CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I fully agree with the view that the Convention has not been violated in the instant case. However, I have some hesitations concerning the approach adopted in the reasoning.

2. The Court has developed a rich case-law concerning the principle of formal immediacy (in German: formelle Unmittelbarkeit ) as an element of a fair criminal trial (see Al -Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; and Murtazaliyeva v. Russia [GC], no. 36658/05, 18 December 2018). The present case concerns a different issue, namely the principle of the material immediacy ( materielle Umittelbarkeit ) of criminal proceedings, which requires that factual findings be based – to the greatest possible extent – upon sources of evidence in direct contact with the facts of a case.

There is no doubt that direct sources of evidence are preferable to indirect sources, such as hearsay witnesses (i.e. witnesses who report what other persons have told them), and that reliance upon indirect sources requires special caution. At the same time, however, I note that criminal proceedings in many European States are based upon the principle of free assessment of evidence. The free assessment of evidence is widely seen as one of most fundamental guarantees of a fair criminal trial. Under this principle, the criminal court has the power to determine which evidence is necessary to establish the facts, to assess the credibility of each piece of evidence and to determine the weight attributed to each of them.

The free assessment of evidence is usually combined in domestic law with the obligation to duly reason the factual findings. This obligation is another essential guarantee of a fair trial. Criminal courts are under an obligation to explain in detail why and how their factual findings stem from the evidence presented during the proceedings. In particular, a court which relies upon evidence from indirect sources must explain – as for any other piece of evidence – its assessment of the credibility of this evidence, the relevance of this evidence for establishing the facts of the case and its relationship with other items of evidence.

The guarantees of a fair trial are further reinforced by the right of appeal in criminal matters (as guaranteed by Article 2 of Protocol No. 7 to the Convention). The factual findings reached and reasoned by the first-instance court are reviewed by a second-instance court. Free assessment of evidence therefore means a rational assessment under the review of a higher-instance court.

Last but not least, the free assessment of evidence is combined with the presumption of innocence (Article 6 § 2). Where factual elements are subject to doubt, they cannot be decided to the accused’s disadvantage.

3. In paragraph 73 of the present judgment, the Court has correctly summarized the relevant principles concerning the assessment of evidence produced in domestic criminal proceedings in the following way:

“the Court recalls at the outset that according to its established case-law, Article 6 does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland , 12 July 1988, §§ 45-46, Series A no. 140; Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017; and Seton v. the United Kingdom , no. 55287/10, § 57, 31 March 2016). The Court has also consistently held that, as a general rule, it is a matter for the domestic courts to assess the evidence before them (see, for instance, Vidal v. Belgium , 22 April 1992, § 33, Series A no. 235 B). Thus, the Court will not, in principle, intervene in issues concerning the assessment of evidence and the establishment of the facts, nor in the interpretation of domestic law, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair as required by Article 6 § 1 (see, for instance, Ajdarić v. Croatia , no. 20883/09, § 32, 13 December 2011).”

4. The Court, in paragraph 96, reaches the conclusion “that in the circumstances of the case, the extent to which the Supreme Administrative Court relied on the untested indirect evidence was not unjustified”. This conclusion is based on the implicit assumption that a criminal court may rely on hearsay witnesses only if this justified, and this justification is subject to review by the European Court of Human Rights. The review carried out in the instant case was based upon a three-stage test (see paragraph 79): “first, the reasons behind the extent to which evidence by witnesses was examined; secondly, the importance of the untested indirect evidence in the establishment of the facts; and thirdly, the fairness of the proceedings as a whole with a particular emphasis on the rights of defence”.

5. In assessing the reasons for invoking hearsay evidence in a judgment and its relevance for establishment of the facts, the Court is entering the field of assessment of evidence, usually considered as belonging to a sphere in which the domestic criminal courts enjoy exclusive competence. The Court’s approach consists in identifying parts of the evidentiary material which it considers as problematic and as requiring enhanced scrutiny on its part. In my view, this approach departs to a certain extent from the general principles set out in point 3 above. It may be perceived as a step towards introducing certain exceptions to the free assessment of evidence by the domestic courts. This general approach is adopted without a deeper and comprehensive analysis of the different principles concerning the assessment of evidence in criminal proceedings. I have doubts as to whether there is a sufficient rational justification for the approach adopted.

