THIRD SECTION

DECISION

Application no . 37617/10 Euclides CABRAL against the Netherlands

The European Court of Human Rights (Third Section), sitting on 28 June 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom , Johannes Silvis, Dmitry Dedov, Branko Lubarda , Alena Poláčková , Georgios A. Serghides , judges,

and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 25 June 2010,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Euclides Cabral, is a Netherlands national, who was born in 1987 and lives in Rotterdam. He is represented before the Court by Mr S.R. Bordewijk , a lawyer practising in Schiedam.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Factual background

3 . The applicant was charged with having, with an accomplice called V., robbed three supermarkets and with having, with two accomplices, mugged someone in the street outside a discotheque.

4 . V. made statements to the police admitting his own participation in t he supermarket robberies and implicating the applicant in all four crimes.

2. Proceedings before the Regional Court

5 . The applicant was tried before the Rotterdam Regional Court ( rechtbank ). V. was summoned as a witness by the defence.

6 . Being himself suspected of having tak en part in the three supermarket robberies, V. had the right to refuse to give evidence, of which right he availed himself. Not being suspected of having taken part in the street mugging, V. could not refuse to give evidence about that crime; he made a statement to the effect that he had not personally witnessed the robbery but had heard from bystanders that it had been committed by a group that did not include the applicant.

7 . V. ’ s statement disculpating the applicant of the street mugging was not believed by the public prosecutor ( officier van justitie ) and the court. V. was subsequently charged with perjury ( meineed ).

8 . On 30 August 2006 the Regional Court gave judgment convicting the applicant of all four crimes. It sentenced him to four years ’ imprisonment and ordered the execution of a suspended two-week sentence of juvenile detention ( jeugddetentie ) imposed on a previous occasion when the applicant was still a minor.

3. Proceedings before the Court of Appeal

9 . The applicant lodged an appeal ( hoger beroep ) with the Court of Appeal ( gerechtshof ) of The Hague.

10 . V. was again summoned as a witness by the defence. As relevant to the case before the Court, he kept silence on all four charges, including the street mugging in relation to which he was by this time being prosecuted for perjury.

11 . The Court of Appeal gave judgment on 4 March 2008 convicting the applicant of all four charges. It sentenced the applicant to six years ’ imprisonment and, as the Regional Court had done, ordered the execution of the two-week suspended sentence of juvenile detention. The evidence on which the convictions were based may be summarised as follows:

Charge No. 1 (a supermarket robbery on W. Street in Rotterdam, committed on 16 December 2005):

Charge No. 2 (a street mugging outside a discotheque in Rotterdam, committed on 21 January 2006):

Charge No. 3 (a supermarket robbery on P. Square, Rotterdam, committed on 8 December 2005):

Charge No. 4 (a supermarket robbery on L.H. Road, Rotterdam, committed on 19 January 2006):

4. Proceedings before the Supreme Court

12 . The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ). As relevant to the case before the Court, he complained under Article 6 § 3 (d) of the Convention of the use made by the Court of Appeal of V. ’ s statements to the police to ground his convictions even though V. had refused to answer the questions of the defence under cross-examination.

13 . The Advocate General ( advocaat-generaal ) submitted an advisory opinion ( conclusie ) analysing the case-law of the Court, in particular the Chamber judgment Al-Khawaja and Tahery v. the United Kingdom , nos. 26766/05 and 22228/06, 20 January 2009, and expressing the view that V. ’ s evidence was “sole or decisive” in respect of Charge No. 4 but not in respect of Charges Nos. 1, 2 and 3, for which sufficient other evidence was available.

14 . On 5 January 2010 the Supreme Court gave judgment dismissing the applicant ’ s appeal on points of law. Referring to its own case-law (its judgment of 6 June 2006, ECLI :NL:HR:2006:AV1633 , Netherlands Law Reports ( Nederlandse Jurisprudentie , “NJ”) 2006, no. 332; see also Vidgen v. the Netherlands , no. 29353/06 , § 23, 10 July 2012 ), it found that the applicant had had sufficient opportunity to cross-examine V. or have him cross-examined. The mere fact that V. had refused to give evidence under cross-examination did not mean that use in evidence of his statement to the police was excluded by Article 6 § 3 (d) of the Convention.

