GRAND CHAMBER
\nCASE OF MURTAZALIYEVA v. RUSSIA
\n(Application no. 36658\/05)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Murtazaliyeva v. Russia,<\/strong><\/p>\n The European Court of Human Rights, sitting as a Grand Chamber composed of:<\/p>\n Guido Raimondi, President, P\u00e9terPaczolay, judges, Having deliberated in private on 14 February and 4 October 2018,<\/p>\n Delivers the following judgment, which was adopted on the last-mentioned date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 36658\/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Ms Zara KhasanovnaMurtazaliyeva (\u201cthe applicant\u201d), on 16 September 2005.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr K.N.\u00a0Koroteyev, a lawyer practising in Moscow. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G.\u00a0Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that the domestic courts had failed to ensure the examination of witness A. and attesting witnesses B. and K., and that she had been unable to see and examine effectively a secret surveillance videotape shown in the courtroom.<\/p>\n 4.\u00a0\u00a0The application was allocated to the Third Section of the Court (Rule\u00a052 \u00a7 1 of the Rules of Court). On 10 November 2010 the application was communicated to the Government.<\/p>\n 5.\u00a0\u00a0On 28 March 2017 a Chamber of that Section, composed of Helena J\u00e4derblom,President, BrankoLubarda, Luis L\u00f3pez Guerra, Helen Keller, Dmitry Dedov, Alena Pol\u00e1\u010dkov\u00e1, and Georgios A. Serghides, judges, and Fato\u015f Arac\u0131, Deputy Section Registrar, gave judgment. The Chamber unanimously declared the above complaints under Article 6 \u00a7 1 of the Convention admissible and the remainder of the application inadmissible. It held by four votes to three that there had been no violation of Article 6 \u00a7\u00a7\u00a01 and 3 (d) of the Convention as regards the complaint concerning the absence of witness A. and by five votes to two that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention as regards the complaint concerning the absence of attesting witnesses B. and K. The Chamber further held, unanimously, that there had been no violation of Article 6 \u00a7\u00a7\u00a01 and 3 (b) of the Convention as regards the complaint concerning the applicant\u2019s alleged inability to see and examine effectively a secret surveillance videotape shown in the courtroom. Three separate opinions were annexed to the judgment: (a) the partly concurring opinion of Judge Serghides;(b) the joint partly dissenting opinion of JudgesL\u00f3pez Guerra,Keller andSerghides; and (c)the joint dissenting opinion of Judges L\u00f3pez Guerra and Serghides.<\/p>\n 6.\u00a0\u00a0In a letter of 9 August 2017 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber granted the request on 18\u00a0September 2017.<\/p>\n 7.\u00a0\u00a0The composition of the Grand Chamber was determined according to the provisions of Article 26 \u00a7\u00a7 4 and 5 of the Convention and Rule 24. At the final deliberations, P\u00e9terPaczolay, substitute judge, replaced Erik M\u00f8se, who was unable to take part in the further consideration of the case (Rule 24 \u00a7 3).<\/p>\n 8.\u00a0\u00a0The applicant and the Government each filed further written observations on the merits (Rule 59 \u00a7 1).<\/p>\n 9.\u00a0\u00a0A hearing took place in public in the Human Rights Building, Strasbourg, on 14 February 2018.<\/p>\n There appeared before the Court:<\/p>\n (a)\u00a0\u00a0for the Government (b)\u00a0\u00a0for the applicant ________________<\/p>\n The applicant was also present at the hearing. The Court heard addresses by Mr Koroteyev and Mr Galperin, as well as their replies to questions put by the judges.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 10.\u00a0\u00a0The applicant was born in 1983 and currently lives in Paris.<\/p>\n 11.\u00a0\u00a0In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she met V. and Ku., two young Russian women who had converted to Islam.<\/p>\n A.\u00a0\u00a0The secret surveillance operation<\/strong><\/p>\n 12.\u00a0\u00a0In December 2003 the applicant was stopped on the street by two policemen for an identity check. She was then taken to a police station to have her identity verified. According to the applicant, she was released from custody several days later following the intervention of a certain A., who was also an ethnic Chechen and was employed as a police officer attached to the organised crime division of the Moscow police department. In the meantime she was dismissed by her employer because of her unauthorised absence from work.<\/p>\n 13.\u00a0\u00a0In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared the flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with concealed videotaping and audiotaping devices. The police placed the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of secret surveillance devices in the flat from 5\u00a0February until 4 March 2004.<\/p>\n B.\u00a0\u00a0The applicant\u2019s arrest, personal search and the pre-trial investigation<\/strong><\/p>\n 14.\u00a0\u00a0On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who spoke briefly with the police officers who had stopped her. The applicant was then taken to a police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law.<\/p>\n 15.\u00a0\u00a0At the police station, the applicant was informed that she had been apprehended (\u0437\u0430\u0434\u0435\u0440\u0436\u0430\u043d\u0430). Her bag was searched by a female police officer\u00a0I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. During the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant\u2019s bag. The substance, together with the inner lining of the applicant\u2019s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant\u2019s fingerprints were taken at 9.30\u00a0p.m. The police did not test the applicant\u2019s hands for residue from the substance; nor did they check for her fingerprints on the packages found in her bag. Later the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened.<\/p>\n 16.\u00a0\u00a0On 12 March 2004 an expert examination of the substance found in the applicant\u2019s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared using hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant\u2019s bag and the lining of the pockets of her jacket revealed the presence of hexogen.<\/p>\n 17.\u00a0\u00a0The police searched the flat where the applicant lived with V. and Ku. and seized a note that had been handwritten by the applicant. The note criticised Russian policy in Chechnya, spoke harshly of Russia and Russians, glorified suicide bombers, preached the way of jihad, vindicated acts of terrorism in Russia and included a statement about \u201c…dreaming of falling [in a] martyr\u2019s death as a shahid on the path of Allah\u201d. The police also found several photographs of an escalator in the OkhotniyRyad shopping centre in the centre of Moscow.<\/p>\n 18.\u00a0\u00a0A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku., discussing her hatred for Russians and the need for a \u201choly war\u201d against them, praising the leaders of the Chechen insurgency, and telling her flatmates about the insurgent camps in the Caucasus.<\/p>\n 19.\u00a0\u00a0In the course of the investigation the applicant, represented by her defence lawyer, had pre-trial confrontations with witnesses V. and Ku. as well as with police officers S. and I., who had taken part in her arrest and personal search. The applicant had the opportunity to present her account of the events and to put relevant questions.<\/p>\n 20.\u00a0\u00a0On 12 October 2004 the applicant submitted the following motion to the investigating authorities.<\/p>\n \u201cToday, 12 October 2004, I was charged with [preparing an act of terrorism]. I completely disagree with the charges. I consider that in my case evidence of my innocence and my lack of connection with this case have not been gathered.<\/p>\n I request you to [provide] subpoena records of [my mobile phone calls] on 3 and 4\u00a0March 2004, since on those dates the police officers who took me from work and brought me to [the police station] where plastic explosives were planted had talked with A.<\/p>\n I request you to question him [A.], and put the following questions to him:<\/p>\n 1.\u00a0\u00a0When and under what circumstances did he meet me?<\/p>\n 2.\u00a0\u00a0Did he provide me with the accommodation where I resided until my arrest?<\/p>\n 3.\u00a0\u00a0In which police station was I unlawfully held for three days and did he or other officers question me?<\/p>\n 4.\u00a0\u00a0During the arrest did he talk to me and with the officers who took me from work and brought [me] to [a police station]?<\/p>\n 5.\u00a0\u00a0What was his relationship with V. and Ku.?\u201d<\/p>\n 21.\u00a0\u00a0The next day an investigator granted the motion in the part concerning the questioning of A., questioned him and informed the applicant about the decision on her motion.<\/p>\n 22.\u00a0\u00a0When questioned A. testified that at the end of December 2003, on the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. He further stated that with the support of the police department he had helped the applicant to find accommodation. She had moved into a flat in the dormitory block belonging to the police department with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by a police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station.<\/p>\n 23.\u00a0\u00a0The applicant and her defence lawyer, who had been duly informed about the contents of the record of A.\u2019s questioning, did not attempt to put any further questions to him, nor did they request the investigator to conduct a pre-trial confrontation.<\/p>\n 24.\u00a0\u00a0On 2 December 2004 the applicant received a copy of the case file for review. On 7 December 2004 the applicant was indicted with preparing an act of terrorism (an explosion) in the OkhotniyRyad shopping centre and inciting V. and Ku. to commit an act of terrorism. The bill of indictment mentioned A. in the lists of both defence and prosecution witnesses to be summoned to the trial. However, A.\u2019s testimony was merely mentioned by both the prosecution and the defence. The bill of indictment did not contain any information going beyond the statements made during the above\u2011mentioned questioning, and which were neither cross-referenced with any other evidence nor used to substantiate any specific factual or legal point.<\/p>\n C.\u00a0\u00a0The trial<\/strong><\/p>\n 25.\u00a0\u00a0On 17 December 2004 the Moscow City Court held a preliminary hearing. It granted the applicant\u2019s motion to consider her case in a single judge formation, scheduled the trial hearing and ordered that witnesses be called according to the lists presented by the parties and in the bill of indictment.<\/p>\n 26.\u00a0\u00a0On 22 December 2004 the applicant\u2019s trial began before the city court. The applicant was represented by two lawyers of her own choosing, U. and S.<\/p>\n 27.\u00a0\u00a0The trial proceeded in the following manner.<\/p>\n 1.\u00a0\u00a0Witness testimony regarding the circumstances of the applicant\u2019s case<\/em><\/p>\n (a)\u00a0\u00a0Statements by V. and Ku.<\/p>\n 28.\u00a0\u00a0V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist Internet chat-rooms and surfing pro-insurgency web\u2011sites together. After a while, they had decided to form a religious community (dzhamaat) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp near Baku in Azerbaijan where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet caf\u00e9 in the OkhotniyRyad shopping centre. The applicant had also taken photos of an escalator in the shopping centre from different positions.<\/p>\n 29.\u00a0\u00a0On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and that they were to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to \u201cblow himself up\u201d, and that she (that is, the applicant) \u201cwas in danger\u201d and \u201cunder suspicion\u201d [by the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but had asked them if they were capable of doing so. She had constantly preached \u201cthe way of jihad\u201d to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A.<\/p>\n 30.\u00a0\u00a0V. denied having seen any explosives in the flat where they had lived.<\/p>\n 31.\u00a0\u00a0At the request of the prosecutor, the trial judge allowed V.\u2019s pre-trial testimony to be read out, as it partly contradicted statements she had made at the trial. In particular, during her pre-trial questioning V. had testified that the applicant had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. Asked by the prosecutor to explain her contradictory statements, V. stated that she was not sure whether the applicant had really attended a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers.<\/p>\n 32.\u00a0\u00a0During her cross-examination at trial, Ku.partly retracted her pre\u2011trial statements, which were for the most part similar to the above statements by V. During the trial Ku.confirmed that she, V. and the applicant had taken photos in the OkhotniyRyad shopping centre at the applicant\u2019s initiative, and that the applicant had \u201ctaken snapshots randomly\u201d. In particular, the applicant had taken photographs of the escalator and the people on it. Ku.submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku., they had simply wanted to reside together to pray, read and live free from parental supervision.<\/p>\n 33.\u00a0\u00a0Ku.further stated that the applicant\u2019s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived. He had also occasionally given them money. The applicant had once told her that she liked A.<\/p>\n 34.\u00a0\u00a0Ku.further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pre-trial statements under pressure. In view of Ku.\u2019s change of testimony her pre-trial statements were read out during the trial.<\/p>\n (b)\u00a0\u00a0Statements by police officers<\/p>\n 35.\u00a0\u00a0Several police officers who had participated in the applicant\u2019s arrest and personal search (P., S., B., I. and Ke.) were questioned in court. They stated that the applicant\u2019s arrest had occurred during a regular patrol and they had not been aware that her bag contained explosives.<\/p>\n 36.\u00a0\u00a0P. testified that on the day of the applicant\u2019s arrest he had decided to check the applicant\u2019s documents because \u201cshe had been walking idly in the direction of the ProspektVernadskogo metro station\u201d. She had shown them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the point of arrest she had been agitated and aggressive. They had decided to search her bag because such action \u201cwas compatible with the law\u201d. P.\u00a0further explained that he had stopped the applicant \u201cbecause it had been unclear where she had been going to\u201d, because she had \u201cresembled a girl from a wanted persons notice\u201d, and because she was \u201ca person of Caucasian ethnicity [that is to say from the North Caucasus region]\u201d. P. also stated that the expiry of her registration had been sufficient reason to arrest the applicant. He further testified that they had been routinely searching all individuals whose registration had expired.<\/p>\n 37.\u00a0\u00a0S.\u2019s testimony was similar. He added that the applicant had been walking quickly and that she had started to threaten the police officers with disciplinary sanctions when they stopped her.<\/p>\n 38.\u00a0\u00a0B. testified that they had decided to stop the applicant because she had been wearing black clothing and was of \u201cCaucasian ethnic origin\u201d. He added that the applicant\u2019s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had her bag with her up until the moment of her personal search at the police station.<\/p>\n 39.\u00a0\u00a0The court also questioned the police officers who had been on duty at the ProspektVernadskogo police station on the day of the applicant\u2019s arrest.<\/p>\n 40.\u00a0\u00a0I. testified that she had searched the applicant in the presence of two attesting witnesses and had found in her bag two square yellow objects wrapped in aluminium foil, which had later been confirmed to be explosives. The applicant\u2019s fingerprints had been taken only once \u2013 after the objects had been discovered in her bag.<\/p>\n 41.\u00a0\u00a0Ke.testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses to observe the personal search.<\/p>\n 42.\u00a0\u00a0The prosecution extensively questioned all of the police officers about the circumstances of the applicant\u2019s search and fingerprinting. All of them had consistently testified that the applicant had been in possession of her belongings, i.e. her handbag, at all times prior to the search and that she had been fingerprinted only once after the search. The defence only asked police officer B. whether the applicant had been in possession of her handbag prior to the search and police officer Ke. about the manner in which the attesting witnesses were chosen. Both of the questions were put to the above witnesses only once, andthere was no relevant follow-up to their answers.<\/p>\n 43.\u00a0\u00a0The prosecution finished presenting their evidence on 12 January 2005 without either attempting to call A. to testify at the trial or referring to his pre-trial statements.<\/p>\n 2.\u00a0\u00a0The applicant\u2019s testimony during the trial<\/em><\/p>\n 44.\u00a0\u00a0At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004, after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been arrested and that her fingerprints would be taken. She had left her jacket and bag in that room. Another police officer, B., had then taken her to another room, where another police officer, L., had taken her fingerprints using ink. Afterwards, she had gone to a bathroom to wash the ink off her hands. When she returned to the first room, she was informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant\u2019s bag and discovered two packages wrapped in aluminium foil, which did not belong to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded.<\/p>\n 45.\u00a0\u00a0The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. Over the following days she had been beaten by the policemen who were questioning her. However, she had continued to deny her involvement in any terrorist activity.<\/p>\n 46.\u00a0\u00a0The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked whether she had noticed that her rather small bag had become heavier than it was before the personal search, the applicant stated that she had not noticed anything conspicuous.<\/p>\n 47.\u00a0\u00a0She further stated that the six photographs of the escalator that had been seized from her flat had been taken by her. However, she had been photographing people at random in the shopping centre, rather than the escalator, and she had done so for recreational purposes.<\/p>\n 48.\u00a0\u00a0The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the internet because she had liked it and had simply wanted to have a copy. The applicant\u2019s lawyer argued that her words had been misinterpreted and that there had been nothing in them demonstrating a link to any terrorist activity. She stated that the applicant\u2019s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully.<\/p>\n 49.\u00a0\u00a0At certain points in her testimony the applicant mentioned A. in passing, stating that they had no personal relationship, that he had helped her with finding accommodation free of charge, that he had called her on the phone, given her two books by the American historian Paul Klebnikov, and that he had told her to follow the policemen\u2019s orders at the time of her arrest.<\/p>\n 3.\u00a0\u00a0Motion for examination of videotapes<\/em><\/p>\n 50.\u00a0\u00a0On 13 January 2005, during the last day of the examination of evidence by the trial court, the applicant\u2019s lawyer U. submitted a motion to play videotapes during the hearing. The relevant part of the trial records reads as follows:<\/p>\n \u201cLawyer U.: I request to start playing the videotape, since the accused claims that there are multiple discrepancies between the recording and the transcript. I also request to call an interpreter for the translation of the ethnic speech and to view one videotape 5-489c.<\/p>\n Accused and lawyers: No objections.<\/p>\n Prosecutor: I do not think an interpreter is necessary, since there are transcripts of conversations on the videotapes. In the other part, I agree.<\/p>\n The court decided to grant the motion of the defence and to watch the videotape 5\u2011489c, in respect of calling an interpreter \u2013 to refuse [the motion].<\/p>\n [The videotape recording is viewed for 30 minutes]<\/p>\n Lawyer U. asking the accused: Did these conversations take place?<\/p>\n Accused: I see nothing illegal in them.\u201d<\/p>\n 51.\u00a0\u00a0According to the trial records the defence submitted no requests or complaints concerning the quality of the video-recording or the manner in which the tape was played.<\/p>\n 4.\u00a0\u00a0Motions for the questioning of witness A. and attesting witnesses B. and K.<\/p>\n 52.\u00a0\u00a0Immediately after viewing the videotape the applicant\u2019s lawyer S. submitted oral motions to summon attesting witnesses B. and K. and police officer A. The relevant part of the trial records reads as follows:<\/p>\n \u201cLawyer S.: I request to summon the attesting witnesses who were present during the personal search of Murtazaliyeva, that is, B. and K., in order to determine the relevant circumstances [and] whether or not plastic explosives were planted.<\/p>\n Lawyer U.: I support [the motion].<\/p>\n Accused: I do not dispute that plastic explosives were seized in the presence of these attesting witnesses, but I maintain that they were planted by police officers prior to the personal search. I do not insist on calling these attesting witnesses, but if [the lawyers] consider this necessary, then I agree with them.<\/p>\n Prosecutor: I object, because the accused was questioned and stated that the record [of the search] had been drawn up without any violation of the law…<\/p>\n The court decided that the motion for summoning the attesting witnesses would not be granted.<\/p>\n Lawyer S.: I request to summon witness A.<\/p>\n [The presiding judge informs the parties that witness A. is on a work-related mission outside Moscow and cannot appear in court]<\/p>\n Prosecutor: I request to read out the statements made by witness A. during the pre\u2011trial proceedings.<\/p>\n Lawyer U.: I do not object to the reading out of A.\u2019s statements.<\/p>\n Lawyer S.: I agree to the reading out of his statements.<\/p>\n Accused: No objections.<\/p>\n The court decided under Article 281 of the Criminal Procedure Code and with the agreement of the parties to read out the statements of witness A., made during the pre\u2011trial proceedings.<\/p>\n [The record of witness A.