JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA AND SICILIANOS

1. With all due respect to the majority, we cannot share the view that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case. The approach chosen by the majority in Vronchenko seems to be inconsistent with previous case - law. It is true that the judgment sets out an accurate description of the relevant case-law , with an emphasis on the body of principles developed by the Grand Chamber in the case of Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011). It is noteworthy, however, that most of the cases relating to criminal proceedings resulting from sexual offences against minors, highlighted in the judgment, pre-date the Grand Chamber case.

2. As far as we know, there has been only one application since the Al ‑ Khawaja and Tahery case in which the Court has been called upon to assess the fairness of proceedings in which a person accused of sexual offences against a minor had no opportunity to question the victim and was convicted solely or to a decisive extent on the incriminating evidence given by the victim. In the very recent case of D.T. v . th e Netherlands ( (dec.), no. 25307/10, 2 April 2013 ) , a Chamber of the Third Section found that, although the applicant had been unable to put questions to the victim and although the victim ’ s evidence had been decisive for the finding of guilt, there had been sufficient counterbalancing measures present to ensure that the applicant had a fair trial. The Chamber had regard in particular to the following :

“ ... even though the applicant lacked the possibility to question R. [the victim] at any point of the domestic proceedings, the studio interview with R. had been videotaped, which recording had been made available to the defence. Moreover, this video recording was partially shown during one of the hearings before the Court of Appeal, which enabled the court to obtain a clear impression of R. ’ s evidence and the defence to bring up any issues regarding the credibility of her statement. The Court of Appeal also used in evidence the statements of R. ’ s mother and grandmother, to whom R. had related the events at issue almost directly after her return from the weekend spent with her father. These witnesses were heard at the trial and the applicant had been able to provide his own version of the events and point out any incoherence in R. ’ s statements or inconsistencies with the statements of the other witnesses heard. ” (§ 50)

The Chamber also had regard to the fact that “ multiple experts reported on the studio interview with R. and that the applicant had been given an opportunity to question three of these experts in court” (§ 51 , emphasis added ). The crucial issue therefore was whether there was confirmation of the reliability of the victim ’ s evidence and whether the applicant ’ s rights were safeguarded in answering that question.

3. The instant case raises very similar issues. The applicant, charged with sexual abuse of his nine - year -old stepdaughter E., complained that he had not had a fair trial since he could not put questions to the victim , on whose testimony during the pre-trial proceedings his conviction had mainly been based. As the Court notes, however, E. was interviewed three times during the preliminary investigation. On 12 and on 13 December 2007 she was interviewed by a police investigator in the presence of a psychologist and a social worker respectively. On 14 January 2008 the stepdaughter was again interviewed by two police investigators in the presence of a social worker. This interview was video recorded. On the same day she was further examined by a p s ychiatrist and p s ychologist , who gave an expert opinion according to which attending a court hearing would cause her psychological trauma and damage her health, and in a stressful situation her statements might not be consistent. Reference was also made to E. ’ s young age, personality type and emotional sta t e, and to her medical history and more particularly the fact that she had been diagnosed with epilepsy.

4. On the basis of this expert opinion, we agree with the majority that there was undoubtedly a good reason for the non-attendance of E., namely the best interests of the child. In this respect, one should also bear in mind the relevant provisions of international and European instruments on the protection of child victims during criminal proceedings. Although the Convention in question has not been ratified by Estonia, the national authorities acted in conformity with the essence of A rticles 35 (Interviews with the child) and 36 (Criminal court proceedings) of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (for the text see para graph 41 of the judgment). It is also to be noted that the protection to be afforded to the victim in this case was of particular importance given the fact that the stepdaughter was not supported by her mother.

5. The main issue on which we disagree with the majority is whether sufficient counterbalancing measures were in place to safeguard the rights of the defence. Even though the applicant lacked the possibility to question E., the Harju County Court watched the video interview and thus had a clear impression of the reliability of the child ’ s evidence. Moreover, the video was made available to the defence, which had the possibility to bring up any issues regarding the credibility of E ’ s statement. The County Court also heard several witnesses concerning the events in question, including A.K. (a psychologist who worked at the school attended by E.), G.I. (a teacher) and T.S. (a psychologist at a children ’ s refuge), M.M. from the child protection service and K.G., who had carried out an internal examination of E. It is also significant that according to M.M. the child ’ s behaviour was consistent with that of a victim of a sexual offence.

6. To sum up, we would stress again that in the course of the domestic proceedings the applicant had been given the opportunity to question and to cross-examine all witnesses and experts and to call his own witnesses. With regard to the complaint that the defence had had no opportunity to put questions to E., the Court of Appeal noted that: “ During the preliminary investigation, when the [applicant] was interviewed as a suspect, he was presented and familiarised with the written record of victim [E. ’ s] interview. Neither the accused nor his lawyer made any requests ... In the indictment drawn up by the prosecutor and sent to the lawyer, the accused and the court a list of persons called to the court by the prosecutor was set out; the victim [E.] who was a minor, was not named ... Nor was [E.] named in the list [of witnesses called by the lawyer and the accused] ... ” (emphasis added) . Looking at the background to the careful scrutiny of the evidence by the Court of Appeal, and viewing the fairness of the proceedings as a whole, we believe that the counterbalancing measures taken were sufficient and that the applicant was afforded the protection of his rights safeguarded by Article 6 §§ 1 and 3 (d).