MURTAZALIYEVA v. RUSSIA - 36658/05 (Judgment : Admissibility criteria : Manifestly ill-founded : Right to a fair trial : Grand Chamber) [2018] ECHR 1047 (18 December 2018)

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You are here: BAILII >> Databases >> European Court of Human Rights >> MURTAZALIYEVA v. RUSSIA - 36658/05 (Judgment : Admissibility criteria : Manifestly ill-founded : Right to a fair trial : Grand Chamber) [2018] ECHR 1047 (18 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/1047.html Cite as: [2018] ECHR 1047

PARTLY DISSENTING OPINION OF JUDGE BOŠNJAK

1. Although I agree with the majority in their formulation of the three-pronged test applicable to the assessment of situations where the trial court refused to examine a witness on the defendant’s behalf (see paragraph 158 of the present judgment), I regret that I cannot join their conclusion that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the domestic courts’ refusal to hear witnesses B. and K. (hereinafter also referred to as the attesting witnesses). In this separate opinion, I wish (a) to clarify my position in respect of the elements of the three-pronged test and (b) to provide reasons as to why the application of these elements to the present case should lead to the finding of a violation.

I. The three-pronged test

2. The right to call witnesses on the defendant’s behalf is one of the core elements of the fair trial requirements enshrined by Article 6 as a whole. In its case-law, our Court has emphasised that the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 of the Convention restrictively. ^{^[1]} This is even truer in respect of the rights guaranteed by Article 6 § 3, since they are expressly qualified as ‘minimum rights’. In addition to these rights, the Court has read into Article 6 § 1 several other rights that are considered to be fundamental to the concept of a fair trial, notably the right to present one’s case to the court and to participate effectively at the hearing, ^{^[2]} equality of arms and the privilege against self-incrimination [3] . Consequently, the right under Article 6 § 3 (d) should neither be interpreted in a restrictive way nor detached from the other guarantees of a fair trial.

(a) The defence request to examine a witness

3. The three-pronged test as formulated by the Court in this case first asks whether the defence request to examine a witness was sufficiently reasoned and relevant to the subject matter of accusation. As described in paragraph 160 of the judgment, the concept of relevance covers not only defence motions to call witnesses capable of influencing the outcome of the trial, but also other witnesses who can reasonably be expected to strengthen the position of the defence. I warmly welcome this broader definition of relevance. Specifically, the defendant may benefit from certain decisions affecting the course of the proceedings, although their potential influence upon the outcome of the trial or their relation to the content of the charge is inconclusive (for example the issue of the defendant’s capacity to stand trial, the admissibility of evidence).

4. While the trial court should not be expected to hear all of the evidence requested by the defence, its decision making in respect of the defence requests should take into account, inter alia , the requirements of equality of arms, effective participation and the right to remain silent. In presenting a request to hear evidence, the defence should be on an equal footing with the prosecution. This requirement must also be derived from the provision of Article 6 § 3 (d) itself, stipulating that the attendance of witnesses on a defendant’s behalf is to be assured in the same conditions as that of witnesses against him. The domestic legislation and domestic courts’ practice should certainly not place a burden on the defence to argue the relevance of its motion and to provide reasons to a greater extent than is required of the prosecution. It should be noted that in some, even many, legal systems the prosecution is not required to substantiate its evidence motions (at least not before the commencement of the main hearing), which in turn should call for a similar approach in dealing with defence requests.

5. While it is understandable that the trial court should only hear evidence that is relevant and that the defence may be expected, subject to the caveat in the point 4 of this dissenting opinion, to provide sufficient reasons for its motions in this respect, one should not limit the concept of relevance to those items of evidence which, taken alone, could overturn the course or the outcome of the proceedings. At this point, I wish to turn the reader’s attention to Rule 401 of the United States Federal Rules of Evidence, stipulating that evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. This may serve as a comparative source of inspiration in the matter.

6. In principle, when submitting a motion for evidence, the defence should specify the fact it wishes to prove (for example, an alibi, lack of a constituent element of the offence with which the defendant is charged, lack of credibility of a prosecution witness, justification or excuse for the defendant’s act, inadmissibility of prosecution evidence). This fact, as in the examples above, will frequently be of apparent possible consequence for the further course or outcome of the proceedings. Admittedly, there may be situations where this potential causal link is not apparent enough (for example, the fact that witness A. knows witness B.). In such situations, the defence may be expected to make an additional effort to substantiate this link.

7. While a motion to hear evidence should also demonstrate the tendency to make a fact more or less probable than it would be without that evidence, there are several caveats that should be signalled in this respect:

(a) Firstly, it is to be repeated that – in line with the principle of equality of arms –, the defence should bear no heavier a burden in this respect than the prosecution.

(b) What needs to be demonstrated here is a simple tendency in probability and not the definite establishment of a fact. To give an example: a witness is sufficiently relevant if her [4] questioning may increase the probability that the defendant acted in self-defence, and not only when that questioning is expected to prove that the defendant acted in self-defence. When assessing whether a testimony of a specific witness may increase the likelihood of a particular outcome or at least a turn in the proceedings which would be favourable for the defence, one should bear in mind that it is often impossible to speculate in advance as to how a witness will testify and how that testimony may affect the court’s assessment of a relevant fact. This is all the more so when the witness in question has neither been heard before (for example, at the investigation stage) nor has produced any written statement in respect of the content of her envisaged testimony.

(c) The defendant’s right to call witnesses on his behalf is an expression of his right to present his case before the court. In deciding on a defence motion to hear a certain person as a witness, the court should assess whether the defence has already had sufficient opportunities to argue the fact in question before it [5] and/or whether there exist other equivalent, or even more convenient, options to do so. [6] In this respect, it is particularly important that the trial court does not petrify its findings on the relevant facts solely on the basis of the prosecution evidence, that is, before hearing any evidence that the defence wishes to put forward for a given purpose. It is unreasonable to expect that the mind of the trial court (be it a judge or a jury) will remain blank and without any conclusions as to the relevant facts in the course of the main hearing. Nonetheless, however strong and convincing the prosecution evidence may be, these mental conclusions should remain only preliminary and must not prevent the defence from arguing the same or other relevant facts and from being in a position to overturn the course and/or outcome of the proceedings.

(d) In presenting its case before the court, the defence must be granted a considerable amount of autonomy in determining its tactics [7] , which includes the choice of facts that it wishes to argue and the manner in which it wishes to argue them. While the intention of the defence in some situations is clear and straightforward, this is not necessarily always the case. In the latter situations, it is to be emphasised that the defence should not be required to disclose the full background of its motion. [8] Furthermore, any requirement that the defence motion to hear evidence be substantiated must be balanced against the right to remain silent. If the defendant needs to explain thoroughly why the evidence in question could increase the likelihood of his acquittal, this will in certain situations entail a waiver of the above-mentioned right. In particular, this can occur at earlier stages of the proceedings, before the defendant himself is heard. Therefore, any excessive requirement in this respect should be avoided.

The judgment in the present case does not address these specific issues pertaining to criminal procedure. This is understandable, at least to a certain extent, as the rules on evidence are primarily a matter of domestic law. However, as the collection and hearing of evidence often touch on the human rights and fundamental freedoms guaranteed by the Convention, I have considered it beneficial both for the future development of the Court’s case-law and for legal practitioners applying the principles of this judgment in the domestic legal systems to turn their attention to these considerations. Be that as it may, they illustrate that, overall, the first element of the three-pronged test should be applied in a reasonably liberal way. [9]

(b) The assessment and reasoning of the domestic courts

8. The second element of the three-pronged test requires the domestic courts to assess the relevance of the testimony sought by the defence and to provide sufficient reasons for their decisions. Not much is to be added to the majority’s clarification of this element in §§ 162-66 of the present judgment. Nevertheless, I would wish to emphasise one particular issue: since the right under Article 6 § 3 (d) of the Convention is one of the minimum guarantees of the fair trial, the domestic courts’ reasoning when rejecting the defence’s motion should be commensurate to its importance.

9. The third element of the three-pronged test assesses the overall fairness of the proceedings, this being the overarching criterion in the recent Court’s case-law on complaints under Article 6 § 3. [10] While this is a logical and welcome development, given that the key principle governing the interpretation of Article 6 is the notion of fairness, [11] the Court’s case-law remains somehow unsettled on whether fairness is to be considered only in procedural or also in substantive terms. To put it otherwise: is it the fairness of the proceedings or the fairness of the outcome that matters – or possibly both?

10. The assessment of overall fairness was developed in respect of situations where it was reasonable to overlook minor infringements provided that the proceedings as a whole were fair. [12] In such an assessment, the Court must examine the extent to which a reduction in the guarantees provided in one stage may have been offset by other guarantees. [13] In its case-law, the Court has developed several constituent elements of the notion of the fairness of proceedings, namely: (a) equality of arms; [14] (b) the adversarial nature of the proceedings; [15] (c) effective participation in the proceedings; [16] (d) the requirement that a decision be reasoned; [17] (e) the principle of immediacy; [18] (f) the appearance of a fair and proper administration of justice; [19] (g) the principle of legal certainty [20] . These elements complement the non-exhaustive list of requirements that are expressly stipulated by the provisions of Article 6 of the Convention. I have included and discussed some of them above, in the framework of the first two elements of the three-pronged test.

11. Certain judgments, which are admittedly of a landmark nature and which, inter alia , examined alleged failures related to the collection of evidence, conceded important weight to the probative value of such evidence. This would conflict with the “procedural approach” to the fairness assessment, rendering the examination closer to a substantive one. For example, in Ibrahim and Others [21] , when examining the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the Court stated that consideration should be given, inter alia , to the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of the compulsion, and also of the use to which the evidence was put, in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case. Nonetheless, these substantive elements of the overall fairness assessment remained in the shadow of a large number of solely procedural elements. This cannot be said for examination of complaints concerning the use of evidence obtained in violation of Convention rights. In Bykov [22] , the Court emphasized that it was necessary to examine whether there existed any doubt regarding the quality of the evidence, including whether the circumstances in which it had been obtained cast any doubt on its reliability or its accuracy, and whether there existed supporting evidence for the defendant’s conviction. This approach was criticised before and after the above-mentioned judgment. [23]

12. The fact remains that the Court’s case-law on this point is inconsistent and that the Grand Chamber has not seized the opportunity in the present judgment to clarify its position in this respect. While it is perfectly understandable that the Court cannot side with any particular legal theory of justice and fairness, I would wish to argue that the approach should remain procedural and should, as far as possible, avoid any assessment of the fairness of the outcome. The reasons for this are manifold. Firstly, the overarching element in adjudication of complaints under Article 6 § 3 of the Convention is the (overall) fairness of the proceedings – and not of the outcome. Secondly, this is a logical consequence of the fact that Article 6 guarantees fundamental procedural rights. On the other hand, there is no right under the Convention or its Protocols guaranteeing any particular outcome in criminal proceedings. Thirdly, as the Court constantly emphasises, it is not a tribunal of fourth instance and may not, as a matter of principle, adjudicate on the matters of errors of fact. ^{^[24]} Consequently, it cannot and may not weigh up whether the evidence produced against the defendant in a given set of domestic criminal proceedings was sufficient, reliable or accurate, and whether his conviction was fair. What it can do instead is to verify whether the criminal proceedings as such were fair. The constituent elements of the notion of fairness as described in point 10 of this dissenting opinion may serve as a useful source of inspiration.

II. Application of the three-pronged test to the present case

(a) The background to the applicant’s motion

13. Turning to the circumstances of the present case, we see that, at least from her written motion submitted during the investigation on 12 October 2004, the applicant asserted that the plastic explosives found in her bag during the search at the police station had been planted there by the police. At the trial, she pleaded not guilty to the charges against her and insisted that the explosives had been planted. She has described the course of events at the police station in detail. Her account differed considerably from that offered by the police officers, particularly on the point whether, before the search commenced, she left her bag and jacket unattended in a different room.

14. On 13 January 2005, four days before completion of the proceedings before the court of first instance, one of the applicant’s lawyers, supported by the other, submitted a request to have summoned the attesting witnesses who were present during the search of the applicant’s bag, in order to determine whether the plastic explosives were planted. The applicant herself, apparently not at ease with taking a back seat in conducting her defence, decided to stress that the explosives were planted by the police officers prior to the search and that she did not insist on calling the attesting witnesses. Nevertheless, she agreed to their being questioned if her lawyers insisted.