\u2019s interrogation is read out]<\/p>\n Prosecutor asks the accused: Do you agree with the statements of witness A.\u2019s read out?<\/p>\n Accused: I agree with these statements in part, but do not agree that he had no contacts with the girls without me and that we maintained contact only over the phone.\u201d<\/p>\n 5.\u00a0\u00a0Completion of the examination of evidence<\/p>\n 53.\u00a0\u00a0Immediately afterwards the defence proceeded to submit evidence in the form of character references about the accused and lodged motions to subpoena the applicant\u2019s phone records and conduct a forensic psychiatric examination of witnesses V. and Ku.; both motions were refused by the court. Subsequently the defence rested its case.<\/p>\n 54.\u00a0\u00a0The presiding judge inquired as to whether the parties wished to continue with further examination of evidence. Using that opportunity, the prosecution motioned to read out the applicant\u2019s diary entries and the defence motioned to strike that evidence out.<\/p>\n 55.\u00a0\u00a0After consideration of the above motions the presiding judge repeatedly asked whether the parties were prepared to rest their cases in the absence of those witnesses who had not appeared. There were no objections from either the prosecution or the defence. The trial court closed the examination of evidence and, upon a motion of the defence, adjourned the proceedings until closing arguments on 17 January 2005.<\/p>\n 6.\u00a0\u00a0The parties\u2019 closing arguments and the applicant\u2019s conviction<\/em><\/p>\n 56.\u00a0\u00a0The State prosecutor in his closing argument gave an overview of the entire body of evidence, pointing out inconsistencies in the applicant\u2019s allegations of her innocence and the absence of an act giving rise to a crime (both actus reusandmens rea). He asked the trial court to find the applicant guilty as charged and to sentence her to twelve years\u2019 imprisonment.<\/p>\n 57.\u00a0\u00a0The applicant and her lawyers U. and S. in their closing arguments maintained that the applicant was innocent and that the prosecution had failed to prove her guilt. They provided their own account of the events, alleging that the substance of the accusation was based on misinterpretation of the applicant\u2019s conversations and actions and that the explosives had been planted by the police. The speech by the lawyer U. included the following statement made in passing while describing the applicant\u2019s attitude to the military conflict in Chechnya and religion: \u201cI think that this whole criminal case is a set-up against Murtazaliyeva by law-enforcement agents.\u201d For her part, the applicant\u2019s speech contained the following relevant part:<\/p>\n \u201c…As to conversations in the apartment, many things do not match. I stated that during the hearing. I submitted a motion for confrontation with A. [He] did not appear in court. I do not admit my guilt on any of the charges…\u201d<\/p>\n The defence\u2019s closing arguments contained one-off statements about the explosives having been planted by the police in the applicant\u2019s handbag, but did not refer to the alleged double fingerprinting or the applicant\u2019slack of control over her possessions prior to the search, or to any matters concerning the choice and participation of the two attesting witnesses.<\/p>\n 58.\u00a0\u00a0On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism and carrying explosives, and sentenced her to nine years\u2019 imprisonment. The court considered the following evidence:<\/p>\n i.\u00a0\u00a0thetrial and pre-trial statements by V. and Ku., as well as records of their pre-trial confrontations with the applicant;<\/p>\n ii.\u00a0\u00a0the trial and pre-trial statements by police officers S., I., P., B., and Ke., as well as records of S.\u2019s and I.\u2019s pre-trial confrontations with the applicant;<\/p>\n iii.\u00a0\u00a0therecords of the search of the applicant\u2019s residence and her personal search;<\/p>\n iv.\u00a0\u00a0aforensic explosives report;<\/p>\n v.\u00a0\u00a0six photographs depicting the escalator in the OkhotniyRyad shopping centre, seized at the flat where the applicant lived, as well as a report on an inspection of the shopping centre premises;<\/p>\n vi.\u00a0\u00a0a note containing extremist statements written by the applicant and seized in the flat where she lived, and a forensic handwriting report on that note;<\/p>\n vii.\u00a0\u00a0the transcripts of the video tapes recorded in the apartment where the applicant lived;<\/p>\n viii.\u00a0\u00a0the pre-trial statement by A.;<\/p>\n ix.\u00a0\u00a0thetestimony of further prosecution witnesses heard at the trial;<\/p>\n x.\u00a0\u00a0thetestimony of defence witnesses heard at the trial, and character references about the applicant from her places of residence, study and employment.<\/p>\n 59.\u00a0\u00a0The judgment referred to witness A.\u2019s testimony only in one part, which read as follows:<\/p>\n \u201cWitness A. [a police officer] testified that at the end of December 2003 under instructions of his superiors he established relations of trust with Murtazaliyeva; [she] introduced him to her friends Ku. and V., who had voluntarily converted to Islam. In view of Murtazaliyeva\u2019s housing problems and with the assistance of [police authorities] she was provided with a room in a dormitory, where she moved with her friends at the beginning of February 2004; in the evening of 4 March 2004 Murtazaliyeva called [A.] and informed him that she had been stopped by a police patrol for an identity check and that she had been requested to go with them to the police station; he recommended that she follow the policemen\u2019s orders.\u201d<\/p>\n In contrast to its approach with regard to the testimony of other witnesses, the court did not cross-reference A.\u2019s statements with those of other witnesses and did not refer to his testimony in support of any conclusions.<\/p>\n 60.\u00a0\u00a0The judgment contained a detailed analysis of the trial and pre-trial testimony given by V. and Ku., the applicant\u2019s flatmates, as well as the records of their pre-trial confrontations with the applicant. The court accepted the pre\u2011trial statements by V. and Ku. and the trial statements by V. as valid and persuasive, since they were coherent as well as consistent with the remaining body of evidence. As to the change in Ku.\u2019s testimony at trial, the court considered this to be a strategy to assist the applicant and dismissed it. It noted in particular that Ku., assisted by a defence lawyer, had been repeatedly questioned during the pre-trial investigation and that she had never complained of being subjected to duress by the investigating authorities. When questioned at trial she did not dispute that her previous statements had been given voluntarily and without any psychological or physical influence. Ku.did not provide any reasons for making false pre-trial statements. Moreover, she stated in court that after a conversation with the applicant\u2019s lawyer she had formally complained about psychological duress during questioning, but had subsequently withdrawn that complaint as being untrue.<\/p>\n 61.\u00a0\u00a0The court examined and dismissed the applicant\u2019s claim that the explosives had been planted in her bag. It referred to the testimony by the patrol officers and the officers at the police station, who had denied those allegations, and to the fact that, according to the official report, the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant had alleged.<\/p>\n 62.\u00a0\u00a0The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the internet, as she had claimed, since the note had contained modifications and corrections.<\/p>\n D.\u00a0\u00a0Appeal and supervisory review proceedings<\/strong><\/p>\n 63.\u00a0\u00a0The applicant and her lawyers appealed against her conviction. The statements of appeal submitted by the defence lawyer S. indicated the following:<\/p>\n \u201c…during the hearing 15 out of 16 videotapes containing records of the secret surveillance were not examined; they have significant evidentiary value, because their comparison with … testimony of Murtazaliyeva and the key prosecution witnesses V. and Ku. could have had a considerable impact on [the conviction]…<\/p>\n Murtazaliyeva claimed and continues to claim in her appeal that there are discrepancies between these video recordings and the transcripts. During the selective viewing of one videotape shewas deprived for \u2018technical reasons\u2019of the possibility to point out the inconsistencies…<\/p>\n The judge did not consider my motion to examine police officer A. as a witness and did not decide on that motion. He limited himself to saying that witness A. [was] on a work-related mission outside Moscow and [could] not appear in court. At the time this appeal is submitted [the case-file] has no documentary proof of that information.<\/p>\n The court\u2019s refusal to call and examine attesting witnesses B. and K., who were present during Murtazaliyeva\u2019s personal search, appears unreasonable. [Murtazaliyeva insists that the plastic explosives were planted in her bag by police officers]. No one can recall who invited the attesting witnesses and how, and when\u00a0…<\/p>\n According to the testimony by witness A., read out during the hearing and relied upon by the court in the judgment, he talked on the phone not only with Murtazaliyeva, but also with arresting police officers; [these were not the police officers questioned during the hearing, since they did not mention talking to A. in their multiple statements at the pre-trial and trial stages of proceedings]. [Accordingly] the testimony of A. refutes the testimony [of these police officers] and confirms Murtazaliyeva\u2019s claim that she was arrested by other officers when she was leaving her workplace…\u201d<\/p>\n 64.\u00a0\u00a0The lawyer U. in her statement of appeal stated in particular that the defence had requested witness A.\u2019s attendance as both a defence and a prosecution witness. However, that motion had been denied by the trial court with reference to his absence, which was not supported by any documentary evidence.<\/p>\n 65.\u00a0\u00a0On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant\u2019s sentence to eight years and six months.<\/p>\n 66.\u00a0\u00a0The Supreme Court heldthat the videotape had been shown at the request of the defence and that no objections or complaints, including that not all of the videotapes had been shown, had been lodged with the court after the videotape had been played.<\/p>\n 67.\u00a0\u00a0The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence in accordance with Article 281 of the Code of Criminal Procedure. As for the two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant had claimed that the explosives had been planted in her bag before their arrival. In any event, the defence had agreed to proceed to the closing arguments and had not submitted any objections or additional requests about the examination of the applicant\u2019s case.<\/p>\n 68.\u00a0\u00a0In June 2005 the applicant\u2019s lawyer S. lodged a supervisory review complaint, referring, inter alia, to the trial court\u2019s failure to summon and question witness A. and attesting witnesses B. and K. The complaint in the relevant part labelled A. as \u201ca key witness\u201d, who, following the instructions of his superiors, had \u201ccovered\u201d the applicant for more than two months, provided her with a job and accommodation and controlled her actions and movements, including her arrest. In respect of the attesting witnesses the complaint stated that \u201cthe examination of the attesting witnesses could have resolved the significant contradictions in the statements [and] could have served as the basis to corroborate or disprove the circumstances immediately prior to the search.\u201d<\/p>\n 69.\u00a0\u00a0On 13 September 2005 the Supreme Court rejected the supervisory review complaint.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0Russian Criminal Code<\/strong><\/p>\n 70.\u00a0\u00a0The Criminal Code of the Russian Federation of 13 June 1996, which entered into force on 1 January 1997, provides an exhaustive list of criminally punishable actions and regulates all substantive aspects of the criminal law in Russia.<\/p>\n Article 30. Preparation for crime and a criminal attempt<\/p>\n \u201c1.\u00a0\u00a0Preparation for crime is considered [to comprise] the gathering, making or implementing by a person of the means or weapons [with which] to commit a crime, soliciting co-offenders, and conspiring to commit crime or any other wilful act aimed at [facilitating the commission of] a crime, [even] if the crime was not completed due to circumstances outside that person\u2019s control…\u201d<\/p>\n Article 205. Terrorism<\/p>\n \u201c1.\u00a0\u00a0[Terrorism, that is to say] the commission of an explosion, arson or other action, creating a danger for people\u2019s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years…\u201d<\/p>\n Article 205.1. Inciting or otherwise abetting the commission of a terrorist criminal act<\/p>\n \u201c1.\u00a0\u00a0Inciting a person to commit a crime stipulated by Articles 205, 206, 208, 211, 277 and 360 of the present Code, or seeking to engage a person in the activities of a terrorist organisation, supplying weapons or instructing a person with a view to committing specified crimes, as well as financing terrorism or a terrorist organisation, shall be punishable by deprivation of liberty for a term of four to eight years…\u201d<\/p>\n Article 222. Illegal acquisition, transfer, sale, storage, transportation and carrying of firearms, its main components, ammunition, explosives and explosive devices<\/p>\n \u201c1.\u00a0\u00a0The illegal acquisition, transfer, sale, storage, transportation and carrying of firearms [or the] main components [thereof], ammunition…explosives and explosive devices shall be punishable by the limitation of liberty for a term of up to three years, or detention for a term of up to six months, or deprivation of liberty for a term of up to four years with or without a fine of up to 80,000 roubles or three months\u2019 salary (or other income) of the convicted person.\u201d<\/p>\n B.\u00a0\u00a0Russian Code of Criminal Procedure (\u201cCCrP\u201d)<\/strong><\/p>\n 71.\u00a0\u00a0The Code of Criminal Procedure of the Russian Federation of 18\u00a0December 2001, which entered into force on 1 July 2002, regulates all procedural aspects of criminal trials in Russia.<\/p>\n Article 53. The powers of a defence lawyer<\/p>\n \u201c1.\u00a0\u00a0From the moment a defence lawyer joins the case he or she shall have the right…<\/p>\n …<\/p>\n (5)\u00a0\u00a0to take part in interrogations of the accused, as well as other investigative actions with the participation of the accused, either upon the motion of the accused or on his own motion…<\/p>\n (7)\u00a0\u00a0to familiarise himself with the materials of the criminal case upon completion of the pre-trial investigation…<\/p>\n (8)\u00a0\u00a0to lodge procedural petitions [motions] and motions for recusal…<\/p>\n 2.\u00a0\u00a0The defence lawyer taking part in an investigative action shall have the right to provide legal advice to the accused in the presence of an investigator, to put questions to interrogated persons with the permission of an investigator, to make written remarks on the accuracy and completeness of the records of investigative actions. An investigator may refuse to [put to the accused the defence lawyer\u2019s questions], but should mention these questions in the records [of that investigative action].\u201d<\/p>\n Article 56. Witnesses<\/p>\n \u201c1.\u00a0\u00a0A witness is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify…<\/p>\n …<\/p>\n 7.\u00a0\u00a0If a witness fails to appear for no valid reason, his or her appearance may be enforced.\u201d<\/p>\n Article 60. Attesting witnesses<\/p>\n \u201c1.\u00a0\u00a0An attesting witness is a person disinterested in the outcome of the criminal case who is invited by an investigator… to attest to an investigative measure having been carried out and also to its substance, progress and results.<\/p>\n 2.\u00a0\u00a0A person shall not be an attesting witness if that person is:<\/p>\n 1)\u00a0\u00a0a minor;<\/p>\n 2)\u00a0\u00a0a participant of the criminal case, his close relatives and relatives;<\/p>\n 3)\u00a0\u00a0[a law enforcement agent entrusted with investigative powers]…\u201d<\/p>\n Article 119. Persons who have a right to bring procedural petitions<\/p>\n \u201c1.\u00a0\u00a0A suspect, accused, his defence lawyer, victim, his legal representative and representative, private prosecutor, expert, as well as civil plaintiff, civil defendant and their representatives can lodge a petition for procedural acts to be carried out and for procedural decisions to be taken in order to establish the circumstances relevant to the criminal case, to secure the rights and legitimate interests of the petitioner…\u201d<\/p>\n Article 120. Bringing a procedural petition<\/p>\n \u201c1.\u00a0\u00a0A procedural petition may be lodged at any moment during criminal proceedings. A written petition is placed in the case file, [and] an oral petition is reflected in the transcript of an investigative act or of a trial hearing.<\/p>\n 2.\u00a0\u00a0Refusal of the procedural petition does not restrict the right of the petitioner to lodge the same petition again.\u201d<\/p>\n Article 192. Confrontation<\/p>\n \u201c1.\u00a0\u00a0If testimony of previously questioned persons contains significant contradictions, an investigator shall have the right to conduct a confrontation…<\/p>\n 2.\u00a0\u00a0An investigator asks the persons taking part in the confrontation whether they know each other and what their relationship is. The questioned persons are asked in turn to give testimony on the circumstances which are to be established by the confrontation. After the statements are made an investigator may put questions to each of the questioned persons. The persons taking part in the confrontation may, with the permission of an investigator, put questions to each other.\u201d<\/p>\n Article 235. Request to exclude evidence<\/p>\n \u201c1.\u00a0\u00a0Parties to a criminal case may request a court to exclude any evidence presented in court.<\/p>\n …<\/p>\n 4.\u00a0\u00a0Where a defendant seeks to exclude evidence obtained in violation of the provisions of the CCP, the prosecution will have to furnish evidence to the contrary. In other cases, the burden of proof will be on the party which submitted a motion to exclude evidence…\u201d<\/p>\n Article 240. Direct and open [examination of evidence]<\/p>\n \u201c1.\u00a0\u00a0All the evidence should normally be presented at a court hearing … The court should hear statements by the defendant, the victim, witnesses … and examine physical evidence …<\/p>\n 2.\u00a0\u00a0The reading of pre-trial statements is only permitted under [Article 281 of the Code]…\u201d<\/p>\n Article 260. Objections to [the content of] the trial records<\/p>\n \u201c1.\u00a0\u00a0The parties may submit their objections to [the content of] the trial records within three days of receiving these records.<\/p>\n 2.\u00a0\u00a0The objections are to be considered by the presiding judge immediately. If the presiding judge considers it necessary he or she may summon the persons submitting the objections in order to clarify their content.<\/p>\n 3.\u00a0\u00a0Having considered the objection the presiding judge adopts a decision either certifying the correctness of the objections or dismissing them. The objections and the decision of the presiding judge shall be attached to the trial records.\u201d<\/p>\n Article 271. Submission of requests and decisions on them<\/p>\n \u201c1.\u00a0\u00a0The presiding judge inquires whether the parties have requested that new witnesses, experts or specialists be summoned, evidence or documents be presented or evidence excluded that has been obtained in a manner that was in breach of the provisions of the Code. A person who has submitted [such] a request must substantiate it.<\/p>\n …<\/p>\n 3.\u00a0\u00a0A person whose request has been denied has a right to submit it again in the course of the proceedings.\u201d<\/p>\n Article 281. Reading out of testimony of a victim and a witness<\/p>\n \u201c1.\u00a0\u00a0Reading out of statements of a victim and a witness previously given during pre-trial investigation or trial… is permitted only with the consent of the parties in the event of a victim\u2019s or a witness\u2019 absence (\u043d\u0435\u044f\u0432\u043a\u0430) [in court], except under circumstances prescribed by paragraph 2 of this Article.<\/p>\n 2.\u00a0\u00a0In case of failure by a victim or a witness to appear at the court hearing, the court may upon the motion of a party or upon its own motion decide to read out previously given statements, in the case of:<\/p>\n (1)\u00a0\u00a0the death of a victim or a witness;<\/p>\n (2)\u00a0\u00a0grave illness precluding appearance in court;<\/p>\n (3)\u00a0\u00a0the refusal of a victim or a witness who is a foreign citizen to appear pursuant to the summons of the court;<\/p>\n (4)\u00a0\u00a0a natural disaster or other exceptional circumstances precluding appearance in court…\u201d<\/p>\n Article 291. End of judicial examination [of evidence]<\/p>\n \u201c1.\u00a0\u00a0At the end of the judicial examination of evidence presented by the parties the presiding judge inquires whether the parties wish to make any additional submissions in the proceedings. If such a request is submitted, the court shall examine it and issue a ruling thereon…\u201d<\/p>\n Article 294. Reopening of judicial examination [of evidence]<\/p>\n \u201cIf participants of the closing arguments or the accused in his or her final statement notify [the court] of new circumstances relevant to the criminal case or if they lodge a motion for examination of new evidence, the court may reopen the examination of evidence. At the end of the examination of evidence the court reopens the closing arguments and gives the accused an opportunity to provide his final statement.\u201d<\/p>\n III.\u00a0\u00a0RELEVANT INTERNATIONAL LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0The United Nations International Criminal Tribunals<\/strong><\/p>\n 72.\u00a0\u00a0The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in deciding as either Trial or Appeal Chambers on individual criminal cases produced extensive case-law and developed general principles related to various aspects of criminal proceedings, including examination of witnesses.<\/p>\n 73.\u00a0\u00a0In Prosecutor v. Krsti\u0107 (Decision on application for subpoenas, Case no. IT-98-33-A, 1 July 2003) the ICTY Appeals Chamber dealt with the request to examine additional witnesses in the appeal proceedings. It stated the following in relation to the general principles governing the relevance of witness testimony and the issuing of witness subpoenas:<\/p>\n \u201c10.