JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIČ, YUDKIVSKA AND DE GAETANO

1. We regret that we are unable to subscribe to the majority view in this case that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

2. First of all, it is pertinent to recall that the Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) heavily relied upon by the majority in the instant case, was crafted in the context of specific provisions of English law and also in the context of the criticism levelled by English courts at the Court ’ s “sole or decisive rule” with regard to evidence which an accused is not able to test in open court through cross-examinatio n, as provided for in Article 6 § 3 (d). While the Al-Khawaja and Tahery judgment may, indeed, be considered a successful example of “dialogue between courts”, it remains a very “country-specific” judgment, and this Court should be extremely careful in extrapolating even “general principles” from that case to other cases.

3. Secondly, the rights set out in paragraph 3 of Article 6 are, by definition, “minimum rights”. This expression would therefore suggest that if any exceptions are to be made to these rights, such exceptions must be very narrowly construed.

4. Turning to the instant case, the majority accept that, notwithstanding any other evidence, the statements made by police informer S . were decisive for the outcome of the proceedings concerning the first and second offences with which the applicant was charged (see paragraph 59). The statements made by police informer S . , as well as those made by undercover police officer C . , were never confirmed on oath before anyone – in that sense it may be a bit misleading to refer to them as “testimony”. The identity of S . and C . was never disclosed to the trial court. The decision not to disclose their identity – in effect, to have anonymous evidence introduced at the trial – was not taken by a judicial authority but by the Rhineland-Palatinate Ministry for the Interior (paragraph 17), the Trier Regional Court ’ s competence being limited to deciding whether the reasons given for the Ministry ’ s decision were arbitrary or manifestly unlawful (paragraph 20). At paragraph 56 it is suggested that the applicant could have contested the “lawfulness” of the Ministry ’ s declaration before the administrative courts. Apart from the fact that “lawfulness” is a very narrow ground of judicial review, it is significant that the respondent Government did not raise the issue of non-exhaustion of domestic remedies, which itself suggests that such judicial review would not have been an adequate remedy for the applicant in respect of his complaints.

5. Even if one were to apply ad unguem the criteria set forth in Al ‑ Khawaja and Tahery , the instant case fails the test on two scores.

6. At paragraph 125 of Al-Khawaja and Tahery it is stated as follows:

“ Finally, given the extent to which the absence of a witness adversely affects the rights of the defence, the Court would emphasise that, when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable. ”

7. The Trier Regional Court had, to its credit, attempted to arrange for S . and C . to give evidence and be cross-examined through a video ‑ conferencing procedure, which would have included acoustic and optical shielding (see paragraph 19). Even this procedure was effectively blocked by the Ministry, the purported reason being that such a procedure “could not exclude S . and C . ’ s identification by their figure, by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence”. Remarkably, the Trier Regional Court seems to have accepted this reasoning. Apart from the fact that it could have ensured that no questions were put by the defence to the “acoustically and optically shielded” witnesses with a view to eliciting information as to their true identity, one fails to understand why this method of cross-examination was also discarded. S . and C . were not unknown to the applicant – it was only their true identity which was unknown. It cannot, therefore, be said that all available alternatives (paragraph 46) were exhausted. Moreover it is not at all clear why a commissioned judge (mentioned in paragraph 19) or other judicial authority could not have access to S . in the absence of the applicant ’ s lawyers (whereas supervising police officer K . could, see paragraph 8, below).

8. Secondly, and more crucially, the “main counterbalancing factor for the restriction of the applicant ’ s defence rights” (paragraph 60) is made out to be the applicant ’ s possibility of putting questions in writing to S. These questions would then have been relayed through S . ’ s supervising police officer, K . (himself a prosecution witness), who would report back to the court. K . is a police officer, part of the “prosecution side”, and moreover the person who orchestrated the whole sting operation; he was the person with the utmost interest in securing a conviction in this case. S . is a prosecution witness. We find it remarkable that the Trier Regional Court – which actually availed itself of K . ’ s “services” – should consider such an “all ‑ in ‑ the ‑ family” procedure to be safe. Not surprisingly the applicant refused to avail himself of this procedure.

9. For these reasons we are of the view that there has been, in the present case, a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d).