(b) The first element: the applicant’s motion

15. When submitting this procedural situation to the first element of the three-pronged test (namely whether the request to examine the attesting witnesses was sufficiently reasoned and relevant to the subject matter of the accusation), one observes ab initio that her allegation that the explosives had been planted constituted the crux of her defence in the criminal proceedings against her. If she succeeded in casting doubt upon the manner in which the search was conducted, this could arguably influence admissibility of this decisive evidence and undermine the credibility of the charges against her. The motion by the applicant’s lawyers clearly specified the fact they wished to establish (namely, the planting of the explosives), which, in turn, could be of consequence for the further course or outcome of the case.

16. The applicant’s version of events cannot be dismissed as prima facie incredible. She was stopped in circumstances and for reasons that remain largely unclear and controversial. The police officers’ testimonies on this point varied considerably and were hardly compatible with the criteria on “stop and search” situations governed by the rule of law. According to the police officers, the applicant was stopped “because she walked idly” (police officer P.) or “because she has been walking quickly” (police officer S.). Some police officers stated that she was stopped “because it was unclear where she was going to go”, “because she was a person of Caucasian ethnicity” and “because she was wearing black clothing”. In my opinion, the only reason that is possibly acceptable would be that she “resembled a girl from a wanted persons notice”, as stated by only one of the five police officers who took part in her arrest and search. However, it was subsequently established by the police themselves that the applicant was not the wanted person. Although the applicant does not complain before the Court about the arrest, these circumstances cast some doubt on whether the police acted in good faith in this case. This doubt is not dispelled by the police version, which in itself does not seem particularly credible. In their version, they incidentally stopped a woman in the street of Moscow for no compelling reason, brought her to the police station, and performed a search of her bag (again for no compelling reason pertaining to the situation in hand), where they found two packages of explosives. This course of events is either a fantastic coincidence or an indication that serious police misconduct is to be suspected.

17. The contrast between the applicant’s account and that given by the police officers should, in my opinion, be coupled with some parallel facts. It is undisputed that, after the bag search, the applicant was not examined for residue from explosives, although this is a routine test. Likewise, the foil containing the explosives was never examined for fingerprints or DNA, whether that of the applicant or any other person. No explanation was given for these omissions, though one could reasonably expect a good-faith investigation to take these steps in order to elucidate the exact role of the applicant (if any) and to search for possible accomplices, as it is highly unlikely that a 21-year-old woman would organise a terrorist attack on her own. Instead, the police examined her jacket and bag for residues, which in the applicant’s version were left unattended for some time. While the police admittedly deny that the applicant was taken to a different room to be photographed and fingerprinted prior to the search of her bag, claiming that the applicant had her jacket and bag with her at all times, the applicant’s account on this point is not necessarily prima facie incredible: since, in the police version, she was taken to the station for an identity check, fingerprinting and photographing would have been the most logical first step. Police photographing is usually done without the suspect wearing a jacket or carrying a bag.

18. In describing these circumstances, my intention is not to demonstrate that the plastic explosives were indeed planted by the police (this would in any event not be compatible with our Court’s role), but to show that the fact asserted by the applicant’s defence was relevant and had some credible ground for further investigation. In considering whether questioning of the attesting witnesses could have made the assertion of planted evidence more probable, one can observe that the defence failed to elaborate on this particular point, not only at the main hearing, but also in their appeal, in the supervisory review complaint and also in the proceedings before the Court. Furthermore, the applicant herself cast doubt on the relevance of the motion with her intervention. This is admittedly the weak point in the applicant’s case before our Court. However, one must bear in mind the particularities of her procedural situation. [25] The defence did not have any alternative evidence at hand to prove the applicant’s assertion. Whilst it is true that the domestic court heard the police officers involved in the arrest and search, and that the prosecution questioned them at the main hearing regarding the relevant circumstances, they were not merely witnesses against the defendant within the meaning of Article 6 § 3 (d) of the Convention, but also, prima facie, hostile towards the defence on this particular point. Assuming the hypothesis that the applicant was correct in her allegations, what was the likelihood that the police officers would admit to having planted the evidence? It is unreasonable to verify assertions of planted evidence only by hearing those who are possibly responsible for such misconduct. No court would ever acquit a defendant on the sole basis that he denied his guilt. If equal treatment is the key maxim in consideration of defence motions, these cannot be dismissed simply because the police deny the defence assertions. Thus, I find it surprising that the majority highlight the questioning of the police officers as a significant element in rejecting the relevance of the defence motion to have the attesting witnesses heard (see paragraph 170 of the judgment).

19. In examining whether the defence motion was sufficiently reasoned, one has to take into account that the attesting witnesses were neither questioned during the investigation nor did they give any written statement that the defence could submit or rely upon. In these circumstances, it was impossible to speculate on the exact content of their potential testimony. However, it was reasonable to assume that they were familiar with the circumstances of the search of the applicant’s bag and with the course of events that immediately preceded the search. Whether any of these circumstances would increase the probability of the applicant’s version was a matter for the assessment of facts, which in turn could be performed only after their testimony had been heard.

20. The domestic first-instance court dismissed the motion to hear the attesting witnesses. Under the second element of the three-pronged test, it was obliged to provide sufficient reasons for that decision. However, it provided none, either at the hearing or in the subsequent judgment. While it is true that the Supreme Court provided some reasoning in this respect, I unfortunately cannot agree with the majority that those reasons were appropriate and adequate.

21. As is apparent from paragraph 67 of the present judgment, the Supreme Court considered that the personal appearance of the attesting witnesses had not been necessary, since (a) the applicant herself had claimed that the explosives had been planted in her bag before their arrival; (b) the defence had not raised any objections after the refusal to hear the attesting witnesses, nor; (c) made any additional requests for the hearing of evidence. Although the applicant’s reaction to her lawyers’ motion was indeed far from helpful to her cause, the Supreme Court’s account of her statement does not correspond to its actual content. In particular, the applicant did not assert that the explosives had been planted prior to the arrival of the attesting witnesses, but prior to the beginning of the search. This difference is important. Furthermore, for the reasons outlined in points 18 and 19 above, there existed sufficient grounds to consider the motion relevant, in spite of the applicant’s intervention.

22. Whereas the first reason advanced by the Supreme Court does not reflect the actual course of events in the courtroom, the other two are hardly any more convincing. While parties to judicial proceedings can be expected to object to the motions of the opposite party or to a measure envisaged by the court, it is hard to imagine an objection against a procedural decision of the court in the course of the proceedings themselves: such decisions are generally “objected to” in legal remedies against such decisions. The Court has not been familiarised with any such remedy in this particular situation. Finally, in view of the fact that no alternative evidence was available to the applicant’s defence to substantiate the allegation of planted evidence, the Supreme Court’s expectation that the defence should have made additional requests to hear evidence bears no persuasive power. In sum, I believe that the reasoning provided by the Supreme Court was inadequate and that, in consequence, the domestic courts’ decision making in the present case does not pass the second element of the three-pronged test.

(d) The third element: The overall fairness of the proceedings

23. In my opinion, the majority’s assessment of the overall fairness is rather lapidary. Furthermore, it focuses its attention to an important extent on the strength and quantity of the evidence on which the applicant’s conviction was based. For the reasons I have outlined in point 12 of this separate opinion, I believe that such an approach should have been avoided. As is rightly highlighted in paragraph 149 of the present judgment, it is not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant’s conviction.

24. In their assessment of fairness, the majority also highlight several procedural elements which, in their view, render the proceedings as a whole fair. While I agree with some of their arguments in this respect, for all the reasons above, I retain my belief that in respect of the crucial point, namely whether the decisive evidence in this case was planted, the applicant was prevented from presenting all relevant arguments and evidence to the domestic court and that, for their part, the domestic courts examined this particular assertion in an inadequate manner. Taking into account the importance of the applicant’s allegations, coupled with the circumstances of her arrest and search, this deficiency could not be remedied or counterbalanced by the correct conduct of the proceedings in respect of other issues. Therefore, I believe that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1. Murtazaliyeva was a golden occasion for the principle of immediacy to regain ground in the Court’s case-law. Unfortunately the contrary has occurred. I reject the Government’s preliminary objection as to the applicant’s complaint about the absence of witness A. After discarding the preliminary objection, this opinion will focus on the initial meaning of the so-called two-tier Perna test ^{^[26]} and on the revisited three-tier Murtazaliyeva version, by analysing each of these tiers separately. A logical, philosophical and legal critique of this test and, most importantly, of its “overall fairness” assessment lays the foundation for my findings in the present case with regard to the absent defence witnesses. On this basis, I conclude that there has been a violation of Article 6 § 3 (d) of the Convention with regard to the absent witnesses A., B. and K.

The Government’s preliminary objection

2. The Government argue that the defence waived their right to have witness A. questioned at the trial. It is true that the applicant and one of her lawyers stated that they had no objection to the reading out of A.’s testimony, and the second defence lawyer agreed to this. However, they did so after having been informed by the presiding judge that A. was on a work-related mission and could not therefore appear in court. No source for this information, provided to the trial court, has been adduced before this Court. On the day that the trial court decided not to hear witness A. in person, the court adjourned the hearing to allow the parties to prepare their closing submissions. Consequently, the need to ensure the expeditiousness of the proceedings did not serve as a justification for refusing to allow witness A. to be examined at the trial. In these circumstances and in the absence of any direct reference to a renouncement of the right to examine witness A., the manner in which the defence expressed their position could not be construed as an unequivocal waiver of the right under Article 6 § 3 (d) of the Convention. ^{^[27]}

3. Indeed, the applicant’s arguments on appeal that the trial judge had not decided on the motion to examine A. and had provided no evidence of A.’s absence on a work-related mission clearly indicate that the defence had not in fact waived their right to examine A. ^{^[28]} Nor did the Supreme Court, sitting as an appeal court, explicitly consider the right to have been waived. The Supreme Court referred in its judgment not only to the defence’s consent to the reading out of A.’s statements, but also to the reasons for his absence from the trial. ^{^[29]}

4. Furthermore, the majority do not consider that the case raised any questions of public interest which would have prevented the relevant procedural guarantees from being waived. ^{^[30]} I observe that one of the major points of contention between the parties is whether the applicant had advanced an entrapment plea in the domestic proceedings. This point weighs heavily in the Court’s examination of the applicant’s complaint concerning the failure to summon and hear witness A. In fact, the applicant’s lawyer U. clearly stated during the exchange of closing arguments that “this whole criminal case is a set-up against Murtazaliyeva by law-enforcement agents”. ^{^[31]} This statement must be construed as a properly raised entrapment plea when viewed against the background of all the available case material, which demonstrates that the applicant’s strategy and line of defence before the domestic courts was essentially to protest her innocence and to insist in particular on her claim that the police had planted the plastic explosives in her handbag. In this respect it should be emphasised that, contrary to the Government’s argument, ^{^[32]} the denial of guilt does not logically preclude reliance on police incitement. Furthermore, according to the nemo tenetur principle, a defendant must not be forced to choose between a defence of being innocent and an entrapment defence. An accused may simultaneously argue that he or she did not commit the imputed offence (because the offence was never consummated or because it was committed by another person) and that he or she was entrapped into committing it. ^{^[33]}

5. Since a plea of entrapment was made and there was certain prima facie evidence of entrapment, the judicial authorities should have examined the related facts and take the necessary steps to uncover the truth, in order to determine whether there was any incitement. Taking into account the clear indicia of police entrapment and the pivotal role of witness A. in the police strategy, the trial court was under an obligation to question him. In view of the above, I cannot follow the majority in finding the Government’s objection founded.

Double standards for prosecution and defence witnesses

6. The Grand Chamber majority essentially rely on an allegedly two-tiered test derived from Perna ^{^[34]} , requiring, firstly, a substantiated request by the defendant indicating the relevance of the testimony for “the establishment of the truth” and, secondly, evidence that the refusal to call the given witness undermined the overall fairness of the proceedings. As a result, the legal standards developed by the Court in Al-Khawaja and Tahery [GC] ^{^[35]} and Schatschaschwili [GC] ^{^[36]} for the non-examination of prosecution witnesses during a trial are not applicable to the case at hand. ^{^[37]}

7. Although Article 6 § 3 (d) sets out the right of everyone charged with a criminal offence to examine “witnesses on his behalf under the same conditions as witnesses against him”, the classification of an individual as a witness for the defence or the prosecution leads to a different set of legal standards in the practice of the Court. Such double standards are very problematic in view of the clear stipulation in the Convention that both kinds of witnesses are to be examined “under the same conditions”. ^{^[38]}

8. In addition, it is highly questionable whether these double standards can be maintained in view of the multiple sets of circumstances in which a witness may testify or be asked to testify during trial. First, the classification of a witness as being presented “on behalf of” or “against” a defendant is not a straightforward exercise when a witness put forward by the prosecution provides testimony favourable to the defendant and, vice versa, when a witness requested by the defendant provides testimony against him or her. Second, the attendance of a witness may be requested by both the defendant and the prosecutor, in which case neither the Al-Khawaja and Tahery and Schatschaschwili criteria, nor the Perna criteria, would strictly speaking apply. Third, a witness called upon ex officio by the court itself would not fit into this dual classification. Fourth, a witness who has been questioned by the prosecution during the pre-trial stage and whose testimony at the trial is requested by the defence may refuse or may be unable to testify at trial. ^{^[39]} Fifth, a forensic witness is normally an independent witness, called upon to produce testimony that is neither “on behalf of” nor against the defendant.