\u00a0\u00a0Rule\u00a054 [of the Rules of Procedure and Evidence] permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be \u201cnecessary […] for the preparation or conduct of the trial\u201d. Such a power clearly includes the possibility of a subpoena being issued … where that attendance is necessary for the preparation or conduct of the trial. … [A] subpoena pursuant to Rule\u00a054 would become \u201cnecessary\u201d for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown. An applicant for such an order or subpoena before or during the trial would have to 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.<\/p>\n 11.\u00a0\u00a0The assessment of the chance that the prospective witness will be able to give information which will materially assist the defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events. The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition \u2013 where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.\u201d<\/p>\n 74.\u00a0\u00a0In Prosecutor v. Halilovi\u0107 (Decision on the issuance of subpoenas, Case\u00a0no. IT-01-48-AR73, 21 June 2004) the ICTY Appeals Chamber affirmed that an applicant must demonstrate a reasonable basis that a witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. It further stressed with reference to prior case-law that \u201c[t]he Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused\u201d and that \u201csubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction\u201d (ibid. \u00a7 6). It further provided the following guidance on the judicial decision-making in these matters:<\/p>\n \u201c7.\u00a0\u00a0In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary \u201cfor the preparation or conduct of the trial.\u201d The Trial Chamber\u2019s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.<\/p>\n …<\/p>\n 10.\u00a0\u00a0…Being a mechanism of judicial compulsion, backed up by the threat and the power of criminal sanctions for non-compliance, the subpoena is a weapon which must be used sparingly. While a Trial Chamber should not hesitate to resort to this instrument where it is necessary to elicit information of importance to the case and to ensure that the defendant has sufficient means to collect information necessary for the presentation of an effective defence, it should guard against the subpoena becoming a mechanism used routinely as a part of trial tactics. … A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party\u2019s task in litigation. If this were the Trial Chamber\u2019s analysis, its rejection of the subpoena request would be proper.\u201d<\/p>\n 75.\u00a0\u00a0In Prosecutor v. Marti\u0107 (Decision on appeal against the Trial Chamber\u2019s decision on the evidence of witness Milan Babi\u0107, Case no.\u00a0IT\u201195-11-AR73.2, 14 September 2006) the ICTY Appeal Chamber discussed at length the principles applicable to examination of witnesses at trial. Referring to its own, as well as to this Court\u2019s case-law, it recognised the Trial Chambers\u2019 discretion in relation to the admissibility of evidence, as well as in defining the modalities of cross-examination and the exercise of this right by the defence. It stressed that such deference is based on the recognition of \u201cthe Trial Chamber\u2019s organic familiarity with the day-to-day conduct of the parties and practical demands of the case\u201d. The Appeals Chamber highlighted that the right of an accused to cross-examine a witness is not absolute, that the fairness of a trial must not be uniquely predicated on the fairness accorded to the accused and that while the proceedings must be conducted with full respect for the procedural rights, the restrictions on the right to cross-examination will not necessarily entail a violation or be inconsistent with a fair trial (ibid. \u00a7\u00a7 6, 12).<\/p>\n 76.\u00a0\u00a0In respect of this Court\u2019s principles pertinent to cross-examinations of witnesses the Appeal Chamber stated the following:<\/p>\n \u201c20.\u00a0\u00a0The Appeals Chamber observes in any event that the two principles that the Trial Chamber derived from the jurisprudence of the ECHR, namely that (1)\u00a0a complete absence of, or deficiency in, the cross-examination of a witness will not automatically lead to exclusion of the evidence, and (2) evidence which has not been cross-examined and goes to the acts and conduct of the Accused or is pivotal to the Prosecution case will require corroboration if used to establish a conviction, are consistent with the jurisprudence of the International Tribunal as well as that of national jurisdictions.\u201d<\/p>\n 77.\u00a0\u00a0In Prosecutor v. Edouard Karemera and MatthieuNgirumpatse (Decision on MatthieuNgirumpatse\u2019s motion to subpoena witness YLH, Case no. ICTR-98-44-T, 29 December 2010) the ICTR Trial Chamber deciding on whether written statements of a certain witness ought to be admitted into evidence and whether that witness needed to be subpoenaed, restated the following principles:<\/p>\n \u201c12.\u00a0\u00a0In order for a written statement to be admitted … it must be ascertained that the statement does not contain references to the acts and conduct of the Accused as pleaded in the Indictment and that it satisfies the criteria laid down in Rule 89(C), namely that it is relevant and has probative value… Even where a statement satisfies all these conditions, a Chamber must exercise its discretion to admit such statement bearing in mind the overarching need to ensure a fair trial. … [E]ven where a Chamber finds a statement admissible, it shall also determine whether to admit it in whole or in part and whether to require the witness to appear for cross-examination. In addition to factors related to fair trial, another relevant factor consists in determining whether the evidencerelatestoa liveand important issuebetweenthe partiesas opposedto a peripheralor marginally relevant one.\u201d<\/p>\n 78.\u00a0\u00a0In Prosecutor v. Ori\u0107 (Interlocutory decision on length of defence case, Case no. IT-03-68-AR73.2, 20 July 2005) the ICTY Appeals Chamber stated the following inrespect of equality of arms in calling and examining witnesses:<\/p>\n \u201c7.\u00a0\u00a0…The Appeals Chamber has long recognized that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”, certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution\u2019s case, an endeavor which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.\u201d<\/p>\n This position was also confirmed by the ICTR Appeal Chamber in Prosecutor v. Nyiramasuhuko et al. (Butare) (Decision on witness list, Case no.\u00a0\u00a0ICTR-98-42-AR73, 21 August 2007, \u00a7 26).<\/p>\n B.\u00a0\u00a0Inter-American Court of Human Rights<\/strong><\/p>\n 79.\u00a0\u00a0The Inter-American Court of Human Rights decides on individual complaints lodged under the American Convention of Human Rights of 1969. That Convention states the following in respect of the right to examine witnesses:<\/p>\n Article 8. Right to a Fair Trial<\/p>\n \u201c1.\u00a0\u00a0Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him…<\/p>\n 2.\u00a0\u00a0…During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:<\/p>\n …<\/p>\n f.\u00a0\u00a0the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts…\u201d<\/p>\n 80.\u00a0\u00a0In Canese v. Paraguay (Judgment of 31 August 2004, Series C. no.\u00a0111, \u00a7\u00a7 164-65) the Inter-American Court found a violation of the applicant\u2019s right to a fair trial, because \u201cthrough judicial negligence, no testimonial evidence was provided [at the trial], eliminating the possibility of Mr Canese presenting probative material in his defence that could \u201cthrow light on the facts.\u201d This conclusion had been reached with regard to the fact that the accused was not allowed to obtain a hearing for other persons who, as witnesses and expert witnesses, could \u201cthrow light on the facts\u201d and that during the proceedings in the first instance, after having issued an order summoning the witnesses proposed by the defendant, the judge revoked this decision and ordered the evidentiary stage to be closed.<\/p>\n 81.\u00a0\u00a0In Nor\u00ednCatrim\u00e1n et al. v. Chile (Judgment of 29 May 2014, Series\u00a0C no. 279, \u00a7 249) the Inter-American Court \u2013 confronted with several applications concerning the exclusive and untested use of anonymous witnesses\u2019 statements at trials \u2013indicated, inter alia referring to the case-law of this Court, that the use of anonymous witness statements must be subjected to judicial control and offset by counterbalancing measures, cautious treatment of that testimony, and availability of supporting and corroborative evidence. In respect of one of the applicants it concluded that he \u201chad no available means of proof\u201d for his case, because his reasoned and specific request to summon two defence witnesses had been initially granted by the investigating judge, but not enforced due to refusal of the witnesses to appear. Since no statements were taken from the defence witnesses and the applicant was convicted on the basis of testimony of three anonymous witnesses absent from trial, the Inter-American Court considered the right under Article 8 (2) (f) of the American Convention to be violated (\u00a7\u00a7\u00a0258\u201159).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (b) OF THE CONVENTION AS REGARDS THE VIEWING OF A VIDEOTAPE<\/p>\n 82.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (b) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to see effectively a secret surveillance videotape shown in the courtroom. Article 6 of the Convention in the relevant part reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing … by [a] … tribunal …<\/p>\n …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (b)\u00a0\u00a0to have adequate time and facilities for the preparation of his defence…\u201d<\/p>\n 83.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0The Chamber judgment<\/strong><\/p>\n 84.\u00a0\u00a0The Chamber noted that the case materials contained no evidence that the applicant, either during the trial or on appeal, had complained that she had been unable to see the recording when it was being played. However, it concluded that there was no need to rule on the issue, since in any event the applicant had been able to follow the proceedings (see paragraphs\u00a071-72 of the Chamber judgment). It further found that it had not been \u201cstrictly necessary\u201d to see the recording, given that the applicant\u2019s purpose in having the video tape played at the trial was to verify the accuracy of the transcripts.Listening to the tape was sufficient for that purpose.<\/p>\n 85.\u00a0\u00a0Unanimously, the Chamber held that there had been no violation of Article\u00a06\u00a0\u00a7\u00a7 1 and 3 (b) of the Convention given that the defence had not allegedthat there had been difficulties in hearing the audio track and had not disputed the authenticity of the recording itself (see paragraphs 73-74 of the Chamber judgment).<\/p>\n B.\u00a0\u00a0The parties\u2019 submissions to the Grand Chamber<\/strong><\/p>\n 1.\u00a0\u00a0The applicant<\/em><\/p>\n 86.\u00a0\u00a0The applicant did not mention in her referral request the finding of no violation as regards her ability to seethe surveillance videotape shown during the hearing. However, in her submissions before the Grand Chamber, she invited the Court to draw inferences from the Government\u2019s failure to produce the plans of the courtroom and the arrangements for viewing the video recording. She noted that only one tape had been played and she had been prevented from effectively participating in the viewing of it due to the absence of adequate arrangements. She alleged that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (b) of the Convention.<\/p>\n 2.\u00a0\u00a0The Government<\/em><\/p>\n 87.\u00a0\u00a0The Government maintained that the Chamber\u2019s findings on this issue had not been contested in the applicant\u2019s referral request and should therefore be confirmed. They endorsed the conclusions of the Chamber. The Government noted that the applicant had been able to follow the content of the videotape and that she had not raised any relevant objections or complaints during the trial. Her statement of appeal merely referred to technical difficulties in seeing the recording. Moreover, she had disputed neither the lawfulness nor the authenticity of the recording, nor had she claimed that the quality of the playback was poor. Since she had requested that the tape be played to verify the authenticity of the transcript, seeing the playback, apart from the fact of being able to hear the audio track, had not been necessary.<\/p>\n C.\u00a0\u00a0Scope of the case before the Grand Chamber<\/strong><\/p>\n 88.\u00a0\u00a0The Court observes at the outset that the content and scope of the case referred to the Grand Chamber are delimited by the Chamber\u2019s decision on admissibility. This means that the Grand Chamber may examine the case only in so far as it has been declared admissible; it cannot examine those parts of the application which have been declared inadmissible (see, for example, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no.\u00a05809\/08, \u00a7 78, 21 June 2016). The instant complaint was declared admissible, even if it did not form part of the applicant\u2019s referral request.<\/p>\n 89.\u00a0\u00a0The Grand Chamber\u2019s jurisdiction therefore extends to ascertaining whether the applicanthad been prevented from effectively participating in the viewing of the videotape shown during the hearingas alleged,and, if so, whether this undermined the overall fairness of the criminal proceedings against her contrary to Article\u00a06\u00a0\u00a7\u00a7\u00a01 and 3 (b) of the Convention.<\/p>\n D.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 90.\u00a0\u00a0As the requirements of Article 6 \u00a7 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 \u00a7 1 of the Convention, the Court will examine the complaint from the point of view of these two provisions taken together (seeSimeonovi v. Bulgaria [GC], no.\u00a021980\/04, \u00a7 113, 12 May 2017;see also L\u00fcdi v. Switzerland, 15 June 1992, \u00a7 43, Series A no. 238;and Vacher v. France, 17 December 1996, \u00a7\u00a022, Reports of Judgments and Decisions 1996-VI).<\/p>\n 91.\u00a0\u00a0The Court reiterates that Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial, which includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings (see Stanford v. the United Kingdom, 23\u00a0February 1994, \u00a7 26, Series A no. 282\u2011A).The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment on them (seeZahirovi\u0107 v. Croatia, no.\u00a058590\/11, \u00a7\u00a042, 25 April 2013, with further references). The facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands (dec.), no. 29835\/96, 15 January 1997;Galstyan v. Armenia, no. 26986\/03, \u00a7 84, 15 November 2007; and Ibrahimov and Others v. Azerbaijan, nos. 69234\/11 and 2 others, \u00a7 95, 11 February 2016, with further references).<\/p>\n 92.\u00a0\u00a0Having regard to the available material, the arguments presented by the parties, and the principles cited above,the Court sees no reason to depart from the Chamber\u2019s conclusions.<\/p>\n 93.\u00a0\u00a0It observes that only one surveillance videotape was viewed during the hearing. It was shown upon a motion by the defenceto view that specific tape in order to verify the accuracy of the transcript (see paragraph\u00a050 above). No motion to view other videotapes was lodged by the defence, and it is not disputed that they were available for examination in court had either of the parties submitted a motion to that effect. Moreover, the transcripts of the conversations recorded on these tapes had been included in the criminal casefile and were available for examination.<\/p>\n 94.\u00a0\u00a0Regarding the alleged technical difficulties when viewing the tape mentioned in her statement of appeal (see paragraph 63 above), the applicant did not explain either to the domestic courts or to this Court what those difficulties were. Furthermore, the record of the trial and other documents in the casefile contain no indication of any complaints having been made by the applicant about the quality of the audio track of the recording. The failure of the Government to provide the plans of the courtroom and the arrangements for viewing the video-recording highlighted by the applicant cannot in itself serve as a ground for the drawing of any \u201cinferences\u201d of unfairness in the proceedings.<\/p>\n 95.\u00a0\u00a0The Court is satisfied that the applicant was able to participate effectively in the viewing of the videotape in a way which satisfied her procedural needs, namely verifying the accuracy of the transcript by comparing it to the audio track of the recording.It follows that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (b) of the Convention in this regard.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (d) OF THE CONVENTION AS REGARDS WITNESS A.<\/p>\n 96.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to call and examine witness A. at the trial. The relevant part of Article 6 of the Convention reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing … by [a] … tribunal…<\/p>\n …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (d)\u00a0\u00a0to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…\u201d<\/p>\n 97.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0The Chamber judgment<\/strong><\/p>\n 98.\u00a0\u00a0The Chamber,having reaffirmed that it is primarily for the domestic courts to decide on the relevance of evidence the defence seeks to adduce and that it was the Court\u2019s task to ascertain whether the proceedings, considered as a whole, had been fair, decided the case on the basis of the test derived from the judgment in the case of Perna v.\u00a0Italy ([GC],no.\u00a048898\/99, \u00a7 29, ECHR 2003\u2011V) and the subsequent case-law (see paragraph\u00a084 of the Chamber judgment). It examined (a) whether the applicant\u2019s request was sufficiently reasoned and relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or have even led to the applicant\u2019s acquittal; and (b) whether the trial court, by not securing the attendance of a particular witness to testify on behalf of the applicant, had breached her right under Article\u00a06 \u00a7\u00a03\u00a0(d) of the Convention.<\/p>\n 99.\u00a0\u00a0In the first place, the Chamber observed that the testimony given by A. during the pre-trial stage had not been disputed by the applicant. While acknowledging that A.\u2019s testimony might have had at least some relevance to the charges, the Chamber answered the first part of the test in the negative. It considered that the defence had failed to explain, even briefly, why the attendance of A. was important for their line of defence, whether his actions had amounted to entrapment or whether he had exerted any pressure on the applicant and, finally, whether his testimony would have served to exonerate the applicant or, at the very least, strengthened her position in any way (see paragraph 87 of the Chamber judgment). As regards the applicant\u2019s allegations of entrapment, the Chamber specifically observed that they had been raised for the first time in the applicant\u2019s observations before the Court. Accordingly, it concluded that the applicant had failed to support her request to question A. with sufficient reasons (ibid.).Further, the Chamber examined the overall fairness of the proceedings and concluded that the applicant\u2019s conviction had been based on a range of evidence. Despite A.\u2019s absence from the trial his pre-trial statements had been read out at trial and the applicant was able to comment on them as well as on the other evidence.<\/p>\n 100.\u00a0\u00a0Accordingly, the Chamber concluded, by a majority, that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention as regards the absence of witness A. (see paragraphs 88-89 of the Chamber judgment).<\/p>\n B.\u00a0\u00a0The parties\u2019 submissions to the Grand Chamber<\/strong><\/p>\n 1.\u00a0\u00a0The applicant<\/em><\/p>\n 101.\u00a0\u00a0The applicant contended that A. was a \u201ckey witness\u201d and his activities had led to the creation of the body of evidence against her. Accordingly, his activities could be likened to those of an agent provocateur. She maintained that she had consistently and explicitly referred to possible entrapment in her submissions before the domestic courts. She had underlined A.\u2019s central role to the investigating authorities and the courts and insisted that he be questioned directly.<\/p>\n 102.\u00a0\u00a0While admitting that her lawyer S. had requested the questioning of A. at trial without putting forward specific reasons, she argued that the importance and relevance of A.\u2019s testimony could have been inferred from references to him during her own examination and her flatmates\u2019 earlier questioning.<\/p>\n 103.\u00a0\u00a0As regards the applicable Convention standard, the applicant invited the Grand Chamber to revise the Perna approach, at least for cases where the defence requests the examination of a witness whose attendance it has been unable to secure, for examplelaw-enforcement officials, and whom the prosecution does not call for questioning. In her opinion, the Perna approach was \u201cmechanical\u201d and devoid of substantive criteria and placed an unduly high burden on the defence, which was required to justify calling a witness over whom the prosecution could have control.<\/p>\n 104.\u00a0\u00a0In support of the above argument the applicant referred to the evolution of the applicable standard for prosecution witnesses in Al\u2011Khawaja and Tahery v. the United Kingdom [GC], nos. 26766\/05 and 22228\/06, ECHR 2011, and Schatschaschwili v. Germany [GC], no.\u00a09154\/10, ECHR 2015, as well as the current trends in entrapment and peaceful assembly case-law (she referred to Bannikova v. Russia, no.\u00a018757\/06, \u00a7 73, 4\u00a0November 2010, and Navalnyy and Yashinv. Russia, no.\u00a076204\/11, \u00a7 83, 4\u00a0December 2014). In her opinion,these developments indicated that domestic courts were required to employ a heightened standard of review in verifying incriminating evidence. Referring to the practice of the Inter-American Court (Canese v. Paraguay andNor\u00ednCatrim\u00e1n et al. v. Chile, paragraphs 80-81 above), the ICTY Appeals Chamber (Prosecutor v. Marti\u0107;Prosecutor v. Halilovi\u0107;andProsecutor v.\u00a0Krsti\u0107, paragraphs73-75 above) and the United States Supreme Court (Cruz v. New York, 481 US 186 (1987), and Lilly v. Virginia 527 US 116 (1999)),she argued that international law concerning the examination of witnesses had advanced beyond the Perna standard and that it was necessary to call not only witnesses who could give evidence capable of leading to acquittal, but \u201cgenerally witnesses of fact\u201d.<\/p>\n 105.