DISSENTING OPINION OF JUDGE SICILIANOS

I regret not to be in a position to vote with the majority in finding that there was no violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case. The crucial issue is whether the applicants had really consented to the examination of the driver in their absence and in the absence of their lawyers under the special rules for protected witnesses. In other words, the main point of the case is whether the applicants validly waived their right under Article 6 § 3 (d) of the Convention to challenge and question the key witness against them, as has been accepted by the majority.

In Pishchalnikov v. Russia (no. 7025/04, 24 September 2009), the Court summarised as follows its case-law as regards the waiving of entitlement to the guarantees of a fair trial, including the right of the accused to examine or have examined witnesses against him:

“77. In this respect the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu v. Turkey , no. 35811/97, § 53, 2 August 2005, and Colozza v. Italy , 12 February 1985, § 28, Series A no. 89). A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey , no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003)”.

Turning to the present case, it transpires from the statement of facts that the applicants and their lawyer, Mr V.Š., consistently objected to the examination of the driver under the special rules for protected witnesses. According to our understanding of the facts, the strategy of the defence was to contest the application of those rules altogether and was aimed at excluding the driver ’ s testimony.

This approach is apparent from a series of elements. In a hearing held before the trial court on 5 October 2007 the applicants objected to the court ’ s examining the driver (see paragraph 16 of the judgment). Despite this objection, the trial court examined the driver on 7 December 2007 only in the presence of the judge and the public prosecutor, in order to protect his identity. The court record of that date mentioned that “[t]he accused and the[ir] lawyers did not object” (see paragraph 17). Referring to this affirmation, Mr V.Š. objected to the court record of 7 December 2007 “since it [was] contradictory and untrue” (see paragraph 22), and at the same time “declined” to examine the driver under the special rules on protected witnesses. Mr V.Š. maintained the same attitude in his concluding remarks before the trial court, when he denied that there was any material evidence against the applicants – thereby ignoring the testimony of the “protected witness”. He further stated as follows:

“ ... we object to the use of the term ‘ protected witness ’ since it is not disputed that the (applicants) and (the driver) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness” (paragraph 25).

The same objection was reiterated by the applicants in their appeal. They complained that it had been unreasonable to use the driver as a protected witness since they had already met him. They further complained:

“The statement (of the driver) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused” (paragraph 28).

We do not see how these statements could be interpreted as “a knowing and intelligent relinquishment of a right”. In our view the above statements and objections of the applicants and their lawyer, before both the trial court and the Court of Appeal, denote a clear and consistent attitude opposing the examination of the key witness privately, in the absence of the accused and the defence, under a set of special rules on “protected witnesses”. The Štip Court of Appeal dismissed simpliciter the objections of the applicants and their lawyer. From the statement of facts (see paragraph 29) it does not appear that the procedure before the Court of Appeal offered sufficient “counterbalancing factors”, in the sense given to that term by the Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 147, ECHR 2011).