9. In view of this variety of circumstances, it has been the Court’s case-law that the term “witness” has an autonomous meaning in the Convention system, regardless of classifications under national law, ^{^[40]} and that a witness is considered to be a prosecution witness if his or her depositions serve “to a material degree” as the basis for a conviction. ^{^[41]} In any individual case, it is the question whether it was the prosecution or the defence which sought the attendance and examination of a certain witness which provides a starting point for the Court’s assessment. However, this is not decisive for the Court. The Court’s assessment will depend on the high probative value (“to a material degree”) of a witness’s statements in the establishment of the accused’s guilt by the domestic courts. This criterion for the qualification of witnesses, which takes into account the findings on the merits of the case, raises significant problems for domestic courts, in view of its ex post facto and imprecise nature. For these courts, the test to assess whether a witness should be summoned to trial and heard and cross-examined must be a precise, ex ante test, grounded in the chronological point at which the relevant court is called to assess the request that it take such evidence. ^{^[42]}

10. The circumstances of the present case are telling in this regard. I note that, despite A. having initially been listed in the bill of indictment as one of thirteen prosecution witnesses as well as a defence witness, he was not called by the prosecution; nonetheless, his testimony served as the basis for the applicant’s conviction, along with other evidence. A.’s pre-trial statements as read out at the trial and referred to in the domestic courts’ judgments contained factual assertions, but the courts did not cross-reference A.’s statements with those of other witnesses. In spite of this, A. was treated as a defence witness by the domestic courts, since it was the defence which had requested that he be questioned, at both the pre-trial and trial stages of the proceedings.

11. In addition, witnesses B. and K. were adduced by the prosecution, but it was the defence which wished to rely on their testimony. ^{^[43]}

12. To sum up this introductory point, the Court’s double standards for the treatment of witnesses on behalf of and against a defendant, and the ex post facto and imprecise concept of prosecution witness on which they are based, contradict the letter and the spirit of the Convention, create unnecessary practical difficulties for the domestic courts and cause unneeded uncertainty in a field of law where clarity and precision are of the utmost importance.

The original Perna test

13. The Perna approach was based on a clear-cut distinction between defence and prosecution witnesses, made on the sole basis of which party had requested that they be examined before the trial court and irrespective of the substance of the testimony to be given by each individual witness.

14. The original Perna test established a strict substantive criterion for assessing a defence request to produce testimonial evidence, based on the obligation to “support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth”. ^{^[44]} Contrary to what the majority claim, ^{^[45]} the Perna judgment did not require an overriding assessment of “overall fairness”, since fairness was only assessed from the point of view of Article 6 § 1 (e) of the Convention and on account of the way the evidence was taken. It is important to recall the relevant passage of the Perna judgment:

“the Court considers that the decisions in which the national authorities refused the applicant’s requests are not open to criticism under Article 6, as he had not established that his requests to produce documentary evidence and for evidence to be taken from the complainant and witnesses would have been helpful in proving that the specific conduct imputed to Mr Caselli had actually occurred. From that point of view, it cannot therefore be considered that the defamation proceedings brought by Mr Caselli against the applicant were unfair on account of the way the evidence was taken.” ^{^[46]}

15. Hence, the overall fairness of the proceedings is not, in the light of both the letter and the spirit of the Perna judgment, an overriding criterion under which the applicant has to demonstrate that the refusal to call the witness prejudiced the overall fairness of the proceedings. ^{^[47]} Nevertheless, the Perna test was too strict and therefore unfair for the defence. It needed to be revisited from a human-rights-friendly perspective, namely a revisiting that would bring it closer to the Convention principles on evidence-taking in criminal procedure, but this has not been done by the majority, as will be demonstrated below.

The first Murtazaliyeva criterion

16. The original Perna test was formulated in strict terms: the criterion established for the admission of defence witnesses was that of evidence “necessary” for the establishment of the truth. The Court’s practice loosened such strictness, turning to the more liberal criterion of “prima facie relevance” of the evidence, with multiple formulations being given over the years. ^{^[48]} Between the two diverging criteria, the majority have now chosen that of witnesses “capable of influencing the outcome of a trial” or “who can reasonably be expected to strengthen the position of the defence”. ^{^[49]} At first sight, it seems that the majority have chosen the more relaxed, liberal, criterion. This is also indicated by the majority’s further position to the effect that scant reasoning by the defence may be sufficient to answer the first question of the test in the affirmative. ^{^[50]} This choice would also be in line with the case-law of the ICTY Appeals Chamber, according to which an applicant must demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial. ^{^[51]}

17. The apparently liberal majority perspective is not limited to the degree of relevance or necessity of the evidence, but also to its scope, which includes evidence that is both pertinent to the outcome of the trial and to the “position of the defence” in general. This has an obvious consequence. Any defence-witness testimony related to the lawfulness, reliability and credibility of the remaining evidence, as well as to the lawfulness of the public authorities’ conduct in the case, including that of the judges, prosecutors and law-enforcement authorities who acted or should have acted in the defendant’s case, may strengthen the position of the defence, even if it does not ultimately influence the outcome of the trial. For example, it is mandatory to call a witness who, it is claimed, might have supported an accused’s allegation that he was ill-treated in order to make him confess to an offence, even if the impugned confession did not play a crucial role in establishing the applicant’s guilt. ^{^[52]} This is for two reasons: first, because the evidence of torture or ill-treatment may impact on the position of the defence, since an issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention, even if the admission of such evidence was not decisive or crucial in securing the conviction; ^{^[53]} and second, because the applicable criterion for the assessment of the request for calling defence witnesses, as well as prosecution witnesses, should be an ex ante criterion, independent of the findings of the trial court.

18. In effect, the majority apply the first criterion in a very illiberal way, since they criticise the defence’s motion for the attendance of witnesses B. and K. on the basis that “it did not contain any particular factual or legal arguments and did not elaborate in concrete terms on how their testimony could reasonably be expected to strengthen the case for the defence”. ^{^[54]} I will return to this point later.

The second Murtazaliyeva criterion

19. The issue of whether the domestic courts considered the relevance of a given individual’s testimony and provided sufficient reasons for their decision not to examine a witness at trial is not new. ^{^[55]} In fact, it was already a constituent part of the original Perna test, since the Court in that case did assess the motivation of the domestic courts and concluded that “the decisions in which the national authorities refused the applicant’s requests are not open to criticism under Article 6”. ^{^[56]} In Perna , the reason for rejection of the witness was the trial court’s legal finding that, even if proven to be true, the facts were irrelevant from a legal perspective.

20. In the present judgment, the majority add that the reasoning of the domestic courts must be “commensurate”, i.e. adequate in terms of scope and level of detail, with the reasons advanced by the defence. ^{^[57]} This deceptively simple idea does not suffice in a criminal procedure subject to the principle of legality and in a State governed by the rule of law.

21. As a matter of principle, the trial court cannot refuse a defence witness without good or sufficient reason, ^{^[58]} which is also the minimum criterion for refusal to call or to cross-examine prosecution witnesses, as set out in Al-Khawaja and Tahery and Schatschaschwili . ^{^[59]} Defence witnesses cannot be treated differently from prosecution witnesses, as established by the paramount principle of equality of arms. ^{^[60]} A good or sufficient reason must exist for the non-attendance of defence witness. ^{^[61]}

22. Hence, the dismissal of a request without giving reasons or silence by the domestic courts in respect of a sufficiently reasoned and relevant request to call a defence witness necessarily leads to a finding of a violation of Article 6. ^{^[62]} The reasons should relate to the specific circumstances of each witness’s situation. ^{^[63]} The fact that a defence witness is incapable of proving the accused’s innocence is not a good reason to refuse his or her examination ^{^[64]} , for the simple reason that the defendant does not have to prove his or her innocence. It suffices that the defendant argues that the witness is in a position to raise doubts about the facts of the accusation. ^{^[65]} When requesting the attendance of a defence witness, the defence may have other interests than acquittal, such as obtaining a conviction for a lighter offence than that with which the defendant was initially charged, establishing mitigating circumstances, casting doubt on the credibility of the prosecution case, etc.

23. Most importantly, the trial court must not only give good or sufficient reasons for its decision to refuse a defence witness, but it is not allowed to anticipate the result of the examination of the evidence under question ( Verbot der Beweisantizipation ) – except in favour of the defendant. When deciding on whether or not to obtain the evidence requested by the defence, the court has to presume that the examination of this evidence will turn out in the defendant’s favour. From this perspective, the court may decide not to call the defence witness if (i) it assumes that the fact that would be proven by such evidence is already proven in favour of the defendant or (ii) it can show that the fact that would be proven by such evidence is insignificant ^{^[66]} for the determination of the case.

24. In the latter case the trial court is doubly limited. A trial court cannot invoke other evidence to argue that the attendance of a defence witness is not significant for its determination of the case. A reference by the trial court to other evidence, to the effect that a witness could not have supplied new, important or significant information, is never a good reason for not calling him or her. ^{^[67]} This would be a gross violation of the prohibition on anticipation of the outcome of examination of evidence. Furthermore, after refusing to allow a defence witness to attend and be examined on the basis that the fact that would be proven by such evidence is insignificant for determination of the case, the trial court must subsequently stick to this undertaking in its decision on the merits and may not base any argument on this particular fact. ^{^[68]}

25. In sum, the second Murtazaliyeva criterion is still very far from being complete, and offers a standard of protection lower than that accorded to the right to present prosecution witnesses . Indeed, the majority wrongly insist that only in exceptional circumstances will it conclude that a refusal to hear a defence witness is in contravention of Article 6. ^{^[69]} There is no reason for such disparate treatment. Article 6 §§ 1 and 3 (d) of the Convention contain a prohibition on the use of hearsay evidence against a defendant in criminal proceedings, but exclusion of the use of hearsay evidence is also justified when that evidence may be considered to assist the defence. ^{^[70]} In other words, Article 6 §§ 1 and 3 (d) not only enshrine the defendant’s right to confront prosecution witnesses and question defence witnesses, but guarantees the principle of immediacy, ^{^[71]} which requires that the trial court be able to observe the witnesses’ demeanour and thus form its own impression of their reliability. ^{^[72]}

The third Murtazaliyeva criterion

26. According to the majority, the Court has to assess whether the trial court implemented safeguards to secure that, even in the event of an obvious deviation from the regulations set out by Article 6 § 3 of the Convention, overall fairness was maintained, and they suggest that such a safeguard would prevent the Perna test from becoming mechanical. ^{^[73]} Let me be clear: this is where the core and the novelty of the present case lie, and not in the alleged second criterion, as the majority claim. ^{^[74]}

27. If the overall fairness of the proceedings under Article 6 § 1 is accepted as a corrective to evaluation of compliance with the provisions of Article 6 § 3, then it necessarily has to be understood as an additional guarantee to the individual guarantees set out in Article 6 § 3. These are connected to and derive from the fairness principle in Article 6 § 1. ^{^[75]} However, the overall fairness test should not be understood as an unconnected but overriding substitute for the guarantees set out in Article 6 § 3, capable of correcting violations of the rights described in that paragraph. ^{^[76]}

28. The wishy-washiness that accompanies the majority’s ambiguous approach towards an overriding test of overall fairness fully divests Article 6 § 3 (d) of its meaning. The majority’s revisited Perna test is intentionally constructed to allow the Court, even if the answers to the first two questions are considered as strong indication for a violation, to rule otherwise. The clear provision of minimum rights as an expression of the fairness principle is sacrificed for the sake of preserving a margin of appreciation for domestic courts. Although the majority note the possibility of reaching conclusions that differ, in either direction, from the indications provided by the two prior steps, the undermining of a minimum right for the defence will, in consequence, more frequently lead to an undue burden for the defence.

