PARTLY DISSENTING OPINION OF JUDGES KARAKAŞ, LAFFRANQUE AND TURKOVIĆ

[(Translation)]

We disagree with the majority finding of no violation of Article 6 §§ 1 and 3 (d) of the Convention on the grounds of the applicant ’ s inability to have the undercover agents questioned.

It should first of all be noted that the majority have acknowledged the weight of the evidence provided by the undercover agents in the applic ant ’ s conviction, accepting that it carried significant weight and that its admission may have handicapped the defence ( see paragraph 105 of the judgment ).

We do not accept that it can be legitimate fo r police authorities to wish to preserve the anonymity of an officer deployed in covert activities in order to protect him and his family .

In this case, however, the “ Schatschaschwili criteria ” should have been used to verify whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured (see Schatschaschwili v. Germany [GC], no. 9154/10, § 145, ECHR 2015).

The following factors were pinpointed in the Schatschaschwili c ase as being relevant here : the trial court ’ s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial ( see Schatschaschwili , cited above , § 145).

Although A rticle 6 § 3 ( d) of the Convention concerns the cross-examination of prosecution witnesses at the trial itself , the way in which the prosecution witnesses ’ questioning at the investigation stage was conducted attains considerable importance for, and is likely to prejudice, the fairness of the trial itself where key witnesses cannot be heard by the trial court and the evidence as obtained at the investigation stage is therefore introduced directly into the trial ( see Schatschaschwili , cited above , § 156).

In the present case the applic ant and his lawyer were never, at any stage in the proceedings , given the opportunity to question the prosecution witnesses and challenge their statements . Despite the applicant ’ s repeated requests for a face-to-face meeting with the police officers who had acted as undercover agents with a view to their questioning, they were heard by the domestic courts neither during the preliminary stage of the investigation nor during the proceedings before the trial courts .

According to the majority , even though the Indictments Chamber had not examined the undercover agents directly, face to face , checking their identities and of their reliability by verifying the lawfulness of their actions on the basis of the confidential file and the open criminal file constituted a procedural safeguard .

Yet the majority overlooked one major safeguard, which is the opportunity to put questions to the witness indirectly, in accordance with the Schatschaschwili judgment (§ 129): “ (m) oreover, in cases in which a witness is absent and cannot be questioned at the trial, a significant safeguard is the possibility offered to the defence to put its own questions to the witness indirectly ... in the course of the trial ” . On e option would be to allow questions to be put in writing ( see Yevgeniy Ivanov v . Russia , n o. 27100/03, § 49, 25 April 2013). That possibility was neither provided for in proceedings in the instant case nor considered by the majority .

I t is clear that other means can also be envisaged to compensate for the handicaps under which the defence may labour , for instance by allowing the courts to question anonymous witnesses in a separate room ( see Bátěk and Others v . the Czech Republic , n o. 54146/09, 12 January 2017). In the case of Bátěk and Others , all the defendants and their legal representatives had had a face-to-face meeting with the witness, and were able to put questions to h er direct ly and comment on h er statements. However , since the witness had been in a separate room , they had been unable to make their own judgment as to her demeanour (§ 57).

In that case, sinc e “ ... the defence were able to challenge the reliability of the evidence of the undercover police agent and undermine her version of events” (§ 58), the procedural safeguards had in fact compensated for some of the handicaps.

Even though the majority quote the case of Bátěk and Others , i t is clear that the latter is fundamentally different from the cas e under consideration . In the instant case the defence were unable, at any point in the proceedings, to question the prosecution witnesses or to challenge the credibility of their statements.

In similar cas es the Court ought to assess whether the domestic authorities implemented adequate compensatory measures . We take the view that in the present case there were no procedural safeguards to counterbalance the handicaps under which the defence laboured owing to their inability to question the undercover agents.