JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA AND SICILIANOS

1. We regret that, with all due respect to the majority, we are unable to share the view that the applicant ’ s rights under Article 6 §§ 1 and 3 (d) were violated in the present case. We are unable to accept this view for the reasons already explained in our dissenting opinion in the case of Vronchenko v. Estonia (no. 59632/09, 18 July 2013).

2. In our view the approach of the majority in this case is built on the same legal reasoning as in Vronchenko . We are of the opinion that this is contrary to the Court ’ s approach in similar cases (see, for example, D.T. v. the Netherlands (dec.), no. 25307/10 , 2 April 2013, and Gani v. Spain , no. 61800/08, 19 February 2013) . Moreover, in the case of Gani , the Third Section decided that there were sufficient counterbalancing factors to conclude that the admission in evidence of N. ’ s written statements without her being questioned did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

3. There are even stronger elements in this case which justify the approach taken by the national courts in Estonia. In our view, although the applicant was unable to put questions to the victim and although the victim ’ s evidence was decisive for the finding of guilt during the pre-trial proceedings, there were sufficient counterbalancing measures present to ensure that the applicant had a fair trial, in line with the situation in Al ‑ Khawaja and Tahery v. the United Kingdom (nos. 26766/05 and 22228/06 , 15 December 2011) , and with D.T. v. the Netherlands and Gani .

4. The main issue on which we disagree with the majority is this question as to whether sufficient counterbalancing measures were in place to safeguard the rights of the defence. Even though the applicant lacked the possibility to question V. at the second hearing, after the Supreme Court referred the case to the first-instance court for fresh consideration, the interview of V. in the presence of a psychologist had been videotaped and the interview had been made available to the defence. This video recording was shown during the hearings before the Tartu County Court, which enabled the court to obtain a clear impression of V. ’ s evidence and the defence to bring up any issues regarding the credibility of his statement. The court also used in evidence the statements of V. ’ s mother and brother, whom he had told what had happened. Equally important was the statement of K., who had been present that evening and had been involved in the events. K. was also interviewed on the same day by the police. In stating that the boys had stayed overnight at the applicant ’ s home, “but [that] he had no recollection of what had happened that night as he had been drunk and had fallen asleep”, K. confirmed an essential element of V. ’ s statement. These witnesses were heard at the trial and the applicant was able to provide his own version of the events. In addition to all these facts, the applicant twice partly admitted his guilt and expressed regret that “he [had] sexually abused an 11-year-old boy”. Moreover, during the investigative and pre-trial proceedings, he and his counsel did not ask permission to put questions to the 11-year-old boy. The boy was present at the start of the court hearing and when, at the request of the prosecutor, the court dismissed the boy from the hearing, again the applicant and his counsel did not object.

5. Given the existence of all these circumstances, the applicant was given the opportunity to question and to cross-examine all the witnesses and experts and to call his own witnesses. In such conditions we do not consider that the Estonian courts breached in any way the requirements of Article 6 §§ 1 and 3 (d) of the Convention.