29. It is true that the Court, like the European Commission of Human Rights before it, has regularly assessed the overall fairness of the procedure or the fairness of the proceedings taken as a whole when judging compliance with Article 6 § 1 of the Convention. However, until Dvorski , ^{^[77]} this exercise was conducted in order to assess the fairness of procedures which otherwise did comply with the minimum rights set forth in Article 6 § 3 (c) of the Convention. Under the Court’s traditional approach, a procedure could be unfair overall even though it had complied with Article 6 § 3. To derive, a contrario sensu , that a procedure can be fair overall even though it does not comply with Article 6 § 3 – or, to put it otherwise, that the overall fairness of the procedure can allow Article 6 § 3 violations to be disregarded – is not only logically erroneous, it also denaturalises the very essence of Article 6 § 3. A thorough review of the Court’s case-law will make this point crystal clear.

30. Nielsen v. Denmark was the first time in Strasbourg history that the test was used. This was a case in which the Commission dealt with a claim concerning the allegedly erroneous admission of medical evidence in a criminal trial. In it, the Commission stated:

“Article 6 of the Convention does not define the notion of ‘fair trial’ in a criminal case. Paragraph 3 of the Article enumerates certain specific rights which constitute essential elements of that general notion... The words ‘minimum rights’, however, clearly indicate that the six rights enumerated in paragraph 3 are not exhaustive, and that a trial may not conform to the general standard of a ‘fair trial’, even if the minimum rights guaranteed by paragraph 3 - and also the rights set forth in paragraph 2 - have been respected”. ^{^[78]}

31. As if this were not clear enough, the Commission considered it helpful to clarify that:

“[t]he relationship between the general provision of paragraph 1 and the specific provisions of paragraph 3, seem to be as follows: In a case where no violation of paragraph 3 is found to have taken place, the question whether the trial conforms to the standard laid down by paragraph 1 must be decided on the basis of the consideration of the trial as a whole ...”. ^{^[79]}

32. This asymmetry between Articles 6 § 1 and 6 § 3 was reiterated by the Court in Deweer v. Belgium , where the Court deemed that, while “the various rights of which a non-exhaustive list appears in [Article 6 § 3] are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings”, since the applicant in that case “was totally deprived of such a trial... the question whether [Articles 6 § 2 and 6 § 3] were observed has no real significance in this regard: it is entirely absorbed by the question of whether [Article 6 § 1] was complied with”. ^{^[80]} Again: a process can be unfair even if it complies perfectly with Article 6 § 3, but nothing here suggests that a process can be fair if those minimum rights are disrespected.

33. Since then, the Court has applied the overall fairness of the proceeding for a multiplicity of purposes, but the relationship between paragraph 1 and paragraph 3 of Article 6 as expressed in Nielsen seems to have formed the bottom-line of the Court’s reasoning – until Dvorski . A milestone in this jurisprudence is the oft-cited judgment in Barberà, Messegué and Jabardo , ^{^[81]} in which the Court concluded that an accumulation of procedural defects (none of which in itself amounted to a violation of one of the rights explicitly enumerated in Articles 6 § 2 and 6 § 3) meant that “the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing”. ^{^[82]}

34. In this light, the overall fairness analysis gradually became ubiquitous, even when dealing with claims under Article 6 § 3. In some instances, for example, the Court analysed cases concerning Article 6 § 3 in the context of the overall assessment of the proceedings. In Goddi , ^{^[83]} for example, the Court stated that the guarantees of Article 6 § 3 are “constituent elements” of “the general notion of a fair trial stated in paragraph 1” and that therefore “the Court has examined separately each limb of the complaint and then made an overall assessment”. ^{^[84]} In other cases, the Court has stressed the need to interpret paragraph 3 of Article 6 in the light of the overall purpose of the norm – that is, to secure a fair procedure. This is revealed by a quote the Court has often used:

“The various rights of which a non-exhaustive list appears in paragraph 3 reflect certain aspects of the notion of a fair trial in criminal proceedings... When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots”. ^{^[85]}

35. However, as a reading of the case in which these sentences were formulated reveals, this reasoning had quite the opposite intention to that of the majority in the present judgment. The Court in Artico v. Italy , when drafting these sentences, ^{^[86]} seems to have meant the exact opposite. In Artico , the Court was ensuring that the legal assistance that the Government claimed to have provided to the applicant was indeed effective for the purposes of Article 6, and not an “illusory” right. Indeed, the Court concluded in that judgment that it was not effective: despite the appointment of counsel, the applicant had not received any substantive legal aid. ^{^[87]}

36. As a matter of tradition, the most prominent area in which the overall fairness test has been conducted is the realm of legal assistance. Under the guise of assessing the overall fairness of the proceedings, the Court has distanced itself from its previous defendant-friendly standards in favour of a more prosecution-leaning stance. Until Dvorski , the Court always dealt with Article 6 § 3(c) of the Convention in a manner consistent with the principles described above. It is true that in certain cases the Court engaged in a sort of balancing exercise between the reasons that justified certain restrictions to freely chosen legal assistance and their implications for the overall fairness of the procedure viewed in its entirety, but the Court did so only after acknowledging that such reasons existed. A milestone in this line of jurisprudence is John Murray , ^{^[88]} in which the Court stated:

“[the right] to benefit from the assistance of a lawyer already at the initial stages of police interrogation ... which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing.” ^{^[89]}

37. A central difference comes immediately to mind: since the right to legal counsel can only be restricted “for good cause”, the Court’s holistic assessment in John Murray comes only after such reasons have been demonstrated, since “even a lawfully exercised power of restriction is capable of depriving an accused, in certain circumstances, of a fair procedure” ^{^[90]} . The Court, moreover, proved extremely cautious in its assessment of the overall fairness in this case, ultimately finding a violation: “it is not for the Court to speculate on what the applicant’s reaction, or his lawyer’s advice, would have been had access not been denied during this initial period”. ^{^[91]}

38. The Court refined and developed its stance on the invalidity of unmotivated restrictions to the right to a legal counsel in Salduz [GC] . ^{^[92]} The applicant in this memorable Grand Chamber case had been denied legal assistance during police custody, during which time he made statements when interrogated which he subsequently retracted before the investigating judge and the prosecutor. The Court reiterated its reasoning from John Murray , stating:

“this right [to benefit from legal assistance from the initial stages of police interrogation] has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing”. ^{^[93]}

39. It is undeniable from the underlined clause that the overall fairness assessment can only proceed once the restriction has been found to be justified. The Court itself has made clear, over and over, that any restriction to the right of legal counsel must be justified in order for it to analyse its impact on the overall fairness of the proceedings:

“Article 6 §1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6”. ^{^[94]}

40. Consistent with this reasoning, when applying the general principles to the case at hand, the Court observed:

“... no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already falls short of the requirements of Article 6 in this respect”. ^{^[95]}

41. John Murray and Salduz , therefore, make it clear that States cannot legitimately restrict access to legal assistance without valid reasons. As the above quotations show, it is indeed difficult to think of any other interpretation of the ratio decidendi of those cases. As late as 2010, the Court applied this reasoning, concluding that the absence of valid reasons for restricting an applicant’s access to a lawyer was enough to find an Article 6 violation:

“In any event, no further findings are required in that respect in the present case since having found that the pre-trial restriction on the applicant’s right to counsel had no justification the Court does not need to consider further what effect that restriction had on the overall fairness of the criminal proceedings against the applicant”. ^{^[96]}

42. An equally straightforward statement was made by the Court in Pishchalnikov v. Russia , a case concerning confessions made during pre-trial proceedings after assistance of counsel had been denied. ^{^[97]} In this case, the Court analysed first whether “the applicant’s access to counsel was restricted” and whether this “restriction of defence rights was justified”. Immediately after conducting this dual assessment, the Court noted:

“[h]aving found that the restriction on the applicant’s right to counsel had no justification the Court, in principle, does not need to consider further what effect that restriction had on the overall fairness of the criminal proceedings, as the very concept of fairness enshrined in Article 6 requires that the accused have the benefit of the assistance of a lawyer already at the initial stages of police interrogation, unless the restriction to the right to counsel is exceptionally imposed for good cause”. ^{^[98]}

43. Dvorski v. Croatia concerned a “denial of choice” of legal counsel, rather than an outright denial of access to it. Without citing any Court precedent in support of its finding, the majority stated:

“... the first step should be to assess whether ... there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal procedure”. ^{^[99]}

44. This was the first time that the Court reversed the reasoning of John Murray and Salduz . However, two qualifications are in order. First, unlike the preceding cases, which dealt with “denial of access” to a lawyer, Dvorski dealt with a “denial of choice”, which the Court considered a “less serious” matter. ^{^[100]} Second, and more importantly, the assessment of the overall fairness of the procedure seems to have been conducted on the basis of a serious presumption that the applicant’s initial confession, made in the absence of a freely chosen lawyer, had a “significant likely impact” on the development of the criminal proceedings. ^{^[101]} The nature of this “likelihood” is not clear, but, without doing any violence to the text, it could be read as an acknowledgement that every denial of choice of a lawyer at the critical stages of criminal proceedings could have an impact that jeopardises the fairness of the proceedings as a whole. ^{^[102]} This reading of Dvorski would be consistent with Salduz , although uncomfortably so.

45. It is only in Ibrahim and Others v. the United Kingdom that, while claiming to be “clarifying” Salduz , ^{^[103]} the Grand Chamber in fact bluntly departs from the previous case-law on Article 6 § 3 (c) of the Convention. The Court states that the “absence of compelling reasons (for restricting an accused’s right to counsel) does not ... lead in itself to a finding of a violation of Article 6”. ^{^[104]} Indeed, as in John Murray and Salduz , when “compelling reasons are found to have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were ‘fair’ for the purposes of Article 6 § 1”. ^{^[105]} However, when “there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment”. ^{^[106]} Interestingly, the Court does not present this as an innovation, but as a correct reading of Salduz . ^{^[107]} As the separate opinion of Judges Sajó and Laffranque in Ibrahim and Others ^{^[108]} abundantly demonstrates, this is hard to maintain.

46. The preceding paragraphs show that, contrary to the Court’s assertions, the reasoning in Ibrahim and Others contradicts a well-established case-law that ended in Dvorski . Although claiming that Ibrahim and Others was “clarifying” or “fleshing out” the Salduz criteria, it was in fact abandoning that case-law and, with it, the rationale held by the Court throughout the five decades that separate Nielsen v. Denmark and Ibrahim and Others . Worse still, this U-turn in the Court’s case-law was not limited to Article 6 § 3 (c), but also extended to (d).

47. In the case-law concerning the admission of evidence obtained through Article 3 violations, the Court has consistently applied a bright red-line rule, invalidating procedures that rely on such evidence. ^{^[109]} Less clear is the Court’s stance regarding the admission of evidence in violation of Article 8 of the Convention. ^{^[110]} In cases concerning examination of witnesses under Article 6 § 3 (d), however, the Court has sometimes applied an overall fairness assessment. ^{^[111]} Admittedly, in order to save the Criminal Justice Act 2003 and satisfy the “provocative” criticism from the Supreme Court of the United Kingdom in Horncastle , ^{^[112]} Al-Khawaja and Tahery departed from the “sole or decisive” rule, according to which a trial was unfair if a conviction was based solely or to a decisive extent on evidence provided by a witness whom the defendant had been unable to question at any stage of the proceedings. In fact, the Grand Chamber was contradicting a solid case-law on the absolute nature of the “sole and decisive” rule, in place since the judgment in Doorson . ^{^[113]} Such an “inflexible” approach involving the non-attendance of prosecution witnesses at trial and the subsequent admission of the absent witness’s untested statement as evidence would, the Court argued, run counter to its traditional stance on the need to assess the fairness of the proceedings as a whole. ^{^[114]} Since everything is now negotiable, the Court is not establishing a clear threshold beyond which a conviction becomes impermissibly based on non-tested pre-trial testimonial evidence. Even evidence banned in the Middle Ages, such as the statement of a dying person, can still be used. ^{^[115]}

48. Less than four years after the delivery of the Grand Chamber judgment in the case of Al-Khawaja and Tahery , it had to intervene again in the case of Schatschaschwili v. Germany , since it remained unclear whether a trial would be considered unfair if there were not good reasons for a prosecution witness’s non-attendance alone, even if the untested evidence was neither sole nor decisive. The cure was worse than the disease. In a profoundly divided judgment, the Grand Chamber decided that the absence of good reasons for the non-attendance of a prosecution witness could not in itself be conclusive for the unfairness of a trial. ^{^[116]} As Judges Spielmann, Karakaş, Sajó and Keller denounced, such application of the three-step examination would imply its redundancy so long as the overall fairness test was fulfilled, which would not only fail to provide any guidance to the national authorities as to the appropriate application of the Al-Khawaja and Tahery test, but indeed would give them too much leeway. ^{^[117]} To complicate matters, the then majority added that sufficient counterbalancing factors were still needed if the untested pre-trial testimonial evidence carried significant weight. ^{^[118]} The present judgment closes the circle, in so far as it takes an overall approach to the examination of the fairness of the proceedings in the event of non-attendance of defence witnesses.