\u00a0\u00a0The applicant submitted that the domestic courts had failed to ensure the presence of witness A., despite his role as a covert agent. It had been convincingly shown that he was the key witness and the domestic courts had relied on his testimony for her conviction. In her opinion,A. was both a defence and a prosecution witness and the courts should have compelled his attendance.<\/p>\n 2.\u00a0\u00a0The Government<\/em><\/p>\n 106.\u00a0\u00a0The Government addressed two preliminary points of disagreement with the applicant regarding the manner in which the examination of A. at trial had been requested.<\/p>\n 107.\u00a0\u00a0First, they stated that the trial records accurately and adequately reflected the progress of the proceedings. In support of that argument they referred to the fact that the defence had not challenged the trial records pertaining to the request to question A., whereas they had filed detailed and elaborate objections to the content of the trial records on various other points. Furthermore, one of the applicant\u2019s lawyers had expressly agreed to the unchallenged parts of the records.<\/p>\n 108.\u00a0\u00a0Second, the applicant\u2019s contention that she had consistently raised an entrapment defence at the domestic level contradicted the case material. They stated that the applicant did not advance an agent provocateur issue until the submission of her observations before the Court, and no such allegation had been made by the defence when requesting the attendance of A. The Government claimed that any entrapment complaint was in any event manifestly ill-founded, since the applicant had refuted her involvement in the crime she had been charged with. In support of their position they referred to the Court\u2019s decision in Koromchakova v. Russia (dec.) (no. 19185\/05, \u00a7 19, 13 December 2016).<\/p>\n 109.\u00a0\u00a0Turning to the subject-matter of the present complaint, the Governmentsuggested that the fairness of the proceedings in terms of the examination of defence witnesses should be assessed using the following test:<\/p>\n – Did the applicant clearly and explicitly inform the authorities of her wish to question a certain witness by lodging the relevant request?<\/p>\n – Was that request sufficiently reasoned, relevant to the accusation and capable of strengthening the position of the defence?<\/p>\n – Did the domestic courts breach Article 6 \u00a7 3 (d) by failing to secure the attendance of a witness?<\/p>\n 110.\u00a0\u00a0The Government concluded that the applicant failed already at the first step of the test. They highlighted that the defence had only once submitted a motion to examine A., had not objected to the reading out of his pre-trial testimony, although the procedural legislation afforded such an opportunity and, in fact, had largely concurred with the contents of the statements read out. Given the parties\u2019 consent to the reading out of A.\u2019s statements and in the absence of any motion to adjourn the proceedings, the trial court had continued with the case as the parties had seen fit. Accordingly, in the Government\u2019s opinion, the applicant had failed to take the minimal procedural actions necessary for the exercise of her right to examine A; she had limited herself to A.\u2019s pre-trial questioning and had clearly and explicitly waived her right to examine him at trial.<\/p>\n 111.\u00a0\u00a0Despite the above assertion the Government nevertheless proceeded to the second step of their test and argued that the applicant had not adduced sufficient reasons for the questioning of A. On the factual side they highlighted that during the pre-trial proceedings the applicant had lodged a request to question A. seven months after her arrest and the start of the investigation. She had put only factual questions to him, which were not related to the charges against her, and the defence had failed to put further questions to A. after receiving the answers to the initial questions.<\/p>\n 112.\u00a0\u00a0They further stated that in any event the applicant\u2019s questions could have been answered by other witnesses examined at the trial. Moreover, the prosecution did not refer to A.\u2019s testimony and the courts did not rely on A.\u2019s testimony in convicting her.<\/p>\n 113.\u00a0\u00a0Given the negative answers to the first two limbs of the test, they concluded that it was not necessary to examine the third limb.<\/p>\n C.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 114.\u00a0\u00a0The Court takes note of the Government\u2019s argument that the applicant had waived her right to examine witness A. at the trial. It considers that this argument must be examined as a preliminary objection to the admissibility of this complaint (see, in this connection, Palchik v.\u00a0Ukraine, no. 16980\/06, \u00a7\u00a7 36-38, 2 March 2017, and Giurgiu v. Romania (dec.), no. 26239\/09, \u00a7 99, 3 October 2017).<\/p>\n 115.\u00a0\u00a0It reiterates that under Article 35 \u00a7 4 in fine of the Convention it can \u201creject any application which it considers inadmissible … at any stage of the proceedings\u201d. Thus, even at the merits stage and subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Regner v. the Czech Republic [GC], no. 35289\/11, \u00a7 97, 19 September 2017, referring to Vu\u010dkovi\u0107 and Others v. Serbia (preliminary objection) [GC], nos.\u00a017153\/11 and 29 others, \u00a7 56, 25 March 2014, with further references).<\/p>\n 116.\u00a0\u00a0In their submissions before the Chamber and the Grand Chamber the Government argued that the applicant and her counsel had clearly and explicitly waived the right to obtain the attendance and examination of witness A. by consenting to the reading out of his pre-trial statements at trial.<\/p>\n 117.\u00a0\u00a0Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, \u00a7 115 with further references).<\/p>\n 118.\u00a0\u00a0It follows that a waiver of the right to examine a witness, a fundamental right among those listed in Article 6 \u00a7 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements.<\/p>\n 119.\u00a0\u00a0Turning to the present case, the Court observes that the applicant, assisted by her defence lawyers, consented to the reading out of witness A.\u2019s pre-trial statements at the hearing of 13 January 2005 (see paragraph 52 above). Significantly, the applicant neither disputed the accuracy of the relevant trial records nor alleged that she had not had the benefit of appropriate legal advice on the matter.<\/p>\n 120.\u00a0\u00a0It further notes that in several previous cases dealing with analogous situations the Court had regard to various factual and legal circumstances in reaching the conclusion that the applicants had either waived (see, for example, Khametshin v. Russia, no. 18487\/03, \u00a7\u00a041, 4\u00a0March 2010; Poletan and Azirovikv. the former Yugoslav Republic of Macedonia, no. 26711\/07 and 2 others, \u00a7 87, 12 May 2016;and Palchik, cited above, \u00a7 36) or not waived the right to examine a witness (see, for example, Bocos-Cuesta v. the Netherlands, no. 54789\/00, \u00a7\u00a066, 10\u00a0November 2005; Makeyev v. Russia, no. 13769\/04, \u00a7 37, 5\u00a0February 2009; and Gabrielyan v. Armenia, no. 8088\/05, \u00a7 85, 10 April 2012).<\/p>\n 121.\u00a0\u00a0The Court must now determine whether in the circumstances of the present case the applicant had waived her right to examine witness A. It notes at the outset that nothing in the available material suggests that her actions had not been voluntary or had run counter to any important public interest.<\/p>\n 122.\u00a0\u00a0Having regard to the trial records, it is to be noted that the defence had agreed in an unequivocal manner to the reading out of A.\u2019s pre-trial statements. On the last day of the examination of evidence, lawyer S. requested the court to summon witness A. The presiding judge then informed the parties that this witness was not available, whereupon the prosecutor requested that witness A.\u2019s pre-trial statements be read out. Lawyer U. did not object to the reading out, and lawyer S. explicitly agreed to this (see paragraph 52above).<\/p>\n 123.\u00a0\u00a0Subsequently, the presiding judge, before closing the examination of the evidence, inquired as to whether the parties were prepared to rest their cases in the absence of those witnesses who had not appeared. The applicant did not raise any objections and, in particular, she did not repeat her request to hear witness A. at the trial (see paragraphs 52-55 above).<\/p>\n 124.\u00a0\u00a0However, Russian criminal procedure law had afforded the applicant an opportunity to object, even without invoking any reasons, to the reading out of these statements. Had she done so and had she insisted on A. being summoned, the trial court could have read out A.\u2019s pre-trial statements only in the specific circumstances prescribed in Article\u00a0281\u00a0\u00a7\u00a02 CCrP (see paragraph 71 above). If these requirements were not met, adjourning the hearing and re-summoning of witness A. would have been a possible way to proceed.<\/p>\n 125.\u00a0\u00a0The applicant, at the trial court, was represented by two professional lawyers of her own choosing. Nothing suggests that they were not aware of the consequences of their having agreed to the reading out of A.\u2019s statements, namely that they would lose the possibility to have the witness heard before the trial court and that his statements would be taken into consideration by the court when deciding on the charges against the applicant.<\/p>\n 126.\u00a0\u00a0Furthermore, nothing in the applicable legislation or in judicial practice prevented the defence from lodging subsequent motions to examine A. in the appeal proceedings. However, the applicant, again assisted by two lawyers, chose not to use that possibility either. Regard must also be had to the fact that at no point in the proceedings, either before the domestic courts or this Court, has the applicant alleged that the services of her lawyers were inadequate.<\/p>\n 127.\u00a0\u00a0The above considerations are sufficient to enable the Court to conclude that the applicant, by agreeing to the reading out of witness A.\u2019s pre-trial statements and by not insisting on her request that he be heard in court, waived her right to examine that particular witness (see Palchik, cited above, \u00a7 36). This waiver was attended by minimum safeguards commensurate with its importance. In this respect, the Court reiterates that the applicant was assisted by two lawyers and was explicitly asked by the presiding judge whether she was prepared to rest her case in the absence of the witness, a course of action she did not object to. It also observes that the applicant had the possibility to comment on A.\u2019s statements, but did not advance any substantive objections to their content (see paragraph 52 above). Furthermore, the Court does not consider that the case raised any questions of public interest preventing the specific procedural guarantees from being waived (see Hermi v. Italy [GC], no. 18114\/02, \u00a7 79, ECHR 2006\u2011XII). No reason can be discerned to doubt that the applicant\u2019s waiver constituted a knowing and intelligent relinquishment of a right and that she could, with the assistance of her two lawyers, reasonably have foreseen the consequences of her conduct (see, Khametshin, cited above, \u00a7 41, and, Palchik, cited above, \u00a7 36; a contrario, Sakhnovskiy v. Russia [GC], no.\u00a021272\/03, \u00a7\u00a7\u00a091-92, 2 November 2010).<\/p>\n 128.\u00a0\u00a0Consequently, the Court upholds the Government\u2019s preliminary objection and dismisses the applicant\u2019s complaint about the absence of witness A. at her trial as manifestly ill-founded according to Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (d) OF THE CONVENTION AS REGARDS WITNESSES B. AND K.<\/p>\n 129.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to call and examine at the trial the two attesting witnesses B. and K.<\/p>\n 130.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0The Chamber judgment<\/strong><\/p>\n 131.\u00a0\u00a0The Chamber observed that under Russian law, attesting witnesses are invited by the investigator to act as neutral observers of an investigative measure. Unlike material witnesses, they are not expected to have any knowledge of the case and they do not testify as regards the circumstances of the case or an accused\u2019s guilt or innocence (see Shumeyev and Others v.\u00a0Russia(dec.), no. 29474\/07 and 3 others, \u00a7 31, 22 September 2015).<\/p>\n 132.\u00a0\u00a0Having established that the trial court did not rely on any statements that B. and K. had made during the proceedings either in favour of the applicant or against her and that they could have testified only about the manner in which the search had been carried out and its results, the Chamber considered that their testimony was incapable of influencing the outcome of the applicant\u2019s trial (see paragraphs 96-97 of the Chamber judgment).<\/p>\n 133.\u00a0\u00a0The Chamber found, by a majority, that there had been no violation of Article 6 \u00a7\u00a7 1 and 3\u00a0(d) (paragraph 98 of the Chamber judgment).<\/p>\n B.\u00a0\u00a0The parties\u2019 submissions to the Grand Chamber<\/strong><\/p>\n 1.\u00a0\u00a0The applicant<\/em><\/p>\n 134.\u00a0\u00a0The applicant maintained that even if she had not insisted on the questioning of the attesting witnesses, her lawyers had done so. They considered their testimony to have been relevant to establishing the circumstances of her personal search at the police station and to clarifying how the attesting witnesses had come to be chosen. Accordingly, in her opinion, there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention.<\/p>\n 2.\u00a0\u00a0The Government<\/em><\/p>\n 135.\u00a0\u00a0The Government supported the Chamber\u2019s conclusions on this point. They stated that summoning the attesting witnesses was not necessary given that their testimony had not been used by the domestic courts. These two persons were unable to give evidence about the alleged planting of explosives in the applicant\u2019s bag since this had purportedly taken place before her search in their presence. The motion to summon them was lodged only once. The motion was denied by the domestic courts, and the defence did not insist on it any further. Referring to Shumeyev and Others, cited above, the Government further maintained that nothing indicated that the attesting witnesses would have been able to provide any evidence beyond that already available to the courts.<\/p>\n C.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 136.\u00a0\u00a0The Court observes that Russian criminal procedure contains separate provisions on material witnesses (\u0441\u0432\u0438\u0434\u0435\u0442\u0435\u043b\u0438) and attesting witnesses (\u043f\u043e\u043d\u044f\u0442\u044b\u0435) and uses different terms to distinguish between them. Attesting witnesses are invited by an investigator to act as neutral observers of an investigative measure. They are not considered to be witnesses for the prosecution or the defence, since, unlike material witnesses, they have no knowledge of the case and they do not testify about the circumstances of the case or a defendant\u2019s guilt or innocence. The absence of attesting witnesses from criminal trials does not infringe the guarantees of Article 6 \u00a7\u00a7 1 and 3\u00a0(d) of the Convention insofar as their testimony is limited to the manner of conducting investigative measures and is, in essence, redundant evidence (see Shumeyev and Others, cited above, \u00a7\u00a037).<\/p>\n 137.\u00a0\u00a0However, it is to be noted that the above principles were developed in a context where the testimony of the attesting witnesses had been adduced by the prosecution.<\/p>\n 138.\u00a0\u00a0In the present case it was the defence who intended to rely on the testimony of the attesting witnesses B. and K. in order to support their claim that the explosives had been planted in the applicant\u2019s handbag prior to her personal search. Viewed in that light, B. and K.\u2019s testimony would have ranged beyond the mere modalities of the search and the information subsequently entered in the police records. Therefore, B. and K. are to be considered as \u201cwitnesses on behalf\u201d of the applicant within the meaning of Article 6 \u00a7 3 (d) of the Convention.<\/p>\n 1.\u00a0\u00a0General principles established in the case-law regarding the examination of defence witnesses<\/em><\/p>\n 139.\u00a0\u00a0The Court reiterates that under Article 6 of the Convention the admissibility of evidence is primarily a matter for regulation by national law and the Court\u2019s task is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, \u00a7\u00a050, Reports 1997\u2011III, and Perna, cited above, \u00a7 29). Article 6 \u00a7 3 (d) of the Convention does not require the attendance and examination of every witness on the accused\u2019s behalf, the essential aim of that provision, as indicated by the words \u201cunder the same conditions\u201d is to ensure a full \u201cequality of arms\u201d in the matter (see Engel and Others v. the Netherlands, 8\u00a0June 1976, \u00a7 91, Series A no. 22, and Vidal v. Belgium, 22 April 1992, \u00a7 33, Series A no. 235\u2011B).<\/p>\n 140.\u00a0\u00a0In its judgment in the Perna case (cited above, \u00a7\u00a029), extensively referred to by the parties and the Chamber, the Court summarised the principles applicable to the calling and examining of defence witnesses. First of all, as a general rule, it is for the domestic courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce and Article 6 \u00a7 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call a particular witness. Second, it is not sufficient for a defendant to complain that he or she has not been allowed to question certain witnesses; he or she must, in addition, support the 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.<\/p>\n 141.\u00a0\u00a0The test as formulated in Perna essentially consists of two questions: firstly, whether the applicant substantiated his or her request to call a particular witness by referring to the relevance of that individual\u2019s testimony for \u201cthe establishment of the truth\u201d and secondly, whether the domestic courts\u2019 refusal to call that witness undermined the overall fairness of the proceedings (see Perna, cited above, \u00a7\u00a7 29, 32).<\/p>\n 142.\u00a0\u00a0It is instructive to examine the development of the approach established in Perna in the subsequent case-law and the difficulties to which its practical application has given rise.<\/p>\n 143.\u00a0\u00a0It has been repeatedly clarified by the Court that when a defence witness\u2019 testimony is capable of reasonably establishing an accused\u2019s alibi such a witness is considered prima facie relevant (see, for example, Polyakov v. Russia, no. 77018\/01, \u00a7 34, 29 January 2009). On the contrary, in a case where the examination of a defence witness had been requested in order to establish an issue beyond the scope of a charge or the testimony had been incapable of proving the accused\u2019s innocence, the absence of the witness had not compromised the fairness of the criminal proceedings (see Tymchenko v.\u00a0Ukraine, no. 47351\/06, \u00a7 92, 13\u00a0October 2016). The Court has also stressed that a domestic court is not required to answer clearly vexatious requests to call defence witnesses (see Dorokhov v. Russia, no.\u00a066802\/01, \u00a7\u00a072, 14\u00a0February 2008).<\/p>\n 144.\u00a0\u00a0An applicant satisfies Article 6 \u00a7 3 (d) requirements if he or she submits a request which is sufficiently reasoned, relevant to the subject matter of the accusation and can arguably strengthen the position of the defence or lead to his or her acquittal (see Dorokhov, cited above, \u00a7\u00a7\u00a067-72, and Polyakov, cited above, \u00a7\u00a034). Applicants are required to explain to the domestic courts with sufficient clarity why the examination of a particular witness is necessary(see Miminoshvili v. Russia, no. 20197\/03, \u00a7 122, 28\u00a0June 2011).<\/p>\n 145.\u00a0\u00a0The significance of a defence witness\u2019 testimony needs to be weighed against its ability to influence the outcome of a trial. For example, calling a witness who, it is claimed, might have supported an accused\u2019s allegation that he was ill-treated in order to make him confess to an offence, might not be necessary if the impugned confession did not play a crucial role in establishing the applicant\u2019s guilt (see Tarasov v.\u00a0Ukraine, no.\u00a017416\/03, \u00a7 105, 31 October 2013). Once the national authorities themselves recognise the relevance of a defence witness\u2019 statement, for example, by referring to his statements in a bill of indictment and repeatedly granting requests to call that witness, then if in the further course of the proceedings that witness is not summoned it might not be necessary for the defence to provide the domestic courts with further detailed reasons for his examination (see Pello v. Estonia, no.\u00a011423\/03, \u00a7 33, 12\u00a0April\u00a02007).<\/p>\n 146.\u00a0\u00a0When the defence requests the examination of a witness who could have arguably strengthened the position of the defence or whose testimony could even have given rise to an acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Topi\u0107 v. Croatia, no. 51355\/10, \u00a7 42, 10 October 2013). In this context a reference by the courts to other facts of the case, which indicate why a witness could not have supplied new or important information, might be sufficient (see Sergey Afanasyev v. Ukraine, no. 48057\/06, \u00a7 70, 15 November 2012, and Janyr v.\u00a0the\u00a0Czech Republic, no. 42937\/08, \u00a7\u00a7 81-82, 31 October 2013).<\/p>\n 147.\u00a0\u00a0The Court has noted that a decision to call a defence witness at a certain point during the investigation or trial and the subsequent absence of that witness from trial is significant, but not in itself conclusive (compare Popov v.\u00a0Russia, no. 26853\/04, \u00a7 188, 13 July 2006, where the absence of the witness led to a violation of Article 6 of the Convention, and Andrey Zakharovv. Ukraine, no. 26581\/06, \u00a7\u00a7 61-62, 7 January 2016, where it did not). However, once the domestic courts have accepted, at least in principle, that the examination of a witness for the defence was relevant, they have an obligation to take \u201ceffective\u201d measures to ensure the witness\u2019 presence at the hearing by way of, at the very least, issuing a summons (see Polufakin and Chernyshevv. Russia, no.\u00a030997\/02, \u00a7 207, 25\u00a0September\u00a02008) or by ordering the police to compel a witness to appear in court (see Pello, cited above, \u00a7 34).<\/p>\n 148.\u00a0\u00a0It is only in exceptional circumstances that the Court will be led to conclude that the failure to hear a witness was incompatible with Article 6 of the Convention (see Bricmont v. Belgium, 7 July 1989, \u00a7 89, Series A no.