CONCURRING OPINION OF JUDGE SICILIANOS

1. I fully subscribe to the finding of the judgment in the present case, according to which there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the trial court ’ s reliance on statements by the prosecution witness M. whom the applicant had no opportunity to question.

2. I also agree that in the present case: “(1) the authorities failed to make a reasonable effort to secure M. ’ s presence in court, that (2) the applicant was not afforded any opportunity to question the witness, whose testimony was of decisive importance for establishing whether or not the applicant was guilty of the offence of which he was later convicted, and that (3) the authorities failed to compensate for the difficulties experienced by the defence on account of the admission of M. ’ s statement into evidence (... )” (§ 37 of the judgment).

3. As drafted, however, the above paragraph and the preceding ones, namely §§ 30-36 of the judgment, seem to call into question the logic and methodology of the test set out in Al- Kawaja and Tahery v. the United Kingdom [GC] (nos. 26766/05 and 22228/06). Such test is based on the principle that “before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument”. The principle is not absolute, but any exceptions to it “must not infringe the rights of the defence , which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà , cited above, § 39, and Solakov v. “the former Yugoslav Republic of Macedonia ”, no. 47023/99, § 57, ECHR 2001 ‑ X)” ( Al- Kawaja and Tahery , cited above, § 118).

4. The first step in order to decide whether an exception could be justified in a given case is to examine if there was a “good reason” for admitting the evidence of an absent witness (or for the non-attendance of a witness). If this requirement is fulfilled, then – and only then – a second issue comes into play, namely whether the conviction is based “solely or to a decisive degree” on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial ( Al- Kawaja and Tahery , cited above, § 119). To put it differently: the fact that there were no good reasons for admitting the evidence of an absent witness (or that “the authorities failed to make a reasonable effort to secure [the witness ’ s] presence in court”) is sufficient, as such, to find a violation of Article 6 §§ 1 and 3 (d) of the Convention. No further examination is needed. This interpretation has been explicitly confirmed by the Grand Chamber, which reaffirmed well ‑ established case-law on the matter:

“The requirement that there be a good reason for admitting the evidence of an absent witness is a preliminary question which must be examined before any consideration is given as to whether that evidence was sole or decisive. Even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witness examined (see, for example, Lüdi v. Switzerland , 15 June 1992, Series A no. 238; Mild and Virtanen v. Finland , nos. 39481/98 and 40227/98, 26 July 2005; Bonev v. Bulgaria , no. 60018/00, 8 June 2006; and Pello v. Estonia , no. 11423/03, 12 April 2007)” ( Al- Kawaja and Tahery , cited above, § 120).

5. Since the Al-Khawaja and Tahery judgment, the same approach has been followed in a number of cases. Indeed, where the Court has considered that there were no good reasons for the non-attendance of the witness, it found a violation of Article 6 §§ 1 and 3 (d) without considering it necessary to examine further issues (see, for example, Suldin v. Russia , no. 20077/04, § 58, 16 October 2014; Cevat Soysal v. Turkey , no. 17362/03, § 79, 23 September 2014; Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 715, 25 July 2013; Rudnichenko v. Ukraine, no. 2775/07 , § 109, 11 July 2013; Mesesnel v. Slovenia , no. 22163/08, § 40, 28 February 2013).

6. If there was a “good reason” for admitting the evidence of an absent (or anonymous) witness and the conviction was based “solely or to a decisive degree” on the testimony of this particular witness, the Court proceeds to a third step by examining whether there were “counterbalancing factors” to compensate for the difficulties experienced by the defence on account of the admission of the statement by the absent witness into evidence. However, if the conviction was not based “solely or to a decisive degree” on the testimony of the absent witness, it is not necessary to proceed further by examining the third issue, namely the existence of “counterbalancing factors”. This third step was added by the Al- Kawaja and Tahery judgment. The (new) approach of the Grand Chamber was summarized as follows:

“147. The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards (...)”.