Moreover, the evidentiary material is usually to be viewed as a single whole, and the assessment of an individual piece of evidence cannot usually be carried out in isolation from the assessment of all other pieces of evidence. Nonetheless, the Court implicitly identifies a certain general type of “suspect” evidentiary material and subjects it to enhanced scrutiny in the Strasbourg proceedings, while leaving the assessment of all other parts of the evidentiary material to the exclusive competence of the domestic courts and declaring it as immune – in principle – from “Strasbourg review”. To put it differently: domestic judges may be fully trusted when they handle direct evidence but this trust is limited when they are required to handle indirect evidence. I do not perceive sufficient reasons for such a differentiation of the evidentiary material for the purpose of proceedings before the European Court of Human Rights.

More generally, the main problem with indirect evidence is the risk of judicial error. This is an issue of substantive rather than of procedural justice. The strict scrutiny of indirect evidence through the prism of procedural fairness is not sufficient to eliminate the risk that a domestic criminal judgment based on erroneous factual findings will be declared compliant with the Convention standards. At the same time, the mere admission of indirect evidence does not necessarily prejudice the position of the accused. On the contrary, under the system of free assessment of evidence it may be easier for the defence to call into question the credibility of indirect sources (especially if there are not corroborated by other pieces of evidence) than to challenge direct evidence.

I would like to reiterate here that the review of the correct application of the standards of formal immediacy by the domestic courts is, obviously, a completely different issue.

6. Turning to the circumstances of the instant case, I have doubts whether enhanced scrutiny of selected parts of the evidentiary material was necessary, given that the factual findings of the domestic courts were neither arbitrary nor manifestly unreasonable. In such a situation, it was sufficient to verify whether the proceedings as a whole were fair as required by Article 6 § 1.

7. The present judgment defines the object of the proceedings in the following way: “the Court is called upon to consider the questions of fairness in view of the domestic proceedings as a whole” (see paragraph 77). At the same time, it introduces the three-stage approach mentioned above in point 4 of this concurring opinion. I note in this context that the third element of this test coincides with the general object of the proceedings, namely the question of the overall fairness of the proceedings. It is not clear how the first two elements articulate with this general requirement of fairness. If the reasons for taking into account the testimony of the hearsay witness had been insufficient, would this have been a sufficient ground for finding a violation of Article 6? If the “untested indirect evidence” had been decisive for the establishment of the facts, would this have been a sufficient ground to conclude that Article 6 has been violated because the proceedings, considered as a whole, would have been unfair? Or are there other factors which may yet have tipped the balance in favour of finding a non-violation? All those questions were left without clear answers.

The devised test raises further question. As stated above, the Court defines the first element of the test as follows: “the reasons behind the extent to which evidence by witnesses was examined” . The problem does not stem, however, from the mere fact that a hearsay witness was examined by a court. It may instead stem from the fact that the hearsay part of his testimony was later assessed as credible and relied upon by a court for the purpose of establishing facts.

8. I note, moreover, that the fact that the indirect evidence was subject to enhanced scrutiny by the Court does not mean that the defence should enjoy broader rights in its respect than in respect of other pieces of evidence. The general panoply of defence rights applicable to all items of evidence was considered sufficient in this case.

9. The proceedings before the European Court of Human Rights cannot be compared to domestic criminal proceedings. In particular, the object of these two procedures and the nature of the factual circumstances to be established are completely different. Bearing in mind all of the fundamental differences between the two procedures, it is worth noting, however, that neither the principle of substantive immediacy nor the principle of formal immediacy apply in the proceedings before the European Court of Human Rights. Evidence from indirect sources, including, inter alia , witnesses’ testimonies and other evidence gathered by non-governmental organisations, is often relied upon in the Court’s proceedings (see, among many examples, NA. v. The United Kingdom, no. 25904/07, 17 July 2008; Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts); Paposhvili v. Belgium [GC], no. 41738/10, 13 December 2016; and J.R. and Others v. Greece , no. 22696/16, 25 January 2018). This confirms that evidence from indirect sources may be of great value in establishing facts in judicial proceedings.