\u00a0158). The dismissal of a request without giving reasons or the \u201csilence\u201d of the domestic courts in respect of a sufficiently reasoned and relevant request to call a defence witness does not necessarily lead to a finding of a violation of Article\u00a06 (see Dorokhov, cited above, \u00a7\u00a7 74-75). Since the overall fairness of the proceedings is an overriding criterion under Article 6 an applicant has to demonstrate not only that a particular defence witness was not examined, but also that the examination of that witness was necessary and that the refusal to call the witness prejudiced the rights of the defence (see Guilloury v. France, no. 62236\/00, \u00a7 55, 22 June 2006, with further reference).<\/p>\n 149.\u00a0\u00a0It must be reiterated that it is not the function of this Court to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see G\u00e4fgen v. Germany [GC], no. 22978\/05, \u00a7 162, ECHR 2010). In the determination of whether the proceedings were fair this Court does not act as a court of fourth instance deciding on whether the evidence had been obtained unlawfully in terms of domestic law, its admissibility or on the guilt of an applicant (see, mutatis mutandis, G\u00e4fgen, cited above, \u00a7\u00a0162; Tseber v. the Czech Republic, no. 46203\/08, \u00a7 42, 22 November 2012; and Nikolitsas v. Greece, no. 63117\/09, \u00a7 30, 3 July 2014). These matters, in line with the principle of subsidiarity, are the province of the domestic courts. It is not appropriate for this Court to rule on whether the available evidence was sufficient for an applicant\u2019s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court\u2019s only concern is to examine whether the proceedings have been conducted fairly and that in a given case they were compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case (see Taxquet v.\u00a0Belgium [GC], no. 926\/05, \u00a7 84, ECHR 2010, and Al-Khawaja and Tahery, cited above, \u00a7 118).<\/p>\n 2.\u00a0\u00a0Clarification of the general principles<\/em><\/p>\n 150.\u00a0\u00a0Before the Grand Chamber the applicant urged the Court to revise the existing Perna standard since, in her opinion, the existing principles were \u201cmechanical\u201d in their application and devoid of substantive criteria, and placed an unduly high burden on the defence. She argued that the rules of international law concerning the examination of witnesses had evolved considerably beyond the Perna standard in that the burden on the defence to show the need to call a particular witness for questioning had decreased and the trial court\u2019s review of the reasons for the failure to appear and of the consequences of that failure for the overall fairness of the proceedings had assumed greater significance. The applicant referred inter alia to the practice of the ICTY Appeals Chamber and the Inter-American Court of Human Rights (see paragraph 104 above).<\/p>\n 151.\u00a0\u00a0Having carefully considered the practice of other international tribunals referred to in the submissions, the Court does not discern any elements capable of supporting the applicant\u2019s claim. On the contrary, the case-law of the ICTY Appeals Chamber and the Inter-American Court of Human Rights demonstrates that the general principles employed by these tribunals for the evaluation of the overall fairness of criminal proceedings are comparable, if not identical, to the principles developed by this Court. The Court also observes that the international tribunals mentioned above have extensively referred to this Court\u2019s case-law in formulating their own principles (see paragraphs 75 and 81 above).<\/p>\n 152.\u00a0\u00a0That being said, the Court considers it usefulin the present case to clarify the general principles concerning the examination of defence witnesses as formulated in its case-law under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention.<\/p>\n 153.\u00a0\u00a0The applicable Perna test consists of two questions: firstly, whether the applicant has substantiated his or her request to call a particular witness by referring to the relevance of that individual\u2019s testimony for \u201cthe establishment of the truth\u201d and, secondly, whether the domestic courts\u2019 refusal to call that witness undermined the overall fairness of the proceedings (see paragraph141above).<\/p>\n 154.\u00a0\u00a0However, a careful study of the case-law reveals that despite generally following the above approach the Court has also consistently examined the manner in which the domestic courts decided on a request to call a certain witness. The conduct and decision-making of the domestic courts have attracted independent scrutiny and were weighty factors in the Court\u2019s analysis in the great majority of pre- and post-Perna cases (see, among many other examples, Bricmont, cited above, \u00a7\u00a089; Destrehem v.\u00a0France, no. 56651\/00, \u00a7\u00a7 41-45, 18 May 2004; Asci v. Austria (dec.), no.\u00a04483\/02, 19 October 2006; Popov, cited above, \u00a7 188; Polyakov, cited above, \u00a7 35; Tar\u0103u v. Romania, no. 3584\/02, \u00a7\u00a7 74-76, 24 February 2009; and Topi\u0107, cited above, \u00a7 42). The Court\u2019s careful and deferential examination of the domestic courts\u2019 reasoning is in line with the established principles that, firstly, those courts are best placed to assess the relevance and admissibility of evidence and, secondly, that only exceptional circumstances will prompt the Court to conclude that the failure to hear a particular person as a witness was incompatible with Article 6 of the Convention.<\/p>\n 155.\u00a0\u00a0Therefore the question whether the domestic courts considered the relevance of that individual\u2019s testimony and provided sufficient reasons for their decision not to examine a witness at trial must be recognised as an independent and integral component of the test under Article 6 \u00a7 3 (d) of the Convention.<\/p>\n 156.\u00a0\u00a0It appears that the judicial assessment of the relevance of a witness\u2019 testimony and the reasoning of the domestic courts in their response to the defence\u2019s request to examine a witness provide the logical link between the two elements of the Perna test and have operated as an implicit substantive element of that test. The Court considers it desirable in the interests of clarity and consistency of practice to make this element explicit (see, similarly, Perez v.\u00a0France [GC], no. 47287\/99, \u00a7 54-56, ECHR 2004\u2011I).<\/p>\n 157.\u00a0\u00a0This development appears to be in line with the recent case-law under Article 6 of the Convention stressing the decisive importance of the domestic courts\u2019 duty to engage in a careful scrutiny of the relevant issues if the defence advances a sufficiently reasoned claim. For example, the Court in the Grand Chamber judgment in the case of Dvorski v. Croatia ([GC], no.\u00a025703\/11, \u00a7 109, ECHR 2015) maintained that when the domestic authorities are presented with a legal challenge which might influence the overall fairness of the proceedings they must engage in a careful scrutiny of the issues, take steps to establish the relevant circumstances, and provide reasons adequate for their decisions. In a similar way, in agent provocateur cases the Court has stated that when \u201cconfronted with a plausible \u2013 and even arguable \u2013 allegation\u201d of entrapment the courts \u201cshould have had regard to whether the results of the test purchases were admissible as evidence, in particular verifying that they were not tainted by incitement\u201d (see Lagutin and Others v. Russia, nos. 6228\/09 and 4 others, \u00a7\u00a0118, 24 April 2014).<\/p>\n 158.\u00a0\u00a0Where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law, the Court, having regard to the above considerations, formulates the following three-pronged test:<\/p>\n 1.\u00a0\u00a0Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?<\/p>\n 2.\u00a0\u00a0Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?<\/p>\n 3.\u00a0\u00a0Whether the domestic courts\u2019 decision not to examine a witness undermined the overall fairness of the proceedings?<\/p>\n 159.\u00a0\u00a0The Court considers that the existing case-law already provides a solid basis for the application of all three steps of the test, but finds it appropriate to provide the following guidance for the examination of future cases.<\/p>\n (a)\u00a0\u00a0Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation<\/p>\n 160.\u00a0\u00a0In respect of the first element the Court notes that under the Perna test the issue of whether an accused substantiated his or her request to call a witness on his or her behalf is decided by reference to the relevance of that individual\u2019s testimony for \u201cthe establishment of the truth\u201d. While certain post-Perna cases examined whether a witness\u2019 testimony was relevant for the \u201cestablishment of the truth\u201d, others relied on its ability to influence the outcome of a trial (see Tarasov, cited above, \u00a7 105), reasonably establish an accused\u2019s alibi (see Polyakov, cited above, \u00a7 34), arguably lead to an acquittal (see Dorokhov, cited above, \u00a7\u00a072) or arguablystrengthen the position of the defence or even lead to the applicant\u2019s acquittal (see Topi\u0107, cited above, \u00a7 42). What appears to unite all of the above standards is the relevance of a witness\u2019s testimony to the subject matter of the accusation and its ability to influence the outcome of the proceedings. In the light of the evolution of its case-law under Article 6 of the Convention the Court considers it necessary to clarify the standard by bringing within its scope not only motions of the defence to call witnesses capable of influencing the outcome of a trial, but also other witnesses who can reasonably be expected to strengthenthe position of the defence.<\/p>\n 161.\u00a0\u00a0The relevance of testimony is thus also determinative of the assessment of whether an applicant has advanced \u201csufficient reasons\u201d for his or her request to call a witness, since the strength of reasoning considered \u201csufficient\u201d depends on the role of that testimony in the circumstances of any given case (see Pello, cited above, \u00a7 33, largely reflecting this approach). It is impossible to evaluate in the abstract whether certain reasons for the examination of a witness could be considered sufficient and relevant to the subject matter of the accusation. This assessment necessarily entails consideration of the circumstances of a given case, including the applicable provisions of the domestic law, the stage and progress of the proceedings, the lines of reasoning and strategies pursued by the parties and their procedural conduct. Admittedly, the relevance of a defence witness\u2019 testimony might be so apparent in certain cases that even scant reasoning given by the defence would be sufficient to answer the first question of the test in the affirmative (compare Pello, cited above, \u00a7 33).<\/p>\n (b)\u00a0\u00a0Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial<\/p>\n 162.\u00a0\u00a0The second element of the test requires the domestic courts to consider the relevance of the testimony sought by the defence and obliges them to provide sufficient reasons for their decisions. These requirementsare well-established in the Court\u2019s case-law (see, for example, Popov, cited above, \u00a7\u00a0188, and Topi\u0107, cited above, \u00a7 42).<\/p>\n 163.\u00a0\u00a0The Court reiterates that, on the one hand, under Article 6 of the Convention the admissibility of evidence is primarily a matter for regulation by national law and the domestic courts are best placed to decide on the issue and, on the other hand, Article 6 \u00a7 3 (d) of the Convention does not require the attendance and examination of every witness on the accused\u2019s behalf, but aims to ensure equality of arms in the matter. Within this framework it is primarily for the domestic courts to scrutinise carefully the relevant issues if the defence advances a sufficiently reasoned request to examine a certain witness.<\/p>\n 164.\u00a0\u00a0Any such assessment would necessarily entail consideration of the circumstances of a given case and the reasoning of the courts must be commensurate, i.e. adequate in terms of scope and level of detail, with the reasons advanced by the defence.<\/p>\n 165.\u00a0\u00a0Since the Convention does not require the attendance and examination of every witness on behalf of the accused, the courts cannot be expected to give a detailed answer to every motion of the defence but must provide adequate reasons (for a similar logic in the context of the courts\u2019 obligation to address appeal arguments, see Van de Hurk v. the Netherlands, 19 April 1994, \u00a7 61, Series A no. 288, and Boldea v. Romania, no.\u00a019997\/02, \u00a7 30,15 February 2007).<\/p>\n 166.\u00a0\u00a0Generally the relevance of testimony and the sufficiency of the reasons advanced by the defence in the circumstances of the case will determine the scope and level of detail of the domestic courts\u2019 assessment of the need to ensure a witness\u2019 presence and examination. Accordingly, the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence\u2019s request to examine a witness.<\/p>\n (c)\u00a0\u00a0Whether the domestic courts\u2019 decision not to examine a witness undermined the overall fairness of the proceedings<\/p>\n 167.\u00a0\u00a0The Court considers that the examination of the impact which a decision refusing to examine a defence witness at the trial has on the overall fairness of the proceedings is indispensable in every case (see, in different contexts, Ibrahim and Others v. the United Kingdom [GC], nos. 50541\/08 and 3 others, \u00a7\u00a7\u00a0250-52, 13 September 2016; Dvorski, cited above, \u00a7 82; and Schatschaschwili, cited above, \u00a7 101). Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others, cited above, \u00a7 251).<\/p>\n 168.\u00a0\u00a0In the Court\u2019s opinion, the preservation of overall fairness as the final benchmark for the assessment of the proceedings ensures that the above three-pronged test does not become excessively rigid or mechanical in its application. While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion.<\/p>\n 3.\u00a0\u00a0Application of these principles to the present case<\/em><\/p>\n (a)\u00a0\u00a0Whether the request to examine witnesses B. and K. was sufficiently reasoned and relevant to the subject matter of the accusation<\/p>\n 169.\u00a0\u00a0As the trial records indicate, the applicant\u2019s lawyers requested the court to summon B. and K. in order to determine the exact circumstances of the search with a view to establishing whether the explosives had been planted on the applicant. The applicant in turn stated that she did \u201cnot insist\u201d on their presence, since in her opinion the explosives had been planted by police officers already before she was searched. However, she had supported the motion because her lawyers considered B. and K.\u2019s presence to be necessary (see paragraph 52 above).<\/p>\n 170.\u00a0\u00a0It is of significance that during the trial it was the prosecution which extensively questioned the police officers who had been involved in the applicant\u2019s arrest, personal search and fingerprinting (see paragraph\u00a042 above). All of the police officers testified that the applicant had been in possession of her handbag at all times prior to the search and that she had been fingerprinted only once after the search. For its part, the defence remained generally passive during the cross-examination of these witnesses and only put two questions to them aimed at exploring further the details of the above events.<\/p>\n 171.\u00a0\u00a0The Court notes that the defencegave little more than a brief indication of the relevance of B. and K.\u2019s potential testimony. However it did not provide 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. Nor did the defence elaborate on this in their appeal (see paragraph 63 above). Given that the applicant herself had stated that the explosives were planted prior to the arrival of the attesting witnesses (see paragraph 52 above), further reasons for the examination of these witnesses would have been required.<\/p>\n (b)\u00a0\u00a0Whether the domestic courts considered the relevance of any testimony on the part of B. and K. and provided sufficient reasons for their decision not to examine them at trial<\/p>\n 172.\u00a0\u00a0The Court notes that the trial records do not mention the reasons given by the trial court for dismissing the defence\u2019s motion to summon the attesting witnesses (see paragraph 52 above). However, the Supreme Court, sitting as an appeal court with the competence to review both facts and points of law, reasoned that the personal appearance of B. and K. had not been necessary since the applicant herself had claimed that the explosives had been planted in her bag before she was searched. It further noted that the defence had agreed to proceed to the closing arguments and had not raised any objections nor made any additional requests for the hearing of evidence (see paragraph\u00a067 above).<\/p>\n 173.\u00a0\u00a0While the domestic courts did not dismiss the applicant\u2019s motion as unsubstantiated or unreasoned, it is clear that the significance of the attesting witnesses\u2019 possible testimony, as claimed by the defence, and from the perspective of the trial court, was only remotely relevant to the subject matter of the accusation.<\/p>\n 174.\u00a0\u00a0Having regard to the general passivity of the defence during the examination of the police officers about the events surrounding the alleged planting of explosives, and the absence of any specific legal or factual arguments as to the necessity of examining the attesting witnesses, the Court concludes that the Supreme Court provided sufficient reasons for the decision not to examine them at the trial. The reasons given were appropriate in the circumstances of the case and were commensurate, namely adequate in terms of their scope and level of detail, with the reasons advanced by the defence.<\/p>\n (c)\u00a0\u00a0Whether the domestic courts\u2019 decision not to examine B. and K. undermined the overall fairness of the proceedings<\/p>\n 175.\u00a0\u00a0The Court would stress that the applicant, assisted by two professional lawyers, was able to conduct her 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.Her conviction for preparing an act of terrorism and inciting others to commit such an act was based on a considerable body of evidence against her including the statements of several prosecution witnesses, the material (an extremist note and photographs) seized from the applicant\u2019s flat, forensic examination reports and the transcripts of the police surveillance videotapes.<\/p>\n 176.\u00a0\u00a0Having regard to these considerations, the Court concludes that the domestic courts\u2019 decision not to examine B. and K. at trial did not undermine the overall fairness of the proceedings.<\/p>\n (d)\u00a0\u00a0Conclusion<\/p>\n 177.\u00a0\u00a0Accordingly, the Court, being mindful of its role as explained above (see paragraph149 above), finds that there has been no violation of the applicant\u2019s rights under Article\u00a06 \u00a7\u00a7 1 and 3 (d) of the Convention as regards witnesses B. and K.<\/p>\n FOR THESE REASONS, THE COURT<\/strong><\/p>\n 1.\u00a0\u00a0Upholds, by a majority, the Government\u2019s preliminary objection that the applicant waived her right to examine witness A. and declares the complaint about the absence of witness A. at the applicant\u2019s trial inadmissible;<\/p>\n 2.\u00a0\u00a0Holds, unanimously, that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (b) of the Convention as regards the viewing of the secret surveillance videotape;<\/p>\n 3.\u00a0\u00a0Holds, by fifteen votes to two, that there has been no violation of Article\u00a06 \u00a7\u00a7 1 and 3 (d) of the Convention as regards witnesses B. and\u00a0K.<\/p>\n Done in English and in French, and delivered at a public hearing in the Human Rights Building on 18 December 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Lawrence Early\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Guido Raimondi ________________<\/p>\n In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the following separate opinions are annexed to this judgment:<\/p>\n (a)\u00a0\u00a0partly dissenting opinion of Judge Bo\u0161njak<\/p>\n (b)\u00a0\u00a0dissenting opinion of Judge Pinto de Albuquerque.<\/p>\n G.R. PARTLY DISSENTING OPINION OF JUDGE BO\u0160NJAK<\/p>\n 1.\u00a0\u00a0Although 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\u2019s behalf (see paragraph\u00a0158 of the present judgment), I regret that I cannot join their conclusion that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention as regards the domestic courts\u2019 refusal to hear witnesses B. and K. (hereinafter also referred to as the attesting witnesses). In this separate opinion, I wish (a)\u00a0to 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.<\/p>\n I.\u00a0\u00a0The three-pronged test<\/p>\n 2.\u00a0\u00a0The right to call witnesses on the defendant\u2019s 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 \u00a7 1 of the Convention restrictively.[1] This is even truer in respect of the rights guaranteed by Article 6 \u00a7 3, since they are expressly qualified as \u2018minimum rights\u2019. In addition to these rights, the Court has read into Article 6 \u00a7 1 several other rights that are considered to be fundamental to the concept of a fair trial, notably the right to present one\u2019s 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 \u00a7 3 (d) should neither be interpreted in a restrictive way nor detached from the other guarantees of a fair trial.<\/p>\n (a)\u00a0\u00a0The defence request to examine a witness<\/p>\n 3.\u00a0\u00a0The 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\u00a0160 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\u2019s capacity to stand trial, the admissibility of evidence).<\/p>\n 4.\u00a0\u00a0While 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 \u00a7 3 (d) itself, stipulating that the attendance of witnesses on a defendant\u2019s behalf is to be assured in the same conditions as that of witnesses against him. The domestic legislation and domestic courts\u2019 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.<\/p>\n 5.\u00a0\u00a0While 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\u2019s 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.<\/p>\n 6.\u00a0\u00a0In 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\u2019s 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.<\/p>\n 7.\u00a0\u00a0While 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:<\/p>\n (a)\u00a0\u00a0Firstly, it is to be repeated that \u2013 in line with the principle of equality of arms \u2013, the defence should bear no heavier a burden in this respect than the prosecution.