CONCURRING OPINION OF JUDGE BÃ…RDSEN JOINED BY JUDGES KJ Ø LBRO AND BO Å NJAK

1 . I agree that there has been a breach of Article 6 § 1 of the Convention in this case, but on a narrower ground than that of my esteemed colleagues.

2 . Before the Court of Appeal, the applicant agreed to the statements of four witnesses – C., M., B., and V. – being read out. In his submissions to the Court he explained that “he had [had] no alternative”, as the prosecution had not waived the right to use the testimony of these witnesses, and a refusal on his part to allow their statements to be read out would have resulted in dragging out the examination of the appeal for an indefinite period of time. The fact that neither the applicant nor the prosecutor had objected to the reading-out of the witnesses ’ statements before the Court of Appeal was emphasised by the Supreme Court of Justice when dismissing the applicant ’ s appeal on points of law. Moreover, it transpires from the applicant ’ s submissions to the Court that at this stage too he accepts the fact that the statements given by C. (who died before the case was reheard by the Court of Appeal) and M. (whose whereabouts were unknown) – the two key witnesses in the case – were read out during the proceedings before the Court of Appeal.

3 . Taking into account the applicant ’ s position during the proceedings before the Court of Appeal and the nature and scope of his subsequent arguments in his application, the Court is in my view not called upon to assess whether it was as such compatible with the applicant ’ s right to a “fair hearing” under Article 6 § 1 of the Convention to allow the reading-out, during the proceedings before the Court for Appeal, of the statements that C. and M. had given to the trial court in 2006. Rather, the applicant ’ s main line of argument before the Court is that his conviction was not justified.

4 . I would point out that in the determination of whether the proceedings were fair and therefore in compliance with Article 6 § 1 of the Convention, the Court does not act as a court of fourth instance deciding on the guilt of an applicant. That is – in line with the principle of subsidiarity – the province of the domestic courts; it is generally not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant ’ s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. However, the Court is called upon to assess whether the proceedings were conducted fairly and in a given case were compatible with the Convention, including whether the domestic courts provided reasoning that satisfied the requirements of a fair trial under Article 6 § 1 (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018, and, in the context of a first-time conviction on appeal, Júlíus Þór Sigurþórsson v. Iceland, no. 38797/17, § 30, 16 July 2019).

5 . Turning therefore to the question whether the conviction of the applicant was justified in the sense that the Court of Appeal ’ s judgment was accompanied by sufficient reasoning, I would reiterate that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see Ruiz Torija v. Spain , 9 December 1994, §§ 29-30, Series A no. 303-A). Thus, it must be clear from the decision that the essential issues of the case have been addressed (see Boldea v. Romania , no. 19997/02, § 30, 15 February 2007). The requirement of a reasoned decision obliges the judges to base their assessment on objective arguments and to preserve the rights of the defence. Moreover, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness (see Taxquet v. Belgium [GC], no. 926/05, § 91-92, ECHR 2010). The reasoned decision is, moreover, important so as to allow an applicant to usefully exercise any available right of appeal (see Hadjianastassiou v. Greece , no. 12945/87, 16 December 1992).

6 . To what extent the above implies that the court must explain in detail its assessment of the evidence will depend on the particular circumstances. In the applicant ’ s case there was indeed a need for the Court of Appeal to explain why – in contrast to the trial court – it found it proven beyond reasonable doubt that the applicant had received bribe money from C. on 14 January 2004. At this juncture, I would refer to the following findings made by the Court in Dan v. Moldova (no. 8999/07, 5 July 2011) concerning the first set of proceedings before the Court of Appeal in 2006:

“31. Turning to the facts of the present case, the Court notes that the main evidence against the applicant was the witness statements to the effect that he solicited a bribe and received it in a park. The rest of the evidence was indirect evidence which could not lead on its own to the applicant ’ s conviction (see paragraphs 13 and 15 above). Therefore the witness testimonies and the weight given to them were of great importance for the determination of the case.

32. The first-instance court acquitted the applicant because it did not trust the witnesses after having heard them in person. In re-examining the case, the Court of Appeal disagreed with the first-instance court as to the trustworthiness of the accusation witnesses ’ statements and convicted the applicant. In so doing the Court of Appeal did not hear the witnesses anew but merely relied on their statements as recorded in the file.

33. Having regard to what was at stake for the applicant, the Court is not convinced that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant - and, in doing so, overturning his acquittal by the first ‑ instance court - could, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the prosecution witnesses. The Court considers that those who have the responsibility for deciding the guilt or innocence of an accused ought, in principle, to be able to hear witnesses in person and assess their trustworthiness. The assessment of the trustworthiness of a witness is a complex task which usually cannot be achieved by a mere reading of his or her recorded words ...”

7 . When the case was heard for the second time by the Court of Appeal in 2013, the assessment of the trustworthiness of the witnesses was likewise front and centre in the case, just as it had been in 2006 when the case was first heard by the Court of Appeal. The Court ’ s judgment from 2011 might also have been expected to inspire some caution when the Court of Appeal once again was about to find the applicant guilty without having heard all the witnesses. Moreover, the assessment of the evidence had become even more complex than it had been in 2006, because of the time factor itself, the disappearance of the video recordings of the applicant ’ s meeting with C. in the park, the death of C. and what appear to be significant developments in the testimonies of the three police witnesses C.C., C.M. and C.V., who were all reheard by the Court of Appeal in 2013 during the second set of proceedings.

8 . In my view, it was indeed to be expected under Article 6 § 1 of the Convention that the Court of Appeal, in its judgment finding the applicant guilty, would explicitly refer to the difficulties regarding the evidence in the case. It was also to be expected that that court would explain at least its key assessments regarding these difficulties, thereby enabling the applicant and the outside world to understand the basis for its findings. However, the Court of Appeal confined itself to stating that it considered the applicant ’ s guilt to be proven, which was in this case clearly not sufficient to fulfil the requirements of Article 6 § 1 of the Convention.