CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2017

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THE CZECH REPUBLIC   (Application no. 54146/09)               JUDGMENT       STRASBOURG   12 January 2017     FINAL   12/04/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bátěk and Others v. the Czech Republic, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mirjana Lazarova Trajkovska, President,   Ledi Bianku,   Kristina Pardalos,   Aleš Pejchal,   Armen Harutyunyan,   Pauliine Koskelo,   Tim Eicke, judges, and Abel Campos, Section Registrar, Having deliberated in private on 29 November 2016, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 54146/09) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Czech nationals, Mr Roman Bátěk, Mr Radek Blažej and Mr Karel Elsner (“the applicants”) on 2 October 2009. 2.     The applicants were represented by Mr D. Strupek, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice. 3.     The applicants alleged, in particular, that the evidence of absent and anonymous witnesses, whose testimonies they could not effectively challenge, had been decisive in their conviction. 4.     On 18 March 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1969, 1968 and 1972 respectively and live in Lanžhot (Messrs. Bátěk and Elsner) and Břeclav (Mr Blažej). 6.     From September 2003 to January 2004 the applicants were employed by the Lanžhot Customs Office on the border with the Slovak Republic. On 1 December 2003, pursuant to Article 158e of the Code of Criminal Procedure (“the CCP”) an undercover police agent infiltrated the team of customs officers. As a result of her observations over the following two months, the customs officers were suspected of corruption, namely taking bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The undercover agent left the Customs Office on 6   February 2004. 7.     During March and April 2004 testimony was taken in the presence of a judge from twenty truck drivers from different countries in accordance with the provisions of Article 158a of the CCP, that is to say this step was taken as an urgent or non-repeatable measure ( neodkladný nebo neopakovatelný úkon ). The records show that the drivers’ testimonies were similar. According to the applicants, interviews with four of the drivers were of decisive significance. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, were not present at these interviews. 8.     Witness I.P.D. testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed. If not, the drivers had to wait for hours to be cleared. He admitted that he had paid bribes on two or three occasions but he could not remember individual customs officers. Witness C.D. testified that he had always had to pay 5 euros (EUR) in order to avoid inconvenience during customs clearance. He described one customs officer as a corpulent person with thinning brown hair. He did not remember any other officer. Witness S.B. testified that he had paid 5 EUR on each of the ten trips he had made to pass the customs control. He was not able to describe any of the customs officers. Witness A.A.U. confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person. 9.     On 22 April 2004 the applicants were charged, together with fifteen other individuals, with abuse of the authority of public official and accepting bribes. In February 2005 they were officially indicted. 10.     On 14 December 2005 the Břeclav District Court ( okresní soud ) heard the police agent as an anonymous witness ( utajený svědek ) under the provisions of Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the courtroom using an audio streaming device. She did not recount any specific case of the acceptance of a bribe, stating only that her reports and the information therein were fully reliable. The third applicant was present at the hearing. He was represented by a defence counsel. The other two applicants were absent and were represented by a substitute defence counsel. Only the third applicant put a question to the anonymous witness. In the course of the trial, the applicants argued that the agent would have been unable to see any other customs officers from her work-station, that   none of the alleged acts had been filmed by the cameras installed at their workplace, and that the officers’ numbered rubber stamps could have been used by other people. 11 .     On 25 May 2006 the District Court found the applicants and other accused persons guilty as charged. They were sentenced to one year’s imprisonment suspended for two years’ probation and were fined. The court established the factual background to the body of evidence. The agent’s written report constituted directly incriminating evidence. The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers, comparing these with the testimony of the truck drivers, the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance. The District Court stated: “As regards the defendant Roman Bátěk, he is incriminated by the relevant documentary evidence referring to counts 2 and 3 of the indictment and counts 4   and 5 of the indictment, from which it is apparent that he used a rubber stamp with the number 005 and that his personal number was 20627, these numbers appearing on the relevant documents. When it comes to counts 2 and 3 of the indictment, he is also incriminated by the witness statements of the Bulgarian driver [D.] and the Romanian driver [C.D.] who, according to their records, passed the border crossing point at the time in question, and their papers and travel documents bear the respective numbers of the defendant Bátěk. The above fully corresponds to the report from the defendant’s employer regarding the placement of the defendant, i.e. where ‒ that is to say at which work-station ‒ he was positioned at the time concerned. As to counts 4 and 5 of the indictment, the defendant Bátěk is also incriminated by a police officer of the Czech Republic who saw the defendant accepting a bribe and recorded this fact in the corresponding document, produced in evidence, which also corresponds with the testimony of the undercover agent given before the court. As regards the defendant Radek Blažej, he is incriminated by the documentary evidence produced as regards counts 6 and 7 of the indictment, specifically the control sheets showing his personal number 16898 and rubber stamp number 090. He is also incriminated by the testimony of the Romanian driver [C.D.] and by a report from his former employer stating the defendant’s whereabouts at the time concerned. As to count 7 of the indictment, the defendant Radek Blažej is also incriminated by the undercover police agent of the Czech Republic who saw the defendant accepting a bribe. As regards the defendant Karel Elsner, he is incriminated on counts 8, 9 and 10 of the indictment by the documentary evidence produced, especially by control sheets which were stamped with his personal number and also by other use made of his personal number, as is apparent in the corresponding computer records. He is also incriminated by the witness statement of [S.D.], who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place. As to count 9 of the indictment in relation to the defendant Karel Elsner, the witness stated that on 10 November 2003 he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents, from which it is clearly apparent that it was the defendant Elsner who carried out the administrative measures concerned and hence received the bribe. As to count 10 of the indictment, Karel Elsner is also mentioned in the anonymous agent’s report.” 12.     The District Court explained that the truck drivers’ statements were read out at the hearing pursuant to Article 211 § 2 b) of the CCP. The drivers had been interviewed in the presence of a judge during the pre-trial stage of the proceedings, because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non-repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage. The undercover police agent was heard as an anonymous witness pursuant to Article 209 of the CCP because of her potential future activities. 13 .     The applicants appealed against the judgment. They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) ‒ and that they could have been granted immunity in exchange for testifying. They also contested the legal grounds and the necessity for the non-disclosure of the identity of the undercover police agent. According to them, she did not risk bodily harm or any other danger of interference with her fundamental rights as required by Article 55 § 2 of the CCP. The argument about her future activities was not sufficient justification. Moreover, the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying. 14 .     On 22 March 2007 the Brno Regional Court ( krajský soud ) rejected the applicants’ appeal as unsubstantiated, arguing as follows: “(...) the hearing of an undercover police agent as a witness is in practice exceptional, occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof. In such circumstances, and when such an agent is heard as a witness, Article 55 § 2, Article 183a § 4, and Article 209 of the CCP would be applicable. In the instant case, the provisions of the CCP regulating the agent’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated. The first-instance court had no doubts about the agent’s reliability as a witness. She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated, recorded and processed it (...) Under Article 160 § 4 of the CCP, a non-repeatable measure is a measure which cannot be repeated before the trial court. Questioning a witness who is a foreign national or stateless person without a permanent residence permit in the Czech Republic can be considered to be this kind of measure. None of the witnesses had a link to the Czech Republic of the kind which could have justified the conclusion that they would remain in the country or appear if summoned. The witnesses merely pass through the territory in the course of their work as truck drivers. The interviews with these witnesses were conducted in accordance with the provisions of the Code of Criminal Procedure. The allegations of the defendants that the witnesses did not even know the content of the records they had signed, and that they had been forced to testify and promised immunity if they stated particular facts, are not substantiated by the case file, and no other facts corroborating these allegations have been ascertained. It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of the Břeclav District Court (...). Under Article 158a of the CCP, a judge who performs the urgent or non ‑ repeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof." 15.     