B. Relevant domestic law

15 . Articles of the Code of Criminal Procedure ( Wetboek van Strafvordering ) relevant to the case are the following:

Article 219

“A witness shall be excused the duty to answer a question put to him if in so doing he would expose himself or one of his relatives in the ascending or the descending line ex transverso [i.e. siblings , uncles , aunts , nieces and nephews , etc.] , whether connected by blood or by marriage , in the second or third degree of kinship , or his spouse or former spouse , or registered partner or former registered partner , to the risk of criminal prosecution.”

Article 339

“1. The following only shall be recognised as legal evidence:

1 o . the court ’ s own observation;

2 o . statements made by the defendant;

3 o . statements made by witnesses;

4 o . statements made by experts;

5 o . written documents.

2. No proof is required of generally known facts or circumstances.”

COMPLAINT

16 . The applicant complains under Article 6 § 3 (d) of the Convention that he was convicted “solely or to a decisive extent” on the basis of statements made to the police by a witness who had been allowed to refuse to give evidence under cross-examination by the defence.

T HE LAW

Complaints under Article 6 § 3 (d) of the Convention

17 . The applicant alleges violations of Article 6 § 3 (d) of the Convention, which reads as follows:

“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; ... ”

18 . In Seton v. the United Kingdom , no. 55287/10 , 31 March 2016, the Court held:

“58. In Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 119 ‑ 147, ECHR 2011, 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:

( 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, like in the case of Al ‑ Khawaja and Tahery (cited above), the death of the witness 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 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 the 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 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 supportive 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 balance 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.

59. Those principles have been further clarified in Schatschaschwili v. Germany , 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). 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.”

19 . The Court accepts that the witness V. – “witness” being an expression that has an autonomous meaning in the Convention system (see, among many other authorities, Vidgen , cited above, § 39) – was not compellable. The privilege against self-incrimination was a good reason not for requiring V. to answer questions on those charges (see Vidgen , § 42). Accordingly, it will now examine the evidence grounding the applicant ’ s conviction of each of the four charges to determine whether V. ’ s statement to the police was “sole or decisive” evidence within the meaning of the case-law cited above. In so doing the Court will follow its usual approach to evidence in domestic criminal cases and not act as a fourth instance: it will not therefore question under Article 6 § 1 the judgment of the Court of Appeal, unless its findings can be regarded as arbitrary or manifestly unreasonable (see, as a recent authority, Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, 5 February 2015).

20 . Should the answer to that question be in the affirmative, the question will arise whether sufficient “counterbalancing factors” obtained.

1. Charge No. 1

21 . With regard to Charge No. 1, the evidence made use of by the Court of Appeal in addition to the statement made by V. to the police included other items directly linking the applicant to the crime: firstly, the use of a mobile telephone admitted by the applicant to be in his use in the area concerned shortly before the crime was committed (items 1 and 7); and secondly, the statement of C. directly implicating the applicant in the crime (item 6). That being the case, it cannot be said that V. ’ s statement to the police constituted the “sole or decisive” evidence on which the applicant ’ s conviction was grounded. Nor did it carry any significant weight.

22 . It follows that in respect of the first charge, the application is manifestly ill-founded and must be rejected in accordance wi th Article 35 §§ 3 (a) and 4 of the Convention.

2. Charge No. 2

23 . With regard to Charge No. 2, the evidence made use of by the Court of Appeal in addition to the statement made by V. to the police included other items directly linking the applicant to the crime: firstly, the applicant ’ s admission that he had visited the discotheque at the time of the robbery and had parked his car outside (item 8); secondly, identification by his gold teeth (item 9); and thirdly, positive identification of his car as the getaway car (item 11). That being the case, it cannot be said that V. ’ s statement to the police constituted the “sole or decisive” evidence on which the applicant ’ s conviction was grounded. Nor did it carry any significant weight.

24 . It follows that in respect of the second charge, the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Charge No. 3

25 . With regard to Charge No. 3, the evidence made use of by the Court of Appeal in addition to the statement made by V. to the police included other items directly linking the applicant to the crime: firstly, the appearance of the balaclava helmet, which was very similar to that worn by one of the two armed men while committing the robbery (item 14); and secondly, a match between DNA identified in traces of saliva found on the balaclava helmet and the DNA of the applicant (item 15). That being the case, it cannot be said that V. ’ s statement to the police constituted the “sole or decisive” evidence on which the applicant ’ s conviction was grounded. Nor did it carry any significant weight.

26 . It follows that in respect of the third charge, the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

4. Charge No. 4

27 . The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint in so far as it concerns the fourth charge and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint under Article 6 § 3 (d) of the Convention in so far as it concerns Charge No. 4;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 21 July 2016 .

             Stephen Phillips Luis López Guerra Registrar President