JOINT PARTLY DISSE NTING OPINION OF JUDGES LORENZEN AND TSATSA-NIKOLOVSKA

While we agree with the majority that there has been a violation of Article 3 of the Convention, we are not able to find that there has been no violation of Article 6 § 3 (d) taken in conjunction with 6 § 1 of the Convention.

According to Article 6 § 3 (d) everyone has a right “ ... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. It has been the Court ’ s constant case-law that this article does not grant an unlimited right to have witnesses heard and that it is primarily for national courts to assess whether witnesses requested by the defence to be heard are relevant to the case. Only in exceptional circumstances would a refusal to hear such w itnesses violate Article 6, cf. paragraph 65 of the judgment. However, in our opinion the article implies that when a request by the defence to hear witnesses is not accep ted, the national court should – unless the witnesses are clearly irrelevant – give a reasoned decision why it is not appropriate to call them.

In the present case the applicant at the investigation stage requested to hear two witnesses and gave reasons why he considered them important. However, the request only reached the trial judge after the case was found ready for trial – either because the prison authorities forwarded it belatedly or because of a clerical error in the District Court. The parties disagree as to what the applicant answered to a question of the trial court whether he wanted to call additional witnesses, but it appears from the transcript of the hearing on 28 October 1999 that the court knew about his earlier request and noted that it would be examined later, at the preliminary hearing stage. However, it does not appear that the District Court took any decision in that respect. Nor did the appeal court examine his complaint that his request was left unanswered by the District Court.

The majority considers that the applicant ’ s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority ’ s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called. In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles.