law of the European Court of Human Rights maintains the position that the court’s duty to ensure public appellate proceedings is not absolute. Since the physical presence of defendants in appellate proceedings is not as important for them as it is in proceedings before a first instance court, a contracting state has complete discretion in the area at issue as to when differences in otherwise comparable positions would justify different treatment.
In the assessment of the Constitutional Court, it cannot be concluded, either on the basis of the recent constitutional case law or with consideration of the development of the case law of the European Court of Human Rights, that the right to be present at trial (which is guaranteed by the second indent of Article 29 of the Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms) would require appellate courts to ensure, without exception, the defendant’s presence at the appellate session. It still applies that the physical presence of the defendant in appellate proceedings does not necessarily have the same significance as his or her presence in the first instance proceedings, and also that the right to a trial without undue delay, as well as the requirements that proceedings be managed well and the number of cases received be dealt with, must be observed. This applies in particular to an appellate session in summary proceedings. Criminal offences decided on in summary proceedings are namely considered to be less serious and entail a lower level of stigmatisation of the offender than criminal offences that are decided on in regular criminal proceedings. In the assessment of the Constitutional Court, the characteristics of an appeal in summary proceedings are not such so as to always require the defendant’s direct participation in the appellate session. European Union law and the case law of the German Federal Constitutional Court have also led to exactly the same conclusion. The Constitutional Court therefore held that Article 445 of the Criminal Procedure Act is not inconsistent with the Constitution; it has to, however, be interpreted in accordance with the Constitution, namely in such a manner that, considering the circumstances of the individual case, it does not inadmissibly interfere with the right determined by the second indent of Article 29 of the Constitution.
The Constitutional Court further reviewed whether the complainants’ right to be present at trial was violated because the Higher Court did not notify them of the appellate session and thereby did not enable them to be present at such, while the Supreme Court failed to eliminate such violation. In case No. U-I-122/19, Up-700/16, it established that the complainant did not invoke anything that the court of first instance did not take a position on in its judgment in a sufficiently convincing and thorough manner. In case No. U-I-123/19, Up-1550/18, the Constitutional Court established that some of the allegations made in the appeal were of a legal nature, while the alleged procedural violations, taking into account the available data, was not committed. The Constitutional Court held that in the cases at issue the complainants’ presence at the appellate session would have been an end in itself and could not have contributed to the success of the appeal. It therefore established that the alleged violation of the second indent of Article 29 of the Constitution was not committed and dismissed the constitutional complaints.