7. The purpose of the third criterion – the “counterbalancing factors criterion” – was to render more flexible the so-called “sole and decisive rule”. Such understanding of the approach of the Grand Chamber is corroborated by the above-quoted phrase: “(...) where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1”. In other words, in cases where a strict application of the “sole and decisive rule” would lead “automatically” – that is almost inexorably – to a finding of a violation of Article 6, the Court tempers its traditional test by examining whether any “counterbalancing factors” could nevertheless justify the admission of the evidence of the absent witness, thereby avoiding the breach. To put it otherwise: by adding the “counterbalancing factors criterion” in Al-Khawaja and Tahery the Grand Chamber has somehow relaxed the strictness of control previously exercised in this type of cases.

8. Now the question arises whether the “three steps test”, as applied in the present case (as well as in some other cases, see for example, Salikhov v. Russia , no. 23880/05, 3 May 2012; Trampevski v. the former Yugoslav Republic of Macedonia , no. 4570/07, 10 July 2012; Yevgeniy Ivanov v. Russia , no. 27100/03, 25 April 2013; Sandru v. Romania , no. 33882/05, 15 October 2013) is in conformity with the logic and method of the Grand Chamber in Al-Khawaja and Tahery or not. With all due respect to the approach of the majority, I believe that it is not. It is one thing to say that if there is no good reason for admitting the evidence of an absent witness, this element alone is sufficient to find a violation of Article 6 §§ 1 and 3 (d) of the Convention; and yet another thing to examine whether all the above three requirements are met in a given case before being able to conclude that the trial was not fair. By following t he first method one makes one step at a time. By applying the second, he or she makes a “triple jump”.

9. It is true that the “triple jump” approach may make the judgment seem more solid: not only there was no good reason for admitting the testimony of an absent witness, but the evidence given by this particular witness was decisive for the conviction and, furthermore, there were no “counterbalancing factors”. In such a way the Court has considered everything and there is no room for doubt about the finding of a violation. Then what is the problem? The problem is that if (repeatedly) applied without any qualification or further explanation, the approach adopted by the present judgment could be interpreted a contrario by the national judicial authorities, thereby giving a wrong signal. If one does not have the global picture of the case-law of the Court in respect of absent witnesses, such an a contrario interpretation of the present judgment could be that it would be possible for a domestic tribunal to rely on evidence by absent or anonymous witnesses. Only when such testimony is the sole or decisive element for the conviction of the accused and no “counterbalancing factors” exist, only then there would be a violation of Article 6 §§ 1 and 3 (d). In other words, while solidifying the present judgment, the approach followed by the majority could possibly have more general implications for the test to be applied in respect of absent (or anonymous) witnesses.

10. Is there room for combining both approaches? Possibly yes. In the case of Nikolitsas v. Greece (no. 63117/09, 3 July 2014), the Court found a compromise solution where it held at the end of § 35 that: “ Par conséquent , aucun « motif sérieux » n ’ est invoqué pour justifier ce manquement aux droits de la défense . Conformément à la jurisprudence de la Cour, cet élément suffit, à lui seul, pour constater la violation de l ’ article 6 §§ 1 et 3 d) de la Convention ( Al- Khawaja et Tahery , précité, § 120) ». It then proceeded to examine the other considerations. Such approach permits to reaffirm the traditional case-law of the Court and thus to avoid any possible misinterpretation of the requirements in Al-Khawaja and Tahery , and at the same time it gives the opportunity to insist, also for pedagogical reasons, on the series of flaws of the procedure as a whole, so as to produce a convincing and solid judgment in the circumstances of a particular case. I believe that this combined approach could have been followed in the present case, simply by adding some considerations along the lines in the case of Nikolitsas . Be it as it may, there are apparently (at least) two schools of thought in the Court ’ s judgments in relation to the interpretation and application of the test in Al-Khawaja and Tahery . Such situation will likely be clarified in the case of Schatschaschwili v. Germany (no. 9154/10), which is currently pending before the Grand Chamber.