SEPARATE OPINION OF JUDGE DE GAETANO

1. Although I have voted in favour of a finding that in the instant case there was no violation of Article 6 § 1 read in conjunction with Arti cle 6 § 3 (d), I have to register my disagreement with the inclusion in the judgment of §§ 59 to 62, and the apparent reliance by the Court in this case on all the principles laid down in Al-Khawaja and Tahery v. the United Kingdom ([GC] nos. 26766/05 and 22228/06, 15 December 2011). My disagreement is for substantially the same reasons that I advanced in my separate (albeit concurring) opinion in Fąfrowicz v. Poland (no. 43609/07, 17 April 2012).

2. In the instant case it is patently obvious from the judgments both of the first court (§§ 23 to 26) and of the appellate (Regional) court (§ 32) that the applicant ’ s conviction for trafficking in drugs was not based solely or to any decisive degree on the evidence of Ł.K. and/or K.M. There was therefore no reason once again to water down the “minimum right” expressly guaranteed by Art. 6 § 3 (d) with unnecessary copious references to Al-Khawaja and Tahery .

3. In Al-Khawaja and Tahery the Grand Chamber attempted to accommodate certain provisions of English statutory law within the framework of Article 6, and this after criticism levelled both by the Court of Appeal and the Supreme Court of the Uni ted Kingdom at the Chamber judg ment in respect of the same two applicants. In doing so, the Court went to great lengths to devise an “additional rule”, namely “ ... whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability [of the admitted] evidence to take place” (§ 147 of the Grand Chamber judgment). Not only is this additional rule or criterion extremely vague but in the process – as highlighted in the joint separate opinion of judges Sajó and Karakaş in that case – the Court appears to have contradicted to a certain extent its previous Salduz judgment of 27 November 2008.

4. Al-Khawaja and Tahery is a very fact specific (one could almost say country specific) judgment. §§ 59 to 62 of the judgment in the instant case are – except for two words – a verbatim reproduction of §§ 53 to 55 of Fąfrowicz . One may well ask in the instant case, what are the “counterbalancing factors” to be considered or to be taken into account? None have been indicated in the judgment. Possibly none exist. In any case, none are necessary. The interests of justice would, in my view, have been better served by limiting the reasoning to the fact that “Ł.K. and K.M. ’ s testimonies [ recte : statements] were not decisive for the conviction of the applicant” (§ 72).