JOINT DISSENTING OPINION OF JUDGES HIRVELÄ, POPOVIĆ, PARDALOS, NUSSBERGER, MAHONEY AND KŪRIS

1. We regret that we are unable to agree with the view of the majority that the applicant’s rights under Article 6 §§ 1 and 3 (d) of the Convention were violated in the present case.

A. As to the recapitulation of the relevant principles

2. We should make it clear at the outset that our difference of opinion with the majority of the Grand Chamber does not relate to the recapitulation of the general principles relevant to the case, in respect of which we are in full agreement with the majority.

3. In our view, the Grand Chamber’s judgment in the present case confirms the principles the Court established in its judgment of 15 December 2011 in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011). It further clarifies the relationship between the three steps of the Al-Khawaja and Tahery test for examining the compatibility with Article 6 §§ 1 and 3 (d) of proceedings in which statements made by a prosecution witness who was not present and questioned at the trial were used as evidence.

4. The need for clarification, which had become apparent in the Court’s post Al-Khawaja and Tahery case-law in cases in which the factual situations differed from that in issue in that judgment, essentially concerned three points.

5. Firstly, the Grand Chamber clarified that the absence of good reason for the non-attendance of a prosecution witness is not of itself conclusive of the unfairness of a trial. It is, however, a very important factor to be weighed in the balance when assessing the overall fairness of a trial. We agree with the Grand Chamber’s finding in the present case that the rationale underlying the Court’s judgment in Al-Khawaja and Tahery , in which it departed from the so-called “sole or decisive rule”, was to abandon an indiscriminate rule and to have regard, in the traditional way, to the fairness of the proceedings as a whole. It would have amounted to the creation of a new indiscriminate rule if a trial were considered to be unfair for lack of a good reason for a witness’s non-attendance alone, even if the untested evidence was neither sole nor decisive and was possibly even irrelevant for the outcome of the case (see paragraph 112 of the present judgment). In line with that finding, a large majority of the Al-Khawaja and Tahery follow-up cases did indeed not consider the lack of good reason for a prosecution witness’s absence alone to entail an automatic breach of Article 6 §§ 1 and 3 (d) (for further references, see paragraph 113 of the present judgment).

6. Secondly, we agree with the majority that, given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review the existence of sufficient counterbalancing factors also in cases where the untested witness evidence was neither the sole nor the decisive basis for the defendant’s conviction, but carried significant weight (see paragraph 116).

7. Thirdly, we equally consider that the order in which the three steps are to be examined as defined in Al-Khawaja and Tahery is, as a rule, pertinent, even though it may be appropriate in certain circumstances to depart from that order (see paragraph 118).

8. Lastly, we agree with the summary of the principles relating to each of the three steps of the Al-Khawaja and Tahery test in the present judgment (see paragraphs 119-31). These give guidance, in particular, on how to assess the unreachability of a witness and what kind of efforts are required from the domestic authorities to reach the witness, how to evaluate whether evidence was the sole or decisive basis for a defendant’s conviction and what kind of substantive or procedural counterbalancing factors can serve to compensate for the handicaps under which the defence laboured as a result of the admission of untested witness evidence at the trial.

B. As to the application of these principles to the present case

9. Where we part company with the majority is on the question of the application of the relevant principles to the present case. We agree with the majority’s finding that there was a good reason for the non-attendance of the witnesses , O. and P., at the trial and, as a result, for admitting the statements they had made to the police and the investigating judge at the pre-trial stage as evidence, and with the reasoning given therefor. We can also accept the majority’s conclusion that the evidence of the absent witnesses was a decisive, albeit not the sole, basis for the applicant’s conviction in the present case, as they were the only eyewitnesses to the offence in question.

10. In view of this finding, we consider it necessary to examine whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured. In contrast to the majority’s finding, we take the view that the counterbalancing factors were sufficient in the present case.

11. As to the assessment of the different counterbalancing factors present, we agree with the majority’s finding that the Regional Court examined the credibility of the absent witnesses and the reliability of their statements in a careful manner and we consider its examination to have been particularly thorough.