The applicants filed a constitutional appeal alleging a violation of Article 6 §§ 1 and 3 d) of the Convention and complaining about the depositions of the truck drivers and the anonymous witness. 16.     On 2 April 2009 the Constitutional Court ( Ústavní soud ) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the CCP. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Criminal Procedure 17 .     At the material time, the relevant provisions of the Code of Criminal Procedure (Act no. 141/1961), as amended, read: Article 55 § 2 “Where the circumstances indicate that, in testifying, a witness or a person close to a witness runs an obvious risk of bodily harm or other serious danger of interference with their fundamental rights, and if it is not possible to ensure the effective protection of the witness in any other way, the criminal justice authority is required to take measures to prevent identification of that witness, including their visual identification; the witness’s name, surname, and other particulars are not to be recorded in the statement, but kept separate from the criminal file and known only to the criminal justice authorities acting in that particular case. The witness shall be informed of the right to have his or her identity concealed and to sign the statement using a fictitious forename and surname by which he or she can subsequently be identified. Where necessary, the criminal justice authority shall take all necessary measures to ensure the protection of these persons. Special law provides for specific protection of witnesses and persons close to the witnesses. In cases where there are no longer reasons to protect the identity of a witness and to keep his or her personal data concealed, the authority conducting the criminal proceedings shall add this information to the criminal file so that the identity of the witness is no longer concealed.” Article 55a “1. To document the taking of such a measure, a stenographic record may be made, if necessary, which shall then be attached to the minutes together with its transcription into conventional text; or an audio or video recording or other appropriate means may be used. 2. If an audio or video record is made in addition to the minutes, this fact shall be noted in the minutes drafted about the measure, which shall indicate, in addition to the time, place and manner of its execution, the kind of device used. The technical recording medium shall be attached to the file, or there shall be an indication of where the medium is stored.” Article 158a “Where it is deemed necessary to question a witness as an urgent or non-repeatable measure during an investigation at a time before anybody has been charged, the interview must be requested by a prosecutor and shall be conducted in the presence of a judge; the judge shall be responsible for the legality of such questioning and for that purpose may intervene in the questioning. However, the judge shall not be authorised to review the prosecutor’s decision that an urgent and non-repeatable measure is required.” Article 209 “1. The presiding judge shall ensure that a witness who has not yet been questioned is not present during the questioning of the defendant and other witnesses. If there is a concern that a witness might not testify truthfully in the presence of the defendant, or if a witness or a person close to him or her is in danger of bodily harm, death or other serious threat, the presiding judge shall take appropriate measures to secure the safety and anonymity of that witness, or shall expel the defendant from the courtroom during the interrogation of such a witness. However, upon his return to the courtroom, the defendant must be informed about the content of the witness’s testimony, may make comments on it, and may ask the witness questions via the presiding judge without having met the witness. In the case of a witness whose identity is to be kept confidential (Article 55 § 2), the presiding judge shall take measures to make it impossible to determine the true identity of the witness. 2. If a witness whose identity is concealed (Article 55 § 2) is questioned during the trial, the court shall take all the necessary steps to verify his or her credibility, even without a corresponding request.” Article 211 § 2 “The statement of a witness given during pre-trial proceedings may be read out at the trial if the witness: a)     has died or gone missing, is staying abroad and is thus unreachable, or has become ill and is therefore not in a position to be heard, or b)     has been questioned as an urgent or non-repeatable measure under Article   158a.” 18.     Amendment no. 274/2008 of the CCP introduced specific rules governing the testimony of police officers acting as undercover agents. It entered into force on 1 January 2009, when the criminal proceedings against the applicants were already complete. The new Article 102a reads: Article 102a “1.     If a person on active police duty or a police officer from another State a)     who has been deployed in criminal proceedings as an undercover agent or has performed a simulated transaction, or b)     who has recently participated in deploying an agent or performing a simulated transaction, is to be questioned as a witness, he or she shall be questioned as a witness whose identity and appearance is concealed. 2.     