FIRST SECTION

DECISION

Application no . 347/13 Tariq FAGAN and Michael FERGUS against the United Kingdom

The European Court of Human Rights (First Section), sitting on 15 November 2016 as a Committee composed of:

Kristina Pardalos, President, Robert Spano, Tim Eicke, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 19 November 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Tariq Fagan and Mr Michael Fergus, are British nationals who were born in 1991 and 1985 respectively. Both applicants are currently in prison in the United Kingdom. They are represented before the Court by Mr J. Bennathan QC of Doughty Street Chambers, a lawyer practising in London.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The criminal charges

4. The applicants, together with one other defendant, were charged with a number of offences, including kidnapping, false imprisonment and blackmail, in respect of an incident which took place on 10 September 2010.

5. On that date a man named AS had been forced into a blue van by a number of men and was driven around and beaten while demands for a ransom were made to his friends and family. His car was also stolen during the incident.

2. The evidence against the applicants

6. On 14 September 2010 AS described one of his kidnappers in a statement to the police:

“The first guy that come to me, I would be able to recognise his face coz he ’ s the only face I actually got to see ... it would be hard for me to actually describe you his actual look. I ’ m no good at describing people ’ s features. The easiest way for me to explain it to you is he looks like an English rapper ... It ’ s like he had a kind of sucked in face. His eyes were kind of sucked in. Stubble ... black guy. He had a hat on ... hood up ... sunken cheeks and his eyes were kind of sunken. Full stubble. Slimmer than me. A bit shorter than me ... I am six foot three.”

7. He described the kidnap van as “a Rascal ... a little Nissan van ... a little blue thing ... that Royal kind of blue ... a transit”.

8. On 23 September 2010 AS compiled an E-FIT image which supposedly resembled the second applicant.

9. The following day AS ’ s car was found abandoned at the scene of an aggravated burglary. It had false plates, upon which four of the first applicant ’ s fingerprints were found.

10. On 26 November 2010 a driver delivering cigarettes was robbed by a man driving a blue van with the registration number X493 LBJ. It was subsequently discovered that on the evening of 10 September 2010 a blue Suzuki van with the registration number X493 LBJ had been photographed leaving central London (southbound) by the automatic number plate recognition system on Vauxhall Bridge.

11. On 7 December 2010 a seller who gave his name as “Pablo Rowe” advertised a blue van for sale on Gumtree. His description fitted that of the first applicant and the van ’ s floor covering matched the description given by AS of the van used by his kidnappers.

12. When the first applicant was arrested on 21 December 2010 he attempted to destroy the SIM card from his mobile phone. The number plates from AS ’ s car were recovered from his property.

13 . On 2 March 2011 AS attended a video identification (VIPER) procedure. After viewing the video parade he asked to look a second time at numbers 2 and 3. He then indicated that although he couldn ’ t be one hundred per cent sure he would say number 3 was one of his kidnappers. On leaving the identification room, he said “I ’ m sure it was number 3”. On 18 March 2011 he gave a further statement saying that he knew it was number 3 who kidnapped him as soon as he saw him and he only asked to see number 2 again because he thought he might have been one of the other men in the van. Number 3 was the second applicant.

14. In or around this time AS was shown photographs of the blue van that had been recovered. On looking at the photographs, he said “it ’ s the sort of van it was” and then “it ’ s exactly the van it was”.

15. On 4 November 2011 the applicants were arrested for a non-residential burglary. A congestion charge receipt was discovered in the possession of the first applicant for a blue Suzuki Carry panel van with the registration X493 LBJ. It was registered to “Pablo Lowe” but the first applicant had insured it on 22 October 2010. The first applicant ’ s laptop also revealed a search for “Is my car wanted by police?” .

3. Preliminary ruling of 13 June 2011

16 . In or around May 2011, AS indicated that he no longer wished to give evidence due to fear of the applicants. He had been a willing and co ‑ operative witness until that point, but he claimed that he had received a series of phone calls from a caller who knew his personal details and those of close family members. He was explicitly threatened; in particular, he was warned not to give evidence and told that if he did negative consequences would follow for him and his family. He was visited by a Detective Constable who explained various forms of witness protection to him and warned him that he might be summonsed. However, AS indicated that if he were summonsed he would not say anything in court.

17. The Crown did not seek to summons him. Instead, it applied to adduce AS ’ s evidence as hearsay pursuant to section 116 of the Criminal Justice Act 2003 (see paragraph 32 below) on the ground that he was absent through fear. The relevant evidence was comprised of a recorded interview in which AS set out the circumstances of the alleged offence; the identification, which was recorded on DVD, and subsequent written statements in which the applicant “firmed up” the evidence given in the identification room (see paragraph 13 above); and a statement concerning the completion of the E-FIT.

18. The application was heard on the basis of the written statement submitted by the Crown. None of the defence advocates required any oral evidence to be given and nothing in the Crown ’ s statement was challenged. However, the defendants objected to the admission of the evidence on the ground that it was too indecisive and, in any event, it would be unfair to admit evidence that could not properly be challenged by the defence.

