SEPARATE PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot agree with my colleagues that there has been a violation of Article 6 of the Convention in this case (point 3 of the operative provisions, with the consequent disagreement also on the quantum of non ‑ pecuniary damage to be awarded, point 4).

2. My scepticism about the usefulness of the principles laid down in Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) has been documented in the separate opinions in FÄ…frowicz v. Poland , no. 43609/07, 17 April 2012; Kostecki v. Poland , no. 14932/09, 4 June 2013; Scholer v. Germany , no. 14212/10, 18 December 2014; and Denivar v. Slovenia , no. 28621/15, 22 May 2018. That scepticism has not been mollified by Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015).

3. In the instant case the main (one can call it decisive) evidence was the boys ’ testimony before the pre-trial investigation judge. The examination was also recorded on video, which means that the trial court had material at its disposal enabling it to see the boys ’ demeanour – something that is very important for assessing the credibility of a witness. As such the boys ’ evidence was not hearsay – what was hearsay was the evidence of Z.S. and V.F., and these two were examined during the actual trial and cross ‑ examined. Other witnesses gave evidence as to the boys ’ character and whether or not they had a tendency to fantasise. There was also the circumstantial evidence of the child pornographic material found in the possession of the applicant, and the fact that the children had told Z.S. and V.F. that the abuse they had suffered had been carried out as depicted in those videos. Whenever the domestic courts – leaving aside the prosecutor, because his decision could in many cases be overturned at some stage by the courts – rejected a request by the applicant, relevant and sufficient reasons were adduced in the decision, the most common ground for refusal of the applicant ’ s requests being that the evidence he proposed to adduce lacked relevance. As regards V.K. – who, in any case, was never a witness to the sexual abuse, as she had become aware of it for the first time through Z.S. and V.F. – no evidence was heard from her at the appeal stage because it was impossible to find her.

4. Does the search for, or the application of, “sufficient counterbalancing factors” imply that evidence or procedures that are, on the face of it , irrelevant must be admitted and/or pursued simply to accommodate the rules enunciated in Al-Khawaja ? It is trite knowledge that an aggressive defence strategy in criminal trials often involves clutching at straws as a diversionary tactic which enables defence counsel to side-track the court – like the issue of V.K. being “dishonest” in her application for social benefits (the logic possibly being that underpinning the old and now largely discredited common law doctrine falsus in uno falsus in omnibus ), or the fact that during the questioning by the investigating judge one of the boys, in order to explain that he was telling the truth, used the technical word “perjury”, adding that his mother had told him that he should not perjure himself. The domestic courts did not take the bait. I am not sure that the same can be said of this Court.