PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I regret that I do not feel able to agree with the opinion of the majority of the Chamber in finding that there was a failure to comply with the requirements of paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) taken together.

I am as concerned as the majority are for the rights of the defence, which can be infringed as a result of the intervention of "anonymous witnesses" who are then not called to testify before the court, so that the defendant is deprived of his right to challenge their (written) statements under Article 6 para. 3 (d) (art. 6-3-d), in cases where the court bases its finding of guilt "to a decisive extent" on such statements. This was so in the Kostovski and Windisch cases cited in the present judgment.

But in the present case, unlike in the Kostovski and Windisch cases, it can clearly be seen from the documents of the proceedings before the Swiss courts that the trial court based its decision essentially on the unchallenged admissions of Mr Lüdi and the statements of his co-defendants. It is true that the admissions were obtained by trickery through the intervention of the undercover agent, Toni, but that does not mean that they could not be used.

I also accept that the use of undercover agents or other tricks used by police detectives, although entirely legitimate (within certain limits), is not very "nice", but in the fight against certain types of criminality - such as terrorism or drugs -, which is one of the most important tasks of the police in the interests of society, this is often the only method which makes it possible to identify those who are guilty and break up criminal gangs, who for their part also use all the methods available to them. So anyone who knowingly takes part in organised crime runs the risk of falling into a trap.

Of course even a criminal who is caught by one of the methods just described has the right to a fair trial, one of the essential elements of which is the opportunity to put forward before the court, in a reasonable manner, all the arguments of the defence. But if he has substantially admitted the acts he is accused of, the evaluation of his admissions is part of the free assessment of the evidence which is primarily the duty and the right of the trial court. In such circumstances the dismissal by the court of the application to call the undercover agent as an additional witness is not open to criticism by the European Court , especially as the appearance of the witness in question would have made no contribution at all to the better elucidation of the facts subsequently challenged by the defendant.

This makes it unnecessary for me to speculate as to the suggestions - incidentally rather unrealistic ones, in my opinion - that it might have been possible for the Swiss courts to hear the testimony of the undercover agent in a way which avoided disclosing his identity.

I therefore conclude that there was no violation of the rights of the defence in the present case.

[*]  The case is numbered 17/1991/269/340.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 238 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.