DISSENTING OPINION OF JUDGE MIJOVI Ć

1. There are various reasons why I am unable to agree with the majority of the Chamber in this case.

2. The first concerns the facts of the case and their interpretation by the Chamber. I refer in particular to the following circumstances.

3. In January 2004 the mother of A. (at that time a five-year-old boy) contacted the police on account of a suspicion that her child had been sexually abused. One month later A. was interviewed at the children ' s hospital. The interview was recorded on video-tape and was conducted by a psychologist. The investigating police officer, the head psychologist and Dr S., a specialist in child psychiatry, followed the interview from behind a mirrored wall. The applicant, not being officially suspected of sexual abuse at that stage, was not present. That was the only statement taken from A., since Dr S. noted that issues regarding the suspected abuse had seriously disturbed A. ' s psychological balance, causing him confusion, insecurity and anxiety. He recommended that A. should not be interviewed again. After being indicted, the applicant in his communication to the District Court agreed that, in the light of Dr S. ' s statement, A. should not be heard again. At this point it could be said (as the Chamber did) that the applicant had not been afforded an opportunity to put questions to A. during the pre-trial investigation (as required by domestic law) and because of that there had been a violation of his procedural rights. However, in my opinion the applicant was at fault. Instead of requesting the trial court to exclude A. ' s account in view of the procedural error, he actually insisted on submitting the video recording as evidence on his behalf. In my view, it was at that particular moment that the applicant waived his right to examine the child as a witness by simply consenting to the trial court ' s use in evidence of his video-taped account. In addition, during the District Court ' s first hearing and after a discussion concerning the use of the recording, the applicant once again consented to its being viewed, with the result that the District Court proceeded with the hea ring (§§13-14 of the judgment).

4. In March 2005 the District Court delivered its judgment and acquitted the applicant. Following the prosecutor ' s appeal, the applicant argued before the Court of Appeal that he had named the video recording as evidence since he had been left with no other choice. He then stated that if the Court of Appeal were also to allow the use of Dr S. ' s testimony, he would once again name the video recordin g as evidence.

5. To my mind, that was the second occasion on which the applicant waived of his own free will, not even tacitly, but expressly, his Article 6 § 3 (d) right. The consequences were serious for the applicant since the Court of Appeal, as opposed to the District Court, convicted the applicant of sexual abuse of a child and sentenced him to a suspended term of imprisonment of one year.

6. After the Supreme Court refused leave to appeal, the applicant complained to the European Court that he was denied a fair hearing in that he was not afforded an opportunity to put questions to the principal witness against him and that A. ' s account had been the only direct evidence against him. In its judgment, the majority of the Chamber accepted the applicant ' s arguments, confirming in addition that A. ' s account, recorded on video- tape, constituted the only direct evidence for the applicant ' s conviction (see § 74 of the judgment). This led the Chamber to the conclusion that there had been a violation of Article 6 § 1 ta ken together with Article 6§3 (d).

7. That is my second point of disagreement. It seems to me that the applicant, acquitted by the District Court but convicted by the Court of Appeal, wanted the European Court to decide on the outcome of domestic proceedings. For me, that is what the Chamber actually did by finding that A. ' s account constituted the only direct evidence against the applicant and therefore his statement should not have been accepted since it was obtained and used in violation of the applicant ' s procedural rights. I think that it is not for the Strasbourg Court to establish whether A. ' s account did or did not constitute the only or decisive evidence against the applicant. Moreover, by establishing that it did constitute the only evidence against the applicant, the Chamber actually substituted its own assessment for that of the national courts, in defiance of the Court ' s case-law mantra that it cannot “assume the role” nor “take the place of those authorities”. Generally, up to now, the European Court has deferred to national courts ' assessment of “the credibility of witnesses and the relevance of evidence to the issues in the case” [1] . Paragraph 74 of the judgment, to my understanding, changes that principle.

8. The third reason for my disagreement concerns the Chamber ' s assessment that “the use of a complainant child ' s video-taped account as the only direct evidence leading to the applicant ' s conviction, without giving him any opportunity to put questions to that child, involved such limitations on the rights of the defence that the proceedings could not be said to have complied with the requirement of a fair trial, as set out in Article 6 §§ 1 and 3 (d) of the Convention” (see § 67 of the judgment). It is the well established case-law of the European Court that “in the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the alleged victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence” (see Baegen v . the Netherlands , judgment of 27 October 1995, Series A no. 327-B, opinion of the Commission, p. 44, § 77). To my understanding, this means that there should be a balance between the victim ' s and the accused person ' s rights. In this case, “certain measures taken for the purpose of protecting the victim” were the child ' s video-taped interview and the expert ' s opinion that the child should not be interviewed again, which opinion was accepted by the applicant. The real question is whether these measures “could be reconciled with an adequate and effective exercise of the rights of the defence”, or, put better, whether the correct balance was struck between the child ' s and the applicant ' s rights. The Chamber came to the conclusion that there was no balance, and that the applicant should have been invited to participate in the hearing of the child, to be given an opportunity to observe the child ' s interview and to have questions put to the child (see § 56 of the judgment). However, to my understanding, this kind of balance was not possible since at the moment when the child was interviewed the applicant was not suspected and there was no reason for him to be either present or given an opportunity to put questions to the child. The balance could have been achieved if the applicant, instead of insisting on submitting the video recording as evidence on his behalf and thereby declining or turning down an opportunity for the effective exercise of his rights, had requested the court to exclude A. ' s account.

9. For all these reasons, I am of the opinion that in the present case there has been no violation of Article 6 § 1 taken together with Artic le 6 § 3 (d) of the Convention.

[1] Vidal v. Belgium , Edwards v. United Kingdom