JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, SPIELMANN AND JEBENS

1. We disagree with the majority view that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

2. The majority come to the conclusion that the applicant made an explicit waiver of his right to examine the officers or have them examined (see paragraph 41 of the judgment).

3. We disagree with this finding. A waiver is acceptable only if it meets the quality requirement of being “unequivocal”. We would like to emphasise that we are not satisfied that the alleged waiver of the applicant ' s right to have both witnesses heard was an “unequivocal” waiver, and hence a valid waiver, as required by the Court ' s case-law. According to the Oxford Dictionary of English (2 nd edition revised), “ unequivocal ” means “ unambiguous ” or “ leaving no doubt ” . The Court in its case-law has used such strong language to underline the importance of the rights of the defence. In Hermi v. Italy ( [GC], no. 1811 4/02, ECHR 2006 ‑ XII ) the Court held as follows:

“73. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol , cited above, pp. 13-14, § 31). In addition, it must not run counter to any important public interest (see Sejdovic , cited above, § 86, and HÃ¥kansson and Sturesson v. Sweden , judgment of 21 February 1990, Ser ies A no. 171 ‑ A, p. 20, § 66).”

4. In Panovits v. Cyprus ( no. 4268/04, 11 December 2008 ) the Court emphasised that

“68. ... b efore an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.”

5. If a defendant is not assisted by counsel, the trial judge has a duty to apprise the applicant in detail of his right to examine prosecution witnesses and to explain the consequences of waiving this right and agreeing to the “ reading out ” of pre-trial statements.

6. According to the majority view, “ there is no reason to believe that the applicant did not understand that his consent to the reading out of the statements implied the waiver of the right to examine them in the subsequent proceedings at the trial ” (paragraph 40 of the judgment).

7. This is the wrong test . Instead of taking as a starting point that “ there is no reason to believe that the applicant did not understand ... ” , the Court should be satisfied that the applicant did understand that his consent to the reading out of the statements implied the waiver of the relevant right. In other words, it should transpire from the file that the waiver was “unequivocal”. Then, and only then, should the Court accept any waiver as “unequivocal”.

8. Admittedly, and turning to the particular circumstances of the case, the applicant did not dispute that he had consented to the reading out of the officers ' pre-trial depositions (see Vozhigov v. Russia , no. 5953/02, § 57 , 26 April 2007, and Ozerov v. Russia (dec.), no. 64962/01, 3 November 2005). At the same time, there is no indication that the applicant was clearly apprised of his right to examine prosecution witnesses. Moreover, i t did not follow from the wording of Article 281 of the Code of Criminal Procedure that by giving his consent to the reading out of the pre-trial statements the applicant definitely waived his right to examine those witnesses. We would like to stress that the applicant was not represented during the trial or on appeal and that there is no indication that he was well versed in the law (see Bonev v. Bulgaria , no. 60018/00, § 41 , 8 June 2006 ; Isgrò v. Italy , 19 February 1991, § 29 , Series A no. 194 ‑ A ; and also, by contrast, Anda ndonskiy v. Russia , no. 24015/02, § 54 , 28 September 2006 ).

9. Moreover, being faced with the authorities ' apparent unwillingness to make further reasonable efforts to ensure S. ' s and A. ' s presence at the trial, the applicant was left with no other significant option regarding the possibility of questioning officers S. and A. Thus, we are not satisfied that the applicant was sufficiently put on notice as to the consequences of his refusing legal assistance or his consenting to the admission of the officers ' pre-trial statements. We reiterate in that connection that the ultimate guardian of the fairness of the proceedings was the trial judge (see Timergaliyev v. Russia , no. 40631/02, § 59 , 14 October 2008 ). It is true that, on 15 November 2002, noting the officers ' absence, the trial judge enquired of the parties whether the officers ' pre-trial statements could be admitted in evidence ( see paragraph 13 of the judgment). But at the same time, as already mentioned, there is no indication that the judge apprised the applicant of his right to examine prosecution witnesses (see paragraph 5 above) and of the consequences of a waiver of this right. Nor did the judge explain the consequences of agreeing to the “ reading out ” of pre-trial statements .

10. In view of the above, we consider that the applicant cannot be considered to have waived his right to examine or have examined officers S. and A. in the criminal proceedings against him.

11. We would further observe that no proof was adduced to show that the national authorities had made every reasonable effort to provide the applicant with an effective opportunity to examine or have examined officers S. and A., whose test imony laid the foundations for the prosecution ' s case against the applicant. After the officers had failed to appear before the court on one occasion, it still remained possible to ensure their presence at the trial. Despite this, no effective measures were taken to bring them before the court.

12. Bearing in mind the importance of the officers ' test imony and the authorities ' failure to ensure their presence at the trial, we conclude that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.