In exceptional situations and on condition that the questioning cannot endanger life, health or further service duties of persons referred to in sub-section (1) or endanger the life or health of a person close to such person, the questioning may be conducted without concealing the witness’s identity or appearance, but only at the request of a public prosecutor and on the basis of authorisation from the competent director of the security forces.” 19 .     The Rules for District, Regional and High Courts (Instruction of the Ministry of Justice no. 505/2001–Org of 3 December 2001), as in force at material time, read: Article § 24 “1.     In cases where the criminal justice authorities have already adopted measures to conceal the identity of a witness at the pre-trial stage under Article 55 § 2 of the Criminal Procedure Code, the presiding judge (a single judge) shall summon that witness to the court through a police authority which has in its possession the file containing his or her genuine personal details. ... 6.     In cases where it is necessary to prevent unauthorised persons, using other technical means if necessary, from identifying such a witness, the presiding judge (a single judge) shall take appropriate measures, with the help of members of a judicial guard if necessary, to make it impossible to identify a witness not only in the courtroom but also in all other parts of the court building. 7.     If the investigation file does not contain the details necessary for assessing the credibility of a witness whose identity has been concealed at the pre-trial stage, the presiding judge (a single judge) shall request these details through the court employee who has been appointed by the president of the court to ensure the protection of confidential information. The same procedure shall apply in cases where the witness is heard for the first time during the trial. This information shall be stored separately from the criminal file. After the evidence has been taken by reading out its essential content, without endangering the concealed identity of the witness, the evidence shall be put in a sealed envelope together with the witness’s personal details.” B.     Case-law of the Supreme Court and the Constitutional Court on hearing undercover police agents as anonymous witnesses 20.     In judgment no. 9 Tz 85/2000 of 3 May 2000 the Supreme Court observed that neither the investigator nor the trial court had explained satisfactorily why the questioning as an anonymous witness of the police officer concerned had been deemed to meet the criteria laid down in Article   55 § 2 of the CCP, namely that the circumstances indicated that, in testifying, a witness or a person close to the witness would run an obvious risk of bodily harm or other serious danger of interference with his/her fundamental rights and that it was not possible to ensure the effective protection of the witness in any other way. The Supreme Court pointed out in this regard that the defendants had not been convicted of any previous offence, they all enjoyed a good reputation and the offences had been isolated ‒ albeit serious ‒ unlawful actions. The Supreme Court ordered the trial court to reconsider whether it was appropriate to hear testimony from the officer as an anonymous witness. 21.     In decision no. III. ÚS 323/04 of 13   January 2005 the Constitutional Court addressed the lawfulness of police officers’ interviews as anonymous witnesses under Article 55 § 2 of the CCP. The Constitutional Court held that it was self-evident that revealing their identity would jeopardise their future professional work. Although the defendant had not uttered any threats, it was clear, given the nature of the criminal activity, that there was a danger of interference with the officers’ fundamental rights. The defendant knew the identity of the witnesses and who had testified against him and he might have reacted accordingly. Moreover, he had had a face-to-face confrontation with one of the witnesses pursuant to Article 104a of the Code of Criminal Procedure and the mere fact that he did not know the identity of the witnesses could not result in a violation of his defence rights or his other basic rights. 22.     In decision no. III. ÚS 291/03 of 6 June 2006, the Constitutional Court found that questioning police officers anonymously could be justified if they or their families might be exposed to danger or if they were going to take part in other covert operations. However, such an interference with the rights of the defence also had to respect the principle of proportionality and it was the courts’ task to assess the proportionality of the measure. In the case before it, such proportionality was altogether lacking. 23.     In decision no. II. ÚS 583/05 of 13 December 2007, the   Constitutional Court found that hearing police officers as anonymous witnesses pursuant to Article 55 § 2 of the CCP was justified on the grounds that revealing their identity might compromise their future work and there was thus a serious danger of interference with their fundamental rights. The Constitutional Court found that the measure in question had been accompanied by adequate procedural safeguards and had thus been proportionate: the Czech police officers had been heard directly in the courtroom, in the presence of the defendants and their defence counsels, who could have asked questions. There had thus been direct contact between the anonymous witnesses and the court and the other procedural parties. The court, the defendants and their counsels had been able to gain an immediate impression as to how the witnesses gave their testimonies and could take part in the questioning. In the case of a Dutch police officer, who used a false name, he had not been present at the courtroom himself but his testimony and all the questions had been transmitted using technical means and the parties had been allowed to react and to put questions to him. The Constitutional Court also underlined the reliability of witnesses who were police officers and distinguished them from other individuals who testified as anonymous witnesses but came from a criminal environment. 