CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with my colleagues that there has been a violation of Article 6 in the instant case. Nevertheless, I consider it necessary to introduce certain nuances to the reasoning.

2. The application concerns a criminal case with several co ‑ accused who all have the same right to defend themselves. This right encompasses in particular the right for accused persons to determine their own line of defence, to decide whether to appear in person before the court at each and every hearing or to allow the court to proceed without their being present, to remain silent or present explanations, and to tell the truth or to lie. It also encompasses, inter alia , the protecti on against self-incrimination. Moreover, defence is a right, not an obligation, and accused persons may waive their right to defend themselves.

In a trial against two or more persons, the co-accused usually have conflicting interests. In order to secure a fair trial it is of fundamental importance to guarantee equal defence rights to all the co-accused and to manage the conflict of interests throughout the trial in a way which preserves the rights of all of them. Similarly, the examination by the Court of an application alleging a violation of Article 6 under its criminal limb requires a fair balancing of the rig hts and interests of all the co ‑ accused.

3. I fully agree with the general assumption that an accused has the right to request the examination of one of his co ‑ accused at the trial before the court. It is always preferable for a judgment to be based on the explanations of the accused presented directly before the court at the trial. The right in question stems directly from the right to a fair crimi nal trial guaranteed in Article 6 § 1 of the Convention. Whereas I agree that the term “witness” has an autonomous meaning under the Convention, I am not sure that it was really necessar y to extend its scope to the co ‑ accused.

4. The status of witne ss is different from that of co ‑ accused. The mandatory presence of a co-accused does not guarantee that the latter will speak, let alone provide any truthful information relevant for deciding the case. It depends entirely on his free choice . A witness is required to appear before the court if summoned and to give truthful, accurate and comprehensive testimony about the relevant facts. He may in voke the privilege against self ‑ incrimination, but this is an exception to the general obligation to testify. He may be punished for refusing to testify and is criminally liable for false testimony. In many jurisdictions one cannot be at the same time an accused and a witness in the same criminal trial because of the fundamental difference in factual and legal status between the two. It is therefore of fundamental importance to distinguish between the roles of witness and accused in assessing compliance with the requirements of a fair trial.

5. The reasoning seeks to establish and maintain the distinction between co ‑ accused and witness , but is not wholly consistent in this regard. In particular , using the term “witness” in respect of a co-accused may be a source of confusion and may blur the distinction between a co ‑ accused and a witness in the strict sense. I also note in this context that the judgment criticises the domestic courts for not taking into account “the fact that the witnesses had, without good reason, not made themselves available for cross-examination” (see paragraph 109 of the judgment). The problem with this argument is that a co-accused does not have to make him or herself available for cross-examination without being previously summoned for that purpose. The majority should instead criticise the domestic courts for not summoning the co ‑ accused and for not expressly taking into consideration in the reasoning of the judgments the fact that the co ‑ accused had not been questioned directly by the domestic courts.

6. The instant judgm ent, following the court ’ s case ‑ law, tries to apply per analogiam the three-stage test devised for assessing the reliance on the testimonies of absent witnesses: (i) whether there was good reason for not securing the attendance of the witnesses at the trial; (ii) whether the evidence of the absent witnesses was the sole or decisive basis for the applicants ’ conviction; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured.

I am not sure that the test devised for absent witnesses (even if applied per analogiam ) is the most appropriate for the purpose of assessing the fairness of a trial in which the domestic court based factual findings on the explanations provided by a co-accused at the investigation stage, without hearing evidence from him during the trial.

7. The judgment addresses the question “[w]hether there was good reason for not securing the attendance of the witnesses at the trial” (see paragraph 97 of the judgment). In my view, this is not the best way of approaching the problem. The initial assumption is the freedom of the accused in conducting his defence. The decision of an accused not to appear in person does not require any justification and deserves protection. However, this protection is not absolute because the right of the accused not to appear may be outweighed by the interests of the co-accused or other parties to the proceedings. The right of one accused to have a co ‑ accused summoned and questioned directly at the trial usually prevai ls over the interest of this co ‑ accused in not being present in person at the whole trial or at a specific hearing.

In this context, the question to be asked is rather whether there was a real need to secure the attendance of the co-accused for the purpose of direct examination before the court. Such need arises in particular if the statements of one co ‑ accused who would prefer not to appear constitute import ant evidence against another co ‑ accused. The question whether there was a good reason for not summoning an d seeking to examine another co ‑ accused at the trial arises only if an accused requests the court to summon for the purpose of direct examination a co-accused whose statements may be relevant for deciding the criminal case. Such good reaso n may lie in the fact that a co ‑ accused who previously mad e certain statements at the pre ‑ trial stage has asserted at the beginning of the trial his right to remain silent throughout the subsequent proceedings.

8. The next question is whethe r the evidence of the absent co ‑ accused was the sole or decisive basis for the applicants ’ conviction. The Judge of Criminal Appeals established that the statements of the applicants ’ co ‑ accused “had just confirmed a series of unequivocal elements which had been listed in the indictment and which would have been sufficient on their own to consider the commission of the fraud plausible on a logical level” (see paragraph 51 of the judgment). The possibility of an alternative explanation of the car accidents was implausible. I note in this context that the European Court of Human Rights, applying the second criterion in non ‑ straightforward cases, is forced to act as an additional instance which reassesses the available evidence.

