JOINT DISSENTING OPINION OF JUDGES KUCSKO-STADLMAYER AND BOÅ NJAK

1. To our regret, we cannot join the majority in finding that there has been a violation of Article 6 §§ 1 and 3 of the Convention. We fully acknowledge that understanding the language of the proceedings is an important fairness requirement in criminal proceedings and that a lack of adequate interpret ing can make a trial as a whole unfair. We believe, however, that the judgment in the present case imposes new requirements on the national authorities which are inconsistent with the existing jurisprudence of th e Court. Furthermore, it is our opinion that the majority ’ s assessment of some crucial circumstances of this case, namely of the applicant ’ s level of proficiency in the Russian language and his consequent ability to participate actively in the criminal proceedings against him, is not supported by the documents submitted by the parties. This, in turn, affects the findings as to whether the proceedings as a whole were fair.

2. The applicant ’ s native language is Lithuanian. It is undisputed that at the material time the applicant did not speak or understand the language of the proceedings, which was Slovenian. On the day he was taken into police custody he was therefore assisted by a qualified, sworn interpreter who provided him with interpret ing in to and from Russian. During his questioning by the investigating judge and throughout the whole of the first-instance proceedings, in the course of which the applicant was represented at all times by counsel, he used Russian and never gave any indication that he could not understand it sufficiently. Even in his notice of appeal and in the appeal proceedings the applicant did not raise any complaint regarding his understanding of the Russian interpret ing . Only at a very late stage, in applying to the Supreme Court and subsequently to the Constitutional Court and to this Court, did the applicant assert that he had a limited understanding of Russian which was insufficient for an effective defence, and that he could not read Russian script. Against this background, it had to be examined whether the interpret ing provided to the applicant by the national courts had been adequate.

3. Article 6 § 3 (e) of the Convention guarantees to everyone charged with a criminal offence the right to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Under this provision, the Court has dealt with several applications in which the applicants complained of not understanding the language of the proceedings or of receiving inadequate interpret ing . In examining those applications, the Court held that the national authorities were under a positive obligation not only to appoint an interpreter , but also to verify the adequacy of the interpret ing , if they were put on notice in the particular circumstances that the accused lacked knowledge of the language in question or that the language assistance was inadequate for any other reason (see, among many other authorities, Kamasinski v. Austria , 19 December 1989 , § 74 , Series A no. 168).

4. When examining whether the domestic authorities were put on notice regarding the need for or adequacy of language assistance , the Court has regularly considered whether the applicant or his counsel raised the issue of the alleged inadequacy or lack of interpretation with the domestic authorities. Where neither of them did so, this has been an important factor in the Court ’ s dismissal of the applicant ’ s complaint. In a number of cases in which, before the Court, applicants essentially complained about the need for interpretation or the quality thereof, the Court dismissed the complaints, relying, inter alia , on the fact that the y had not raised the issue during the trial and/or had not objected to the content of the record (see, for example, Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670, 10 April 2007; Hacioglu v. Romania , no. 2573/03, 11 January 2011; and Husain v. Italy (dec.), no. 18913/03, 24 February 2005). In Horvath v. Belgium ((dec.), no. 6224/07, 24 January 2012), the Court ’ s finding that the complaint was manifestly ill-founded relied on the fact that the court ’ s record did not mention any request for translation. In U çak v. the United Kingdom ((dec.), no. 44234/98, 24 January 2002), the Court declared the complaint inadmissible, finding that the alleged inadequacies and misconduct of the interpreter, beyond her alleged lack of independence, had never been brought to the attention of the trial or appeal courts. Furthermore, in Katritsch v. France (no. 22575/08, 4 November 2010), the Court, in finding no violation of Article 6 § 3 (e) of the Convention, had regard to the fact that the applicant had made no request for an interpreter in the appeal proceedings. It is true that in the absence of a specific request or complaint by a defendant or his or her counsel to the national authorities, other circumstances may put a domestic court on notice that the defendant needs interpretation or that the existing assistance is inadequate. However, those circumstances must be sufficiently apparent to the national court conducting the proceedings in order to trigger any positive obligations under Article 6 § 3 (e) of the Convention.

