CONCURRING OPINION OF JUDGE KOSKELO

1. I agree with the present judgment. However, in respect of the complaint concerning the Supreme Administrative Court’s alleged reliance on incriminating evidence consisting of “hearsay”, I wish to add a few remarks relating to the reasoning that has been adopted.

2. As is well-known, and mentioned in paragraph 68 of the judgment, the Court embarked a long time ago on a line of case-law which, under its autonomous interpretation of the concept of a “criminal charge”, has entailed a considerable expansion of the scope of the criminal limb of Article 6. As also mentioned in paragraph 71 of the judgment, the Court has acknowledged in this context that there are “criminal charges” of differing weight and that, while the requirements of a fair hearing are strictest concerning the hard core of criminal law, there are cases where, despite their falling under the criminal head, the procedural guarantees do not necessarily apply with their full stringency.

3. The ensuing need for a differentiated approach is indeed both inevitable and reasonable. Yet the Court can hardly be credited with having so far developed any clear or coherent set of criteria or principles for what such a differentiated approach will mean in more concrete terms. The present judgment represents just one building block in a gradual evolution of the case-law in this area.

4. In the above-mentioned part of its complaint, the applicant company has relied on both Article 6 § 1 and Article 6 § 3(d) of the Convention. The issue raised in this context is that certain witnesses, whose testimony was part of the evidence against the applicant company, included in their statements – apart from matters of which they had direct knowledge – elements of “hearsay”, in the form of information which the witness in question had heard from other persons, who themselves did not appear as witnesses before the court. The gist of this complaint is that the Supreme Administrative Court’s reliance on such elements of evidence, the primary sources of which had not been available for testing by the applicant, violated the applicant’s rights of defence under Article 6 § 1 and 6 § 3(d).

5. In the judgment, the Court has decided to examine this part of the complaint solely under Article 6 § 1 of the Convention (see paragraph 56). Under the general principles set out in paragraphs 66-75 of the judgment, the guarantees contained in Article 6 § 3 are referred to, together with a statement that the Court considers complaints under Article 6 § 3 under paragraphs 1 and 3 of Article 6 taken together. No explanation is provided as to why the complaint in the present case falls to be examined solely under Article 6 § 1. This I find unsatisfactory, not from the perspective of the outcome of the present case but from the perspective of transparency and with a view to future cases.

6. The special feature in the assessment of the fairness of proceedings under the criminal limb of Article 6 usually has to do with the rights of the defence, given that these types of proceedings concern the imposition of public-law sanctions for various kinds of unlawful conduct. Indeed, the specific guarantees provided for under paragraph 3 of Article 6 are all about the rights of the defence (which of course does not detract from the fact that some other important elements of the rights of the defence, such as the privilege against self-incrimination, are derived from paragraph 1 of Article 6 alone).

7. The present complaint is focussed on the rights of the defence in competition proceedings, specifically in relation to witness statements adduced before the Supreme Administrative Court, and has been brought before the Court in reliance on Article 6 § 3(d) together with Article 6 § 1. The unexplained announcement that the complaint falls to be examined solely under Article 6 § 1 of the Convention may therefore be a source of both query and uncertainty. In my view, it would have been preferable to address this point in the judgment. In particular, questions may arise as to whether the reasons behind the chosen approach have to do with issues of general methodology, or instead with the formal scope of Article 6 § 3(d) in relation to the circumstances complained of. I will therefore explore the latter question a bit more closely.

8. I would note at the outset that the situation in the present case is different from that examined by the Court in certain other cases where a person was heard as a witness before the trial court alongside other witnesses, and where the latter reported (conflicting) prior hearsay attributed to the former (see Ajdaric v. Croatia, no. 20883/09, 13 December 2011, and Aho v. Sweden , (dec.) no. 25514/15, 13 December 2016). In such circumstances, the issue did not concern a witness who was unavailable for examination before the court but rather the assessment of evidence taken at the trial and consisting of, on the one hand, the testimony given by the witness himself and, on the other, statements made by other witnesses who reported what the former had allegedly told them on previous occasions. Thus, those cases did not raise an issue under Article 6 § 3(d). In the present case, by contrast, the complaint concerns a situation where certain witnesses called by the Competition Authority who gave evidence before the domestic court introduced, in the course of their testimonies, statements containing hearsay from third persons (the sources) who themselves did not appear as witnesses.

9. Regarding the scope of Article 6 § 3(d), the Court’s case-law makes it clear that the notion of “witness” is an autonomous one (see Kostovski v. the Netherlands , 20 November 1989, § 4, Series A no. 166). Primarily, this provision is applicable in respect of persons giving evidence in the course of the proceedings. The Court has, however, held that Article 6 § 3(d) extends to statements which were in fact made before the trial court and taken into account by it (ibid. § 40; see Delta v. France , 19 December 1990, Series A no. 191-A, § 35, and Lüdi v. Switzerland , 15 June 1992, § 44, Series A no. 238). Thus, the provision has been applied in situations where information received from anonymous informants or other persons has been adduced at the trial, not by hearing the source but through the questioning of law-enforcement officials (see, for instance, Delta, cited above, § 37; Haas v. Germany (dec.), no. 73047/01, 17 November 2005; Dzelili v. Germany (dec.), no. 15065/05, 29 September 2009; Hümmer v. Germany , no. 26171/07, 19 July 2012; and Scholer v. Germany , no. 14212/10, 18 December 2014), or through written reports (see Kostovski , cited above, §§ 38 and 40; Lüdi , cited above, §§ 42 and 44; and Guerni v. Belgium, no. 19291/07, §§ 67 and 70, 23 October 2018).

