partly DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1. In addition to the violation of Article 6 § 1 of the Convention, I find that there has also been a violation of Article 6 § 3 (d) of the European Convention on Human Rights (“the Convention”) owing to the unfair handling of the testimonial evidence in the criminal proceedings in question . The unfairness of the handling of the expert evidence was compounded by the additional lack of cross-examination of the alleged victim during both the first and the second trial.

2. The alleged victim was never heard by a court, as her testimony was read out in open court in the first and second trials. Since she informed the court before the second trial that she had already been “reconciled” with the accused persons and even withdrew her complaint, no psychological or physical danger could be feared in the event of her being confronted with the defendant during the court hearing. Whilst the two medical certificates issued on 19 January 2006 and 22 March 2007, stating that her appearance in court was not recommended since it might cause a “relapse”, could possibly have justified her absence at the first trial, they could certainly not ground the decision of the court not to call Ms S.D. to testify at the second trial in June 2009, more than two years later, when new relevant information on her state of mind and her relationship with the defendant had been made known to the court. The mention of undetermined sources of information, such as “information received” (paragraph 88) by the trial court is the crowning touch of arbitrariness in a decision already lacking any plausible factual and legal grounds.

3. Furthermore, the alleged victim ’ s cross-examination was crucial in view of the fact that the imputed offence referred to a negligent result of harm caused to the victims of illegal private medical practice or private pharmaceutical activity. The trial court had to assess whether the alleged victim had suffered any psychological or physical harm during the material time from April to June 2002 and, if so, whether that harm was caused by the applicant ’ s practices. Both the criminal harm and the link of causality could and should have been ascertained on the basis of the alleged victim ’ s direct testimony before the court. Neither the domestic courts nor the sole expert (Dr Iv.), whose report was used by the domestic courts to ground the conviction, ever saw, let alone questioned, the victim or evaluated whether she had suffered any harm caused by the applicant ’ s practices. Thus, the alleged victim ’ s testimony was capable of enlightening the court as to essential points of fact which were disputed by the defence.

4. The decision of the defence not to object to the reading-out of Ms S.D. ’ s previous testimony in the proceedings conducted before the first trial court cannot be interpreted as an unequivocal waiver of its right to examine her in person. The same applies to the reading-out of the testimony of other witnesses submitted by the prosecution. The irrefutable fact is that, at the hearing before the second trial court on 2 July 2009, the defence objected explicitly to the reading-out of statements from Ms S.D. and from other witnesses for the prosecution that had been obtained during the previous stages of the proceedings. The position of the defence was clear, and moreover justified: they wanted to question the witnesses about the facts of the case in view of the new evidence, such as the history of mental problems among members of the alleged victim ’ s family, together with the “reconciliation” and the withdrawal of the complaint by the alleged victim. The defence had the right to assess what was in its best interest and its judgment should have been respected by the court for the sake of the fairness of the trial, including the basic right to examine or have examined witnesses for the prosecution. The trial court simply assumed that the defence ’ s input to the trial was pointless – a form of conduct not much different from the police investigator ’ s conduct at the investigation stage of the proceedings.

5. No counter-balancing measures whatsoever were taken by the public prosecutor or the court for the benefit of the defendant when the alleged victim was questioned during the pre-trial stage of the proceedings, in order to allow for some procedural safeguards to ensure the fairness of the proceedings and the reliability of the evidence. For example, the defence lawyer was not allowed to be present at the police questioning of the witness.

6. The argument that the alleged victim ’ s testimony was not the sole and decisive evidence against the defendant is not convincing. In addition to the expert opinion of Dr Iv and some documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association, its brochures and leaflets, the second trial court based its factual findings on the records of the testimony of the alleged victim Ms S.D., given on 24 March 2003 and 22 April 2004, and the testimony of Ms N.D. (the sister of the alleged victim) given on 9 September 2003, all three statements having been taken during the pre-trial investigation by the police, the testimony of Ms Z.D. (the mother of the alleged victim) and Mr E.D. (the brother of the alleged victim) given at the first trial, together with the records of the testimony of Ms E. K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the police investigator during the investigation stage of the proceedings or at the first trial. The whole case against the defendant was based on untested evidence given by the victim, corroborated by one sole expert who had never seen the victim and who was never cross-examined in a court hearing, as well as other witnesses whose testimony was not cross-examined before the second trial court either. In straightforward words, the core of the prosecution ’ s case was not weak. It simply did not exist. Any court of law would have thrown out the prosecution ’ s case on the grounds of a lack of reliable evidence. As the first trial court rightly did.