49. Even if, for the sake of argument, one were to agree with the majority regarding the need for flexibility in the Court’s case-law on Article 6 of the Convention, the whole enterprise risks logical inconsistency. The fairness of a procedure can only be a procedural assessment: a procedure is not fair because the guilty were convicted or the innocent acquitted, for the simple reason that there is no way to ascertain legally whether the guilty were guilty apart from the procedure itself. Criminal justice is not about ontological justice and judges in criminal trials are not Gods. A procedure is fair when fundamental procedural rules are respected. In this sense, it is difficult to know what the assessment of whether a procedure is fair overall may mean in practice. It could mean that the Court is supposed to examine whether or not the restriction to the right at hand impaired the establishment of the material truth, but this would necessarily imply that the Court has an extra-procedural account of the material truth, which is legally impossible.

50. A more modest account of overall fairness fails in a similar way. One might say that the violation is “cured” when it did not change the final result of the procedure – when the applicant would have been convicted and sentenced in the same manner had the procedure been flawless. But this is logically impossible, even if one concedes that this assessment can be conducted without an illegitimate extra-procedural account of the material truth. In performing this test, the Court is asked to examine the fairness of a procedure that should not have existed the way it did: for example, had the defendant had counsel of his or her choice, or had the defendant represented him or herself, then the procedure would probably have taken a different path, the defendant would have made different statements, different items of evidence would have been admitted... Ultimately, as the United States Supreme Court has put it, “[h]armless-error [or, in the Court’s jargon, “overall fairness”] analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe”. ^{^[119]}

51. Indeed, the Court itself has long recognised the logical obstacles to this kind of assessment. As early as 1980, the Court was examining the case of a convicted person who had received no effective assistance from the lawyer provided by the State. The Government in the case argued that the lack of legal assistance was irrelevant, since it would not have changed the applicant’s fate. As argued by the respondent State, “for there to be a violation of Article 6 § 3 (c) ... the lack of assistance must have actually prejudiced the person charged with a criminal offence”. ^{^[120]} The Court expressed its disagreement in principled terms: “nothing in Article 6 paragraph 3 (c) indicate[s] that such proof [that effective assistance from a lawyer would have benefitted the applicant] is necessary; an interpretation that introduced this requirement into the subparagraph would deprive it in large measure of its substance. More generally, the existence of a violation is conceivable even in the absence of prejudice”. ^{^[121]} Even more explicitly, in John Murray , the Court replied to a similar argument by the Government, making clear that “it is not for the Court to speculate on what the applicant’s reaction, or his lawyer’s advice, would have been had access not been denied during this initial period”. ^{^[122]} The Grand Chamber replicated this reasoning almost literally in Salduz . ^{^[123]}

52. Even ignoring these fatal logical flaws in the majority’s reasoning in the present judgment, the overall fairness test is inherently subjective and therefore extremely malleable. This feature renders it a very ill-suited standard for the Court to use in an even minimally predictable fashion. For the same reason, this standard is especially ill-suited to guiding domestic courts when assessing compliance with the Convention: telling a domestic court that procedures should be conducted in an “overall fair” manner does not add much to the goodwill of domestic judges. Reasonable disagreements may exist among the domestic courts, among those which conduct the procedure and those which revise it, and between these courts and the Court, as to what “fair” means in any given context, or in general. Disqualifying domestic assessments of “fairness” seems less compatible with the subsidiarity principle than simply ascertaining discrete violations of specific procedural rights as these are set out in the Convention that Member States ratified. Allowing States to breach strict norms such as those of Article 6 § 3 in favour of such a fuzzy concept invites, rather than prevents, violations to Article 6.

53. If any evidence of the malleability of the “overall fairness” concept is needed, one may look at Ibrahim and Others , where the Court fleshed out a “non-exhaustive list of factors” ^{^[124]} relevant for the fairness analysis. These factors include, among “[o]ther relevant procedural safeguards afforded by domestic law and practice”, specific considerations (such as defendants’ age and mental capacity) but also other “factors” which are as broad as the fairness assessment itself. The Court states, for example, that it will have regard to “the legal framework governing the pre-trial proceedings” and “the quality of the evidence... taking into account the degree and nature of any compulsion”. This is a map of the size of the territory: apparently accurate, but in reality useless in terms of providing any guidance. This is shown by the fact that not even the Court itself reviewed all these elements when conducting the fairness assessment a year later in Simeonovi v. Bulgaria. ^{^[125]} The lack of legal certitude is compounded in the case of a refusal by defence witnesses to attend, because the Ibrahim and Others list of the ten relevant factors for the assessment of the overall fairness of the proceedings ^{^[126]} was totally ignored in the present case, and no effort was made to replace it by an alternative list.

54. If the lack of clarity already makes the overall fairness test a dangerous blank cheque for domestic courts, there is, however, one particularly dangerous factor that deserves especial attention: “[t]he weight of the public interest in the investigation and punishment of the particular offence in issue”. ^{^[127]} One need not take an extremely deontological stand to understand why this kind of reasoning should be prohibited in a court of law. The gravity and nature of offences may prompt States to adopt particular procedural provisions, and, specifically, nothing in the Convention should be understood to prevent countries from fighting terrorism, organised crime and other serious forms of crime. However, listing this factor among those relevant to assessing the fairness of proceedings is very troubling. I note that the Ibrahim and Others judgment did not refer to the public interest in the investigation and punishment of “the kind of offence in issue”, but of “the particular offence in issue”. This could be read as implying that defendants are entitled to different degrees of fairness in the procedures against them not only because of the kind of offence they are indicted for, but also because of the “public interest” their case happened to arouse. This would be the ultimate paradigm of “street justice”, more akin to vigilante punishment than to a lawful trial. Even if I think that the Court could not possibly have intended such a meaning, it is telling that in a paragraph which is envisioned as pedagogical this kind of ambiguity can be found. However, it is unclear what else the Court could have meant. It could have meant that States are granted some discretion in imposing more restrictive procedural rules to crimes that involve especially sensitive issues. If that were the case, however, this issue should have been assessed in the previous stage, that is, when evaluating the reasons the Government provided for the restriction. Taking the public interest into consideration twice entails a double-counting – or, in other words, “half-counting” the importance of the fairness of the trial.

55. Relatedly, assessing the overall fairness of a procedure implies, in the Ibrahim and Others logic, that the Court should analyse the materials in the criminal file, ^{^[128]} notably the evidence used for conviction, and make a twofold assessment. First, whether the evidence in the file would have been there had the applicant’s right to a lawyer not been infringed. And second, whether that evidence would reasonably have led to conviction, even if the defendant had had legal assistance of his or her own choice. These hypothetical assessments cannot be conducted without meaningful engagement with the domestic procedural law, such as that governing standards of proof and admissibility of evidence. This seems a task that the Court is not best-equipped to carry out while simultaneously respecting Member States’ authority in designing their own procedural systems.

56. Lastly, if the Court’s decisions are to provide any guidance to domestic authorities, it is unhelpful to ask domestic courts to conduct proceedings on the basis of overall fairness. This is not only because of the fuzziness of the concept but, more fundamentally, because courts cannot know at any given point of time how a given set of proceedings will continue in the future, since different bodies are charged with different tasks at different moments. For example, a judge or public prosecutor who does not allow the defendant to have access to a lawyer of his or her choice while conducting a preliminary investigation cannot possibly know in advance whether the rest of the proceedings, carried out in part by different bodies, will be conducted “sufficiently fairly” to compensate for a putative violation of the Convention. The impossibility of assessing the overall fairness of a procedure from inside the procedure itself should be a strong indicator that this is a poor standard for the Court to uphold.

The Convention principle of immediacy

57. All of the above applies to the rights laid down in Article 6 § 3 (d). ^{^[129]} Systematically, these rights are manifestations of the fairness principle, not just mere recommendations. They are also rooted in a European consensus on the principle of the immediacy of the evidence ( Unmittelbarkeitsgrundsatz ), from which the rule against hearsay is derived. In the light of the principle of immediacy, the close connection between the testimonial evidence and the court is philosophically perceived to provide the best possible approximation towards the truth. These principles are accepted in Europe and beyond, throughout different types of criminal-law systems, irrespective of whether and to what extent they are adversarial or inquisitorial. Although the manner in which the principle of immediacy is implemented in each national system differs, the acceptance of the principle as such is not denied. ^{^[130]} In the light of this consensus and the Court’s long standing case-law on the subject, the principle of immediacy imposes the following guidelines for trial courts, giving them not only a retrospective standard of review, but also a standard for the admissibility of prospective evidence at trial:

Guideline 1: The principle of immediacy requires that testimonial evidence be produced in the proceedings before the competent trial court, and therefore all viable measures, and if necessary, forceful measures, should be taken to bring absent witnesses to the trial hearing. ^{^[131]}

Guideline 2: The test for assessing any request for the attendance or cross-examination of witnesses, which is identical for the defence and the prosecution, relies on the individual witness’s prima facie relevance to the outcome of the trial and to the position of the requesting party. This is an exclusively ex ante test. Hence, in assessing any request for attendance or cross-examination of witnesses, the trial court is not allowed to anticipate the result of the examination of the evidence – except in favour of the defence.

Guideline 3: Only exceptionally may testimonial evidence produced at the pre-trial stage in criminal proceedings be read out in court and used as a ground in the judgment. The principle of legality in criminal procedure requires an exhaustive legal catalogue of good reasons for not calling or cross-examining a witness during the trial and for reading-out an absent witness’s testimony at the trial. This catalogue of good reasons includes two categories of witnesses: unavailable witnesses, and witnesses in need of protection. The category of unavailable witnesses has the following sub-categories: (1) a deceased witness ^{^[132]} ; (2) the physical or mental incapability or illness of the witness ^{^[133]} ; (3) the witness’s disappearance ^{^[134]} ; (4) residence or travel abroad of the witness ^{^[135]} ; (5) the statutory right to remain silence as a co-accused ^{^[136]} ; (6) the privilege against self-incrimination ^{^[137]} ; and (7) the statutory exemption relating to a witness’s family relationships. ^{^[138]} The category of witnesses in need of protection has the following two sub-categories: (1) need to protect the life or limb of a witness ^{^[139]} ; or (2) the health of a vulnerable witness. ^{^[140]} The catalogue of these grounds must distinguish between testimonial evidence produced before a judge, public prosecutor or the police, since the evidence produced before the police or a prosecutor at the pre-trial stage cannot be equated, in its reliability and accuracy, with the evidence produced before the judge at the pre-trial stage. The catalogue of good reasons for reading out an absent witness’s testimony at the trial must be more expansive when a judge has collected evidence at the pre-trial stage, and less expansive when it has been collected by a prosecutor or the police.

Guideline 4: When there is a good reason for not calling or cross-examining a witness and for the pre-trial witness’s testimony being read out in court, the trial court must ensure that sufficient counterbalancing measures were or are taken to compensate for the handicaps imposed on the defence, such as a special pre-trial hearing at which the witness’s evidence was taken under adversarial conditions. ^{^[141]} Neither a direction to the jury that the untested statement should be given less weight, ^{^[142]} nor the possibility that the defendant challenge or rebut the testimony of the absent witness, by giving evidence himself or herself or by examining another witness, suffices. ^{^[143]}

Guideline 5: Even when sufficient counterbalancing measures were taken to compensate for the handicaps imposed on the defendant, the trial court must not base a judgment, alone or to a decisive extent, on the pre-trial testimony of an absent witness. ^{^[144]} Such reasoning would negate the essence of the principle of immediacy.

Guideline 6: When the trial court is faced with a contradiction between the pre-trial and the trial statements of a witness, the principle of immediacy requires that the latter should be given greater weight.