10. Moreover, the Court has considered that this provision was engaged in respect of a person who had not made any statements but was merely the source of documentary information which had been relied on by the competent domestic authority in the context of proceedings for the imposition of an administrative sanction falling under the criminal limb of Article 6 (see Chap Ltd v. Armenia, no. 15485/09, §§ 46-48, 4 May 2017). Also, the provision has been applied in a situation where essential pieces of evidence, in the form of original documents and extracts from computer log files, were not adequately adduced and discussed at the trial in the applicant’s presence (see Georgios Papageorgiou v. Greece , no. 59506/00, § 7, ECHR 2003 ‑ VI). In Donohoe v. Ireland , the Court considered that it was appropriate to be guided by the general principles articulated in relation to absent witnesses in a situation involving so-called “belief evidence”, provided by a law-enforcement official and based on information received from unidentified sources (see Donahoe v. Ireland , no. 19165/08, § 78, 12 December 2013; see also Kelly v. Ireland (dec.) , no. 41130/06, 14 December 2014).

11. As is clear from this overview, there are no crystal-clear boundaries regarding the circumstances in which Article 6 § 3(d) has been found applicable.

12. Regarding the substance of the guarantees provided under this provision, there is abundant case-law on the specific issues of reliance by courts in criminal proceedings on statements made by witnesses who are absent from the trial (or who refuse to give evidence on the grounds of the privilege against self-incrimination or their proximity to the accused) and whose testimony is therefore not available for direct examination or cross-examination at the trial. The relevant principles have been articulated by the Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom (GC, nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and further in Schatschaschwili v. Germany (GC, no. 9154/10, §§ 110-131, 15 December 2015). Under this line of case-law, it is clear that reliance on so-called “hearsay” evidence which is not available for cross-examination before the trial court may under certain conditions be compatible with the rights of the defence even in proceedings where the case examined undoubtedly falls under the “hard core” of criminal law.

13. It is true that in the present case the applicant’s complaint regarding “hearsay” evidence does not arise from the “typical” situation envisaged in the above case-law, namely one where a witness has given a statement or deposition for the purposes, and at the stage, of the pre-trial investigation of the case but has not subsequently been available for questioning and cross-examination at the actual trial. Instead, the present complaint arises from a situation where certain witnesses who were available for cross-examination in the proceedings before the domestic courts have, in the course of their testimonies, related information which they claim to have obtained from sources who themselves were not available for such cross-examination before the courts.

14. Nevertheless, and irrespective of whether subparagraph 3(d) of Article 6 may as such be considered formally applicable in circumstances such as those in the present case, the alleged unfairness caused to the defence by a situation where incriminating information relating to primary facts in the case is introduced by certain “prosecution” witnesses and where such information originates from sources who themselves do not appear as witnesses before the court (“the untested indirect evidence”, as it is referred to in the judgment) is akin to the problem addressed in the case-law developed under that provision. The potentially problematic feature from the perspective of the rights of the defence, namely the fact that the competent court might rely on incriminating information unavailable for direct testing by the defendant in the course of the proceedings, is of a similar nature.

15. Therefore, while it would not be appropriate to transpose the specific case-law mentioned in paragraph 12 above to contexts such as the present one, it is nevertheless appropriate that the consideration of the applicant’s complaint should, in broad terms, be guided by the general principles underpinning the rights of the defence in those kinds of situations (cf. Donahoe , cited above, § 78). Within the framework of a “differentiated approach”, this is essentially what the present judgment is about. In my view, it would have been desirable and helpful to explain this more clearly.

16. It is perhaps worth adding that although – as stated in the judgment (paragraphs 78 and 84) – the enforcement of competition law typically depends on a variety of evidence that must be considered and assessed together, evidence from witnesses and the rights of the defence in relation to information from sources who are or have been cartel “insiders” are nevertheless matters requiring attention. This is so not least because of the significant role played in this field by leniency policies, as a result of which those choosing to “blow the whistle” may have important financial and other incentives for doing so, namely for alerting the competent authorities and for supplying key evidence to assist them in the enforcement process. In such circumstances, the manner in which incriminating evidence from sources inside a cartel is introduced in the proceedings, and the manner in which the rights of the defence are secured in this context, will accordingly be important matters for consideration in the assessment of the overall fairness of the proceedings. While there is a strong public interest in the effective enforcement of competition law, there is also a strong interest in not getting it wrong.