CONCURRING OPINION OF JUDGE MOTOC

I consider that several factors sufficed to find a violation of Article 6 § 1 of the Convention: the fact that the accused was convicted without a direct assessment by the appellate court of the evidence given by the accused in person; the refusal of the court to hear evidence from witnesses; and the lack of an adversarial procedure (see Popa and Tanasescu v. Romania , no. 19946/04, and Gaitanaru v. Romania , no. 26082/05).

Therefore it was not necessary for the Court to analyse the question of the undercover police operation or the expert examinat ion of the telephone recording. Moreover, the most incriminating evidence before the Court of Appeal and High Court of Cassation did not involve the undercover agent or informant, but the other two witnesses. As the Court has held in several cases (see, for example, Doorson v. the Netherlands , 26 March 1996, Reports of Judgments and Decisions 1996 ‑ II ), there are also competing interests such as national security – for instance the need to protect the secret methods of investigation used by the police – and the rights of the accused.

In so far as there was sufficient material before the Court to find a violation of Article 6 § 1 of the Convention, the arguments related to national-security grounds were not only unnecessary but also insufficiently proved and weighed against the rights of the accused. If the Court was willing to take into account that very delicate balance, which again was not necessary given the other strong legal arguments in favour of finding a violation of Article 6 § 1, it should have made a detailed and careful analysis of that balance.