7. The facts described above call for some reflections of a general nature . The principle of the fair trial and the principle of cross-examination of the evidence require that testimonial evidence be produced before the judge who is responsible for returning the verdict. The assessment of the reliability of that evidence depends on the judge ’ s immediate perception of it. The immediacy of the relationship between the judge and the testimony (or the Unmittelbarkeitsprinzip , as the German doctrine calls it) is a constituent element of the adversarial proceedings inherent in the concept of fair trial. Thus, as a matter of principle, the trial court may not base a criminal conviction on testimonial evidence produced prior to the trial, even where the evidence has been produced in a previous trial before the same or other court and its judgment has subsequently been quashed and the case remitted for a fresh trial, and regardless of whether or not the composition of the first and second trial courts is different. A fortiori , this conclusion applies also to testimonial evidence that was produced at the pre-trial stage of the criminal proceedings. The obvious consequence of this principle is that only exceptionally may the testimonial evidence produced at the pre-trial stage of criminal proceedings or at the trial stage, in the event of remittal for a fresh trial, be considered admissible and used as a ground in the judgment.

8. In order to comply fully with the principle of a fair trial and the principle of cross-examination of the evidence, there must be an exhaustive legal catalogue of grounds for the reading-out of an absent witness ’ s testimony in open court, such as death, physical or mental incapability, disappearance, travel abroad and need to protect the life, safety or health of the witness. Furthermore, the catalogue of these grounds must distinguish between the evidence produced before the judge, the public prosecutor or the police. For the purposes of an adversarial and fair examination of the evidence, the evidence produced before the police or the prosecutor cannot be equated with the evidence produced before the judge at the pre-trial stage. The catalogue of the grounds for reading out the absent witness ’ s testimony in open court must be more expansive when a judicial authority collects the evidence and less expansive when it is collected by a non-judicial authority. For the same purpose s , when deciding whether the absent witness ’ s testimony should be read out, courts must take into consideration the presence or absence of the defence lawyer at the witness ’ s hearing. Experience shows that the intervention of the defence lawyer at a later stage is often too late, and may not suffice to remedy the shortcomings of a previous non-adversarial hearing of the witness. The catalogue of the grounds for reading out the absent witness ’ s testimony in open court must be more expansive when the defence lawyer participated, or had the opportunity to participate, in the pre-trial hearing of the witness, and less expansive when he or she did not have such opportunity.

9. Accordingly , the legal standard of the Court, which was set out most recently in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, must be further refined, based on the joint assessment of the following criteria: (1) the nature of the ground hindering the witness ’ s presence at the trial hearing; (2) the kind of public authority before which the witness ’ s prior testimony was given; (3) the presence or absence of the defence lawyer at that specific hearing; (4) the existence of other mechanisms to safeguard the defence ’ s right to impugn the fairness of the gathering of testimony, the credibility of the witness and the reliability of his or her testimony; (5) the weight of the read-out testimony of the non-cross-examined witness in the trial court ’ s judgment; and (6) the waiving of the right to cross-examine the absent witness.

10. To sum up, by repeatedly denying the defence any possibility of challenging the prosecution evidence and subsequently relying on the reading-out of testimonial and expert evidence gathered at the pre-trial stage of the proceedings or during the first trial, in spite of the firm opposition of the defence, the second trial court emptied the principle of cross-examination of any practical meaning and ultimately turned the judgment into a farce, where the defendant ’ s conviction seemed from the very start of the trial like a self-fulfilling prophecy, confirmed by each new interim decision taken against the interests of the defence and the final predictable conviction of the defendant. No remedy for this blatant unfairness was provided by the appellate court.

[1] The date in the judgment indicated as 8 April 2004.

[2] In the Court’s case-law, see Cantoni v. France , 15 November 1996, §§ 29-32, Reports 1996 ‑ V ; Radio France and Others v. France , no. 53984/00, §§ 18-20, 30 March 2004 ; Liivik v. Estonia , § 101-104, 25 June 2009 ; Soros v. France , no. 50425/06, §§ 55-62, 6 October 2011 ; and Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 791-815, 25 July 2013; and in the European Court of Justice’s case-law, see Koenecke , case 117/83, 25 September 1984, and Vandemoortele NV , case C-172/89, 12 December 1990.

[3] For ex a mple, Baskaya and Okcuoglu v. Turkey , no s . 23536/94 et al., §§ 39 - 40, 8 July 1999.

[4] See mutatis mutandis , Baskaya and Okcuoglu , cited above, § 36.

[5] See mutatis mutandis , CR v. the United Kingdom , no. 2190/92, § 37, 22 November 1995, and Kafkaris v. Greece , no. 21906/04, § 141, 12 February 2008.

[6] See , mutatis mutandis , Liivik v. Estonia , cited above, §§ 100-104.

[7] Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 149-150, ECHR 2000 VII.

[8] Previti v. Italy (dec.) , no. 1845/08, §§ 80-85, 12 February 2013.

[9] K.-H.W. v. Germany [GC] , no. 37201/97, §§ 107-112, 22 March 2001, and Kononov v. Latvia [GC] , no. 36376/04, §§ 228-233, 17 Ma y 2010.