d), "unequivocal" means "unambiguous" or "leaving no doubt". The Court in its case-law has used such strong language to underline the importance of the rights of the defence. In Hermi v. Italy ([GC], No. 18114/02, ECHR 2006-XII) the Court held as follows:
"73. Neither 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 (see Kwiatkowska v. Italy (dec.), No. 52868/99, 30 November 2000). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol, cited above, pp. 13 - 14, § 31). In addition, it must not run counter to any important public interest (see Sejdovic, cited above, § 86, and {Hakansson} and Sturesson v. Sweden, judgment of 21 February 1990, Series A No. 171-A, p. 20, § 66)."
4. In Panovits v. Cyprus (No. 4268/04, 11 December 2008) the Court emphasised that
"68. ...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."
5. If a defendant is not assisted by counsel, the trial judge has a duty to apprise the applicant in detail of his right to examine prosecution witnesses and to explain the consequences of waiving this right and agreeing to the "reading out" of pre-trial statements.
6. According to the majority view, "there is no reason to believe that the applicant did not understand that his consent to the reading out of the statements implied the waiver of the right to examine them in the subsequent proceedings at the trial" (paragraph 40 of the judgment).
7. This is the wrong test. Instead of taking as a starting point that "there is no reason to believe that the applicant did not understand...", the Court should be satisfied that the applicant did understand that his consent to the reading out of the statements implied the waiver of the relevant right. In other words, it should transpire from the file that the waiver was "unequivocal". Then, and only then, should the Court accept any waiver as "unequivocal".
8. Admittedly, and turning to the particular circumstances of the case, the applicant did not dispute that he had consented to the reading out of the officers' pre-trial depositions (see Vozhigov v. Russia, No. 5953/02, § 57, 26 April 2007, and Ozerov v. Russia (dec.), No. 64962/01, 3 November 2005). At the same time, there is no indication that the applicant was clearly apprised of his right to examine prosecution witnesses. Moreover, it did not follow from the wording of Article 281 of the Code of Criminal Procedure that by giving his consent to the reading out of the pre-trial statements the applicant definitely waived his right to examine those witnesses. We would like to stress that the applicant was not represented during the trial or on appeal and that there is no indication that he was well versed in the law (see Bonev v. Bulgaria, No. 60018/00, § 41, 8 June 2006; {Isgro} v. Italy, 19 February 1991, § 29, Series A No. 194-A; and also, by contrast, Andandonskiy v. Russia, No. 24015/02, § 54, 28 September 2006).
9. Moreover, being faced with the authorities' apparent unwillingness to make further reasonable efforts to ensure S.'s and A.'s presence at the trial, the applicant was left with no other significant option regarding the possibility of questioning officers S. and A. Thus, we are not satisfied that the applicant was sufficiently put on notice as to the consequences of his refusing legal assistance or his consenting to the admission of the officers' pre-trial statements. We reiterate in that connection that the ultimate guardian of the fairness of the proceedin
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