5. According to the Court ’ s existing case-law, it is only once the issue of language comprehension has been brought to the domestic court ’ s attention that the authorities are under an obligation to take steps to verify whether and what kind of language assistance is needed or to draw the appropriate conclusions. In Brozicek v. Italy (19 December 1989 , Series A no. 167 ), the Court found that after the applicant, a Czech national living in Germany, had notified the authorities that he was unable to understand a judicial noti ce in Italian, the authorities should have taken steps to comply with the request for translation unless they could establish that he knew enough Italian. The Court went on to examine whether the evidence at its disposal showed that he understood that language . In Cuscani v. the United Kingdom (no. 32771/96, 24 September 2002), the Court found that the domestic court had been put on clear notice that the applicant had problems of comprehension. The applicant ’ s counsel had informed the court of his client ’ s difficulties with English and requested that an interpreter be appointed. In Amer v. Turkey (no. 25720/02, 13 January 2009), the applicant, an Arabic speaker, had not had an interpreter or a lawyer when interviewed by the police and had signed a document containing an incriminating statement. Although the applicant explained that he had not understood the statement he had signed, the domestic court relied upon it. The Court found that “sufficient indication” had been given to the domestic courts by the applicant and his lawyers as to his inability to read Turkish texts.

6. The judgment in the present case sets standards that are different from those outlined above. In the view of the majority, the positive obligations in respect of Article 6 § 3 (e) are not confined to situations where a foreign defendant gives an indication that the language assistance provided is not adequate or sufficient, but also arise whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings or of the interpret ing provided to him (see paragraph 81 of the judgment). In the majority ’ s view this means that if it is envisaged to use a third language for the interpret ing , “the defendant ’ s proficiency in [that] language should be ascertained before the decision is taken to use it for the purpose s of interpret ing ” (ibid.). Not only must the defendant be notified of the right to an interpreter, his language skills also need to be “ expressly verif [ ied ] ” (see paragraph 93 of the judgment) and any procedure used or decision taken with regard to the verification of interpret ing needs must be placed on record (see paragraph 85 of the judgment).

7. In our opinion, the majority have thereby departed from the well ‑ established standard whereby positive obligations relating to language assistance are triggered by an indication that the defendant does not understand or speak the language of the proceedings and therefore needs interpret ing . Furthermore, the majority introduce an obligation not only to notify an accused about his or her interpretation rights, but also to verify expressly his or her language skills and to record any procedural steps relating thereto. Without entering into an analysis as to whether and to what extent the introduction of such criteria and positive obligations could possibly represent a laudable step in the development of the Court ’ s jurisprudence, we believe that such a departure from the existing case-law may only be undertaken by the Grand Chamber of this Court, as provided by Article 30 of the Convention.

8. In terms of methodology, we similarly can not subscribe to the way in which the majority have taken European Union law into consideration . In introducing new criteria and positive obligations under Article 6 § 3 (e), the majority have partly buil t upon the developments in EU law described in paragraphs 52-61 of the judgment and relied upon in the general principles part of the Court ’ s assessment in paragraphs 82, 83, 84 and 86, which form the core of the newly set standards. While EU law may, in a certain context, be used as a source of inspiration in the case-law of the Court, its task is not to assess whether the respondent State complied with it in a particular case (see, mutatis mutandis , Ullens de Schooten and Rezabek v. Belgium , nos. 3989/07 and 38353/07, 20 September 2011). This n otwithstanding, one should bear in mind that at the material time Slovenia was not yet a member of the EU. Furthermore, all the EU standards relied upon by the majority were adopted well after the events in question took place. Consequently, the domestic courts can hardly be blamed for not acting in conformity with those subsequent standards.

9. If the well-established criteria of the Court ’ s case-law had been applied to the present case and the Chamber had ascertained whether the domestic courts had been put on notice that , as alleged, the applicant did not understand Russian, either directly by the applicant himself or through his counsel at the time, by the interpreter or by any other specific circumstance, it could only have dismissed the complaint as ill-founded. The records of the domestic court proceedings, which the judgment rightly finds to be quite detailed (see paragraph 99 of the judgment), do not contain any indication of a complaint regarding the interpret ing or of any request for a Lithuanian interpreter or for translation of any of the documents into Lithuanian. Neither the applicant, nor his counsel at that time , n or any other participant in the proceedings , ever objected to the content of th ose records. On the contrary, both the applicant and his counsel signed them to confirm their accuracy. It is true that the applicant alleged, after his appeal had been rejected, that he had tried in vain to complain to the authorities about the interpret ing language , but his submissions to the Supreme Court, the Constitutional Court and our Court on this point seem so inconsistent that they cannot be regarded as plausible. This is also implicitly acknowledged by the majority, who in paragraphs 99-101 of the judgment analyse the reasons for the lack of a complaint or a request for the appointment of a different interpreter during the trial. Since the applicant actively participated in the proceedings and was represented by counsel (see below, paragraphs 12 and 13 of this separate opinion), we do not see any other sign or circumstance that could possibly have alerted the domestic authorities to the applicant ’ s alleged inability to understand the interpreting language.