<\/p>\n (b)\u00a0\u00a0What 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\u2019s 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.<\/p>\n (c)\u00a0\u00a0The defendant\u2019s 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.<\/p>\n (d)\u00a0\u00a0In 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.<\/p>\n 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\u2019s 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]<\/p>\n (b)\u00a0\u00a0The assessment and reasoning of the domestic courts<\/p>\n 8.\u00a0\u00a0The 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\u2019s clarification of this element in \u00a7\u00a7 162-66 of the present judgment. Nevertheless, I would wish to emphasise one particular issue: since the right under Article 6 \u00a7 3(d) of the Convention is one of the minimum guarantees of the fair trial, the domestic courts\u2019 reasoning when rejecting the defence\u2019s motion should be commensurate to its importance.<\/p>\n (c)\u00a0\u00a0Overall fairness of the proceedings<\/p>\n 9.\u00a0\u00a0The third element of the three-pronged test assesses the overall fairness of the proceedings, this being the overarching criterion in the recent Court\u2019s case-law on complaints under Article 6 \u00a7 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\u2019s 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 \u2013 or possibly both?<\/p>\n 10.\u00a0\u00a0The 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.<\/p>\n 11.\u00a0\u00a0Certain 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 \u201cprocedural approach\u201d 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\u2019s conviction. This approach was criticised before and after the above-mentioned judgment.[23]<\/p>\n 12.\u00a0\u00a0The fact remains that the Court\u2019s 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\u00a06 \u00a7 3 of the Convention is the (overall) fairness of the proceedings \u2013 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.<\/p>\n II.\u00a0\u00a0Application of the three-pronged test to the present case<\/p>\n (a)\u00a0\u00a0The background to the applicant\u2019s motion<\/p>\n 13.\u00a0\u00a0Turning 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.<\/p>\n 14.\u00a0\u00a0On 13 January 2005, four days before completion of the proceedings before the court of first instance, one of the applicant\u2019s lawyers, supported by the other, submitted a request to have summoned the attesting witnesses who were present during the search of the applicant\u2019s 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.<\/p>\n (b)\u00a0\u00a0The first element: the applicant\u2019s motion<\/p>\n 15.\u00a0\u00a0When 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 observesab 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\u2019s 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.<\/p>\n 16.\u00a0\u00a0The applicant\u2019s 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\u2019 testimonies on this point varied considerably and were hardly compatible with the criteria on \u201cstop and search\u201d situations governed by the rule of law. According to the police officers, the applicant was stopped \u201cbecause she walked idly\u201d (police officer P.) or \u201cbecause she has been walking quickly\u201d (police officer S.). Some police officers stated that she was stopped \u201cbecause it was unclear where she was going to go\u201d, \u201cbecause she was a person of Caucasian ethnicity\u201d and \u201cbecause she was wearing black clothing\u201d. In my opinion, the only reason that is possibly acceptable would be that she \u201cresembled a girl from a wanted persons notice\u201d, 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.<\/p>\n 17.\u00a0\u00a0The contrast between the applicant\u2019s 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\u2019s 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\u2019s 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.<\/p>\n 18.\u00a0\u00a0In 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\u2019s role), but to show that the fact asserted by the applicant\u2019s 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\u2019s 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\u2019s 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 \u00a7 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\u00a0170 of the judgment).<\/p>\n 19.\u00a0\u00a0In 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\u2019s bag and with the course of events that immediately preceded the search. Whether any of these circumstances would increase the probability of the applicant\u2019s version was a matter for the assessment of facts, which in turn could be performed only after their testimony had been heard.<\/p>\n (c)\u00a0\u00a0The second element: the assessment and reasoning of the domestic courts<\/p>\n 20.\u00a0\u00a0The 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.<\/p>\n 21.\u00a0\u00a0As 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\u2019s reaction to her lawyers\u2019 motion was indeed far from helpful to her cause, the Supreme Court\u2019s 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\u00a018 and 19 above, there existed sufficient grounds to consider the motion relevant, in spite of the applicant\u2019s intervention.<\/p>\n 22.\u00a0\u00a0Whereas 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 \u201cobjected to\u201d 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\u2019s defence to substantiate the allegation of planted evidence, the Supreme Court\u2019s 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\u2019 decision making in the present case does not pass the second element of the three-pronged test.<\/p>\n (d)\u00a0\u00a0The third element: The overall fairness of the proceedings<\/p>\n 23.\u00a0\u00a0In my opinion, the majority\u2019s 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\u2019s conviction was based. For the reasons I have outlined in point\u00a012 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\u2019s conviction.<\/p>\n 24.\u00a0\u00a0In 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\u2019s 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 \u00a7\u00a7\u00a01 and 3(d) of the Convention.<\/p>\n DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE<\/p>\n 1.\u00a0\u00a0Murtazaliyeva was a golden occasion for the principle of immediacy to regain ground in the Court\u2019s case-law. Unfortunately the contrary has occurred. I reject the Government\u2019s preliminary objection as to the applicant\u2019s 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 Pernatest[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 \u201coverall fairness\u201d 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 \u00a7 3 (d) of the Convention with regard to the absent witnesses A., B. and K.<\/p>\n The Government\u2019s preliminary objection<\/p>\n 2.\u00a0\u00a0The 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.\u2019s 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 \u00a7 3 (d) of the Convention.[27]<\/p>\n 3.\u00a0\u00a0Indeed, the applicant\u2019s arguments on appeal that the trial judge had not decided on the motion to examine A. and had provided no evidence of A.\u2019s 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\u2019s consent to the reading out of A.\u2019s statements, but also to the reasons for his absence from the trial.[29]<\/p>\n 4.\u00a0\u00a0Furthermore, 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\u2019s examination of the applicant\u2019s complaint concerning the failure to summon and hear witness A. In fact, the applicant\u2019s lawyer U. clearly stated during the exchange of closing arguments that \u201cthis whole criminal case is a set-up against Murtazaliyeva by law-enforcement agents\u201d.[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\u2019s 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\u2019s argument,[32] the denial of guilt does not logically preclude reliance on police incitement. Furthermore, according to the nemo teneturprinciple, 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]<\/p>\n 5.\u00a0\u00a0Since 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\u2019s objection founded.<\/p>\n Double standards for prosecution and defence witnesses<\/p>\n 6.\u00a0\u00a0The 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 \u201cthe establishment of the truth\u201d 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]<\/p>\n 7.\u00a0\u00a0Although Article 6 \u00a7 3 (d) sets out the right of everyone charged with a criminal offence to examine \u201cwitnesses on his behalf under the same conditions as witnesses against him\u201d, 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 \u201cunder the same conditions\u201d.[38]<\/p>\n 8.\u00a0\u00a0In 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 \u201con behalf of\u201d or \u201cagainst\u201d 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 andTaheryandSchatschaschwili 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 \u201con behalf of\u201d nor against the defendant.<\/p>\n 9.\u00a0\u00a0In view of this variety of circumstances, it has been the Court\u2019s case-law that the term \u201cwitness\u201d 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 \u201cto a material degree\u201d 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\u2019s assessment. However, this is not decisive for the Court. The Court\u2019s assessment will depend on the high probative value (\u201cto a material degree\u201d) of a witness\u2019s statements in the establishment of the accused\u2019s 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]<\/p>\n 10.\u00a0\u00a0The 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\u2019s conviction, along with other evidence. A.\u2019s pre-trial statements as read out at the trial and referred to in the domestic courts\u2019 judgments contained factual assertions, but the courts did not cross-reference A.\u2019s 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.<\/p>\n 11.\u00a0\u00a0In addition, witnesses B. and K. were adduced by the prosecution, but it was the defence which wished to rely on their testimony.[43]<\/p>\n 12.\u00a0\u00a0To sum up this introductory point, the Court\u2019s 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.<\/p>\n The original Perna test<\/p>\n 13.\u00a0\u00a0The 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.<\/p>\n 14.\u00a0\u00a0The original Perna test established a strict substantive criterion for assessing a defence request to produce testimonial evidence, based on the obligation to \u201csupport 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\u201d.[44] Contrary to what the majority claim,[45] the Perna judgment did not require an overriding assessment of \u201coverall fairness\u201d, since fairness was only assessed from the point of view of Article\u00a06 \u00a7 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:<\/p>\n \u201cthe Court considers that the decisions in which the national authorities refused the applicant\u2019s 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.\u201d[46]<\/p>\n 15.\u00a0\u00a0Hence, 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.<\/p>\n The first Murtazaliyevacriterion<\/p>\n 16.\u00a0\u00a0The original Perna test was formulated in strict terms: the criterion established for the admission of defence witnesses was that of evidence \u201cnecessary\u201d for the establishment of the truth. The Court\u2019s practice loosened such strictness, turning to the more liberal criterion of \u201cprima facie relevance\u201d 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 \u201ccapable of influencing the outcome of a trial\u201d or \u201cwho can reasonably be expected to strengthen the position of the defence\u201d.[49] At first sight, it seems that the majority have chosen the more relaxed, liberal, criterion. This is also indicated by the majority\u2019s 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]<\/p>\n 17.\u00a0\u00a0The 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 \u201cposition of the defence\u201d 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\u2019 conduct in the case, including that of the judges, prosecutors and law-enforcement authorities who acted or should have acted in the defendant\u2019s 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\u2019s 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\u2019s 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 \u00a7 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.<\/p>\n 18.\u00a0\u00a0In effect, the majority apply the first criterion in a very illiberal way, since they criticise the defence\u2019s motion for the attendance of witnesses B. and K. on the basis that \u201cit 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\u201d.[54] I will return to this point later.<\/p>\n The second Murtazaliyeva criterion<\/p>\n 19.\u00a0\u00a0The issue of whether the domestic courts considered the relevance of a given individual\u2019s 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 \u201cthe decisions in which the national authorities refused the applicant\u2019s requests are not open to criticism under Article 6\u201d.[56] In Perna, the reason for rejection of the witness was the trial court\u2019s legal finding that, even if proven to be true, the facts were irrelevant from a legal perspective.<\/p>\n 20.\u00a0\u00a0In the present judgment, the majority add that the reasoning of the domestic courts must be \u201ccommensurate\u201d, 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.<\/p>\n 21.\u00a0\u00a0As 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 Taheryand 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]<\/p>\n 22.\u00a0\u00a0Hence, 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\u00a06.[62] The reasons should relate to the specific circumstances of each witness\u2019s situation.[63] The fact that a defence witness is incapable of proving the accused\u2019s 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.<\/p>\n 23.\u00a0\u00a0Most 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) \u2013 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\u2019s 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.<\/p>\n 24.\u00a0\u00a0In 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]<\/p>\n 25.\u00a0\u00a0In 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 \u00a7\u00a7 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 \u00a7\u00a7 1 and 3 (d) not only enshrine the defendant\u2019s 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\u2019 demeanour and thus form its own impression of their reliability.[72]<\/p>\n The third Murtazaliyeva criterion<\/p>\n 26.\u00a0\u00a0According 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 \u00a7 3 of the Convention, overall fairness was maintained, and they suggest that such a safeguard would prevent the Pernatest 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]<\/p>\n 27.\u00a0\u00a0If the overall fairness of the proceedings under Article 6 \u00a7 1 is accepted as a corrective to evaluation of compliance with the provisions of Article 6 \u00a7 3, then it necessarily has to be understood as an additional guarantee to the individual guarantees set out in Article\u00a06\u00a0\u00a7\u00a03. These are connected to and derive from the fairness principle in Article\u00a06\u00a0\u00a7\u00a01.[75] However, the overall fairness test should not be understood as an unconnected but overriding substitute for the guarantees set out in Article\u00a06\u00a0\u00a7 3, capable of correcting violations of the rights described in that paragraph.[76]<\/p>\n 28.\u00a0\u00a0The wishy-washiness that accompanies the majority\u2019s ambiguous approach towards an overriding test of overall fairness fully divests Article\u00a06 \u00a7 3 (d) of its meaning. The majority\u2019s 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.<\/p>\n 29.\u00a0\u00a0It 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 \u00a7 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 \u00a7\u00a03 (c) of the Convention. Under the Court\u2019s traditional approach, a procedure could be unfair overall even though it had complied with Article\u00a06 \u00a7 3. To derive, a contrariosensu, that a procedure can be fair overall even though it does not comply with Article 6 \u00a7 3 \u2013 or, to put it otherwise, that the overall fairness of the procedure can allow Article 6 \u00a7\u00a03 violations to be disregarded \u2013 is not only logically erroneous, it also denaturalises the very essence of Article 6 \u00a7 3. A thorough review of the Court\u2019s case-law will make this point crystal clear.<\/p>\n 30.\u00a0\u00a0Nielsen 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:<\/p>\n \u201cArticle 6 of the Convention does not define the notion of \u2018fair trial\u2019 in a criminal case. Paragraph 3 of the Article enumerates certain specific rights which constitute essential elements of that general notion… The words \u2018minimum rights\u2019, 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 \u2018fair trial\u2019, even if the minimum rights guaranteed by paragraph 3 – and also the rights set forth in paragraph\u00a02 – have been respected\u201d.[78]<\/p>\n 31.\u00a0\u00a0As if this were not clear enough, the Commission considered it helpful to clarify that:<\/p>\n \u201c[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 …\u201d.[79]<\/p>\n 32.\u00a0\u00a0This asymmetry between Articles 6 \u00a7 1 and 6 \u00a7 3 was reiterated by the Court in Deweer v. Belgium, where the Court deemed that, while \u201cthe various rights of which a non-exhaustive list appears in [Article 6 \u00a7 3] are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings\u201d, since the applicant in that case \u201cwas totally deprived of such a trial… the question whether [Articles 6 \u00a7 2 and 6 \u00a7 3] were observed has no real significance in this regard: it is entirely absorbed by the question of whether [Article 6 \u00a7 1] was complied with\u201d.[80] Again: a process can be unfair even if it complies perfectly with Article 6 \u00a7 3, but nothing here suggests that a process can be fair if those minimum rights are disrespected.<\/p>\n 33.\u00a0\u00a0Since then, the Court has applied the overall fairness of the proceeding for a multiplicity of purposes, but the relationship between paragraph 1 and paragraph\u00a03 of Article 6 as expressed in Nielsen seems to have formed the bottom-line of the Court\u2019s reasoning \u2013 until Dvorski. A milestone in this jurisprudence is the oft-cited judgment in Barber\u00e0, Messegu\u00e9 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 \u00a7 2 and 6 \u00a7\u00a03) meant that \u201cthe proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing\u201d.[82]<\/p>\n 34.\u00a0\u00a0In this light, the overall fairness analysis gradually became ubiquitous, even when dealing with claims under Article 6 \u00a7 3. In some instances, for example, the Court analysed cases concerning Article 6 \u00a7 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 \u00a7 3 are \u201cconstituent elements\u201d of \u201cthe general notion of a fair trial stated in paragraph 1\u201d and that therefore \u201cthe Court has examined separately each limb of the complaint and then made an overall assessment\u201d.[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 \u2013 that is, to secure a fair procedure. This is revealed by a quote the Court has often used:<\/p>\n \u201cThe 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\u201d.[85]<\/p>\n 35.\u00a0\u00a0However, 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 \u201cillusory\u201d 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]<\/p>\n 36.\u00a0\u00a0As 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 \u00a7 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:<\/p>\n \u201c[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.\u00a0The 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.\u201d[89]<\/p>\n 37.\u00a0\u00a0A central difference comes immediately to mind: since the right to legal counsel can only be restricted \u201cfor good cause\u201d, the Court\u2019s holistic assessment in John Murray comes only after such reasons have been demonstrated, since \u201ceven a lawfully exercised power of restriction is capable of depriving an accused, in certain circumstances, of a fair procedure\u201d[90]. The Court, moreover, proved extremely cautious in its assessment of the overall fairness in this case, ultimately finding a violation: \u201cit is not for the Court to speculate on what the applicant\u2019s reaction, or his lawyer\u2019s advice, would have been had access not been denied during this initial period\u201d.[91]<\/p>\n 38.\u00a0\u00a0The 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:<\/p>\n \u201cthis 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\u201d.[93]<\/p>\n 39.\u00a0\u00a0It 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:<\/p>\n \u201cArticle 6 \u00a71 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 \u2013 whatever its justification \u2013 must not unduly prejudice the rights of the accused under Article\u00a06\u201d.[94]<\/p>\n 40.\u00a0\u00a0Consistent with this reasoning, when applying the general principles to the case at hand, the Court observed:<\/p>\n \u201c… 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\u201d.[95]<\/p>\n 41.\u00a0\u00a0John 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 decidendiof those cases. As late as 2010, the Court applied this reasoning, concluding that the absence of valid reasons for restricting an applicant\u2019s access to a lawyer was enough to find an Article 6 violation:<\/p>\n \u201cIn 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\u2019s 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\u201d.[96]<\/p>\n 42.\u00a0\u00a0An 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 \u201cthe applicant\u2019s access to counsel was restricted\u201d and whether this \u201crestriction of defence rights was justified\u201d. Immediately after conducting this dual assessment, the Court noted:<\/p>\n \u201c[h]aving found that the restriction on the applicant\u2019s 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\u201d.[98]<\/p>\n 43.\u00a0\u00a0Dvorski v. Croatia concerned a \u201cdenial of choice\u201d 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:<\/p>\n \u201c… the first step should be to assess whether … there were relevant and sufficient grounds for overriding or obstructing the defendant\u2019s 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\u201d.[99]<\/p>\n 44.\u00a0\u00a0This 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 \u201cdenial of access\u201d to a lawyer, Dvorskidealt with a \u201cdenial of choice\u201d, which the Court considered a \u201cless serious\u201d 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\u2019s initial confession, made in the absence of a freely chosen lawyer, had a \u201csignificant likely impact\u201d on the development of the criminal proceedings.