CONCURRING OPINION OF JUDGE KOVLER

I adhered, albeit with serious doubts, to the conclusions of the Chamber concerning the Article 6 violation. The main issue of the case is the absence of the only eyewitness, Mr Sh., at the trial hearing leading to the applicant ' s conviction. Added to this is the fact that at no stage of the criminal proceedings against him – even at the investigation stage – was the applicant afforded an opportunity to examine this key prosecution witness.

It is not the first time that the Court has dealt with this kind of situation. In some similar cases it has not found a violation of Article 6 § 3 (1) of the Convention (see Andandonskiy v. Russia , no. 24015/02, 28 September 2006). But the particularity of the present case is the gravity of the offence (suspicion of murder) and of the penalty (nine years ' imprisonment) that predetermines the need for particularly strict observance of the procedural guaranties afforded to an accused person.

It is a positive fact that the Tyumen Region Prosecutor ' s Office had been commissioned to establish the whereabouts of witness Sh. in a region whose territory covers half of Europe , the objective difficulty of the task explaining particularly why these efforts did not permit successful search results in the region. For this reason the national court was facing a serious dilemma: whether to continue or to postpone the trial. I noted that on four occasions the hearing was adjourned because the court ordered the witness ' enforced appearance. But what is regrettable is the fact that the trial court proceeded with the reading out of Sh. ' s testimony less than a month after the beginning of a search operation.

In the light of this “haste”, the arguments of the appeal court about “sufficient measures” and “exceptional circumstances” do not seem convincing to me.

More convincing are the arguments about “cumulative evidence” from other testimony and the results of the forensic medical and biological experts ' examinations. But these arguments are eclipsed by the absence of the opportunity to cross-examine the key witness at any stage of the criminal proceedings.

JOINT CONCURRING OPINION OF JUDGE S SPIELMANN AND MALINVERNI

For reasons we have explained on many occasions, [1] we would very much have liked the principle enunciated in § 83 of the judgment, on account of its importance, to have been reflected in the operative part of the judgment.

[1] See our joint concurring opinions appended to the following judgments: Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008); Ilatovskiy v. Russia (no. 6945/04, 9 July 2009); Fakiridou and Schina v. Greece (no. 6789/06, 14 November 2008); Lesjak v. Croatia (no. 25904/06, 18 February 2010); and Prežec v. Croatia (no. 48185/07, 15 October 2009). See also G. Malinverni’s concurring opinion joined by Judges Casadevall, Cabral Barreto, Zagrebelsky and Popović in the case of Cudak v. Lithuania ([GC], no. 15869/02, 23 March 2010), as well as the concurring opinon of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008-...).