Guideline 7: These are bright red lines that cannot be crossed by a trial court, under pain of leading to a violation of the principle of immediacy and consequently the unfairness of the trial. No evidence can be taken into account by the trial court in breach of the above guidelines, unless domestic law provides for the possibility of an agreement between the prosecution and the defence regarding the reading out of pre-trial testimonial evidence, and both parties agree to that reading.

Application of the Convention standards to Witness A.

58. Witness A. was an officer of the Organised Crime Department and always acted on instructions from his superiors. The Government themselves described his role as follows: “Therefore, Mr A.’s role in the events in question was limited to his technical facilitation of operative-search activity in respect of the applicant.” ^{^[145]} In fact, there was a covert operation against the applicant, and witness A. acted as a covert agent whose activities led to the collection of the entire body of evidence against her, mostly through video recordings made in the dormitory room she shared with V. and Ku.

59. The categorisation of witness A as a defence witness is problematic. Although it had been on the applicant’s behalf that A. was questioned as a witness at the pre-trial stage, it was the public prosecutor who moved to have his testimony read out at the trial and the trial court relied on this written testimony to convict the applicant. This problematic categorisation is not excluded by the fact that the national courts did not explore the probative meaning of the testimony given by A. The particularity of the situation in the present case lies in the fact that the conviction relied on the assumption that no entrapment or other kind of police-induced circumstance had occurred which could have resulted in the acquittal or exoneration of the applicant.

60. The applicant herself reiterated during the trial that she had insisted on a confrontation with witness A., but to no avail. ^{^[146]} No steps were taken to establish the whereabouts of witness A., who had taken part in the covert operation against the applicant, and to have him attend the trial. ^{^[147]} The trial court merely concluded that all the evidence against the applicant was admissible, and the Russian Supreme Court upheld that finding on appeal without any further elaboration. With regard to the applicant’s submission on entrapment, the Supreme Court merely stated that the appeal bench was “unable to agree” with the defendant, without adding any further considerations. ^{^[148]}

Neither the applicant nor her lawyers were present at the questioning of witness A. during the pre-trial phase. The defence was not given an opportunity to confront A. at the pre-trial stage or during the trial. Since there was no waiver of the examination of witness A. or valid consent to reading out the absent witness’s testimony under Article 281 § 1 of the Russian Code of Criminal Procedure, section two of the same Code applied. It was for the trial court to verify whether the reasons for witness A.’s non-attendance were valid and, if they were not, to ensure that witness A. appeared before it, for example by issuing orders compelling him to appear.

61. It is plain that no good reason can be given to justify the failure to call witness A. to testify at the hearing as required by section two of Article 281. The Russian Code of Criminal Procedure explicitly provides examples of good reasons, as well as an omnibus clause referring to “other exceptional circumstances”. These come close to the criteria that were established by the Court in Al-Khawaja and Tahery . Besides, like many other provisions in European codes of criminal procedure, the provision in the Russian code does not differentiate between witnesses on behalf of the defence and those appearing for the prosecution.

62. In this context the Court has held “that where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police incitement must be excluded.” ^{^[149]} Applying these principles to the present case results in a special duty on the national court to have the evidence on whether police incitement took place closely examined, in order then to be able to exclude the respective part of the evidence. This duty did not arise from the applicant’s defence concerning her perception of “provocation” by law-enforcement agents alone, but also from A.’s deep involvement in the case, as became clear from his own pre-trial statement as well as the videotapes collected from a hidden surveillance camera in the applicant’s flat. Another important hint which should have made clear the obligation to investigate the possibility of witness A.’s involvement in the offences was the testimony from witness V., who stated that some of the books on “the way of jihad” had been given to the applicant by her acquaintance A. ^{^[150]}

63. Finally, witness V. gave contradictory statements during the pre-trial and the trial questioning ^{^[151]} and witness Ku. retracted the statements made by her at the pre-trial stage, instead stating that the applicant had not incited her to become a suicide bomber. ^{^[152]} In sum, witness V. stated during the trial that the applicant had been preparing her and Ku. to become suicide bombers and witness Ku. denied V.’s statement, stating that the applicant had not incited her to become a suicide bomber. In view of these contradictions, the pre-trial statements of both witnesses were read out during the trial. Ultimately, the trial court made use of the pre-trial statements by witnesses V. and Ku. and of the statements made at trial by V. ^{^[153]}

64. The majority conclude that the applicant was able to conduct various other procedural measures, without referring to the important question of what the cross-examination of witness A. would – at best – have meant for the applicant’s defence. The procedural aim of confrontation could neither be reached by commenting on his pre-trial statements nor, for example, by questioning other witnesses about the events in which A. had been involved, as the majority claim. ^{^[154]} The fact that other procedural rights of the defendant were upheld by the court should be considered as a matter of course, not as an argument for lowering the threshold for assessing whether the court violated another of the defendant’s rights. These rights are not to be confused with procedural safeguards with respect to evidence that could not be challenged by the defendant. With this argument the majority – despite their conviction that the national court is better placed than the Court to decide about the necessity of evidence – contravene the prohibition on anticipating evidence ( Verbot der Beweisantizipation ). By using the argument that the applicant could have used these other kinds of evidence, they anticipate that the result of witness A.’s cross-examination would not have changed the content of his testimony in relation to the pre-trial stage.

Application of the Convention standards to witnesses B. and K.

65. B. and K. were attesting witnesses. As a matter of principle, the status of an attesting witness is problematic in the light of the Convention. According to Article 60 of Criminal Procedure Code of the Russian Federation, an attesting witness is “a person, disinterested in the outcome of the criminal case”; he or she is entitled to take part in an investigative action and make comments on it, and these comments are to be entered into the record. An attesting witness is also entitled to familiarise himself or herself with that record. ^{^[155]} Since there are no legal requirements as to the legal qualification of the attesting witness, he or she may not be in a position to comment on, let alone verify, the legality of the procedure adopted by the investigator. This evidently empties the role of the attesting witness of much of its interest. Even where he or she does possess a legal qualification, the attesting witness evidently cannot replace the guarantee of legal assistance to the accused or to suspects who have not been charged, for the obvious reason that he or she is chosen by the investigator. Furthermore, there is a serious risk of misuse of this witness by the prosecutorial side, since it can be easily anticipated that the investigator will choose individuals who have his or her trust and who will not create problems. Moreover, when brought and questioned before the trial court, an attesting witness may be led to reproduce what he or she heard from the material witnesses or the accused or the suspect during the investigative action. Such questioning would correspond to misuse of the attesting witness as a hearsay witness at the trial. In order to comply with the prohibition on hearsay, the questioning of attesting witnesses would have to be limited to the circumstances surrounding the investigative action and its conduct. Finally, the Court itself has already held that the absence of attesting witnesses in court does not infringe Article 6 §§ 1 and 3 (d) of the Convention, since “it appears that the contribution by attesting witnesses to the proceedings was limited to statements on the manner of conducting the investigative measures” and “their depositions did not serve to a material degree as a basis for the applicants’ convictions”. ^{^[156]}

66. In the case at hand, attesting witnesses B. and K. were invited to attend the search of the applicant’s bag. The criteria for inviting these specific persons are unknown, as are their qualifications for that purpose and whether they were sworn in. They were not questioned during the preliminary investigation and no confrontation took place between them and the applicant. In due course the defence lawyers requested their attendance at the trial, in order to determine the exact circumstances of the search of the applicant’s bag. The applicant did not insist that these witnesses be questioned, but acceded to the motion of her lawyers, who argued that the questioning was necessary. ^{^[157]} Without any justification, the trial court rejected the defence motion. In its judgment, the trial court did not mention witnesses B. and K, but only referred to the testimony of the patrol officers and officers at the police station, who denied the allegation that the explosives had been planted in the applicant’s bag, and to the official report, according to which the personal search had preceded the taking of fingerprints. ^{^[158]} The Supreme Court did not consider the defence request unsubstantiated or unreasoned, but argued that the attendance of witnesses B. and K. was not necessary, because the applicant claimed that the explosives had been planted in her bag before their arrival. ^{^[159]} Like the Government, ^{^[160]} the Russian courts prejudged the requested witnesses’ testimony, adducing that they would in any case be unable to provide any evidence beyond that already available to the courts. ^{^[161]}

67. Contrary to the majority’s claim, ^{^[162]} it is not true that the defence request to examine witnesses B. and K. during the trial “did not contain any particular factual or legal arguments”: it contained the factual subject matter of the questioning (the exact circumstances of the search) and its legal purpose (establishing whether the explosives had been planted in the applicant’s bag) [163] . Furthermore, when requesting the attendance of defence witnesses, the defence does not have to “elaborate in concrete terms” on how their testimony would assist the case for the defence. ^{^[164]} Such elaboration would equate to asking the defence to surrender its trial strategy and particularly its questioning strategy. More troubling still, no such elaboration is demanded from the prosecution. ^{^[165]} It is patent that the majority demand from the defence much more than they require the prosecution to do. Ultimately, the majority contradict themselves, because they admit that, on the basis of the defence request alone, the attesting witnesses’ testimony “would have ranged beyond the mere modalities of the search and the information subsequently entered in the police records”, ^{^[166]} and therefore acknowledge their relevance as defence witnesses; at the same time, however, they affirm that “further reasons for the examination of these witnesses would have been required”. ^{^[167]}

68. The majority’s uneven approach becomes even more questionable when, in order to justify the non-attendance of witnesses B. and K., they embark on an open-ended criticism of the defence strategy, pointing twice to the defence’s “general passivity” ^{^[168]} during the examination of the police officers. Such virulent criticism, which goes far beyond the prima facie pertinence test, is unacceptable. When assessing the request for the attendance of defence witnesses, it is absolutely illegitimate to extrapolate conclusions that are negative for the defence from its strategy in the cross-examination of prosecution witnesses. The majority here mix apples and oranges. In so doing, they assume that “the significance of the attesting witnesses’ possible testimony ... from the perspective of the trial court, was only remotely relevant to the subject matter of the accusation.” ^{^[169]} In other words, they contravene the prohibition on anticipation of the evidence. Even worse, in so doing, the majority verify the allegation of planted evidence only by giving credence to the very police officers who could possibly be responsible for such planting of evidence. This is simply not fair. Such blatantly unfair treatment of the defence is not compensated by the promised “overall fairness” assessment.

69. In fact, in the eyes of the majority, the overall fairness test is ultimately applied, not to the proceedings, but to the merits of the trial court’s judgment. In condoning the decision not to examine witnesses B. and K., the majority invoke the fact that the conviction was based “on a considerable body of evidence”. ^{^[170]} The alleged fairness of the outcome of the proceedings justifies the shortcomings in the procedure. The end justifies the means. The Court is going back hundreds of years in time, ignoring the fact that any short-term gains associated with more attainable convictions in some high-profile cases, such as the present one, must be assessed against longer-term systemic losses.

70. In this context, the subsequent allegation that the applicant, “assisted by professional lawyers, was able to conduct the defence effectively, confront and examine witnesses testifying against her, comment without hindrance on the incriminating evidence, adduce evidence she considered relevant and to present her account of the events to the domestic courts” means little, but the little it means is dangerous. It is dangerous that respect for certain other procedural rules can be used as an excuse to justify a failure to comply with Article 6 § 1 (d). It is dangerous because it assumes that compliance with Article 6 § 1 (d) would have not have changed the outcome. As if the majority had divinatory power to perceive material truth beyond the limits of the procedure and to determine, in all their inexplicable, transcendental discretion, which rule of procedure should apply in each individual case. Human justice playing God’s justice is justice at its worst.

Conclusion

71. Alarm bells should be ringing among lawyers as a result of this judgment. It is particularly striking that the majority state that the applicant was able to “adduce evidence she considered relevant”, ^{^[171]} as if this had been the most impeccable of trials. The true novelty of this judgment is twofold: the enhanced obligation for the defence to “elaborate in concrete terms” on how the defence witness’s testimony would assist the case for the defence, and the corrosive expansion of the overall fairness test to the assessment of alleged violations of the right to examine defence witnesses. This test is nothing more than a blank cheque for the domestic courts to do whatever they want with Article 6 § 3 rights and for the Court to confirm the outcome of the proceedings. After the weakening of the right to a confrontation with prosecution witness in the Al-Khawaja and Tahery and Schatschaschwili judgments and the eroding of the right to legal representation in Ibrahim and Others , the present judgment on the non-attendance of defence witnesses closes the circle, by revisiting the Perna test on the basis of the overall fairness test. With the unfortunate triangle Schatschaschwili/ Ibrahim and Others/M urtazaliyeva , the Court erroneously pursues the double path of persistently watering down defence rights and “deferential[ly]” ^{^[172]} abandoning its supervisory powers to the domestic courts. The silent assault on the rights of the defence in criminal procedure has been incontrovertibly stepped up, to such an extent that one wonders where it will stop.

