The applicant was convicted of fraud and sentenced to two years imprisonment. He and his lawyer lodged an appeal against that judgement. The applicant requested leave to be brought from prison to the hearing before the Court of Appeal. The court denied his request noting that his presence was unnecessary as his lawyer was obliged to participate in the hearing and present his defence.
Mr. Sobolewski complained that the proceedings in his case had been unfair because he had been refused leave to attend the only hearing held before the appellate court.
The Court noted that the objective of Article 6 taken as a whole shows that a person “charged with a criminal offence” is entitled to take part in the hearing. However, the personal attendance of the defendant is not as crucially significant for an appeal hearing as it is at the trial hearing - the right to fair trial does not always guarantee a right appear in person.
The Court stressed that the manner in which Article 6 is applied 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 in them. In order to decide whether the defendant has a right to be present at a hearing, 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. If a court of appeals has to examine both facts and law and make full assessment of the guilt or innocence, the defendant must be heard before it.
In the particular case the appeal filed by Mr. Sobolewski was not confined purely to questions of law therefore in the absence of compelling reasons to the contrary, he had to be allowed to be present at the hearing of his appeal. Accordingly there was a violation of the applicant’s right to a fair trial.