European Court of Human Rights - case of Van Geyseghem v. Belgium (1999) (excerpts)

European Court of Human Rights - case of Van Geyseghem v. Belgium (1999) (excerpts)

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34.  The Court cannot accept the Belgian Government’s argument that the finding that there was no possibility of applying to set aside a conviction in absentia was decisive in the reasoning of the Lala and Pelladoah judgments. The clause beginning with the adverbial phrase “the more so” (see paragraph 33 above) was added as a secondary consideration. On the contrary, the Court stated that the interest in being adequately defended prevailed. The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the basic features of a fair trial. An accused does not lose this right merely on account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended. The Court notes that Article 185 § 3 of the Code of Criminal Procedure (see paragraph 20 above) provides that in any event the Criminal Court may order an accused to attend and that no appeal lies against such a decision.