DISSENTING OPINION OF JUDGE POWER-FORDE

1. When it comes to the adjudication of criminal matters, domestic courts are, in principle, better placed than is this Court to assess the evidence that is before them since they see the character and the demean our of all witnesses at trial. This Court ’ s primary concern is to evaluate the overall fairness of criminal proceedings, taken as a whole.

2. There are aspects of the instant case, however, that leave me with considerable doubts about the fairness of applicant ’ s trial. O and P—both illegally resident in Germany—were, reportedly, the victims of a break-in and an attempted robbery at their apartment from which they o perated a prostitution service. After some time, they made statements to the investigative authorities which, regrettably, are not set out in the judgment. The precise contents thereof are not known. These statements were admitted, in their entirety, as evidence against the applicant who stood accused of the having committed the aforesaid crimes.

3. Neither O nor P—the only people who had witnessed the crime—gave evide nce at the applicant ’ s trial. On no occasion, whether prior to or during his trial, did the applicant have an opp ortunity to cross-examine them. He could not test their general reliability as truthful characters nor could he question them as to their memories of events. He could not ask them why they had failed to identify him from photographs. He could not test their evidence in any way nor challenge the accuracy thereof. The trial court itself never heard nor observed the two key com plainants. It had no way of assessing their disposi tion or demeanor as witnesses.

4. The principles in Al-Khawaja and Tahery v. the United Kingdom [1] are clear. Where a witness is absent, the Court must be satisfied that good reasons have been given for same. The Court has made it clear that even where the evidence of an absent witness has not been sole or decisive, a violation of Article 6 will be found when there has been no good reason shown for the failure to have the witness examined. [2] This is because as a general rule witnesses should give evidence during the trial and that all reasonable efforts should be mad e to secure their attendance.

5. In Al-Khawaja and Tahery the Court examined the explanation given for the non-attendance of a witness at each applicant ’ s trial. One reason was death and the other was fear. It was accepted that in both cases a trial may proceed despite the non-attendance of a witness. However, the Court concluded:-

“ [G]iven the extent to which the absence of a witness adversely affects the rights of the defence, the Court would emphasize that, when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort . Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable. ” (§ 125)

6. Neither death nor fear was advanced as a reason for the absence of the two key witnesses in the applicant ’ s trial ( § 67). The Court notes only that they ‘ refused to attend and testify at trial ’ (§ 64). If ‘ all available alternatives ’ , including the adoption of ‘ special measures ’ , are required to be pursued before one can excuse a fe arful witness from testifying, one might expect, at the very least, that similar efforts would be required of authorities before a court could excuse a witness who just refuses to attend.

7. I am not at all convinced that admitting the untested evidence of O and P at the applicant ’ s trial wa s ‘ a measure of last resort ’ . Apart from one failed witness hearing (in Latvia) which had been scheduled for the 13 th of February 2008 and one unanswered letter of the 21 st of February 2008, nothing further was done after that date to have the witnesses testify whether by video-l ink, anonymously or otherwise. It seems that the domestic authorities allowed the requirement for proceedings to be conducted expeditiously ( § 21) to take precedence over the greater oblig ation to conduct them fairly.

8. I do not share the majority ’ s confidence that the interests of justice ‘ were obviously in favor of admitting O and P ’ s statements ’ (§ 70). It declares that their non-availability ‘ could not be allowed to block the prosecution ’ . It appears to overlook the fact that justice may, at times, require the postponement or even the prohibition of a trial in circumstances where witnesses who are vital to securing a conviction cannot be cross-examined and where there are insufficient safeguards in place to counter-balance the unfairness visited upon the accused.

9. The testimony of the absent witnesses in this case was, manifestly, central to securing the applican t ’ s conviction. All other corroborative evidence was, as the majority accepts, eith er hearsay or circumstantial (§ 73). That being so, the counter-balancing safeguards needed to compensate for the obvious unfairness caused to the applicant should be part icularly robust. The requirement for such safeguards is to ensure that the untested evidence is demonstrably reliable or that its reliability can properly be tested and assessed ( Al Khawaja , § 139).

10. The first safeguard relied upon by the majority is sa id to be Article 168(c) of the German Code of Criminal Procedure which provides the defence with an opportunity to cross-examine key witnesses at the investigative stage if it is likely that such witnesses would become unavailable to testify at trial (§ 75). Laudable as such a provision may be, it is clear that it was of no benefit whatsoever to the applicant in this case. He was excluded from the investigative hearing because the judge considered that the witnesses would be afraid to tell the truth in his presence (§ 23). He was, thus, clearly a suspect at that point, a proposition which the Government accepts (§ 58).

