The applicant, Mr. Hermi, was a Tunisian national accused of drug trafficking. While he was in prison following his conviction he received a notice of appeal hearing. Mr. Hermi did not appear before the court and, contrary to the requests of Mr. Hermi’s lawyer who was present at the hearing, the court decided to hold the hearing without Mr. Hermi being present.
Mr. Hermi complained that he had been unable to participate in the hearing in violation of his right to fair trial.
The Court noted that in the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial. But 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. Where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused.
The defendant can waive some of his rights to fair trial, but this waiver then must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Without other information it cannot be assumed only from the fact that the defendant has not appeared before the court that he wishes to waive his or her rights The national courts always have to ascertain whether the defendant actually was aware of the time and date of the hearing.
In the particular case Mr. Hermi had appealed mostly on the points of law, he was represented by two lawyers of his choosing and the court had no power to review new evidence or increase his sentence. His lawyers also failed to make a transfer request within the deadline set by law. In addition applicant himself never made such request nor expressed any protest on the day of the hearing, therefore the appellate court could interpret this as implicit, but unequivocal waiver of the right to be present. Therefore there was no violation of the right to fair trial.