19 . In a decision dated 13 June 2011, the Crown Court Judge accepted that the Crown relied heavily on the evidence of AS and that evidence could, “in a sense”, be described as sole and decisive. Nevertheless it was not the only evidence upon which the Crown relied. The other strands of evidence could be summarised as cell-site evidence putting the defendants ’ telephones in the right proximity at approximately the right time; contact between the relevant parties; and, in relation to at least one of the defendants, scientific evidence linking him with various objects connected with the crime.

20 . With regard to the reason for the witness ’ absence, the judge concluded as a matter of fact, on the basis of the material available to him, that AS had been put in a state of extreme fear by one of the defendants or by someone associated with them with their knowledge and/or approval. He therefore found to the criminal standard that the defendants had been associated with the threats. He found this to be “a very important consideration”, since a defendant who had improperly put an important witness in fear, so that he was absent from the trial, should not be able to profit from the witness ’ absence.

21 . Having made these findings, the judge asked himself whether, pursuant to section 116 of the 2003 Act and section 78 of The Police and Criminal Evidence Act 1984, it would be in the interests of justice to admit AS ’ s evidence. As regards the identification, the judge noted that it had been captured on a DVD recording and the steps that AS went through in the identification process were very transparent and could be fully tested and assessed by a jury. There would therefore be no injustice if the DVD were played to the jury. Likewise, the written statement in which he “firmed up” the identification gave a clear line of reasoning as to exactly what happened.

22 . The judge also had regard to the factors set out in section 114 of the 2003 Act (see paragraph 31 above). He concluded that the evidence of AS was reliable; documented; reasoned; could be tested; and could be commented upon fully.

23. In light of the above, he concluded that the evidence was properly admissible under section 116 and it would be unfair not to admit it. Indeed, he was satisfied to the criminal standard that it would be fair to admit it, both under section 78 of the Police and Criminal Evidence Act 1984 and under the interests of justice test in the Criminal Justice Act 2003.

4. The criminal trial

24 . As it was not disputed that the offences described by AS had taken place, the only issue at trial was whether the applicants had been involved. At the close of the trial the judge gave a lengthy direction to the jury, explaining the law and summarising the evidence. In broaching the issue of identification evidence, he urged them to approach it with “great caution” as human beings could make mistakes, even in cases where they were certain that they had recognised someone. On the facts of the present case, he reminded them that the identification procedure had taken place on 2 March 2011 for an incident which happened on 10 September 2010; he also urged them to consider how long AS saw the man who kidnapped him for, how close he was to him, how clear his view was, and how similar the description he provided was to the second applicant.

25 . In relation to the evidence of AS, the judge directed the jury that:

“Nobody in this case had argued that [the kidnap] did not happen, or did not happen in the way that [AS] has said. What is said in this case is that [AS] never appeared in front of you in the witness box to give evidence.

What I have been reminding you about comes from the source of his ABE videoed interview very shortly after these incidents, plus a series of witness statements that he made to the police over the intervening months.

The first was played to you and you were able to see [AS] on that, so you have at least had sight of him, and the others were read to you. But none of that was with the agreement of the defence; they wanted [AS] here. As I have already told you, you must not speculate as to why he has not come to court. Speculation, I remind you because it is so important, involves guessing and you must not guess.

The fact is he has not been to court but his evidence is still in front of you and you can still act on it if you accept it. But clearly you may think the defence have been disadvantaged by the fact that [AS] did not appear as a witness in front of you.

You will no doubt listen with interest as I did to the precise ways the defence say they have been disadvantaged by his absence and it really all hinges, does it not, on identification issues.”

26. The judge summarised the ways that the defence alleged that they had been prejudiced by AS ’ s absence before concluding:

“Think of all those matters and of course if you think the defence has been prejudiced in any of those ways then you will make full and proper allowance for it.”

27. On 8 and 11 July 2011 the applicants were convicted of kidnap. The first applicant was also convicted of false imprisonment and blackmail in relation to the same events, and of an offence of robbery committed at a later date. The first applicant was sentenced to a total of ten years ’ detention in a young offender ’ s institute and the second applicant was sentenced to three years ’ imprisonment.

5. The Court of Appeal proceedings

28. The applicants appealed on the grounds first, that the judge had erred in ruling that AS ’ s evidence could be read, and secondly, that the identification by AS of the van linked to the first applicant and his description of the second applicant should not have been led once it was apparent his evidence could not be subject to cross-examination. In particular, they submitted that no evidential basis existed for the conclusion that the applicants were behind the threats; that the evidence of AS could not be regarded as reliable; and that the admission of the evidence deprived the applicants of the ability to cross-examine AS.