10. Besides introducing new criteria for the assessment of a complaint under Article 6 § 3 (e) of the Convention, the present judgment departs from the conclusions of the domestic courts as to whether the applicant understood enough Russian to participate effectively in the proceedings. In particular, the Supreme Court – the first domestic authority to deal with the substance of the applicant ’ s complaint – considered the applicant ’ s allegations that he did not understand Russian to be unsubstantiated and in this regard referred to particular elements in the file. The Constitutional Court, in its turn, accepted these findings, adding that the applicant had communicated successfully with his counsel in Russian. These conclusions represent findings of fact regarding the crucial circumstance of the present case. As the Court has emphasised on numerous occasions, it is not a court of fourth instance ruling on questions of fact and does not examine the accuracy of the findings of the domestic authorities . I t may challenge those findings only if they can be regarded as arbitrary or manifestly unreasonable (see, for example , Bochan v. Ukraine (no. 2) [GC], no. 22251/08, ECHR 2015).

11. In the present case the majority depart from this well-established approach and embark on an assessment of whether there were “any other clear indications” of the applicant ’ s proficiency in Russian (see paragraph 94 of the judgment). They see the (presumed) lack of cooperation by the applicant during the police procedure and during questioning by the investigating judge as a sign of his difficulties in expressing himself and in following proceedings in Russian. In their view, the statements that the applicant made during the proceedings were few and rather basic and cannot be regarded as sufficient to show that he was able to conduct his defence effectively (see paragraphs 94 and 95 of the judgment). Furthermore, they consider the Constitutional Court ’ s finding regarding the applicant ’ s successful communication with his lawyer to be a mere assumption not based on evidence (see paragraph 96). They go on to conclude that “ although the applicant appeared to have been able to speak and understand some Russian” his proficiency in that language was not “sufficient to safeguard the fairness of the proceedings” (see paragraph 97).

12. We cannot subscribe to these findings. In our opinion, the conclusion of the Supreme Court regarding the applicant ’ s knowledge of Russian was neither unreasonable nor arbitrary and we see no reason to dismiss it. On the contrary, we find it to be well substantiated by the material in the file, which the applicant failed to challenge at any point, including in the proceedings before the Court. The applicant ’ s conduct did not give rise to any doubts as to the adequacy of the interpretation provided. At the main hearing the applicant was asked whether he understood the charges against him and his rights that had been read to him, and he replied in the affirmative (see paragraph 25 of the judgment). When questioned b y the investigating judge and at the trial, he gave statements and answered questions in Russian (see paragraphs 13 and 26 of the judgment). The record do es not reveal that the applicant had any difficulties in participating actively in those hearings. What is more, he put questions to some witnesses and the fact that he commented on their statements (see paragraph 27) can be reasonably taken to mean that he understood the interpret ing of their content. Together with the other defendants, the applicant (through the interpreter) requested that witness statements taken at the investigation stage be translated into Russian (see paragraph 21). At the trial he gave his closing statement in Russian (see paragraph 29).

13. As regards the communication between the applicant and his counsel at the time, we cannot agree with the majority when they characterise the Constitutional Court ’ s conclusion as a mere assumption . I t is evident that while in pre-trial detention the applicant was visited by his counsel on four occasions (on at least three of those the interpreter was also present), each visit lasting between twenty and forty-five minutes (see paragraph 47 of the judgment). The frequency and length of these visits show that the applicant and his counsel were able to communicate effectively with the assistance of the Russian interpreter on matters concerning his case, a fact which is undisputed by the applicant.

14. Finally, one cannot overlook the statement of one of the applicant ’ s co-defendants, according to which he and the applicant were approached by a third co-defendant when the latter heard them speaking Russian together (see paragraph 14 of the judgment). While during the proceedings the applicant regularly contested the statements that he disagreed with, he failed to express any disagreement with this particular account of events as stated by the co-defendant.

15. For all these reasons we believe that , in the applicant ’ s case , not only were the domestic authorities never put on notice regarding the applicant ’ s allegedly insufficient command of Russian or regarding any other possible inadequacy in the interpret ing provided, they also had no reason to assume that the applicant had difficulties in understanding that language . Even in his appeal the applicant, who was represented by counsel, did not make any such complain t . In this connection , we regard as reasonable the conclusion of the Supreme Court, upheld by the Constitutional Court, that the applicant ’ s knowledge of Russian was sufficient. Consequently, we find that the criminal proceedings against the applicant were fair as a whole and that, therefore, there has been no violation of Article 6 §§ 1 and 3 of the Convention.