PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that in this case I cannot share the majority ’ s view that there has been no violation of Article 6 § 1.

2. The case against the applicant rested entirely on circumstantial evidence. It is trite knowledge that circumstantial evidence does not lie but may deceive. It is also generally acknowledged that circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities. For that reason it needs to be not only narrowly construed but also minutely examined. Moreover, in the instant case, the applicant stood charged not as a principal but as an abettor or accomplice. The crucial point, therefore, was whether it could be shown that the circumstantial evidence pointed conclusively to the existence of a common design – the idem placitum consensus – between the applicant and the principal or principals.

3. Although this Court ’ s case law in respect of Article 6 has repeatedly affirmed that it is not a court of fourth instance for the re-examination of the facts of the case, it has also held that although a decision may not be arbitrary in the sense of a total lack of reasons, it may nonetheless lack sufficient reasons in light of the particular circumstances of the case, and therefore be in breach of Article 6 § 1. Thus, where a legal concept lacks precision, which involves an assessment of questions of facts, a court may be required to give more detailed reasons especially where the finding is of a decisive nature (see, among others, Georgiadis v. Greece no. 21522/93, 29 May 1997, in particular § 43). Likewise, a court, although giving reasons, may in effect avoid the crux of the issue ( Kuznetsov and Others v. Russia no. 184/02, 11 January 2007, § 84); or the domestic court may ignore a “specific, pertinent and important” point ( Pronina v. Ukraine no. 63566/00, 18 July 2006), even if reasons are given in respect of other issues.

4. I find nothing in the majority decision which indicates, or at least suggests, that sufficient reasons were given by the District Court or by the Court of Appeal to back up their finding of a common design between the applicant and the principal or principals (the Supreme Court dismissed the grievance relating to the lack of adequate reasons as not being within its competence, see § 91). On the contrary, it would appear that this crucial issue of the common design was not specifically addressed by these two courts. This, on its own, should have sufficed for a finding of a violation of Article 6 § 1.

5. But there is more. The applicant ’ s case was a high profile one against a backdrop of political turmoil. Common sense would suggest that courts dealing with judicial proceedings in such circumstances would exercise great caution, if anything so as to leave no lurking doubt as to the fairness of the said proceedings. In the instant case, on the contrary, the applicant ’ s appeal to the Supreme Court from the Court of Appeal ’ s decision of 29 October 2001 (on the District Court ’ s alleged lack of impartiality) was never examined by the said Supreme Court through what appears to have been an administrative error (see §§ 75-77, 87, 121 and 124). The applicant ’ s appeal before the Court of Appeal appears to have been disposed of with exceptional alacrity (see in particular §§ 79-80). The appeal to the Constitutional Court was declared inadmissible with no reasons given. The lurking doubt remains.

4. For all these reasons there was, in my view, a violation of Article 6 § 1.