24.     In decision no. II. ÚS 677/06 of 6 August 2008 the Constitutional Court pointed out that hearing an Austrian police officer as an anonymous witness was lawful, even though he did not allege that there was any threat from the defendant. But given the nature of the crime, there was a serious danger of interference with his fundamental rights. In addition, the defendant knew the identity of the witness, knew who had testified in his case and might react accordingly. The defendant’s defence counsel put fifteen questions in total to the witness. The mere fact that a defendant does not know the real identity of a witness cannot result in an interference with his defence rights or other fundamental rights. In addition, the Constitutional Court took into account that the testimony in question was not decisive evidence and there was a large body of other circumstantial evidence. 25.     In its decision no. IV. ÚS 407/07 of 29 October 2009, the Constitutional Court referred to its previous case-law in relation to Article   55 § 2 of the CCP and held that the first requirement for lawfulness is the subsidiarity of the measure. It does not suffice for the witness subjectively to feel endangered and therefore ask to be heard as an anonymous witness. The criminal justice authorities are under an obligation to assess whether the measure is justified and to give reasons for their conclusion. The second requirement is an obligation on the part of the court to take all the requisite steps to assess the reliability of the witness (compare Article 209 § 2 of the CCP) and the defendant cannot be prevented from doing the same. The Constitutional Court found in the aforementioned case that both requirements were met. The courts gave satisfactory reasons for executing the measure pursuant to Article 55 §   2 of the CCP. In relation to the rights of the defence, all the accused, including the defendant, could ask questions and observe the reactions of the witnesses. Thus, even though the defence was put in a more difficult position, the degree of the restriction was minimalised. As far as the second requirement was concerned, the courts adduced a large body of evidence and carefully assessed the reliability of particular testimonies. In addition, the defendant was able to put questions to the witnesses. Furthermore, the Constitutional Court pointed out that these testimonies were not the sole evidence against the defendant as other evidence existed, including wiretaps and other physical evidence. III.     RELEVANT INTERNATIONAL LAW 26.     Mutual assistance in criminal matters between the Czech Republic and Bulgaria and Romania is governed, in particular, by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, supplemented by bilateral treaties with Bulgaria of 25 October 1958, and with Romania of 25 November 1976. 27.     The European Convention on Mutual Assistance in Criminal Matters establishes common rules in the field of mutual assistance in criminal matters, such as the questioning of witnesses or experts. Requests for mutual assistance are made by way of letters rogatory, which should be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 28.     The applicants complained that they had not had an opportunity to question the witnesses – who were foreign truck drivers ‒ during the pre ‑ trial proceedings. They also alleged that the legal requirements allowing the hearing of witnesses anonymously had not been met in their case. They relied on Article   6 §§ 1 and 3 d) of the Convention:   “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.     Everyone charged with a criminal offence has the following minimum rights: (...) (d)     to 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; ...” 29.     The Government contested these arguments. A.     Admissibility 30.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicants 31.     The applicants submitted that there had not been sufficient justification for the failure to summon the absent witnesses to testify and for concealing the identity of the undercover police agent. Moreover, the courts had not taken any positive steps to allow the defence to cross-examine the truck drivers who had been questioned before the applicants were charged. The Břeclav District Court had merely stated that there had been a legal basis for reading out the records of their testimonies at the hearing and the Brno Regional Court had added that the witnesses were foreign nationals with no ties to the Czech Republic. The applicants also noted that the argument that the drivers had not been summoned because they were always travelling had not been raised by the Government until a later stage. As regards the anonymous witness, the