[1] . See Perez v. France [GC], no. 47287/99, ECHR 2004‑I.

[2] . See, for example, Stanford v. the United Kingdom , 23 February 1994, Series A no. 282‑A.

[3] . See, for example, Saunders v. the United Kingdom , 17 December 1996, Reports of Judgments and Decisions 1996‑VI, where the Court stated that the right to silence lay at the heart of the notion of a fair procedure under Article 6.

[4] . In this dissenting opinion, I refer to the witness in female form and consequently speak of “her” questioning or hearing, while, in referring to a defendant, I regularly use the male form and consequently speak of “his” rights. This choice is made purely for the sake of the legibility of the dissenting opinion, since a constant reference to “his or her” rights or “her or his” rights would make it less readable.

[5] . For example, if the defence asserts that 10 people were present who can confirm the defendant’s alibi and three have already been heard, upon its motion, in this respect, it will not be necessary to hear the other seven.

[6] . For example, hearing a person who was allegedly present at an event will be more convenient in order to establish the course of events than hearing a person who is allegedly familiar only with some of its remote consequences.

[7] . In respect of arguments for the autonomy of the defence, I refer to my dissenting opinion in Correia de Matos v. Portugal [GC], no. 56402/12, 4 April 2018.

[8] . Any expectation that the defence motion to hear witnesses on the defendant's behalf be thoroughly substantiated is closely linked to the issue of defence disclosure, namely the duty of the defence to reveal background and any other information it might be in possession of in respect of the evidence to be heard in court. Any such duty is highly controversial and considered to be problematic, both in the theory and practice of international criminal tribunals, from the point of view of basic principles of criminal law, notably the right to remain silent and the presumption of innocence. See, for example, A. L.-T. Choo, ‘“ Give Us What You Have”—Information, Compulsion and the Privilege against Self-incrimination as a Human Right ’ in P. Roberts and J. Hunter, Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart: Oxford, 2012); also Masha Fedorova, Disclosure of Information as an Instrument Ensuring Equality of Arms in International Criminal Proceedings , in: Mayeul Hiéramente, Patricia Schneider (ed.) The Defense in International Criminal Trials: Observations on the Role of the Defense at the ICTY, ICTR and ICC (1st edition 2016). For international jurisprudence, see, for example, the decision of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Tadić , (decision on Prosecution Motion for Production of Defence Witness Statements, IT-94-I-T, 27 November 1996).

[9] . Compare the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Krstić (decision on application of subpoenas, Case no. IT-98-33-A, 1 July 2003, § 11).

[10] . See, among other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017.

[11] . See, for example, Kamasinski v. Austria, 19 December 1989, Series A no. 168; Hadjianastassiou v. Greece , 16 December 1992, Series A no. 252; and Vacher v. France , 17 December 1996, Reports 1996‑VI.

[12] . See, for example, Barberà, Messegué and Jabardo v. Spain , 6 December 1988, Series A no. 146.

[13] . See, for example, Pullicino v. Malta , (dec.), no. 45441/99, ECHR 2000-II.

[14] . See, for example, Bulut v. Austria , 22 February 1996, Reports 1996‑II; Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005‑IV; and also Omkar Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights , Intersentia, 2017.

[15] . This principle is closely connected to the principle of equality of arms. It entails that each party must have in principle the opportunity to have knowledge of and comment on all evidence adduced or observations filed with a view of influencing a court's decision – see Meftah and Others v. France [GC], nos. 32911/96 and 2 others, ECHR 2002‑VII.

[16] . See, for example, Stanford v. the United Kingdom , cited above.

[17] . See, for example, Ruiz Torija v. Spain , 9 December 1994, Series A no. 303‑A.

[18] . See, for example, Cerovšek and Božičnik v. Slovenia , nos. 68939/12 and 68949/12, 7 March 2017.

[19] . See, for example, Borgers v. Belgium , 30 October 1991, Series A no. 214 B.

[20] . See, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, 20 October 2011

[21] . Ibrahim and Others v. the United Kingdom , cited above.

[22] . Bykov v. Russia [GC], no. 4378/02, 10 March 2009.

[23] . For an overview, see my joint concurring opinion with Judge Pinto de Albuquerque in Dragoş Ioan Rusu v. Romania , no. 22767/08 , 31 October 2017.

[24] . See, for example, Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010.

[25] . On the issue of examination of assertions of police misconduct, see, for example, David N. Dorfman, Proving the Lie: Litigating Police Credibility , 26 Am.J.Crim.L. 455 (1999), http://digitalcommons.pace.edu/lawfaculty/533/ .

[26] . Perna v. Italy [GC], no. 48898/99, ECHR 2003-V.

[27] . Compare Makeyev v. Russia , no. 13769/04, § 37, 5 February 2009, and Khametshin v. Russia , no. 18487/03, § 41, 4 March 2010.

[28] . See paragraph 63 of the judgment.

[29] . See paragraph 67 of the judgment and compare Bocos-Cuesta v. the Netherlands , no. 54789/00, § 66, 10 November 2005.

[30] . Hermi v. Italy [GC], no. 18114/02, § 79, ECHR 2006‑XII.

[31] . Paragraph 57 of the judgment.

[32] . Paragraph 108 of the judgment.

[33] . Contra, Bagaryan and Others v. Russia (dec.) , no. 3343/06, § 5, 12 November 2013, and Koromchakova v. Russia , no. 19185/05, 13 December 2016, §§ 17-20.

[34] . Perna v. Italy , cited above.

[35] . Al-Khawaja and Tahery v. the United Kingdom [GC] , nos. 26766/05 and 22228/06, ECHR 2011.

[36] . Schatschaschwili v. Germany [GC] no. 9154/10, ECHR 2015.

[37] . The Court is not always consistent with this division. In Pello v. Estonia (no. 11423/03, §§ 26 and 30, 12 April 2007), the Perna criteria were applied to prosecution witnesses.

[38] . They are also not in line with international criminal law. See Prosecutor v. Orić , Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case (Appeals Chamber), 20 July 2005, paragraphs 7-8; Prosecutor v. Karemera et al. , Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15 bis (D) (Appeals Chamber), 20 April 2007, paragraph 27; Prosecutor v. Nyiramasuhuko et al. , Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi's Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List (Appeals Chamber), 21 August 2007, paragraph 26; Prosecutor v. Karemera et al. , Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008 (Appeals Chamber), 30 January 2009, paragraph 29; Prosecutor v. Ngirabatware , Case No. ICTR-99-54-T, Decision on the Defence Motion for Reconsideration or Certification to Appeal the Oral Decision of 13 July 2011, and on the Reduction of the Defence Witness List (Trial Chamber II), 26 August 2011, paragraph 56.

[39] . This is the situation of Cardot v. France , no. 11069/84, Series A no. 200.

[40] . Kostovski v. the Netherlands , 20 November 1989, § 40, Series A no. 166, and Damir Sibgatullin v. Russia , no. 1413/05, § 45, 24 April 2012.

[41] . Lucà v. Italy , no. 33354/96, § 41, ECHR 2001 II, and Kaste and Mathisen v. Norway , nos. 18885/04 and 21166/04, § 53, ECHR 2006 XIII. The applicant ignored this case-law while calling for a “more flexible approach having regard to the substance of a given witness’s depositions …” (the applicant’s observations of 20 November 2017, paragraph 24).

[42] . This is also the standard of international criminal courts. See Prosecutor v. Ngirabatware , Case No. ICTR-99-54-T, Decision on the Defence Motion for Reconsideration or Certification to Appeal the Oral Decision of 13 July 2011, and on the Reduction of the Defence Witness List (Trial Chamber II), 26 August 2011, paragraph 47.

[43] . Paragraph 137-138 of the judgment.

[44] . Perna , cited above, § 29.

[45] . Paragraph 141 of the judgment.

[46] . Perna , cited above, § 32.

[47] . Contrast Guilloury v. France , no. 62236/00, § 55, 22 June 2006, and Erich Priebke v. Italy (dec.), no. 48799/99, 5 April 2001.

[48] . Paragraph 143 of the judgment. However, this has not prevented the Court from using, from time to time, the old formula of “necessary” (see Miminoshvili v. Russia , no. 20197/03, § 122, 28 June 2011).

[49] . Paragraph 160 of the judgment.

[50] . Paragraph 161 of the judgment.

[51] . Paragraphs 73 and 74 of the judgment.

[52] . Thus, I find that the passage in § 105 of Tarasov v. Ukraine , no. 17416/03, 31 October 2013, is problematic.

[53] . See Jalloh v. Germany [GC] , no. 54810/00, §§ 99 and 108, 11 July 2006.

[54] . Paragraph 171 of the judgment. In paragraph 174 of the judgment the majority refer to “specific legal or factual arguments”. It is not clear if the words “particular” in paragraph 171 and “specific” in paragraph 174 are intended to have the same meaning.

[55] . Topić v. Croatia , no. 51355/10 , § 42, 10 October 2013.

[56] . Perna , cited above, § 32.

[57] . Paragraph 164 of the judgment.

[58] . Vidal v. Belgium , 22 April 1992, §§ 34 and 35, Series A no. 235‑B.

[59] . Al-Khawaja and Tahery , cited above, §§ 120-125, and Schatschaschwili , cited above, §§ 119-122.

[60] . On this principle in the light of the Convention, see Omkar Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights , Cambridge, Intersentia, 2017; Summers, Fair Trials: The European Criminal Procedure Tradition and the European Court of Human Rights , Oxford, Hart, 2007; Trechsel, Human Rights in Criminal Procedure , Oxford, Oxford University Press, 2005; and Wasek-Wiaderek, The Principle of “Equality of Arms” in Criminal Procedure under Article 6 of the European Convention on Human rights and its Functions in Criminal Justice of Selected European Countries: A Comparative View , Leuven, Leuven University Press, 2000.

[61] . This is also the case-law of the international criminal courts. See Prosecutor v. Nyiramasuhuko et al. , Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi's Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List (Appeals Chamber), 21 August 2007, paragraphs 18-19; Prosecutor v. Karemera et al. , Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse's Appeal from the Trial Chamber Decision of 17 September 2008 (Appeals Chamber), 30 January 2009, paragraphs 19-21.

[62] . Vidal , cited above, §§ 34 and 35, Popov v. Russia , no. 26853/04, § 188, 13 July 2006, and Pello , cited above, § 35. Thus, the passage in §§ 74-75 of Dorokhov v. Russia , no. 66802/01, 14 February 2008, is unacceptable. It is incomprehensible that the Court considered “regrettable” the failure of the trial court to duly examine the defence request to call two witnesses who were “clearly relevant” and yet found no violation. Wrongly, the Court examined the probative value of the unexamined witnesses’ statements against the body of evidence against the applicant, and concluded that the absent witnesses’ statements would not have led to the applicant’s acquittal.

[63] . Nechto v. Russia , no. 24893/05, § 127, 24 January 2012.

[64] . Hence, the passage in § 92 of Tymchenko v. Ukraine , no. 47351/06, 13 October 2016, is wrong.

[65] . Prosecutor v. Nzabonimana , Case No. ICTR-98-44D-T, Decision on Nzabonimana's Extremely Urgent Motion for Reconsideration and/or Certification to Appeal the “Consolidated Decision on Prosecutor's Second and Third Motions to Compel the Defence to Comply with the Trial Chamber Decision of 3 February 2010” rendered on 26 March 2010 (Trial Chamber III), 7 May 2010, paragraph 32.

[66] . Jorgic v. Germany , no. 74613/01, §§ 86 and 88, 12 July 2007.

[67] . In this regard, I find that the passages in § 70 of Sergey Afanasyev v. Ukraine , no. 48057/06 , 15 November 2012, and §§ 81-82 of Janyr v. the Czech Republic , no. 42937/08 , 31 October 2013, are simply wrong.

[68] . International criminal tribunals can conclude that hearing the testimony of a witness called by the defence is “excessive” or “irrelevant” on the basis of their examination of the will-says/written statements of the said witness, normally attached to the brief submitted by the defence between the end of the prosecution case and the start of the defence case. See Prosecutor v. Nyiramasuhuko et al. , Case No. ICTR-98-42-T, Decision on Joseph Kanyabashi's Motions for Modification of his Witness List, the Defence Responses to the Scheduling Order of 13 December 2006 and Ndayambaje's Request for Extension of Time within which to Respond to the Scheduling Order of 13 December 2006 (Trial Chamber II), 21 March 2007, paragraph 35; Prosecutor v. Nyiramasuhuko et al. , Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi's Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List (Appeals Chamber), 21 August 2007, paragraph 16; Prosecutor v. Ngirabatware , Case No. ICTR-99-54-T, Decision on the Defence Motion for Reconsideration or Certification to Appeal the Oral Decision of 13 July 2011, and on the Reduction of the Defence Witness List (Trial Chamber II), 26 August 2011, paragraph 47.

