JOINT PARTLY DISSENTING OPINION OF JUDGES MIJOVI Ć , DAVÍD THÓR BJÖRGVINSSON AND HIRVELÄ

1. We agree with the majority ' s finding that the complaint as to the length of the proceedings must be rejected for non- exhaustion of domestic remedies (see paragraphs 66 – 68 of the judgment ). We also agree that the complaint under Article 6 §§ 1 and 3 (a), as to the alleged lack of facilities for the preparation of the applica nt ' s defence, is manifestly ill ‑ founded (see paragraphs 69 – 81 of the judgment ).

2. However, we disagree with the majority in finding that there has been no violation of Article 6 §§ 1 and 3 (d) in spite of the fact that t he applicant was unable to examine two witnesses whose statements, among other evidence, had served as the basis for his conviction.

3. The majori ty ' s finding of no violation of Article 6 §§ 1 and 3 (d) rests mainly on two grounds : f irstly, that the applicant ' s conviction was not based solely or to a decisive degree on the statements of L.S. (the victim) and his wife and, secondly, that there were other eyewitnesses to the incident and that the applicant was able to challenge their testimony during the judicial proceedings (see § 62 of the judgment) . According to the majority view, the domestic courts also assessed L.S. ' s statements with the particular care required in the circumstances of the case (see paragraph 61 of the judgment).

4. The Court has repeatedly stated that, as a matter of principle, all the evidence which serve s as a basis for an accused person ' s conviction must be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. Furthermore , as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Van Mechelen and Others , judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III , cited above, p. 711, § 51, and Lüdi v. Switzerland , judgment of 15 June 1992, Series A no. 238, p. 21, § 49).

5. We shall now examine more closely the reasons advanced by the majority.

6. First , the finding that the conviction was not “based solely or to a decisive degree” on the impugned statements. By way of a preliminary remark we respectfully submit that this cannot serve as the only and final test in the present case, nor, indeed, in similar cases.

7. It is true that in many cases the Court has found a violation where statements, which the accused had not had an opportunity to challenge in the domestic court , have been the sole or decisive evidence (see for example Van Mechelen and Others , cited above, § 63 ; Saïdi v. France , judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44; Lucà v. Italy , no. 33354/96, § 40, 27 February 2001). However, it would not be correct to draw from these cases the conclusion that it is only where the impugned evidence is the sole or decisive evidence that there will be a breach of Article 6 §§ 1 and 3 (d) . This understanding is confirmed in other cases where the Court has found a breach although the evidence was not considered the sole evidence or the decisive evidence. Thus, in Lüdi v. Switzerland ( cited above, § 47 ) the Court emphasised that even though it was not the sole evidence the impugned statements “played a part in establishing the facts which led to the conviction” and on that account found a breach of Article 6 §§ 1 and 3 (d).

8. On the basis of the foregoing we believe that it is sufficient to show that the impugned evidence (statements) played a n important part in establishing the facts which led to the applicant ' s conviction. Assessing the circumstances of the present case in the light of that consideration, the following factors are relevant:

a. First , we refer to the extracts from the judgment of the Lublin Regional Court of 16 June 2000 cited in paragraph 25 of the judgment . The fir st paragraph of the extracts is only based on L.S. ' s testimony, as can be seen from the references thereto. The second would also seem to be based on L.S. ' s testimony although it is not referred to directly.

b. More importantly, as transpires from paragraph 13 of the judgment, L.S. declared in writing, i n May 1993, that “he [did] not request that the prosecution be continued and [did] not intend to appear before the court in order to testify against the applicant”, as all charges , as explained further in paragraph 6 of the extracts from the Lublin Regional Court ' s judgment, against the accused “ were erroneous and were caused by a succession of misunderstandings and that the accused had neither threatened the victim nor his wife, nor used a knife against ... ” . However, as stated in the same paragraph the Lublin Regional Court held that , when questioned before the Łuck City C ourt, L.S. had “ convincingly explained the motives which had prompted him to make this declaration, saying that he had made it at the request of the accused ' s wife and his colleagues as he had not wanted to jeopardise hi s relationship with the couple ...” . On the same occasion , as further stated, he made a deposition which fully confirmed his deposition made on 30 August 1992 ... and admitted “ that the accused had threatened him and his wife and that he had been using some sort of instrument at that time, but did not remember whether it had indeed been a knife. He emphasised that he had given money to the applicant under threat.”

We believe that this latter point is very important. After the original withdrawal (see paragraph 13 of the judgment) it would have been very difficult , if not impossible , for the prosecution to continue the criminal proceedings against the applicant on the basis of the witness statements alone. Thus, we are of the opinion that L.S. ' s decision to retract before the Luck City C ourt his earlier withdrawal was indeed decisive for the continuation of the criminal case against the applicant, and ultimately for his conviction. However, the applicant did not have the opportunity to examine L.S. and his wife in court .

Thus, there is no doubt that the statements made by L.S. and his wife both as regards his explanations for the earlier withdrawal and his account of the facts played a significant role, if not a decisive one, in establishing the facts of the case and ultimately in convicting the applicant .

9. Secondly, as noted above the majority takes account of the fact that there were two other eyewitnesses to the incident and that the applicant was able to challenge their testimony durin g the judicial proceedings (see paragraph 62 of the judgment). However, as can been seen from the same paragraph the applicant only had the opportunity to question witness W.K. before the Regional Court since witness M.C. was unavailable. Thus, the only evidence used as a basis for the applicant ' s conviction and which h e ha d an opportunity to challenge before the Lublin Regional Court were the statements made by witness W.K.

10. In paragraph 59 of its judgment t he majority emph asises that the Lublin Region al Court made repeated but unsuccessful efforts to secure the presence of L.S . and his wife . For that reason that court could not be criticised for its subsequent decision to have recourse to the assistance of the court in Łuck where the victim lived. The majority notes that the Lublin Regional Court had prepared a list of questions to be put to L.S. and his wife for the purposes of their questioning before the Ukrainian court. Furthermore , the applicant was aware of these questions and did not co ntest them. The majority further observes that it had also been open to the applicant to request the Lublin Regional Court to add further questions to that list but he did not avai l himself of that opportunity. We submit , without casting any doubt on the seriousness of the attempts made by the Lublin Regional Court to overcome the procedural difficulties stemming from L.S. and his wife ' s failure to appear before it , that the steps taken by that court ultimately turned out to be partly unsuccessful and partly inadequate and they cannot as such compensate for the applicant ' s real la ck of opportunity to question L.S. and his wife before t he Lublin Regional Court.

11. All in all, even though the statements of L.S. and his wife were not the only evidence in the case they were, in our view , obviously the most important piece of evidence, if not the decisive evidence . We therefore find that the lack of opportunity to examine the m at the hearing before the Lublin Regional Court did in fact infringe the rights of the defence to the extent that there has been a viola tion of Article 6 §§ 1 and 3 (d).