[101] The nature of this \u201clikelihood\u201d 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 Dvorskiwould be consistent with Salduz, although uncomfortably so.<\/p>\n 45.\u00a0\u00a0It is only in Ibrahim and Others v. the United Kingdom that, while claiming to be \u201cclarifying\u201d Salduz,[103] the Grand Chamber in fact bluntly departs from the previous case-law on Article 6 \u00a7 3 (c) of the Convention. The Court states that the \u201cabsence of compelling reasons (for restricting an accused\u2019s right to counsel) does not … lead in itself to a finding of a violation of Article 6\u201d.[104] Indeed, as in John Murray and Salduz, when \u201ccompelling reasons are found to have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were \u2018fair\u2019 for the purposes of Article 6 \u00a7 1\u201d.[105] However, when \u201cthere are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment\u201d.[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 Saj\u00f3 and Laffranque in Ibrahim and Others[108] abundantly demonstrates, this is hard to maintain.<\/p>\n 46.\u00a0\u00a0The preceding paragraphs show that, contrary to the Court\u2019s assertions, the reasoning in Ibrahim and Others contradicts a well-established case-law that ended in Dvorski. Although claiming that Ibrahim and Others was \u201cclarifying\u201d or \u201cfleshing out\u201d 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\u2019s case-law was not limited to Article 6 \u00a7 3 (c), but also extended to (d).<\/p>\n 47.\u00a0\u00a0In 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\u2019s stance regarding the admission of evidence in violation of Article 8 of the Convention.[110] In cases concerning examination of witnesses under Article 6 \u00a7 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 \u201cprovocative\u201d criticism from the Supreme Court of the United Kingdom in Horncastle,[112]Al-Khawaja and Tahery departed from the \u201csole or decisive\u201d 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 \u201csole and decisive\u201d rule, in place since the judgment in Doorson.[113] Such an \u201cinflexible\u201d approach involving the non-attendance of prosecution witnesses at trial and the subsequent admission of the absent witness\u2019s 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]<\/p>\n 48.\u00a0\u00a0Less 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\u2019s 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, Karaka\u015f, Saj\u00f3 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.<\/p>\n 49.\u00a0\u00a0Even if, for the sake of argument, one were to agree with the majority regarding the need for flexibility in the Court\u2019s case-law on Article\u00a06 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.<\/p>\n 50.\u00a0\u00a0A more modest account of overall fairness fails in a similar way. One might say that the violation is \u201ccured\u201d when it did not change the final result of the procedure \u2013 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, \u201c[h]armless-error [or, in the Court\u2019s jargon, \u201coverall fairness\u201d] analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe\u201d.[119]<\/p>\n 51.\u00a0\u00a0Indeed, 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\u2019s fate. As argued by the respondent State, \u201cfor there to be a violation of Article 6 \u00a7 3 (c) … the lack of assistance must have actually prejudiced the person charged with a criminal offence\u201d.[120] The Court expressed its disagreement in principled terms: \u201cnothing in Article\u00a06 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\u201d.[121] Even more explicitly, in John Murray, the Court replied to a similar argument by the Government, making clear that \u201cit is not for the Court to speculate on what the applicant\u2019s reaction, or his lawyer\u2019s advice, would have been had access not been denied during this initial period\u201d.[122] The Grand Chamber replicated this reasoning almost literally in Salduz.[123]<\/p>\n 52.\u00a0\u00a0Even ignoring these fatal logical flaws in the majority\u2019s 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 \u201coverall fair\u201d 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 \u201cfair\u201d means in any given context, or in general. Disqualifying domestic assessments of \u201cfairness\u201d 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 \u00a7 3 in favour of such a fuzzy concept invites, rather than prevents, violations to Article 6.<\/p>\n 53.\u00a0\u00a0If any evidence of the malleability of the \u201coverall fairness\u201d concept is needed, one may look at Ibrahim and Others, where the Court fleshed out a \u201cnon-exhaustive list of factors\u201d[124] relevant for the fairness analysis. These factors include, among \u201c[o]ther relevant procedural safeguards afforded by domestic law and practice\u201d, specific considerations (such as defendants\u2019 age and mental capacity) but also other \u201cfactors\u201d which are as broad as the fairness assessment itself. The Court states, for example, that it will have regard to \u201cthe legal framework governing the pre-trial proceedings\u201d and \u201cthe quality of the evidence… taking into account the degree and nature of any compulsion\u201d. 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.\u00a0Bulgaria.[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.<\/p>\n 54.\u00a0\u00a0If 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: \u201c[t]he weight of the public interest in the investigation and punishment of the particular offence in issue\u201d.[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 Othersjudgment did not refer to the public interest in the investigation and punishment of \u201cthe kind of offence in issue\u201d, but of \u201cthe particular offence in issue\u201d. 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 \u201cpublic interest\u201d their case happened to arouse. This would be the ultimate paradigm of \u201cstreet justice\u201d, 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 \u2013 or, in other words, \u201chalf-counting\u201d the importance of the fairness of the trial.<\/p>\n 55.\u00a0\u00a0Relatedly, 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\u2019s 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\u2019 authority in designing their own procedural systems.<\/p>\n 56.\u00a0\u00a0Lastly, if the Court\u2019s 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 \u201csufficiently fairly\u201d 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.<\/p>\n The Convention principle of immediacy<\/p>\n 57.\u00a0\u00a0All of the above applies to the rights laid down in Article\u00a06\u00a0\u00a7\u00a03\u00a0(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\u2019s 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:<\/p>\n 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]<\/p>\n 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\u2019s 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 \u2013 except in favour of the defence.<\/p>\n 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\u2019s 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\u2019s 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\u2019s 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\u2019s 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 public prosecutor or the police.<\/p>\n Guideline 4: When there is a good reason for not calling or cross-examining a witness and for the pre-trial witness\u2019s 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\u2019s 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]<\/p>\n 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.<\/p>\n 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.<\/p>\n 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.<\/p>\n Application of the Convention standards to Witness A.<\/p>\n 58.\u00a0\u00a0Witness 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: \u201cTherefore, Mr A.\u2019s role in the events in question was limited to his technical facilitation of operative-search activity in respect of the applicant.\u201d[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.<\/p>\n 59.\u00a0\u00a0The categorisation of witness A as a defence witness is problematic. Although it had been on the applicant\u2019s 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.<\/p>\n 60.\u00a0\u00a0The 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\u2019s submission on entrapment, the Supreme Court merely stated that the appeal bench was \u201cunable to agree\u201d with the defendant, without adding any further considerations.[148]<\/p>\n 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\u2019s testimony under Article 281 \u00a7 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.\u2019s 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.<\/p>\n 61.\u00a0\u00a0It 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\u00a0281. The Russian Code of Criminal Procedure explicitly provides examples of good reasons, as well as an omnibus clause referring to \u201cother exceptional circumstances\u201d. 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.<\/p>\n 62.\u00a0\u00a0In this context the Court has held \u201cthat 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 \u00a7 1 of the Convention, all evidence obtained as a result of police incitement must be excluded.\u201d[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\u2019s defence concerning her perception of \u201cprovocation\u201d by law-enforcement agents alone, but also from A.\u2019s 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\u2019s flat. Another important hint which should have made clear the obligation to investigate the possibility of witness A.\u2019s involvement in the offences was the testimony from witness V., who stated that some of the books on \u201cthe way of jihad\u201d had been given to the applicant by her acquaintance A.[150]<\/p>\n 63.\u00a0\u00a0Finally, 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.\u2019s 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]<\/p>\n 64.\u00a0\u00a0The 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 \u2013 at best \u2013 have meant for the applicant\u2019s 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\u2019s 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 \u2013 despite their conviction that the national court is better placed than the Court to decide about the necessity of evidence \u2013 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.\u2019s cross-examination would not have changed the content of his testimony in relation to the pre-trial stage.<\/p>\n Application of the Convention standards to witnesses B. and K.<\/p>\n 65.\u00a0\u00a0B. 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 \u201ca person, disinterested in the outcome of the criminal case\u201d; 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\u00a06 \u00a7\u00a7 1 and 3 (d) of the Convention, since \u201cit appears that the contribution by attesting witnesses to the proceedings was limited to statements on the manner of conducting the investigative measures\u201d and \u201ctheir depositions did not serve to a material degree as a basis for the applicants\u2019 convictions\u201d.[156]<\/p>\n 66.\u00a0\u00a0In the case at hand, attesting witnesses B. and K. were invited to attend the search of the applicant\u2019s 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\u2019s 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\u2019s 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\u2019 testimony, adducing that they would in any case be unable to provide any evidence beyond that already available to the courts.[161]<\/p>\n 67.\u00a0\u00a0Contrary to the majority\u2019s claim,[162] it is not true that the defence request to examine witnesses B. and K. during the trial \u201cdid not contain any particular factual or legal arguments\u201d: 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\u2019s bag)[163]. Furthermore, when requesting the attendance of defence witnesses, the defence does not have to \u201celaborate in concrete terms\u201d 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\u2019 testimony \u201cwould have ranged beyond the mere modalities of the search and the information subsequently entered in the police records\u201d,[166] and therefore acknowledge their relevance as defence witnesses; at the same time, however, they affirm that \u201cfurther reasons for the examination of these witnesses would have been required\u201d.[167]<\/p>\n 68.\u00a0\u00a0The majority\u2019s 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\u2019s \u201cgeneral passivity\u201d[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 \u201cthe significance of the attesting witnesses\u2019 possible testimony … from the perspective of the trial court, was only remotely relevant to the subject matter of the accusation.\u201d[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 \u201coverall fairness\u201d assessment.<\/p>\n 69.\u00a0\u00a0In 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\u2019s judgment. In condoning the decision not to examine witnesses B. and K., the majority invoke the fact that the conviction was based \u201con a considerable body of evidence\u201d.[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.<\/p>\n 70.\u00a0\u00a0In this context, the subsequent allegation that the applicant, \u201cassisted 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\u201d 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 \u00a7\u00a01 (d). It is dangerous because it assumes that compliance with Article 6 \u00a7\u00a01 (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\u2019s justice is justice at its worst.<\/p>\n Conclusion<\/p>\n 71.\u00a0\u00a0Alarm 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 \u201cadduce evidence she considered relevant\u201d,[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 \u201celaborate in concrete terms\u201d on how the defence witness\u2019s 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 \u00a7 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 TaheryandSchatschaschwilijudgments 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\/Murtazaliyeva, the Court erroneously pursues the double path of persistently watering down defence rights and \u201cdeferential[ly]\u201d[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.<\/p>\n ______________<\/p>\n [1].\u00a0\u00a0See Perez v. France [GC], no. 47287\/99, ECHR 2004\u2011I. [4].\u00a0\u00a0In this dissenting opinion, I refer to the witness in female form and consequently speak of \u201cher\u201d questioning or hearing, while,in referring to a defendant, I regularly use the male form and consequently speak of \u201chis\u201d rights. This choice is made purely for the sake of the legibility of the dissenting opinion, since a constant reference to \u201chis or her\u201d rights or \u201cher or his\u201d rights would make it less readable.
\nAngelika Nu\u00dfberger,
\nLinos-Alexandre Sicilianos,
\nGanna Yudkivska,
\nRobert Spano,
\nPaulo Pinto de Albuquerque,
\nAndr\u00e9 Potocki,
\nValeriuGri\u0163co,
\nFaris Vehabovi\u0107,
\nDmitry Dedov,
\nIulia Antoanella Motoc,
\nCarlo Ranzoni,
\nArmen Harutyunyan,
\nGeorges Ravarani,
\nMarko Bo\u0161njak,
\nTim Eicke,<\/p>\n
\nand Lawrence Early, Jurisconsult,<\/p>\n
\nMr\u00a0\u00a0\u00a0 M. Galperin, the Representative of the Russian
\nFederation to the European Court of Human Rights,
\nMs\u00a0\u00a0\u00a0 Y. Borisova,
\nMs \u00a0\u00a0 O. Ocheretyanaya, \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Counsels,<\/p>\n
\nMr\u00a0\u00a0\u00a0 K.N.Koroteyev,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Counsel.<\/p>\n
\nJurisconsult\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nT.L.E.<\/p>\n
\n[2].\u00a0\u00a0See, for example, Stanford v. the United Kingdom, 23 February 1994, Series A no.\u00a0282\u2011A.
\n[3].\u00a0\u00a0See, for example, Saunders v. the United Kingdom, 17 December 1996, Reports of Judgments and Decisions 1996\u2011VI, where the Court stated that the right to silence lay at the heart of the notion of a fair procedure under Article 6.<\/p>\n
\n[5].\u00a0\u00a0For example, if the defence asserts that 10 people were present who can confirm the defendant\u2019s alibi and three have already been heard,upon its motion,in this respect, it will not be necessary to hear the other seven.
\n[6].\u00a0\u00a0For 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.
\n[7].\u00a0\u00a0In 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<\/a>, 4 April 2018.
\n[8].\u00a0\u00a0Any 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 theduty 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, \u2018\u201cGive Us What You Have\u201d\u2014Information, Compulsion and the Privilege against Self-incrimination as a Human Right\u2019 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: MayeulHi\u00e9ramente, 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. Tadi\u0107, (decision on Prosecution Motion for Production of Defence Witness Statements, IT-94-I-T, 27 November 1996).
\n[9].\u00a0\u00a0Compare the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Krsti\u0107 (decision on application of subpoenas, Case no. IT-98-33-A, 1 July 2003, \u00a7 11).
\n[10].\u00a0\u00a0See, among other authorities, Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08 and 3 others, 13 September 2016; Schatschaschwili v. Germany [GC], no.\u00a09154\/10, ECHR 2015; Simeonovi v. Bulgaria [GC], no. 21980\/04, 12 May 2017.
\n[11].\u00a0\u00a0See, 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\u00a0December 1996, Reports 1996\u2011VI.
\n[12].\u00a0\u00a0See, for example, Barber\u00e0, Messegu\u00e9 and Jabardo v. Spain, 6 December 1988, Series A no. 146.
\n[13].\u00a0\u00a0See, for example, Pullicino v. Malta, (dec.), no. 45441\/99, ECHR 2000-II.
\n[14].\u00a0\u00a0See, for example, Bulut v. Austria, 22 February 1996, Reports 1996\u2011II; \u00d6calan v.\u00a0Turkey [GC], no. 46221\/99, ECHR 2005\u2011IV; and also Omkar Sidhu, The Concept ofEquality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights, Intersentia, 2017.
\n[15].\u00a0\u00a0This 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 \u2013 see Meftah and Others v. France [GC], nos. 32911\/96 and 2\u00a0others, ECHR 2002\u2011VII.
\n[16].\u00a0\u00a0See, for example, Stanford v. the United Kingdom, cited above.
\n[17].\u00a0\u00a0See, for example, Ruiz Torija v. Spain, 9 December 1994, Series A no. 303\u2011A.
\n[18].\u00a0\u00a0See, for example, Cerov\u0161ek and Bo\u017ei\u010dnik v. Slovenia, nos. 68939\/12 and 68949\/12, 7\u00a0March 2017.
\n[19].\u00a0\u00a0See, for example, Borgers v. Belgium, 30 October 1991, Series A no. 214 B.
\n[20].\u00a0\u00a0See, for example, Nejdet\u015eahin and Perihan\u015eahin v. Turkey [GC], no.\u00a013279\/05, 20\u00a0October 2011
\n[21].\u00a0\u00a0Ibrahim and Others v. the United Kingdom, cited above.
\n[22].\u00a0\u00a0Bykov v. Russia [GC], no. 4378\/02, 10 March 2009.
\n[23].\u00a0\u00a0For an overview, see my joint concurring opinion with Judge Pinto de Albuquerque in Drago\u015fIoanRusu v. Romania, no. 22767\/08, 31 October 2017.
\n[24].\u00a0\u00a0See, for example, G\u00e4fgen v. Germany [GC], no. 22978\/05, ECHR 2010.
\n[25].\u00a0\u00a0On 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\/.
\n[26].\u00a0\u00a0Perna v. Italy [GC], no. 48898\/99, ECHR 2003-V.
\n[27].\u00a0\u00a0Compare Makeyev v. Russia, no. 13769\/04, \u00a7 37, 5 February 2009, and Khametshin v.\u00a0Russia, no. 18487\/03, \u00a7 41, 4 March 2010.
\n[28].\u00a0\u00a0See paragraph 63 of the judgment.
\n[29].\u00a0\u00a0See paragraph 67 of the judgment and compare Bocos-Cuesta v. the Netherlands, no.\u00a054789\/00, \u00a7 66, 10 November 2005.
\n[30].\u00a0\u00a0Hermi v. Italy [GC], no. 18114\/02, \u00a7 79, ECHR 2006\u2011XII.
\n[31].\u00a0\u00a0Paragraph 57 of the judgment.
\n[32].\u00a0\u00a0Paragraph 108 of the judgment.
\n[33].\u00a0\u00a0Contra, Bagaryan and Others v. Russia (dec.), no. 3343\/06, \u00a7 5, 12 November 2013, and Koromchakova v. Russia, no. 19185\/05, 13 December 2016, \u00a7\u00a7 17-20.
\n[34].\u00a0\u00a0Perna v. Italy, cited above.
\n[35].\u00a0\u00a0Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766\/05 and 22228\/06, ECHR 2011.
\n[36].\u00a0\u00a0Schatschaschwili v. Germany [GC] no. 9154\/10, ECHR 2015.
\n[37].\u00a0\u00a0The Court is not always consistent with this division. In Pello v. Estonia(no.\u00a011423\/03, \u00a7\u00a7 26 and 30, 12 April 2007), the Perna criteria were applied to prosecution witnesses.
\n[38].\u00a0\u00a0They are also not in line with international criminal law. See Prosecutor v. Ori\u0107, Case No.\u00a0IT-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 15bis (D) (Appeals Chamber), 20\u00a0April 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),\u00a0 21 August 2007, paragraph 26; Prosecutor v. Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse\u2019s 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.
\n[39].\u00a0\u00a0This is the situation of Cardot v. France, no. 11069\/84, Series A no. 200.
\n[40].\u00a0\u00a0Kostovski v. the Netherlands, 20 November 1989, \u00a7 40, Series A no. 166, and DamirSibgatullin v. Russia, no. 1413\/05, \u00a7 45, 24 April 2012.
\n[41].\u00a0\u00a0Luc\u00e0 v. Italy, no. 33354\/96, \u00a7 41, ECHR 2001 II, and Kaste and Mathisen v. Norway, nos.\u00a018885\/04 and 21166\/04, \u00a7 53, ECHR 2006 XIII. The applicant ignored this case-law while calling for a \u201cmore flexible approach having regard to the substance of a given witness\u2019s depositions \u2026\u201d (the applicant\u2019s observations of 20 November 2017, paragraph\u00a024).
\n[42].\u00a0\u00a0This is also the standard of international criminal courts. See Prosecutor v.\u00a0Ngirabatware, 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.
\n[43].\u00a0\u00a0Paragraph 137-138 of the judgment.
\n[44].\u00a0\u00a0Perna, cited above, \u00a7 29.
\n[45].\u00a0\u00a0Paragraph 141 of the judgment.
\n[46].\u00a0\u00a0Perna, cited above, \u00a7 32.
\n[47].\u00a0\u00a0ContrastGuilloury v. France, no. 62236\/00, \u00a7 55, 22 June 2006, and Erich Priebke v.\u00a0Italy(dec.), no. 48799\/99, 5 April 2001.
\n[48].\u00a0\u00a0Paragraph 143 of the judgment.However, this has not prevented the Court from using, from time to time, the old formula of \u201cnecessary\u201d (see Miminoshvili v. Russia, no.\u00a020197\/03, \u00a7 122, 28\u00a0June 2011).
\n[49].\u00a0\u00a0Paragraph 160 of the judgment.
\n[50].\u00a0\u00a0Paragraph 161 of the judgment.
\n[51].\u00a0\u00a0Paragraphs 73 and 74 of the judgment.
\n[52].\u00a0\u00a0Thus, I find that the passage in \u00a7 105 of Tarasov v.\u00a0Ukraine, no.\u00a017416\/03, 31\u00a0October 2013, is problematic.
\n[53].\u00a0\u00a0See Jalloh v. Germany [GC], no. 54810\/00, \u00a7\u00a7 99 and 108, 11 July 2006.
