DISSENTING OPINION OF JUDGE RANZONI

1. I voted against the finding of no violation of Article 6 of the Convention and also against declaring the Article 7 complaint inadmissible. As far as the latter aspect is concerned, I refer to the joint partly dissenting opinion of Judges Ranzoni, Ravarani and Schukking . The present opinion deals only with the complaint under Article 6.

2. While the first-instance court acquitted the applicant of the charge of forgery, he was convicted by the second and final-instance court. The applicant alleges that that court overturned her acquittal without itself assessing the relevant evidence on which it relied, in particular the statement of witness E.C.

3. The Court in its case-law under Article 6 has set out some clear procedural principles concerning the conviction of a defendant by a higher ‑ instance court after he or she has been acquitted by a lower-instance court. It has held, inter alia , that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant ’ s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused (see Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, § 33, 16 July 2019, with references). However, this principle is not limited to evidence given by the defendant himself, but also applies to evidence given by witnesses (see Ovidiu Cristian Stoica v. Romania , no. 55116/12, § 41, 24 April 2018, with references). The main question to answer in this context is whether the higher-instance court proceeded to a fresh evaluation of the facts beyond purely legal considerations, that is, whether that court expressed itself on a question of fact, such as the credibility or the reliability of a witness statement, thus modifying the facts established at first instance and taking a fresh position on factual elements which were decisive for the determination of the defendant ’ s guilt (see Júlíus Þór Sigurþórsson , cited above, §§ 36 and 42, with further references).

4. Applying these principles to the present case, the higher-instance court could not to my mind, as a matter of fair trial, properly examine the issues to be determined on appeal and convict the applicant without a direct assessment of the relevant evidence.

5. The evidence before the first-instance court consisted primarily of three pieces of evidence: the applicant ’ s statement, the statement of witness E.C. and a forensic report. The court held that in order to rebut the applicant ’ s version of facts, the conclusion from the forensic report had to be confirmed by other evidence (see paragraph 12 of the judgment). E.C. ’ s statement, which contradicted the applicant ’ s version of events, could have constituted such “confirming” evidence, but the court seemed to have doubts as to the witness ’ s credibility and did not take into account her statement.

6. In contrast and in response to that assessment, the higher-instance court explicitly referred to E.C. ’ s statement and regarded is as an evidentiary element. It then added that the witness statement was supported by the conclusions of the forensic report. In other words, in contrast to the first-instance court, the higher-instance court found that the witness statement, together with the forensic report, rebutted the applicant ’ s version. By so doing, it obviously attributed a higher evidentiary value to E.C. ’ s statement than the first-instance court had done.

7. By taking the witness statement into account and giving it evidentiary value, the higher-instance court itself proceeded to a fresh evaluation of the facts, modified the facts established at first instance and held, contrary to the applicant ’ s account and the factual assessment at first instance, that E.C. had not signed the contract of sale. That was decisive for the determination of the applicant ’ s guilt. He was found guilty by the higher-instance court on the basis, inter alia , of a witness statement which the first-instance court had assessed as being insufficient to convict him. Therefore, witness E.C., whose statement the higher-instance court explicitly referred to as a relevant piece of evidence, should have been heard by that court itself. This failure entailed the violation of the applicant ’ s right to fair proceedings under Article 6.

8. Occasionally, the Court establishes principles which, however, in subsequent cases it dilutes by accepting various kinds of exceptions. That makes the interpretation of such principles unpredictable and causes uncertainty for the national authorities in their application. Unfortunately, that is exactly what the majority did in the present case by artificially differentiating it from other cases instead of adhering to the clear principle established by the Court in its case-law.

9. That principle is, in short: if a defendant was acquitted by a first ‑ instance court, but subsequently convicted by a higher-instance court which, in order to modify decisive facts established at first instance, took into account as a relevant element of its factual assessment a witness statement given before the lower-instance court, then the convicting court must itself rehear that oral evidence. Full stop.