DISSENTING OPINION OF JUDGE KJØLBRO

1 . I have some hesitations as regards the Grand Chamber’s clarification of the Court’s case-law and the three steps established in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011). Furthermore, I disagree with the Grand Chamber’s assessment of the present case, and I voted against finding a violation of Article 6 § 1 of the Convention. Below, I will briefly explain my view on the two issues mentioned.

The Grand Chamber’s clarification of the so-called “ Al ‑ Khawaja and Tahery criteria”

2 . Consistency of the Court’s case-law is very important for the credibility and legitimacy of the Court and for the domestic authorities’ compliance with the Convention and application of the Court’s case-law. The Court should not, without good reason, depart from precedents laid down in previous cases (see Micallef v. Malta [GC], no. 17056/06, § 81, ECHR 2009). This applies in particular to recent Grand Chamber judgments. Furthermore, the Court should not clarify and further develop its case-law unless there are good reasons to do so.

3 . In 2011 the Grand Chamber clarified and further developed the Court’s long-standing case-law on the use as evidence of written statements by absent witnesses. In Al ‑ Khawaja and Tahery , cited above, the Grand Chamber established the three steps to be applied as well as their order. Firstly, there has to be “a good reason” for the non ‑ attendance of the witness. Secondly, it has to be assessed whether the statement of the absent witness is the “sole or decisive” evidence. Thirdly, if the written statement is the sole or decisive basis for convicting the accused, there have to be sufficient “counterbalancing factors”. In my view, the Court could easily have determined the present case on the basis of the criteria established in Al-Khawaja and Tahery , thereby confirming that recent Grand Chamber judgment.

4 . The Grand Chamber’s clarifications in the present judgment should not, in my view, be understood as a departure from the three-step test established in Al-Khawaja and Tahery , which should therefore still be applied in similar cases in the future. For that reason I find it necessary to make a few additional remarks on the criteria to be applied.

5 . Firstly, if there is no good reason for the non-attendance of a witness, the domestic court should, as a main rule, not allow the prosecutor to use the written statement of the absent witness as evidence against the accused (see Al-Khawaja and Tahery , cited above, §§ 120-25).

6 . If the statement of the absent witness, in the view of the prosecutor, is of such relevance and importance to the case that it should be used as evidence, the witness should be summoned to appear before the trial court and give evidence unless there is a good reason for non-attendance. If there is no good reason for the non-attendance of the witness in question, the domestic court should not allow the prosecutor to use the written statement as evidence against the accused.

7 . Failure to summon a witness, without any good reason, would run counter to the rights of the defence to cross-examine prosecution witnesses. That being said, I agree that the absence of a good reason for the non-attendance of a witness will not necessarily and automatically render the trial unfair (see paragraph 113 of the present judgment). However, this clarification of the Court’s case-law cannot be understood as implying a general departure from the main rule. According to that rule, if the statement of an absent witness is of such relevance and importance to the case that the domestic court will allow it to be used as evidence against the accused, there should be a good reason for not summoning the witness to give testimony at the hearing.

8 . Secondly, the “sole and decisive evidence” test has, with some minor variations in terminology, been applied consistently since the Court’s judgment in Unterpertinger v. Austria (24 November 1986, § 33, Series A no. 110). Prior to the Court’s judgment in Al-Khawaja and Tahery , the Court would find a violation of Article 6 of the Convention if the written statement of the absent witness was the “sole or decisive” basis for the conviction of the accused.

9 . In Al-Khawaja and Tahery (cited above, § 131), the Court also applied the “sole or decisive” test, while defining what was meant by “sole” and “decisive”. At the same time, the Court further developed its case-law by saying that “where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1” (ibid., § 147).

10 . However, both prior to and subsequent to the judgment in Al ‑ Khawaja and Tahery , the question to be asked has been whether the written statement of the absent witness was the “sole or decisive” evidence.

11 . In the present case the Grand Chamber stated that “it must review the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent witness was the sole or decisive basis for the applicant’s conviction” but also in cases where the Court “finds it unclear whether the evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight” (see paragraph 116 of the present judgment).

12 . I find it important to emphasise that the term “significant weight” is not to be understood as a departure from the “sole or decisive” test, thereby creating three categories: “sole evidence”, “decisive evidence” or “evidence carrying significant weight”. The clarification does not imply a departure from the “sole or decisive” test, but takes account of the fact that sometimes, having regard to the statement in question and the reasoning of the domestic courts, it may be evident that a statement carries “significant weight”, but at the same time it may be difficult to determine whether the statement is “decisive” for a conviction. If that is the case, the written statement should be treated, by the domestic court as well as the Court, as “decisive”.

13 . Therefore, in my view, the clarification does not imply a departure from the “sole or decisive” test.

14 . Thirdly, the order of the three steps follows clearly from the Al ‑ Khawaja and Tahery judgment. Firstly, there has to be “a good reason” for the non-attendance of the witness. It will only be relevant to assess the other steps if the first question is answered in the affirmative (see Al ‑ Khawaja and Tahery , cited above, § 120). Secondly, it has to be assessed whether the written statement of the absent witness is “the sole or decisive evidence”. It will only be relevant to assess the third step if the second question is answered in the affirmative (ibid., § 147). Thirdly, if the written statement is the sole or decisive basis for convicting the accused, there have to be “sufficient counterbalancing factors” (ibid.).

15 . There are very good reasons for the order of the steps of the test. The question of the use of written statements by absent witnesses will arise at different stages of the proceedings. Firstly, the question will arise when the trial court assesses a request from the prosecutor to use the written statement of an absent witness as evidence against the accused, or an objection from the defence to such a measure. This assessment will take place during the hearing. Secondly, the question will arise when the trial court assesses whether there is sufficient basis for convicting the accused. This assessment will take place at the end of the hearing. Thirdly, the question will arise when the fairness of the criminal proceedings is assessed, either by a domestic appeal court or subsequently by the Court. At the point where the trial court decides whether the prosecutor should be allowed to use a written statement by an absent witness as evidence, it will often be difficult, if not impossible, to assess whether the evidence will be the sole or decisive basis for a conviction. Therefore, in practice, the three steps will in most cases have to be assessed in the order stated in Al-Khawaja and Tahery , and, most often, at different moments in time. Furthermore, the principles whereby all evidence against an accused must normally be produced in his presence at a public hearing with a view to adversarial argument, and the accused should be given an adequate and proper opportunity to challenge and question a witness against him, are so important that they should not be departed from unless there is a good reason to do so. Doing so without a good reason will in most if not all cases render the proceedings unfair.

16 . Therefore, I would like to emphasise the importance not only of the three steps in Al-Khawaja and Tahery , but also of the order in which they should be considered. That being said, I would not exclude the possibility that there may be situations where the three steps may be assessed in a different order. For example, in some cases it will be clear to the trial court at the outset that the written statement will be the sole or decisive evidence and that it would therefore render the proceedings unfair if the evidence was admitted and used. Likewise, there may be situations where the Court, for practical reasons, finds it appropriate to assess the three steps in a different order. Nevertheless, the three steps should, as a rule, be assessed in the order prescribed in Al-Khawaja and Tahery .

The Grand Chamber’s assessment of the present case

17 . I agree with the majority that there was a “good reason” for the non-attendance of the two prosecution witnesses, O. and P. (see paragraphs 132 ‑ 40 of the present judgment).

18 . I also concur with the majority that the written statements by the two absent witnesses O. and P. were “decisive” for the applicant’s conviction, within the meaning of the Court’s case-law (see paragraphs 141-44).

19 . However, I disagree with the majority as regards the fairness of the trial. In my view, and as explained below, there were sufficient “counterbalancing factors” to render the applicant’s trial fair.

20 . In Al-Khawaja and Tahery (cited above, § 147) the Court held as follows:

“The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of [the] evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”

Thus, the purpose of “counterbalancing factors” is to ensure that “a fair and proper assessment of the reliability of the evidence” takes place and that the evidence “is sufficiently reliable”.

21 . As rightly pointed out by the majority, the trial court approached the evidence with caution (see paragraphs 146-50 of the present judgment). However, in my view, the majority attaches too little weight to the availability and strength of further incriminating evidence (see paragraph 151, with reference to paragraphs 143-44).

22 . In my view, the Regional Court had before it very strong and coherent additional incriminating evidence regarding the offence of which the applicant was convicted. On the basis of the additional evidence it was possible for the trial court to perform an assessment of the reliability of the statements by the absent witnesses. In the view of the trial court “the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial” (see paragraph 46 of the present judgment).

23 . Furthermore, as rightly pointed out by the majority, the applicant had the opportunity to give his own version of the events and cross-examine the other witnesses appearing before the trial court (see paragraph 152). Furthermore, the applicant had the possibility of challenging the use and importance of the written statements.

24 . In fact, the core argument for finding a violation of Article 6 of the Convention in the present case seems to be the fact that the domestic authorities did not make use of the possibility of appointing a lawyer for the applicant before questioning the two witnesses, which would have given him the opportunity to have the witnesses questioned at the investigation stage by a lawyer appointed to represent him (see paragraphs 153-60).

