DISSENTING OPINION OF JUDGE KARAKA Åž

1 . I do not agree with the majority that there has been no violation of Article 6 §§ 1 and 3(d) of the Convention.

2 . The applicant was convicted by an appeal court following the prosecutor ’ s appeal against the first instance court ’ s judgment of acquittal. The appeal was based on the allegedly incorrect assessment of evidence, mainly witness statements. The Court of Appeal did not examine the evidence directly but found the applicant guilty by assessing the witness statements differently. Neither the Court of Appeal nor the Supreme Court heard evidence directly from the applicant or witnesses.

3 . According to the Court ’ s case-law, the fact that an appeal court is empowered to overturn an acquittal by the lower court without summoning the defendant and without hearing the latter in person does not itself infringe the fair hearing guarantees in Article 6 § 1 (see Botten v. Norway , 19 February 1996, § 48, Reports of Judgments and Decisions 1996 ‑ I).

4 . However, where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see, among many others, Ekbatani v. Sweden , 26 May 1988, § 32, Series A no. 134; Constantinescu v. Romania no. 28871/95 , § 55; Sándor Lajos Kiss v. Hungary , no. 26958/05 , § 22, 29 September 2009; Sinichkin v. Russia , no. 20508/03 , § 32, 8 April 2010; Lacadena Calero v. Spain , no. 23002/07 , §§ 36 and 38, 22 November 2011; Hanu v. Romania , no. 10890/04 , § 32, 4 June 2013; Vaduva v. Romania no. 27781/06 § 37, 25 February 2014; and Gómez Olmeda v. Spain, no. 61112/12, § 35, 29 March 2016).

5 . In the determination of criminal charges, hearing the defendant in person should be the general rule. Any derogation from this principle should be exceptional and subject to restrictive interpretation (see, notably, Popa and Tănăsescu v. Romania , no. 19946/04 , § 46, 10 April 2012 ) . The domestic courts are under a duty to take positive measures to summon and hear the accused, even if the latter has made no specific request (see Botten v. Norway , cited above, § 53; Vaduva v. Romania , cited above, § 45; Sigurþór Arnarsson v. Iceland , no. 44671/98, § 38, 15 July 2003; Igual Coll v. Spain , no. 37496/04, § 32 , 10 March 2009; and Găitănaru v. Romania , no. 26082/05 , § 34 , 26 June 2012 ). The only derogation permitted is when it is established that the accused has waived his right in an unequivocal manner and his waiver was attended by minimum safeguards ( Calmanovici v. Romania , no. 42250/02, § 108, 1 July 2008, and Popovici v. Moldova , nos. 289/04 and 41194/04, § 73, 27 November 2007).

6 . In the present case, the Court of Appeal summoned the applicant but he informed the court in writing that he did not wish to take part (paragraph 13 of the judgment). It is not clear from the facts why the applicant is considered to have waived his rights unequivocally. Such a waiver on the part of the applicant must be established in an unequivocal manner (see, mutatis mutandis , Oberschlick v. Austria (no. 1 ) , 23 May 1991, § 51, Series A no. 204, and Popovici v. Moldova , cited above, § 73). However, the Government did not adduce any evidence in support of the affirmation that there had been an unequivocal waiver. In my view, the majority do not have a sufficient factual basis in order to distinguish this case from other similar cases where the Court emphasised the necessity for an appeal court to take positive measures to hear the accused person.

7 . As regards the question of re-examination of the witnesses by the Court of Appeal, the majority found it significant that the applicant did not in any manner request that witnesses be examined at that stage (paragraph 46 of the judgment) with reference to Destrehem v. France ( no. 56651/00, §§ 45-47 , 18 May 2004 ), where the applicant had requested the summoning of the witnesses but the Court of Appeal had not heard them.

