CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

My separate opinion refers exclusively to the inadmissibility decision. There are two points that I wish to make. First, I should like to reaffirm the right of judges to write separately on the issue of inadmissibility when the decision on inadmissibility has been included in a judgment.

The practice of the Court has been open to separate opinions on decisions regarding inadmissibility which are incorporated into merits judgments, as can be witnessed in the separate opinions joined by Judges Keller, Dedov and Serghides in Navalnyye v. Russia (no. 101/15, 17 October 2017), by Judges Karakaş, Vučinić and Laffranque in Tibet Menteş and Others v. Turkey (nos. 57818/10 and 4 others, 24 October 2017, regarding the complaint under Article 1 of Protocol No. 1 to the Convention), by Judge Lemmens in Bursa Barosu Başkanlığı and Others v. Turkey (no. 25680/05, 19 June 2018, concerning the complaint lodged by the Bursa bar), by Judge Sajo and myself in Somorjai v. Hungary (no. 60934/13, 28 August 2018), and my own opinion in De Tommaso v. Italy ([GC], no. 43395/09, 23 February 2017, regarding the complaints under Articles 5 and 6 (criminal limb)), and Murtazaliyeva v. Russia ([GC], no. 36658/05, 18 December 2018, concerning the complaint about the absence of witness A. from the applicant ’ s trial).

Indeed, there is no reason why this practice should not extend to decisions as such. Separate opinions are a major but as yet underestimated tool in guaranteeing the Court ’ s transparency and promoting the development of its case-law. Article 45 of the Convention does not prevent identification of the majority and the minority in decisions. The judges who form the majority and minority in decisions should be identified, in order to clarify the position of each individual judge. It is occasionally frustrating that a minority member of the judicial composition does not have the opportunity to dissociate him or herself from the majority, especially in cases which were lodged from his or her own country of origin.

The omission in Article 45 § 2 of the Convention of a reference to decisions is a mere historical accident, given the original competence of the respective Convention organs, where admissibility was essentially a matter for the Commission. As shown by the Court ’ s practice, that omission did not prevent separate opinions from being joined to “judgments” which dealt exclusively with inadmissibility issues during the Commission period (see Van Oosterwijck v. Belgium , 6 November 1980, Series A no. 40, and Cardot v. France , no. 11069/84, 19 March 1991).

Furthermore, Rule 74 § 2 of the Rules of Court has already gone praetor ‑ Convention, by including the possibility of a “bare statement of dissent”. Most importantly, decisions on inadmissibility occasionally deal with complex, crucial issues which relate to the Court ’ s jurisdiction and the interpretation of the Convention and the Protocols thereto. It is simply nonsensical that judges cannot express their individual views on issues of this magnitude in decisions concerning applications lodged under Articles 33 and 34 of the Convention (Rule 51 § 1), while decisions rejecting requests for advisory opinions may be accompanied by separate opinions or statements of dissent (Rule 88 § 2).

My second point concerns the issue of the attesting witnesses and witness T.V.S. The present judgment refers to these witnesses as prosecution witnesses whose non-attendance at the trial should be assessed under the Al ‑ Khawaja and Tahery and Schatschaschwili criteria because “in the present case the domestic trial court specifically referred to the statements of those witnesses in convicting the applicant” (see paragraph 40 of the judgment). Although I agree that these were prosecution witnesses, I disagree with the reasoning provided in reaching that conclusion. To my mind, they were prosecution witnesses purely and simply because they were mentioned in the bill of indictment (see paragraph 15 of the judgment). More importantly, I do not agree with the Al-Khawaja and Tahery and Schatschaschwili criteria. I would draw attention to the considerations set out in my separate opinion in Murtazaliyeva v. Russia [GC] , cited above.

Nonetheless I voted for the non-admissibility of the Article 6 complaint with regard to these witnesses because there was a good reason for not cross-examining them (their disappearance) and for the admission of their pre-trial testimonies. In fact, the trial court ensured that sufficient counterbalancing measures were taken to compensate for the handicaps imposed on the defence. In the case at hand, the applicant was confronted during the pre-trial stage with the prosecution evidence and confessed to the facts imputed to him. There is no evidence in the case file of “physical or psychological pressure” being used to force this confession. In any event, the trial court did not base its judgment, alone or to a decisive extent, on the pre-trial testimony of the absent witnesses. The decisive evidence was clearly the testimony of witness P., who repeated at the trial the incriminatory statements already made during the pre-trial stage. In view of this circumstance, this complaint is indeed manifestly ill-founded.