JOINT DISSENTING OPINION OF JUDGES LAZAROV A TRAJKOVSK A AND BIANKU

Regrettably, we cannot share the opinion of the majority that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) in this case. We are of the opinion that the proceedings against the applicant in this case were not fair and that there has been a violation of the above-mentioned provisions of the Convention. There are two reasons for our disagreement with the majority, both related to the interpretation and the application in the present case of the Al-Khawaja / Schatschaschwili principles.

1. How good is good enough for the justification of the absence of a witness under Schatschaschwili?

First, we disagree in relation to the question of the good reason for admitting the evidence of an absent witness and the application of this principle in the case at hand. In our case, the Government observed that the missing witnesses were Romanian and Bulgarian nationals who, because of their profession as truck drivers, would be very difficult to locate and summon to attend the proceedings against the applicant. We fully understand that. We note that the Government are pleading the principle of impossibilium null a obligatio est as a good reason for admitting the evidence of an absent witness, which is the same argument they raised in their third-party intervention in Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015) . Are we faced with such an impossibility in the present case and were the reasons advanced by the Government sufficient to argue that it was impossible to locate the truck drivers?

We do not think that the analysis in Schatschaschwili of the “ good reason for admitting the evidence of an absent witness ” means that the national authorities should not make all reasonable efforts to locate the witnesses whose testimonies have been admitted by the national courts and guarantee their attendance at the hearing. Indeed, in Schatschaschwili (ibid., § 120) the Court confirmed that in cases concerning a witness ’ s absence owing to unreachability, the trial court was required to have made all reasonable efforts to secure the witness ’ s attendance (see Gabrielyan v. Armenia , no. 8088/05, § 78, 10 April 2012; Tseber v. the Czech Republic , no. 46203/08, § 48, 22 November 2012; and Kostecki v. Poland , no. 14932/09, §§ 65 and 66, 4 June 2013). The Court went on to specify (see Schatschaschwili , cited above, § 120) that

“The need for all reasonable efforts on the part of the authorities to secure the witness ’ s attendance at the trial further implies careful scrutiny by the domestic courts of the reasons given for the witness ’ s inability to attend trial, having regard to the specific situation of each witness (see Nechto , cited above, § 127; Damir Sibgatullin , cited above, § 56; and Yevgeniy Ivanov , cited above, § 47).”

The approach by the Brno Regional Court confirms that there was not even any intention to make such efforts, as long as the questioning of the truck drivers was based on Article 158 a of the Czech Code of Criminal Procedure (“the CCP” ­ – see paragraphs 7 and 14 of the judgment). For the national authorities, the fact that the witnesses were foreign nationals seems to have been a good enough reason to not even try to locate them. The majority are rather inconclusive as to this point (see paragraph 61 of the judgment). We respectfully disagree. In our opinion, “difficulties encountered by the authorities” and the “fact that it had apparently not been commonplace to use video conferencing facilities at the time when the witnesses were heard” should not serve automatically as carte blanche allowing the national authorities to not even think about trying to locate witnesses and ensure their appearance at the trial. The authorities should have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili , cited above, § 121), rather than dismissing them from the outset as very difficult to implement. In this regard we agree with the position taken by legal writers that

“... it would be wrong to conclude ... , without further nuances, that the mere fact that a witness is abroad makes his appearance in court always impossible, and even less so in a single European are a of justice. In sum, the fact that a witness is in foreign country within the EU should no longer be considered equivalent to an impossibility to call him to appear in court.” [1]

What is striking, in our opinion, is that the authorities were able to locate and to question the truck drivers when this was needed for the purposes of the prosecution, under Article 158 a of the Czech CCP. After that it became prim a facie impossible to locate them.

We consider that mere “difficulties by the national authorities”, and the lack of any attempt by the national courts to ensure that foreign nationals can give evidence before them, are not a good enough reason to justify the absence of witnesses under the Schatschaschwili logic.

2. The existence of counterbalancing factors to justify the lack of any attempt to make sure witnesses attend the proceedings

It is well known that in Schatschaschwili (cited above, § 112) the Court accepted that “the requirement to provide a justification for not calling a witness has been developed in its case-law in connection with the question whether the defendant ’ s conviction was solely or to a decisive extent based on evidence provided by an absent witness (see Al ‑ Khawaj a and Tahery , cited above, § 128)”. In the following paragraph (§ 113) the Court considered that

“the absence of good reason for the non-attendance of a witness cannot of itself be conclusive of the unfairness of a trial. This being said, the lack of a good reason for a prosecution witness ’ s absence is a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d).”

It is true that the Court has developed the Al-Khawaj a standard of the “ good reason for admitting the evidence of an absent witness as a preliminary question ” into the standard of a “ very important factor ” which might, in exceptional cases, not have a preliminary character any more, “ in particular if one of the steps proves to be particularly conclusive as to either the fairness or the unfairness of the proceedings ” (ibid., § 118) . However, it does not seem, at least to our mind, that in Schatschaschwili the Court abandoned the criterion that there should always be good reasons for admitting the evidence of an absent witness. For us, it confirmed the general rule according to which witnesses should give evidence during the trial and all reasonable efforts must be made to secure their attendance; this stands as a fundamental aspect of a fair trial guaranteed under Article 6.

In view of the lack of any attempt by the authorities to locate the truck drivers when it came to the admission of their statements as evidence, and the lack of any specific caution on the part of the trial court, and also bearing in mind that the procedural safeguard under Article 158 a of the CCP does not, in itself, seem to be sufficient to counterbalance the defendant ’ s right to examine these witnesses (see Tseber , cited above, § 62), and that counsel for the defence was not offered, even theoretically, any opportunity whatsoever to question the truck drivers, we are of the opinion that there were not sufficient counterbalancing factors to compensate for the clear handicaps faced by the defence as a result of the admission as evidence of the absent witnesses ’ depositions. The analysis of the majority in this case could have the effect of watering down to almost nothing the general rule that witnesses should give evidence during the trial and that all reasonable efforts must be made to secure their attendance (see Schatschaschwili , cited above, § 105).

[1] . See Lorena Bachmaier Winter , “Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the ECtHR’s Case Law”, Utrecht Law Review , Vol. 9, No. 4, p. 127-146, September 2013 .