9. The judgment seeks further to establish whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair. The existing case-law (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 126-31, ECHR 2015) has identified the following possible counterbalancing factors:

(i) whether the domestic court approached the untested evidence with caution;

(ii) whether there is a video recording of the questioning at the investigation stage;

(iii) the availability of corroborative evidence;

(iv) the possibility of putting questions in writing to the absent witness;

(v) the possibility for counsel to question the witness at the investigation stage;

(vi) the opportunity for the accused to give his or her own version of events and cast doubt on the credibility of the witness.

I note that some of these possible counterbalancing factors belong to the sphere of free assessment of evidence (points (i) and (iii)). Factor (iii) overlaps, moreover, with the second stage of the test to be applied, namely whether the evidence of the absent witnesses was the sole or decisive basis for the applicants ’ conviction. Some of the factors listed above go to the core of the right to defend oneself and at the same time to the minimum guarantees of a fair trial ((vi)). Some enhance the credibility of the absent co ‑ accused ’ s testimony ((ii) and (v)). The transposal of some of these solutions ((ii) and (v)) to the accused is not always easy. The applicable domestic rules may require that – at the investigation stage – each accused is questioned without the presence of his or her co ‑ accused and their counsel.

I am not sure that, at least in criminal justice systems with strong non ‑ adversarial (inquisitorial) elements, the problem should be framed in terms of the existence of “counterbalancing factors compensating for the handicaps caused to the defence”. Firstly, it is problematic whether the handicaps st emming from the absence of a co ‑ accused whose statements are decisive for the outcome of the case can really be “compensated for”. Secondly, the absence of a co-accused before a court which approaches indirect evidence with caution may also create a handicap for the prosecution. Thirdly, in a legal system complying with the requirements of a fair trial the defence will have at its disposal a broad set of procedural rights (for instance, the right to submit new evidence and to contest the credibility of the evidence presented by the prosecution) and can always call into question the evidentiary value of statements made by other co ‑ accused at the investigation stage and highlight their untested nature, thus further lowering their value. The inquisitorial principle coupled with the free assessment of evidence (or rather, more appropriately, the rational assessment of evidence) and the obligation to give reasons for the judgment require the domestic tribunal to establish the “material” truth and to justify rationally the factual findings on which the judgment is based. These principles, if correctly adhered to, should ensure that the proceedings are fair and that the final judgment is just, in spite of the fact that one of the co ‑ accused was not directly questioned by the court.

10. When considering the question whether there were sufficient counterbalancing factors to compensate for the handicaps caused to the defence the Court examines very carefully the reasoning of the judgments rendered by domestic courts. In the present case, t he Court ’ s reasoning rightly points to a certain number of deficiencies in the reasons given by the domestic courts. The implicit assumption is that handicaps to the defence may later be compensated for by the quality of the judgments ’ reasoning. This possibility does not exist in legal systems where the factual findings of a jury are not accompanied by reasons.

It thus appears that the issue of an absent co ‑ accused is closely linked to the requirement for the criminal judgment to be properly reasoned. The Court has held on numerous occasions that judgments of courts and tribunals should adequately state the reasons on which they are based (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017, and Papon v . France (dec.), no. 344/04, ECHR 2005 ‑ XI (extracts)). A failure to provide adequate reasons may be a ground for finding a violation of Arti cle 6. In the instant case, the Court rightly established deficiencies in the reasoning of the domestic courts which justify the conclusion that the domestic judgments ’ reasoning did not meet the requirements of a fair trial. It was possible to find a violation o f Article 6 also on this basis.

11. The judgment asserts the following in paragraph 108 in fine :

“Indeed the domestic judgments do not contain any indication that those courts were aware of the reduced evidentiary value of the untested witness statements and it cannot therefore be said that they examined the reliability of the absent witnesses ’ statements in a careful manner (compare Avetisyan v. Armenia , no. 13479/11, § 63, 10 November 2016) . ”

I find this assertion somewhat problematic. Any professional judge is certainly well aware of the reduced evidentiary value of any statements by an accused, be they tested or untested. I have no doubt that the domestic courts, as they saw it, examined the reliability of the absent co ‑ accused ’ s statements in a careful manner. The problem lies elsewhere: this examination does not find its expression in a proper reasoning of the judgments.

12. Here, I would also like to note the following difficulty for the applicants ’ defence in this case. The trial court, acting in accordance with domestic law, did not seek to clarify from the very beginning the position of each accused and, in particular, whether they were pleading guilty or not guilty, whether they wished to assert their right to remain silent or to provide their version of events, and whether they agreed or disagreed with the statements of their co ‑ accused. Without knowing from the beginning of the trial the position of their co ‑ accused, it was more difficult for the applicants to prepare their own defence . This does not mean, however, that any changes in domestic law are necessary in this regard.

13. I note that the approach of the Court once again brings certain elements of the legal assessment of evidence to legal systems based on the free assessment of evidence, thereby interfering to some extent with their very intricate construction. It may be preferable to develop a new approach towards the untested statements of co ‑ accused and the testimonies of absent witnesses, one which would better fit the pattern of criminal proce edings in these legal systems.