applicants pointed out that the legal requirements set out in Articles 55 § 2 and 209 of the CCP had not been met as there had been no risk of bodily harm or other serious danger of interference with her fundamental rights when testifying. The offence had not been a serious one (the applicants were charged with accepting bribes of 10 to 25 EUR), the criminal proceedings had not concerned organised crime, and revealing her identity would not have jeopardised her future professional duties. They argued that the Court’s case-law requires the courts to assess whether the defendants might put the agent or people close to her at risk (see Van Mechelen and Others v. the Netherlands , 23   April 1997, §   61, Reports of Judgments and Decisions 1997 III). In this regard, the applicants submitted that it was an exaggeration ‒ and even completely absurd ‒ to suggest that they might threaten or attack the police agent. 32.     The applicants also argued that their conviction had been based to a decisive extent on testimonies they challenged, alleging that neither the truck drivers nor the agent had been able to describe the actions of which they had been accused, and that the evidence was not corroborative. As   regards the documentary evidence, that alone could not prove that the applicants had accepted bribes. 33.     The applicants referred to Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 and Pesukic v.   Switzerland , no. 25088/07, 6 December 2012, and argued that the difficulties caused to the defence by admitting testimony from absent or anonymous witnesses must be accompanied by adequate procedural safeguards allowing for a correct and fair assessment of the reliability as evidence of such testimony. The courts had failed to ensure that these requirements were met. The reliability of the truck drivers had not been subjected to any scrutiny, for example by interrogating them further or questioning other individuals known to them. As for the police agent, the applicants had known her identity because she had worked with them for two months. However, as she had not testified in the courtroom, the applicants, their defence counsels and the judge had been unable to observe her reactions at first hand. (b)     The Government 34.     The Government maintained that there had been adequate grounds for taking the step of obtaining testimony from the truck drivers as an urgent or non-repeatable measure under Article 158a CCP because they were foreign nationals who could not be summoned before a court to testify. These witnesses usually travelled outside their country of residence and outside the Czech Republic and they became inaccessible to the authorities once they had left the Czech Republic. Ensuring their appearance before the trial court or questioning them through the medium of international judicial assistance would have required considerable time and financial resources and the whole criminal proceedings would have lasted significantly longer. Moreover, despite the existence of a legal framework offering mutual judicial assistance in criminal matters, in reality the procedure was often difficult and the results uncertain. In the instant case, the seriousness of the offences meant that it was necessary to act expeditiously. In relation to the use of an agent pursuant to Article 158e of the CCP, the Government argued that such a measure had been self-evident in terms of the seriousness of the criminal activity in question and the courts had explained the reasons why her identity had not been disclosed. The Government also noted that it had not been commonplace to use video conferencing facilities at the time when the witnesses were heard and the District Court was not technically equipped for such a procedure. 35.     The Government also argued that neither the testimonies of the truck drivers nor those of the anonymous witness contained sole or decisive evidence. The conclusion that the applicants were guilty had been based on a whole body of evidence, including documentary evidence and the testimonies of other witnesses before the trial court. The applicants had also had the opportunity to comment on and challenge all the evidence. The Government also pointed out that the truck drivers had been interviewed in the presence of a judge who had ensured the legality of the questioning. These witnesses could be considered reliable because their statements had been in line with the adduced documentary evidence. As regards the anonymous witness, the applicants could have questioned her. Moreover, the agent’s reliability had not been called into question as she was a police officer and her actions had been supervised by the state prosecutor and the High Court in accordance with the CCP. 2.     The Court’s assessment (a)     General principles 36.     The Court reiterates that the guarantees in paragraph 3(d) of Article   6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings, and the Court will therefore consider the applicants’ complaint under both provisions taken together. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, taking into account the rights of the defence, but also the interests of the public and the victims, in seeing crime properly prosecuted (see Schatschaschwili v. Germany [GC], no. 9154/10, §§   100 and 101, 15   December 2015, Paić v. Croatia , no. 47082/12, § 27, 29   March 2016, and Ibrahim and Others v. the United Kingdom [GC], nos.   50541/08, 50571/08, 50573/08 and 40351/09, §§ 250-251, ECHR   2016 ) and, where necessary, the rights of witnesses (see, for example, Al-Khawaja and   Tahery , § 118, cited above). 