8 . In the Destrehem case, the Court of Appeal had not summoned the witnesses as requested by the applicant but it had taken oral statements from him and had found him guilty essentially on the basis of the witness statements before the first-instance court. The appellate court had based the applicant ’ s conviction on a new interpretation of the same evidence without hearing the witnesses (§ 45):

“It can thus be seen from the judgment of 31 March 1999 that the Court of Appeal had essentially based the applicant ’ s conviction on a new interpretation of various testimony without hearing the witnesses who had given it, in spite of the applicant ’ s requests to call them . It was as if the Court of Appeal, having doubts about the credibility of the defence witnesses, had ‘ disqualified ’ them beforehand, without examining them, and had merely relied on its impression to take the opposite position to that of the court below, which had acquitted the applicant on the basis, in particular, of those witnesses ’ statements . The appellate court was, admittedly, entitled to assess the various information that had been gathered, together with the relevance of the evidence that the applicant wished to adduce. Nevertheless, the applicant was found guilty on the basis of the very testimony which had cast sufficient doubt on the charge against the applicant in the mind of the court below that it had acquitted him at first instance . In those circumstances, the Court of Appeal ’ s refusal to examine the witnesses, in spite of the applicant ’ s request to that effect, prior to finding him guilty, significantly undermined the rights of the defence”

9 . In Destrehem, even though the Court made reference to the applicant ’ s request to summon the witnesses, this was not the decisive point of the Court ’ s reasoning. The main point is that the applicant was convicted on the basis of a new interpretation of the statements without hearing the witnesses, which is also the situation in the present case.

10 . Moreover, in its recent case-law the Court has not taken into account at all whether the applicant had asked to have the witnesses summoned or not.

11 . The case-law is rather to the effect that even when the accused had not asked for the witnesses to be summoned, the appeal court should have taken positive measures ex proprio motu in this regard.

12 . For example, in Flueraş v. Romania ( no. 17520/04 , 9 April 2013), the Court, after reiterating its finding in Destrehem (cited above, § 45), reached the same conclusion:

“ 59. The Court of Appeal essentially based the applicant ’ s conviction on a new interpretation of various testimony without hearing the witnesses who had given it. It thus reached the opposite conclusion to that of the courts below, which had acquitted the applicant on the basis, in particular, of the statements given by those witnesses during the hearings before them. Whilst it was for the appellate court to assess the various information that had been gathered, together with the relevance of the evidence that the applicant wished to adduce, it can nevertheless be said that the applicant was found guilty on the basis of the very testimony which had cast sufficient doubt on the charge against the applicant in the minds of the courts below that they had acquitted him at first instance and on appeal. In those circumstances, the failure by the Timişoara Court of Appeal to examine those witnesses, prior to finding him guilty, significantly undermined the rights of the defence (see Destrehem v. France , n o. 56651/00 , § 45, 18 May 2004, and Găitănaru , cited above, § 32).

60. Lastly , in so far as the Government emphasised that the applicant had not asked the Court of Appeal to examine the witnesses in question, the Court finds that the appellate court had a positive obligation to take steps to that end ex proprio motu , even if the applicant had not expressly made such a request (see, mutatis mutandis , Botten , cited above, § 53, and Dănilă , cited above, § 41).”

13 . In Dan v. Moldova ( no. 8999/07 , 5 July 2011 ) the Court was not convinced that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant – and, in so doing, 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 considered that those who had 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 ( ibid., § 33).

14 . It is clear that according to the case-law, where an appeal court examines the evidence in order to decide on the acquittal or the conviction of an accused, it cannot decide without a direct examination of that evidence, and especially not without hearing the witnesses, even if the accused does not request that they be heard ( Găitănaru v. Romania , cited above; Fluera ş v. Romania , cited above; Dan v. Moldova , cited above; and Serrano Contreras v. Spain , no. 49183/08 , 20 March 2012 ).

15 . In addition, it is difficult to understand how the possibility of lodging an appeal with the Supreme Court – an appeal on points of law – could be a safeguard for the applicant ’ s defence rights; this is also an element in other similar cases where the Court found a violation of Article 6 §§ 1 and 3(d).

16 . Having regard to the foregoing, I do not see any particular reason to depart from the existing case-law. This explains why I voted for a violation of Article 6 §§ 1 and 3(d) of the Convention.