JOINT DISSENTING OPINION OF JUDGES BRATZA, GARLICKI AND DAVID THÓR BJÖRGVINSSON

1. While we have voted in favour of the admissibility of the applicant ' s complaint under Article 6 § 1 of the Convention, we are unable to share the view of the majority of the Chamber that there has been a violation of that provision.

We note at the outset that, although dissatisfied with the outcome of the criminal proceedings against him, the applicant does not complain about unfairness in the procedures before the Chişinau Regional Court, the Court of Appeal or the Supreme Court of Justice: he was legally represented in all three courts and it is not suggested that there was any breach of the principle of equality of arms or that the applicant was unable, through his counsel, to present such arguments or submissions as he wished. The majority ' s finding that the criminal proceedings against the applicant were unfair is based exclusively on the alleged inadequacy of the reasons given by the Regional Court in convicting the applicant on his retrial and those given by the appellate courts in upholding his conviction. We consider that, in concluding that Article 6 was violated in the present case, the majority of the Chamber have strayed beyond the Court ' s proper supervisory function and, contrary to what is asserted in the judgment, have assumed the role of a “fourth instance” tribunal.

2 . In reaching their conclusion, the majority place reliance on the judgment of the Chamber in GrÇŽdinar v. Moldova (No. 7170/02, 8 April 2008), where the Court similarly found a violation of Article 6 on the grounds of the insufficiency of the reasons given by the appellate courts to support the applicant ' s conviction. It is said that, as in the GrÇŽdinar case, the domestic courts in the present case remained silent with regard to certain fundamental issues in the case, including the applicant ' s alibi which had led to his previous acquittal.

Despite their superficial similarity, there exists a fundamental distinction between the two cases. In the GrÇŽdinar case, as in this, the Supreme Court had quashed the lower courts ' judgments acquitting the applicant ' s husband of murder and a full rehearing of the case had been ordered. On the retrial, the applicant ' s husband was once again acquitted by the trial court but the judgment was quashed by the Court of Appeal, which convicted him on the basis of the same evidence and without rehearing any of the principal witnesses in the case. His conviction was subsequently upheld by the Supreme Court. It was this failure of the two appellate courts to give sufficient reasons for reversing the factual conclusions of the trial court which was at the heart of the Court ' s finding of a violation of Article 6. In marked contrast, the applicant in the present case was convicted of murder on his retrial after a full rehearing of the evidence in the case and his conviction was upheld by both the Court of Appeal and the Supreme Court. The majority ' s finding is based not, as in GrÇŽdinar , on the failure of the appellate courts to give sufficient reasons for reversing the trial court ' s conclusion on the evidence before it, but on the alleged failure of the trial and appellate courts on the retrial of the applicant to give sufficient reasons for departing from the assessment of the evidence by the original trial court.

3 . We consider that this is to go too far. While the procedural guarantees of fairness in Article 6 § 1 of the Convention undoubtedly require that a tribunal conduct a proper examination of the submissions, arguments and evidence before it, it is for the tribunal itself to assess the extent to which they are relevant for its decision. As is correctly emphasised in the judgment, the Article cannot be understood as requiring a detailed answer to every argument advanced or detailed reasons to be given for accepting or rejecting the evidence before it. Still less can Article 6 be understood as requiring, in a case such as the present, where there has been a retrial of an applicant, that reasons are given by the tribunal for reaching a different assessment of the evidence before it, or a different conclusion on that evidence, from that of the original trial court. The Strasbourg Court will in principle be justified in intervening only in a case where the assessment of the evidence before the domestic courts, or the reasons given for the conclusions reached on that evidence, are manifestly unreasonable or otherwise arbitrary.

The grounds relied on in the judgment for finding that Article 6 was violated are, in our view, very far from establishing any such arbitrariness on the part of the domestic courts.

4 . It is argued in the first place that the domestic courts failed properly to analyse or respond to “several serious arguments of the applicant challenging the only three pieces of evidence which arguably linked the applicant to the crime”, namely the relevant documents found in the search of the applicant ' s apartment; S. P. ' s statement as to what T. had allegedly said to him about the involvement of the applicant; and the confessions of the applicant himself.

5 . This argument illustrates the difficulty faced by the Court when it assumes the role of a court of appeal and seeks to substitute its own view for that of the national courts as to which of the arguments advanced before them called for an answer. As to the first of these elements, it is said that, while noting that the incriminating documents had been found in the apartment which the applicant shared with his co-defendant, R. M., the Regional Court omitted to mention that the record of the search of the apartment did not specify whether the documents were found in the room rented by R. M. or elsewhere in the apartment. However, there is nothing in the material before the Court to indicate what reliance, if any, was placed by the applicant at his trial on this element of the evidence. Certainly, it does not appear from the judgments of the appellate courts, that it was made a central part of the applicant ' s appeals to the Court of Appeal or the Supreme Court.

6 . As to the second element, it is true that T. ' s statement incriminating the applicant appeared only in S. P. ' s report of his interview with T. and not in T. ' s own statement. However, it is also true that S. P. was called as a witness at the retrial and that he confirmed his account of what T. had told him on 4 June 1997. Complaint is made in the judgment of the fact that the domestic courts “preferred to rely on S. P. ' s hearsay evidence to the detriment of that provided by the original witness” and that no steps had been taken to question T. again during her interview of 5 June 1997 to dispel any doubts about the alleged discrepancy between the two accounts. But, again, it is unclear whether any objection at trial was taken by the applicant to the admission of S. P. ' s evidence; nor does it appear what, if any, reliance was placed at the trial or on appeal on the alleged inconsistency between the two statements.

7 . As to the applicant ' s confession statements, it is beyond dispute that the domestic courts examined the applicant ' s principal claim that the statements were not made voluntarily. The Regional Court expressly found the statements to have been voluntary, noting that the forensic medical expert had discovered no physical injuries on the applicant, that when questioned by the police inspector the applicant had stated in the presence of a lawyer and witnesses that there had been no coercion whatsoever and that he had given the statements without any constraints. The judgment asserts that there was a “serious contradiction” between the statements and the objective evidence which cast doubt on the genuineness of the statements and that the Supreme Court had “tampered” with the applicant ' s statements in order to circumvent this contradiction. It is not in our view the role of this Court to reach an independent assessment of the existence or the seriousness of the alleged contradiction; still less do we feel justified in drawing the conclusion that the Supreme Court tampered with evidence by significantly amending the applicant ' s statement as alleged.

8 . It is finally argued in the judgment that the domestic courts failed to deal with the applicant ' s alibi for the presumed night of M. ' s murder. The alleged alibi witness was I. M., who also lived in the applicant ' s flat at the material time. It appears that I. M. did not give evidence, his alibi being included in a written statement before the Regional Court . It is true that the domestic courts on the retrial of the applicant did not make reference to the alibi or explain why it had been discounted. However, we note that, although the alibi was claimed by the applicant to be “unchallenged”, it was clearly inconsistent with the applicant ' s own confession statements, which were accepted by the domestic courts as valid. In these circumstances, we find no basis for concluding that the failure to refer to the alibi is indicative of any arbitrariness on the part of the domestic courts.

9. We are, for these reasons, unpersuaded that the applicant has established such deficiencies in the domestic courts ' assessment of the evidence, or in the reasons given for their judgments, to give rise to a violation of Article 6 § 1 of the Convention.