\n[54].\u00a0\u00a0Paragraph 171 of the judgment. In paragraph 174 of the judgment the majority refer to \u201cspecific legal or factual arguments\u201d. It is not clear if the words \u201cparticular\u201d in paragraph\u00a0171 and \u201cspecific\u201d in paragraph 174 are intended to have the same meaning.
\n[55].\u00a0\u00a0Topi\u0107 v. Croatia, no. 51355\/10, \u00a7 42, 10 October 2013.
\n[56].\u00a0\u00a0Perna, cited above, \u00a7 32.
\n[57].\u00a0\u00a0Paragraph 164 of the judgment.
\n[58].\u00a0\u00a0Vidal v. Belgium, 22 April 1992, \u00a7\u00a7 34 and 35, Series A no. 235\u2011B.
\n[59].\u00a0\u00a0Al-Khawaja and Tahery, cited above, \u00a7\u00a7 120-125, and Schatschaschwili, cited above, \u00a7\u00a7\u00a0119-122.
\n[60].\u00a0\u00a0On 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 \u201cEquality of Arms\u201d 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.
\n[61].\u00a0\u00a0This is also the case-law of the international criminal courts. See Prosecutor v.\u00a0Nyiramasuhuko 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),\u00a0 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\u00a0September 2008 (Appeals Chamber), 30 January 2009, paragraphs 19-21.
\n[62].\u00a0\u00a0Vidal, cited above, \u00a7\u00a7 34 and 35, Popov v. Russia, no. 26853\/04, \u00a7 188, 13 July 2006, and Pello, cited above, \u00a7 35. Thus, the passage in \u00a7\u00a7 74-75of Dorokhov v. Russia, no.\u00a066802\/01, 14 February 2008, is unacceptable. It is incomprehensible that the Court considered \u201cregrettable\u201d the failure of the trial court to duly examine the defence request to call two witnesses who were \u201cclearly relevant\u201d and yet found no violation. Wrongly, the Court examined the probative value of the unexamined witnesses\u2019 statements against the body of evidence against the applicant, and concluded that the absent witnesses\u2019 statements would not have led to the applicant\u2019s acquittal.
\n[63].\u00a0\u00a0Nechto v. Russia, no. 24893\/05, \u00a7 127, 24 January 2012.
\n[64].\u00a0\u00a0Hence, the passage in \u00a7 92 of Tymchenko v.\u00a0Ukraine, no. 47351\/06, 13\u00a0October 2016, is wrong.
\n[65].\u00a0\u00a0Prosecutor v. Nzabonimana, Case No. ICTR-98-44D-T, Decision on Nzabonimana’s Extremely Urgent Motion for Reconsideration and\/or Certification to Appeal the \u201cConsolidated Decision on Prosecutor’s Second and Third Motions to Compel the Defence to Comply with the Trial Chamber Decision of 3 February 2010\u201d rendered on 26 March 2010 (Trial Chamber III), 7 May 2010, paragraph 32.
\n[66].\u00a0\u00a0Jorgic v. Germany, no. 74613\/01, \u00a7\u00a7 86 and 88, 12 July 2007.
\n[67].\u00a0\u00a0In this regard, I find that the passages in \u00a7 70 of Sergey Afanasyev v. Ukraine, no.\u00a048057\/06, 15 November 2012, and \u00a7\u00a7 81-82 of Janyr v.\u00a0the\u00a0Czech Republic, no.\u00a042937\/08, 31 October 2013, are simply wrong.
\n[68].\u00a0\u00a0International criminal tribunals can conclude that hearing the testimony of a witness called by the defence is \u201cexcessive\u201d or \u201cirrelevant\u201d 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\u00a0March 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),\u00a0 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.
\n[69].\u00a0\u00a0Paragraph 148 of the judgment.
\n[70].\u00a0\u00a0Thomas v. the United Kingdom (dec.), no. 19354\/02, 10 May 2005, and the Commission\u2019s decision in Blastland v. the United Kingdom, no. 12045\/86, 7 May 1987.
\n[71].\u00a0\u00a0\u0160karo v. Croatia, no. 6962\/13, \u00a7 24,\u00a0 6 December 2016; Tolmachev v. Estonia, no.\u00a073748\/13, \u00a7 52, 9 July 2015; Matytsina v. Russia, no. 58428\/10, \u00a7 153, 27 March 2014;Beraru v. Romania, no. 40107\/04, \u00a7 64, 18 March 2014; Cutean v. Romania, no. 53150\/12, \u00a7\u00a060, 2 December 2014; Pichugin v. Russia, no. 38623\/03, \u00a7 199, 23 October 2012; Graviano v. Italy, no. 10075\/02, \u00a7 39, 10 February 2005; and P.K. v. Finland (dec.), no.\u00a037442\/97, 9 July 2002.
\n[72].\u00a0\u00a0DamirSibgatullin v. Russia, no. 1413\/05, \u00a7 57, 24 April 2012.
\n[73].\u00a0\u00a0Paragraph 168 of the judgment.
\n[74].\u00a0\u00a0Paragraph 141 of the judgment.
\n[75].\u00a0\u00a0International criminal courts use a holistic assessment of the trial court\u2019s management of the proceedings only in order to determine whether it accorded adequate time and facilities for the preparation of the defence (Prosecutor v. \u0160ainovi\u0107 et al., Case No. IT-05-87-A, Judgement (Appeals Chamber), 23 January 2014, paragraphs 122, 135-137).
\n[76].\u00a0\u00a0The brief history of this trend in the Court\u2019s case-law can be followed in the dissenting opinion of Judges Saj\u00f3 and Karaka\u015f in Al-Khawaja and Tahery, cited above; the joint concurring opinion of Judges Spielmann, Karaka\u015f, Saj\u00f3 and Keller in Schatschaschwili, cited above; the joint partly dissenting, partly concurring opinion of Judges Saj\u00f3 and Laffranque in Ibrahim and Others v. the United Kingdom [GC], nos. 50541\/08 and 3\u00a0others, ECHR 2016; and the partly dissenting opinion of Judges Saj\u00f3, Lazarova-Trajkovska and Vu\u010dini\u0107, joined by Judge Turkovi\u0107, and the partly dissenting opinion of Judge Serghides in Simeonovi v. Bulgaria [GC], no. 21980\/04, 12 May 2017.
\n[77].\u00a0\u00a0Dvorski v. Croatia [GC], no. 25703\/11, 20 October 2015.
\n[78].\u00a0\u00a0Nielsen v. Denmark, no. 343\/57,Report of the Commission, 1960, \u00a7 52.
\n[79].\u00a0\u00a0Ibid.
\n[80].\u00a0\u00a0Deweer v. Belgium, no. 6903\/75, \u00a7 56, 27 February 1980.
\n[81].\u00a0\u00a0Barber\u00e0, Messegu\u00e9 and Jabardo v. Spain (plenary), no.10590\/83, 6 December 1988.
\n[82].\u00a0\u00a0Ibid.,\u00a7 89.
\n[83].\u00a0\u00a0Goddi v. Italy, no. 8966\/80, \u00a7 28, 9 April 1984.
\n[84].\u00a0\u00a0Ibid., \u00a7 28.
\n[85].\u00a0\u00a0Correia de Matos v. Portugal [GC], no. 56402\/12<\/a>, \u00a7119, 4 April 2018.
\n[86].\u00a0\u00a0Artico v. Italy, no. 6694\/74, \u00a7 32, 13 May 1980.
\n[87].\u00a0\u00a0Ibid., \u00a7 33.
\n[88].\u00a0\u00a0John Murray v. United Kingdom, no. 18731\/91, \u00a7 63, 8 February 1996.
\n[89].\u00a0\u00a0Ibid., \u00a7 63.
\n[90].\u00a0\u00a0Ibid., \u00a7 65.
\n[91].\u00a0\u00a0Ibid., \u00a7 68.
\n[92].\u00a0\u00a0Salduz v. Turkey [GC], no. 36391\/02, \u00a7\u00a7 12-17, 27 November 2008.
\n[93].\u00a0\u00a0Ibid., \u00a7 52.
\n[94].\u00a0\u00a0Ibid., \u00a7 55.
\n[95].\u00a0\u00a0Ibid., \u00a7 56.
\n[96].\u00a0\u00a0Pavlenko v. Russia, no. 42371\/02, \u00a7 118, 1 April 2010.
\n[97].\u00a0\u00a0Pishchalnikov v. Russia, no. 7025\/04, 24 September 2009.
\n[98].\u00a0\u00a0Ibid., \u00a7 81.
\n[99].\u00a0\u00a0Dvorski, cited above, \u00a7 82.
\n[100].\u00a0\u00a0Ibid., \u00a7 81.
\n[101].\u00a0\u00a0Ibid., \u00a7 111.
\n[102].\u00a0\u00a0Such a reading of Dvorskiis made in the concurring opinion of Judges Kalaydjieva, Pinto de Albuquerque and Turkovi\u0107, Dvorski, \u00a719.
\n[103].\u00a0\u00a0Ibrahim and Others, cited above, \u00a7 257.
\n[104].\u00a0\u00a0Ibid., \u00a7 262.
\n[105].\u00a0\u00a0Ibid., \u00a7 264.
\n[106].\u00a0\u00a0Ibid., \u00a7 265.
\n[107].\u00a0\u00a0Ibid., \u00a7\u00a7 260 and 262.
\n[108].\u00a0\u00a0Ibid., joint partly dissenting, partly concurring opinion of Judges Saj\u00f3 and Laffranque.
\n[109].\u00a0\u00a0Jalloh v. Germany [GC], cited above, \u00a7 99.
\n[110].\u00a0\u00a0I have already argued in my partially concurring opinion in Drago\u015fIoanRusu v.\u00a0Romania, no. 22767\/08, 31 October 2017, together with Judge Bo\u0161njak, for a stricter approach to the admissibility of evidence obtained in breach of Article 8 of the Convention.
\n[111].\u00a0\u00a0Al-Khawajaand Tahery[GC], cited above, \u00a7\u00a0143, referring to Salduz v. Turkey [GC], cited above, \u00a7 50.
\n[112].\u00a0\u00a0Mike Redmayne, \u201cHearsay and Human Rights: Al-Khawaja in the Grand Chamber\u201d (2012) 75(5) Modern Law Review 865, 869.
\n[113].\u00a0\u00a0Doorson v. the Netherlands, no. 20524\/92, ECHR 1996-II, \u00a7 76, followed among others by Van Mechelen and Others v. the Netherlands, no. 21363\/93 and others, ECHR 1997-III, \u00a7 55;AM v. Italy, no. 37019\/97, ECHR 1999-IX;Luc\u00e0, cited above, \u00a7 40;P.S. v.\u00a0Germany, no. 33900\/96, \u00a7 24, 20 December 2001; and Vladimir Romanov v. Russia, no.\u00a041461\/02, \u00a7\u00a0100, 24 July 2008.
\n[114].\u00a0\u00a0Al-Khawaja and Tahery, cited above, \u00a7 146, and Schatschaschwili, cited above, \u00a7\u00a7 106 and 112.
\n[115].\u00a0\u00a0As Ulrich Sommer points out in \u201cDas Konfrontationsrecht \u2026\u201d, cited above, p. 28, referring to Al-Khawaja and Tahery, cited above, \u00a7 160.
\n[116].\u00a0\u00a0Ibid., \u00a7 113.
\n[117].\u00a0\u00a0See the joint concurring opinion of Judges Spielmann, Karaka\u015f, Saj\u00f3 and Keller in Schatschaschwili v. Germany [GC], cited above, \u00a7\u00a7 17-18.
\n[118].\u00a0\u00a0Ibid., \u00a7 116. In his dissenting opinion joined to Schatschaschwili, cited above, Judge Kj\u00f8lbro criticised the majority for introducing a third category (that of evidence carrying significant weight) in addition to the previous categories (sole and decisive evidence).
\n[119].\u00a0\u00a0Supreme Court of the United States, United States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006).
\n[120].\u00a0\u00a0Artico v. Italy, cited above,\u00a7 35.
\n[121].\u00a0\u00a0Ibid.
\n[122].\u00a0\u00a0John Murray, cited above, \u00a7 68.
\n[123].\u00a0\u00a0Salduz, cited above, \u00a7 58 (\u201c[I]t is not for the Court to speculate on the impact which the applicant\u2019s access to a lawyer during police custody would have had on the ensuing proceedings\u201d.)
\n[124].\u00a0\u00a0Ibrahim and Others, cited above, \u00a7 274.
\n[125].\u00a0\u00a0Simeonovi, cited above, \u00a7\u00a7 132-144.
\n[126].\u00a0\u00a0Ibrahim and Others, cited above, \u00a7 274.
\n[127].\u00a0\u00a0Ibid., \u00a7 274.
\n[128].\u00a0\u00a0Ibid., \u00a7 274. See also Al-Khawaja and Tahery, cited above, \u00a7 143.
\n[129].\u00a0\u00a0Ulrich Sommer, \u201cDas Konfrontationsrecht des Art. 6 Abs. 3 lit. d MRK \u2013 \u201cto examine the witness\u201d, cited above,pp. 4-32; Ian Dennis, \u201cThe right to confront witnesses: meanings, myths and human rights\u201d (2010) Criminal Law Review 255-274; KwekuVanderpuye, \u201cTraditions in Conflict: The Internationalization of Confrontation\u201d (2010) 43 Cornell International Law Journal 513-583; John Spence, \u201cThe European Right to Confrontation in Criminal Proceedings – Absent, Anonymous and Vulnerable Witnesses\u201d (2007) 32\u00a0European Law Review\u00a0 275-278; Maffei, The European Right to Confrontation in Criminal proceedings: Absent, Anonymous and Vulnerable Witnesses, Groningen, Europa Law, 2006.
\n[130].\u00a0\u00a0See Sebastian B\u00fcrger, \u201cUnmittelbarkeitsgrundsatz und kontradiktorischeBeweisaufnahme\u201d (2016) 128 (2) Zeitschfriftf\u00fcr die gesamteStrafrechtswissenschaft 518-546; and Daniela Dembo, Menschenrecht auf Verteidigng und Fairness des Strafverfahrens auf nationaler, europ\u00e4ischer und internationalerEbene, Berlin, Duncker\u00a0 Humboldt, 2014.
\n[131].\u00a0\u00a0With regard to prosecution witnesses, Delta v. France, no. 11444\/85, Series 1 No.\u00a0191-A, \u00a7\u00a037, and Pello v. Estonia, no. 11423\/03, \u00a7\u00a7 34 and 35, 12 April 2007; with regard to witnesses on behalf of the defence, Polufakin and Chernyshev v. Russia, no.\u00a030997\/02, \u00a7\u00a0207, 25 September 2008.
\n[132].\u00a0\u00a0Ferrantelli and Santangelo v. Italy, no. 19874\/92, ECHR 1996-III.
\n[133].\u00a0\u00a0Bricmont v. Belgium, no. 10857\/84, Series A, no. 158.
\n[134].\u00a0\u00a0Artner v. Austria, no. 13161\/87, Series A no. 242-A.
\n[135].\u00a0\u00a0Schatschaschwili, cited above, \u00a7 155, and Nechto, cited above.
\n[136].\u00a0\u00a0Luc\u00e0, cited above.
\n[137].\u00a0\u00a0Vidgen v. the Netherlands, no. 29353\/06, 10 July 2012.
\n[138].\u00a0\u00a0This is the situation in Unterpertinger v. Austria, no. 9120\/80, Series A no. 110, and Asch v.\u00a0Austria, no. 12398\/86, Series A no. 203. The Court decided these cases in a contradictory way, as the dissenting Judges Evans and Bernhardt pointed outin the latter case.
\n[139].\u00a0\u00a0Kostovski v. the Netherlands, no. 11454\/85, Series A no. 166.
\n[140].\u00a0\u00a0P.S. v. Germany, cited above.
\n[141].\u00a0\u00a0Schatschaschwili, cited above, \u00a7 162, and Melnikov v. Russia, no. 23610\/03, \u00a7\u00a080, 14\u00a0January 2010.
\n[142].\u00a0\u00a0Al-Khawaja and Tahery, cited above, \u00a7 164, but see also \u00a7\u00a7 156 and 157. Careful evaluation of evidence does not suffice (HulkiG\u00fcnes v. Turkey, no. 28490\/95, \u00a7\u00a095, 19\u00a0June 2003).
\n[143].\u00a0\u00a0Paic v. Croatia, no. 47082\/12, \u00a7 51, 29 March 2016.
\n[144].\u00a0\u00a0See footnote 88 above.
\n[145].\u00a0\u00a0See the Government\u2019s 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).
\n[146].\u00a0\u00a0Paragraph 57 of the judgment.
\n[147].\u00a0\u00a0Contrast Bykov, v. Russia [GC], no. 4378\/02, \u00a7 97, 10 March 2009.
\n[148].\u00a0\u00a0See the applicant\u2019s observations before the Grand Chamber, \u00a7 58.
\n[149].\u00a0\u00a0Ramanauskas v. Lithuania [GC], no. 74420\/01, \u00a7 60, 5 February 2008.
\n[150].\u00a0\u00a0Paragraph 29 of the judgment.
\n[151].\u00a0\u00a0Paragraph 31 of the judgment.
\n[152].\u00a0\u00a0Paragraph 32 of the judgment.
\n[153].\u00a0\u00a0Paragraphs 58 and 60 of the judgment.
\n[154].\u00a0\u00a0Paragraph 99 of the judgment.
\n[155].\u00a0\u00a0Government\u2019s observations of 28 November 2017, paragraph 108.
\n[156].\u00a0\u00a0Shumeyev and Others v. Russia (dec.), no. 29474\/07, 8669\/09 and 55413\/10, \u00a7\u00a037, 22\u00a0September 2015.
\n[157].\u00a0\u00a0Paragraph 52 of the judgment.
\n[158].\u00a0\u00a0Paragraph 61 of the judgment.
\n[159].\u00a0\u00a0Paragraph 67 of the judgment.
\n[160].\u00a0\u00a0See the Government\u2019s observations before the Grand Chamber, \u00a7 107.
\n[161].\u00a0\u00a0Paragraph 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).
\n[162].\u00a0\u00a0Paragraph 171 of the judgment.
\n[163].\u00a0\u00a0Paragraph 169 of the judgment.
\n[164].\u00a0\u00a0Paragraph 171 of the judgment.
\n[165].\u00a0\u00a0A contrario, Schatschaschwili, cited above, \u00a7\u00a7 119-121.
\n[166].\u00a0\u00a0Paragraph 138 of the judgment.
\n[167].\u00a0\u00a0Paragraph 171 of the judgment.
\n[168].\u00a0\u00a0Paragraphs 171 and 174 of the judgment.
\n[169].\u00a0\u00a0Paragraph 173 of the judgment. Here, the majority patently contradict the liberal criterion exposed in paragraph 160 of the judgment.
\n[170].\u00a0\u00a0Paragraph 175 of the judgment. This unfortunate method is not new in the Court\u2019s case-law (see, for example, Sievert v. Germany, no. 29881\/07, \u00a7 67, 19 July 2012, and Poletan and Azirovikv. the former Yugoslav Republic of Macedonia, nos. 26711\/07 and 2 others, \u00a7\u00a082, 12 May 2016).
\n[171].\u00a0\u00a0Paragraph 175 of the judgment.
\n[172].\u00a0\u00a0Paragraph 154 of the judgment.<\/p>\n