12. But, contrary to the majority, we find that the Regional Court had before it very strong and coherent additional incriminating evidence regarding the offence of robbery combined with extortion of which the applicant was convicted. Not only did the evidence comprise a complete account of the events given by two additional witnesses (the witnesses’ neighbour E. and their friend L.), albeit in the form of hearsay evidence only, it was also fully supported by very strong direct and reliable technical evidence. The latter included, in particular, the geographical data and recordings of two mobile-telephone conversations proving that the applicant had been in a flat at the scene of the crime and had jumped from the balcony to chase one of the escaping inhabitants. Finally, the evidence relating to the offence committed in Kassel on 14 October 2006 by the applicant and an accomplice, in respect of which all the witnesses testified at the trial, bore striking similarities to the offence committed in Göttingen as regards the victims chosen, the place of the offence and the manner in which the perpetrators proceeded. Furthermore, we cannot but note that the applicant himself admitted in the course of the trial that he had been in the witnesses’ flat at the relevant time and had followed P. when she had escaped over the balcony, arguing that he had done so for fear of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in Kassel (see paragraph 44 of the present judgment).

13. As regards the procedural measures aimed at compensating for the lack of opportunity to directly cross-examine the witnesses at the trial, we observe that the domestic courts did not consider it contrary to Article 141 § 3 of the Code of Criminal Procedure, read in conjunction with Article 140 § 1 and as interpreted by the Federal Court of Justice (see paragraphs 28-29, 57-59 and 62 of the present judgment), that no defence counsel had been appointed to represent the applicant at the time of the witness hearing before the investigating judge. We take note in that context of the Government’s explanation (see paragraph 94) to the effect that, under Article 168c § 5 of the Code of Criminal Procedure, the trial court was authorised to dispense with giving notice of the hearing to any lawyer appointed to represent the applicant if it considered that notification would endanger the success of the investigation.

14. We agree with the majority that the way in which the prosecution witnesses’ questioning at the investigation stage was conducted attains considerable importance for, and can prejudice, the fairness of the trial itself where key witnesses cannot be heard by the trial court and the evidence obtained at the investigation stage is therefore introduced directly into the trial. However, we disagree with the majority as regards its finding that the prosecution authorities, at the time of the questioning of the witnesses at the investigation stage in the absence of the applicant and his counsel, proceeded on the assumption that the witnesses could not be heard at the trial.

15. We share the applicant’s view that O. and P. were heard by the investigating judge because, owing to the witnesses’ imminent return to Latvia, the prosecution authorities considered that there was a danger of their evidence being lost. This is shown by the reasoning of the prosecution’s own request to the investigating judge to hear evidence from O. and P. speedily. However, the fact that it must be considered as foreseeable that the witnesses would leave Germany shortly after the hearing before the investigating judge cannot be equated, in our view, to a finding that it would have been impossible to hear evidence from them in person at a subsequent trial, at least via a video-link. The witnesses were to leave for a State, Latvia, which was bound by international treaties to provide assistance in criminal matters to the German authorities, including the hearing of witness evidence by videoconference. We see our finding further confirmed by the applicant’s own submission that he had assumed that he would be able to cross-examine the witnesses at the trial and had not therefore had any reason to request a repetition of the witnesses’ hearing by the investigating judge (see paragraph 82 of the present judgment).

16. To conclude, we agree with the majority that affording the defendant the opportunity to have key prosecution witnesses questioned at least during the pre-trial stage and via their counsel constitutes an important procedural safeguard, the absence of which weighs heavily in the balance in the examination of the overall fairness of the proceedings under Article 6 §§ 1 and 3 (d). Despite this, in the circumstances of the present case, there were other strong safeguards permitting the trial court properly to assess the reliability of the evidence before it. In particular, there was very strong and coherent additional incriminating evidence regarding the offence of which the applicant was found guilty. In addition, the trial court made a particularly thorough and careful examination of the credibility of the absent witnesses and of the reliability of their statements. In these circumstances, the absence of an opportunity for the applicant to examine or have examined O. and P. at any stage of the proceedings did not, in our view, render the trial as a whole unfair.