11. The same Criminal Code of Procedure (Article 141.3) provides that defence counsel may be appointed during preliminary proceedings if the prosecution considers such counsel will be mand atory in the main proceedings. The appointment of such counsel is mandatory if (as in this case) the main first instance heari ng is before a Regional Court. It is also mandatory if the accused is charged (as transpired in thi s case) with a serious offence. The Federal Court of Justice confirmed that the appointment of such counsel should be considered if the key witness for the prosecution was to testify before an investigating judge ‘ and the accused was excluded from the hearing ’ .

12. Despite the existence of these statutory ‘ safeguards ’ none of them was, in fact, of any benefit to the applicant. Although the main first instance hearing was to be held before the Regional Court—thus triggering the mandatory appointment of counsel—the applicant was not, in fact, represen ted at the preliminary hearing. He was, at that time, of course, onl y a suspect and not an accused. The purported justification for his exclusion from the preliminary hearing, however , is remarkable. He was excluded, it is submitted, because he was not really a suspect, the ‘ strong suspicion ’ of his having committed a criminal offence had resulted only fro m the hearing itself (§ 59). This proposition is entirely inconsistent with the reason why the investigating judge adopted the measure excluding him in th e first place (see § 10 above). The reasons offered for the non-appointment of defence counsel are equally extraordinary. Despite their known unlawful status and activities it was not foreseeable that O and P would leave the jurisdiction and refuse to return to testify at trial. Furthermore, no defence counsel was appointed to represent the applicant ’ s interests at the preliminary hearing because such a counsel might actually tell him about the hearing (§ 59).

13. In view of the foregoing, it is difficult to see how the purported and primary ‘ procedural safeguards ’ upon which the majority relies were in an y way helpful to the applicant. He was not afforded the benefit which they were designed to bestow and thus th ey did not, in any way, counter ‑ balance the unfairness caused to the appl icant by his inability to cross ‑ examine the two key witnesses at his trial.

14. The other safeguards referred to in the judgment—the trial court ’ s ‘ scrutiny ’ of the absent witnesses ’ statements and its reference to assessing ‘ hearsay ’ car efully—did little, if anything, to compensate for the applicant ’ s inabi lity to cross-examine O and P. The trial court ’ s ‘ scrutiny ’ of the statements did not compensate for its inability to observe and assess the demeanour an d disposition of their authors. The hearsay evidence of neighbour ‘ E ’ , was testimony only in relation to the fact of having been told what she was told by O and P. It was not testimony as to the truth of what she had been told. The circumstantial evidence (the GPS data)—which I agree could, at best indirectly support the prosecution ’ s case—was, nevertheless, met with a plausible explanation pr offered by the accused (§ 30). Moreover, what the majority refers to as an ‘ independent ’ and ‘ further corroborating element ’ —namely E ’ s claim (see § 77) that a different unidentified neighbour had told her that she had heard ‘ noise coming from O and P ’ s apartment on the evening in question ’ —does little to point to the guilt of the applicant.

15. None of those who testified at the applicant ’ s trial was present at the scene. No one claimed to hav e seen him commit the offence. O and P—neither of whom was either law-abiding or lawfully resident—were the only witnesses to the events of 3 February 2007. They did not press charges immediately. No complaint w as made until 12 February 2007. Having made statements at the investigative stage—they then exited the jurisdiction of the respondent State before the end of the same month. They did not identify the applicant from photog raphs that were shown to them. They did not testify that he was the culprit (§ 26). They did not give evidence against him at trial. He was, nevertheless, convicted of having committed the offences in question.

16. The untested evidence of O and P was clearly of great weight. Whilst their statements may have been coherent they cannot be said to belong to the category of evidence that can be described as ‘ demonstrably reliable ’ ( Al-Khawaja and Tahery , § 160). As in the case of Tahery , their evidence weighed heavily in the balance and required sufficient counterbalancing factors to compensate for the consequential difficulties caused t o the defence by its admission. The procedural safeguards relied upon by the majority, whether taken alone or in combination, were not, for the reasons set out above, a sufficient counter-balance to compensate for the denial of the applicant ’ s minimum right to examine or have examined witnesses against him as guaranteed by Articl e 6 § 3 (d) of the Convention.

DECLARATION OF JUDGE ZUPANČIČ

I do not share the majority ’ s conclusions in finding no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

[1] . Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 and further cases cited therein

[2] . See Al-Khawaja, § 120.