25 . I disagree with the majority in their assessment of the importance of the pre-trial stage for the overall fairness of the proceedings in the present case.

26 . Firstly, if a lawyer had been appointed to represent the applicant in the early stages of the investigation, when O. and P. were questioned by the investigating judge, and if the applicant and the lawyer had been notified of the questioning of the witnesses and the accused and the lawyer had been given the chance to question the witnesses when they gave testimony, there would simply have been no complaint under the Convention. The Court’s case-law on the use of written statements by absent witnesses concerns “depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial” (see Al-Khawaja and Tahery , cited above, § 119). In other words, had the applicant been given an opportunity to examine and cross-examine O. and P. when they were questioned by the investigating judge, the subsequent use of their statements would not have raised an issue concerning the fairness of the proceedings (see, for example, Sadak and Others v. Turkey (no. 1) , nos. 29900/96 and 3 others, § 65, ECHR 2001 ‑ VIII; Sommer v. Italy (dec.), no. 36586/08, 23 March 2010; Chmura v. Poland , no. 18475/05 , §§ 49-59, 3 April 2012; and Aigner v. Austria , no. 28328/03 , §§ 40-46, 10 May 2012 ).

27 . Secondly, the majority seems to pay little attention to the reasons given by the investigating judge for not having notified the applicant about the questioning of the two witnesses. The applicant had not been informed about the investigation “so as not to put the investigation at risk” (see paragraph 21 of the present judgment). Furthermore, the investigating judge had excluded the applicant from the witness hearing in accordance with domestic law because he “was concerned that the witnesses, whom he had found to be considerably shocked and distressed by the offence, would be afraid of telling the truth in the applicant’s presence” (ibid.). In my view, the Court should in its case-law pay equal attention to, and protect, the rights and interests of the victims of crimes; in the specific circumstances of this case, there were good reasons to protect the victims. Furthermore, 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 witnesses’ hearing before the investigating judge. I 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.

28 . Thirdly, the fact that “it might not be possible to hear evidence from those witnesses at a subsequent trial against the applicant” (see paragraph 159 of the judgment) cannot, in my view, lead to the conclusion that the failure to appoint a lawyer and give the applicant an opportunity to have O. and P. questioned at the investigation stage by a lawyer appointed to represent him (see paragraph 160) rendered the subsequent trial unfair. Admittedly, there was a risk that the witnesses would not appear at the hearing, and there will always be such a risk when evidence is secured at the pre-trial stage of the proceedings. However, in the specific circumstances of the case, there is insufficient basis for arguing that it was foreseeable that O. and P. would not appear before the trial court and give testimony. The fact that it was foreseeable that the witnesses would leave Germany shortly after the hearing before the investigating judge cannot be equated to a finding that it would have been impossible to hear evidence from them at a subsequent trial, either in person or via a video-link. In this context I would also like to refer to the applicant’s own submission to the effect 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).

29 . In my view, the majority places too much emphasis on the pre-trial stage and the decision not to appoint a lawyer and not to notify the lawyer and the applicant about the questioning of the witnesses.

30 . Furthermore, the majority does not attach sufficient importance to the purpose of “counterbalancing factors”, which is to ensure that “a fair and proper assessment of the reliability of the evidence” takes place and that the evidence “is sufficiently reliable”. In a detailed and very well-reasoned judgment, the domestic courts explained why the evidence of the absent witnesses was deemed, in the light of all the evidence, to be reliable. As already mentioned, on the basis of the additional evidence, it was possible for the trial court to perform an assessment of the reliability of the statements by O. and P. In the view of the trial court “the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial” (see paragraph 46).

31 . Therefore, in my view, the use of the written statements of the absent witnesses and the absence of an opportunity for the applicant to examine or have examined the witnesses at any stage of the proceedings did not render the trial as a whole unfair.

32 . In my view, the judgment is another example of the Court’s focus on the importance of the investigation stage for the preparation of the criminal proceedings (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008), which means that a failure to comply with certain procedural guarantees at the pre-trial stage more or less automatically has the consequence that the evidence obtained cannot be used against the accused.

33 . This is particularly regrettable in a situation where the reason for the restriction on certain procedural guarantees is the need to protect the victims of crimes and where there is corroborating evidence that makes it possible for the trial court to assess the reliability of the statements given by the absent witnesses.

34 . This judgment is an example of a rather formalistic approach to the importance of procedural guarantees, whereby failure to comply with or secure certain procedural guarantees at the pre-trial stage renders the evidence obtained illegal even if the use of that evidence, on the basis of an overall assessment, does not render the proceedings as a whole unfair.