37.     The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all the evidence against him must normally be produced in his presence at a public hearing for the purpose of adversarial argument (see Schatschaschwili , cited above, §103, and Paić , cited above, § 28). There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07, 32786/10 and 34278/10, §   81, 12 May 2016). It should be noted in this context that the admissibility of evidence is a matter for regulation by national law and the national courts, and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Seton v. the United Kingdom , no. 55287/10, § 57, 31 March 2016). 38.     In Al-Khawaja and Tahery , cited above, §§ 119‑147, the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows (see Seton , cited above, § 58, and Poletan and Azirovik , cited above, § 82; for a shorter summary see Paić , cited above, §§ 29-30): (i)     the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance; (ii)     typical reasons for non-attendance are, as in the case of Al‑Khawaja and Tahery (cited above), the death of the witness in question or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial; (iii)     when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort; (iv)     the admission as evidence of the statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by such witnesses by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings; (v)     according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are deemed to have been unduly restricted; (vi)     in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive; (vii)     however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner; (viii)     in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to be balanced in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case. 39.     Those principles have been further clarified in the Schatschaschwili case (cited above, §§ 111-131), in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). The Court recalls in this regard that in cases concerning a witness’s absence owing to an inability to contact the witness, the domestic courts must, as a rule, have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili , cited above, §121). 40.     Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom , no.   55287/10, §§ 58 and 59, 31   March 2016). (b)     Application of these principles to the present case (i)     Whether there was good reason 41.     The Court reiterates that good reason for the absence of a witness must exist from the trial court’s perspective, that is to say, the court must have had good factual or legal grounds for not having been able to secure the witness’s attendance at the trial. If there was good reason for the witness’s non-attendance in that sense, it follows that there was good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (see Schatschaschwili , cited above, § 119). There are a number of reasons why a witness may not attend trial (see Al ‑ Khawaja and Tahery , cited above, §§ 120-125), including situations where the witness proved to be untraceable (see Tseber v. the Czech Republic , no.   46203/08, § 48, 22 November 2012, and Paić , cited above, §   34). 42.     In cases concerning a witness’s absence because he or she was unreachable, the Court requires the trial court to have made all reasonable efforts to secure the witness’s attendance. They must have actively searched for the witness with the help of the domestic authorities including the police and must, as a rule, have sought to international legal assistance in cases where the witness resided abroad and such mechanisms were available. This implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Schatschaschwili , cited above, §§ 120 - 122). (α)     Absent witnesses – the truck drivers 43.     The Court observes that the truck drivers’ testimonies had been collected pursuant to Article 158a of the CCP at the pre-trial stage of the criminal proceedings, in the presence of a judge, and before the applicants had been officially charged. The authorities deemed taking this step as an urgent and non-repeatable measure to be justified because the witnesses were foreign nationals. The trial court endorsed this reasoning and read out the transcript of their testimonies at the hearing in accordance with Article   211 § 2 of the CCP. The appellate court upheld the lawfulness thereof and added that the witnesses had neither permanent residence permits nor other ties to the Czech Republic. 44.     The present case is therefore an instance of potentially unreachable witnesses, where the domestic courts have failed to resort to international legal assistance (see Schatschaschwili , cited above, §121). The Court has adopted a strict approach in some previous cases, and in the instant case it reiterates that the mere fact that these witnesses resided outside the Czech Republic and travelled frequently could not be considered to constitute “good reason” justifying the failure to have them examined and the admission of their evidence in their absence. The authorities had at their disposal the means to locate and summon them and yet there is nothing in the