[69] . Paragraph 148 of the judgment.

[70] . Thomas v. the United Kingdom (dec.), no. 19354/02, 10 May 2005, and the Commission’s decision in Blastland v. the United Kingdom , no. 12045/86, 7 May 1987.

[71] . Škaro v. Croatia , no. 6962/13, § 24, 6 December 2016; Tolmachev v. Estonia , no. 73748/13, § 52, 9 July 2015; Matytsina v. Russia , no. 58428/10, § 153, 27 March 2014; Beraru v. Romania , no. 40107/04, § 64, 18 March 2014; Cutean v. Romania , no. 53150/12, § 60, 2 December 2014; Pichugin v. Russia , no. 38623/03, § 199, 23 October 2012; Graviano v. Italy , no. 10075/02, § 39, 10 February 2005; and P .K. v. Finland (dec.), no. 37442/97, 9 July 2002.

[72] . Damir Sibgatullin v. Russia , no. 1413/05, § 57, 24 April 2012.

[73] . Paragraph 168 of the judgment.

[74] . Paragraph 141 of the judgment.

[75] . International criminal courts use a holistic assessment of the trial court’s management of the proceedings only in order to determine whether it accorded adequate time and facilities for the preparation of the defence ( Prosecutor v. Šainović et al ., Case No. IT-05-87-A, Judgement (Appeals Chamber), 23 January 2014, paragraphs 122, 135-137).

[76] . The brief history of this trend in the Court’s case-law can be followed in the dissenting opinion of Judges Sajó and Karakaş in Al-Khawaja and Tahery , cited above; the joint concurring opinion of Judges Spielmann, Karakaş, Sajó and Keller in Schatschaschwili , cited above; the joint partly dissenting, partly concurring opinion of Judges Sajó and Laffranque in Ibrahim and Others v. the United Kingdom [GC] , nos. 50541/08 and 3 others, ECHR 2016; and the partly dissenting opinion of Judges Sajó, Lazarova-Trajkovska and Vučinić, joined by Judge Turković, and the partly dissenting opinion of Judge Serghides in Simeonovi v. Bulgaria [GC] , no. 21980/04, 12 May 2017.

[77] . Dvorski v. Croatia [GC], no. 25703/11, 20 October 2015.

[78] . Nielsen v. Denmark , no. 343/57, Report of the Commission, 1960, § 52.

[79] . Ibid.

[80] . Deweer v. Belgium , no. 6903/75, § 56, 27 February 1980.

[81] . Barberà, Messegué and Jabardo v. Spain (plenary), no.10590/83, 6 December 1988.

[82] . Ibid., § 89.

[83] . Goddi v. Italy, no. 8966/80, § 28, 9 April 1984.

[84] . Ibid., § 28.

[85] . Correia de Matos v. Portugal [GC] , no. 56402/12, §119, 4 April 2018.

[86] . Artico v. Italy , no. 6694/74, § 32, 13 May 1980.

[87] . Ibid., § 33.

[88] . John Murray v. United Kingdom , no. 18731/91, § 63, 8 February 1996.

[89] . Ibid., § 63.

[90] . Ibid., § 65.

[91] . Ibid., § 68.

[92] . Salduz v. Turkey [GC] , no. 36391/02, §§ 12-17, 27 November 2008.

[93] . Ibid., § 52.

[94] . Ibid., § 55.

[95] . Ibid., § 56.

[96] . Pavlenko v. Russia , no. 42371/02, § 118, 1 April 2010.

[97] . Pishchalnikov v. Russia , no. 7025/04, 24 September 2009.

[98] . Ibid., § 81.

[99] . Dvorski , cited above, § 82.

[100] . Ibid., § 81.

[101] . Ibid., § 111.

[102] . Such a reading of Dvorski is made in the concurring opinion of Judges Kalaydjieva, Pinto de Albuquerque and Turković, Dvorski , §19.

[103] . Ibrahim and Others , cited above, § 257.

[104] . Ibid., § 262.

[105] . Ibid., § 264.

[106] . Ibid . , § 265.

[107] . Ibid . , §§ 260 and 262.

[108] . Ibid., joint partly dissenting, partly concurring opinion of Judges Sajó and Laffranque.

[109] . Jalloh v. Germany [GC] , cited above, § 99.

[110] . I have already argued in my partially concurring opinion in Dragoş Ioan Rusu v. Romania , no. 22767/08, 31 October 2017, together with Judge Bošnjak, for a stricter approach to the admissibility of evidence obtained in breach of Article 8 of the Convention.

[111] . Al- Khawaja and Tahery [GC], cited above, § 143, referring to Salduz v. Turkey [GC], cited above, § 50.

[112] . Mike Redmayne, “Hearsay and Human Rights: Al-Khawaja in the Grand Chamber” (2012) 75(5) Modern Law Review 865, 869.

[113] . Doorson v. the Netherlands , no. 20524/92, ECHR 1996-II, § 76, followed among others by Van Mechelen and Others v. the Netherlands , no. 21363/93 and others, ECHR 1997-III, § 55; AM v. Italy , no. 37019/97, ECHR 1999-IX; Lucà , cited above, § 40; P.S. v. Germany , no. 33900/96, § 24, 20 December 2001; and Vladimir Romanov v. Russia , no. 41461/02, § 100, 24 July 2008.

[114] . Al-Khawaja and Tahery , cited above, § 146, and Schatschaschwili , cited above, §§ 106 and 112.

[115] . As Ulrich Sommer points out in “Das Konfrontationsrecht …”, cited above, p. 28, referring to Al-Khawaja and Tahery , cited above, § 160.

[116] . Ibid., § 113.

[117] . See the joint concurring opinion of Judges Spielmann, Karakaş, Sajó and Keller in Schatschaschwili v. Germany [GC] , cited above, §§ 17-18.

[118] . Ibid., § 116. In his dissenting opinion joined to Schatschaschwili , cited above, Judge Kjølbro criticised the majority for introducing a third category (that of evidence carrying significant weight) in addition to the previous categories (sole and decisive evidence).

[119] . Supreme Court of the United States, United States v. Gonzalez-Lopez , 548 U.S. 140, 149 (2006).

[120] . Artico v. Italy , cited above, § 35.

[121] . Ibid.

[122] . John Murray , cited above, § 68.

[123] . Salduz , cited above, § 58 (“[I]t is not for the Court to speculate on the impact which the applicant’s access to a lawyer during police custody would have had on the ensuing proceedings”.)

[124] . Ibrahim and Others , cited above, § 274.

[125] . Simeonovi , cited above, §§ 132-144.

[126] . Ibrahim and Others , cited above, § 274.

[127] . Ibid., § 274.

[128] . Ibid., § 274. See also Al-Khawaja and Tahery , cited above, § 143.

[129] . Ulrich Sommer, “Das Konfrontationsrecht des Art. 6 Abs. 3 lit. d MRK – “to examine the witness”, cited above, pp. 4-32; Ian Dennis, “The right to confront witnesses: meanings, myths and human rights” (2010) Criminal Law Review 255-274; Kweku Vanderpuye, “Traditions in Conflict: The Internationalization of Confrontation” (2010) 43 Cornell International Law Journal 513-583; John Spence, “The European Right to Confrontation in Criminal Proceedings - Absent, Anonymous and Vulnerable Witnesses” (2007) 32 European Law Review 275-278; Maffei, The European Right to Confrontation in Criminal proceedings: Absent, Anonymous and Vulnerable Witnesses , Groningen, Europa Law, 2006.

[130] . See Sebastian Bürger, “Unmittelbarkeitsgrundsatz und kontradiktorische Beweisaufnahme” (2016) 128 (2) Zeitschfrift für die gesamte Strafrechtswissenschaft 518-546; and Daniela Dembo, Menschenrecht auf Verteidigng und Fairness des Strafverfahrens auf nationaler, europäischer und internationaler Ebene , Berlin, Duncker Humboldt, 2014.

[131] . With regard to prosecution witnesses, Delta v. France , no. 11444/85, Series 1 No. 191-A, § 37, and Pello v. Estonia , no. 11423/03, §§ 34 and 35, 12 April 2007; with regard to witnesses on behalf of the defence, Polufakin and Chernyshev v. Russia , no. 30997/02, § 207, 25 September 2008.

[132] . Ferrantelli and Santangelo v. Italy , no. 19874/92, ECHR 1996-III.

[133] . Bricmont v. Belgium , no. 10857/84, Series A, no. 158.

[134] . Artner v. Austria , no. 13161/87, Series A no. 242-A.

[135] . Schatschaschwili , cited above, § 155, and Nechto , cited above.

[136] . Lucà , cited above.

[137] . Vidgen v. the Netherlands , no. 29353/06, 10 July 2012.

[138] . This is the situation in Unterpertinger v. Austria , no. 9120/80, Series A no. 110, and Asch v. Austria , no. 12398/86, Series A no. 203. The Court decided these cases in a contradictory way, as the dissenting Judges Evans and Bernhardt pointed out in the latter case.

[139] . Kostovski v. the Netherlands , no. 11454/85, Series A no. 166.

[140] . P.S. v. Germany , cited above.

[141] . Schatschaschwili , cited above, § 162, and Melnikov v. Russia , no. 23610/03, § 80, 14 January 2010.

[142] . Al-Khawaja and Tahery , cited above, § 164, but see also §§ 156 and 157. Careful evaluation of evidence does not suffice ( Hulki Günes v. Turkey , no. 28490/95, § 95, 19 June 2003).

[143] . Paic v. Croatia , no. 47082/12, § 51, 29 March 2016.

[144] . See footnote 88 above.

[145] . See the Government’s observations of 28 November 2017, page 21.Although they consider witness A. as a witness on behalf of the applicant (paragraph 8 of the observations), the Government treat this witness, in reality, as a prosecution witness (paragraph 115 and 116 of the observations).

[146] . Paragraph 57 of the judgment.

[147] . Contrast Bykov , v. Russia [GC], no. 4378/02, § 97, 10 March 2009.

[148] . See the applicant’s observations before the Grand Chamber, § 58.

[149] . Ramanauskas v. Lithuania [GC] , no. 74420/01, § 60, 5 February 2008.

[150] . Paragraph 29 of the judgment.

[151] . Paragraph 31 of the judgment.

[152] . Paragraph 32 of the judgment.

[153] . Paragraphs 58 and 60 of the judgment.

[154] . Paragraph 99 of the judgment.

[155] . Government’s observations of 28 November 2017, paragraph 108.

[156] . Shumeyev and Others v. Russia (dec.) , no. 29474/07, 8669/09 and 55413/10, § 37, 22 September 2015.

[157] . Paragraph 52 of the judgment.

[158] . Paragraph 61 of the judgment.

[159] . Paragraph 67 of the judgment.

[160] . See the Government’s observations before the Grand Chamber, § 107.

[161] . Paragraph 42 of the Chamber judgment. The conclusion was followed by the Chamber itself (paragraph 98 of the Chamber judgment). Strangely enough, this fact disappeared from the Facts part of the Grand Chamber judgment. Yet the argument was made by the Government again before the Grand Chamber (paragraph 135 of the judgment).

[162] . Paragraph 171 of the judgment.

[163] . Paragraph 169 of the judgment.

[164] . Paragraph 171 of the judgment.

[165] . A contrario , Schatschaschwili , cited above, §§ 119-121.

[166] . Paragraph 138 of the judgment.

[167] . Paragraph 171 of the judgment.

[168] . Paragraphs 171 and 174 of the judgment.

[169] . Paragraph 173 of the judgment. Here, the majority patently contradict the liberal criterion exposed in paragraph 160 of the judgment.

[170] . Paragraph 175 of the judgment. This unfortunate method is not new in the Court’s case-law (see, for example, Sievert v. Germany , no. 29881/07, § 67, 19 July 2012, and Poletan and Azirovik v. the former Yugoslav Republic of Macedonia , nos. 26711/07 and 2 others, § 82, 12 May 2016).

[171] . Paragraph 175 of the judgment.

[172] . Paragraph 154 of the judgment.