29 . The Court of Appeal dismissed the applicants ’ appeal against conviction on 7 September 2012, finding the judge ’ s ruling and his reasoning to be “unimpugnable”. It noted that what went on during the identification procedure had been before the jury in its totality by virtue of its recording. The Crown had also called all police officers and civilian employees present during the identification procedure and during the taking of AS ’ s statement. In addition, it had relied on the supporting telephone evidence which was powerful evidence that the second applicant ’ s telephone was at the scene of the crime and that he had it in his possession.

30 . With regard to the efforts made to secure the attendance of AS, the court accepted that he should have been brought to court by whatever appropriate means because there was a good chance that once there he would consent to give evidence. Nevertheless, the fact that it was not done was not fatal to the judge ’ s conclusion. The defendants had an obvious interest in the absence of AS and his fear did not have to be their work by “direct contact”; on the contrary, “it would be a judge of surprising naivety who was persuaded of distance from responsibility by virtue only of defendants being denied their liberty”.

B. Relevant domestic law and practice

1. The admission of hearsay evidence

31 . Under section 114 of the Criminal Justice Act 2003 (“the 2003 Act”), hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” appli es. One such gateway is section 114(1)(d) which allows for the admission of hearsay if the court is satisfied that it is in the interests of justice for it to be admissible. Section 114(2) provides:

“In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.”

32 . Section 116 of the 2003 Act allows for the admission of hearsay statements when the maker is dead, unfit, outside the United Kingdom, cannot be found, or is in fear. It provides, as relevant:

“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court ’ s satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

... ... ...

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a) to the statement ’ s contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

... ... ...

(d) to any other relevant circumstances.

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a) by the person in support of whose case it is sought to give the statement in evidence, or

(b) by a person acting on his behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement). ”

2. Safeguards

33. Section 124 of the 2003 Act allows the admission of evidence to challenge the credibility of the absent witness, for example, through the admission of evidence of his bad character. It also allows the admission of inconsistent statements that the witness has made. Section 124(2) allows the admission of evidence to challenge the credibility of the absent witness in circumstances where it would not be admissible in respect of a live witness, for example, when it relates to a collateral issue in the case.

34. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe.

35. Section 126 preserves both the common law discretion and the discretion of the trial judge under section 78 of The Police and Criminal Evidence Act (“the 1984 Act” – see paragraph 36 below) to exclude hearsay evidence. It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.

36 . Furthermore, section 78 of the 1984 Act permits the court to refuse to allow evidence on which the prosecution proposes to rely to be given if it appears that, having regard to all the circumstances, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

COMPLAINT

37. The applicants complain under Article 6 § 3(d) of the Convention that their right to examine the witnesses against them was violated by the admission of AS ’ s evidence.

THE LAW

38. Article 6 of the Convention provides as relevant:

“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; ...”

A. The parties ’ submissions

39. The Government submitted that the applicants ’ complaint was inadmissible as manifestly ill-founded. The judge was satisfied that the defendants were associated with explicit threats made to the absent witness and, as the Court observed in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 123, 15 December 2011, a defendant who has acted in this manner must be taken to have waived his right to question witnesses under Article 6 § 3(d) of the Convention.

40. Insofar as the applicants sought to challenge the evidential basis for the finding that they were associated with the threats to AS, the Government argued that the Court should not substitute its judgment on the matter for that of the trial judge, who was in the best position to assess the evidence and make a factual finding on this issue.

41. Finally, the Government contended that even if the applicants had not waived their right under Article 6 § 3(d), the procedure before the national court included safeguards and counterbalancing factors which ensured that, notwithstanding the absence of AS, the trial was in any event fair.

42. The applicants, on the other hand, submitted that, following Al ‑ Khawaja and Tahery v. the United Kingdom , the reliance on the sole or decisive evidence of an absent witness would be a violation of Article 6 unless that evidence was demonstrably reliable. In their case, they argued that they had been convicted on the basis of the evidence of a “sole and decisive” witness who no reasonable person could regard as “demonstrably reliable”. In particular, they argued that there were general problems with his account and specific problems with his purported identification of both the second applicant and the blue van. In both cases he was basing his recollection on events which had occurred at night in difficult circumstances many weeks earlier. Furthermore, at the identification parade AS had initially indicated that he was not “one hundred per cent sure” about the identity of one of his kidnappers before changing his mind “off camera”.

43. Although the applicants accepted that there w ould be no violation of Article 6 § 3(d) where the defendant himself had engendered fear in a witness, they contended that in the present case there was simply no evidential foundation for the trial judge ’ s conclusion that they – or someone associated with them and with their knowledge or approval – had put AS in a state of extreme fear. A cousin of both applicants had been identified at the hearing before the trial judge as a suspect for having interfered with AS and the judge gave no rational basis for having discounted this individual. In the alternative, the applicants argued that even if the judge ’ s conclusions were accepted, his findings fell short of the test in Al-Khawaja and Tahery v. the United Kingdom since they could not be taken to have waived their right to cross-examine a witness simply because someone with whom they had an unspecified association did something of which they were later told.

B. The Court ’ s assessment

1. General principles

44. 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. In addition, the Court ’ s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10 , § 101, 15 December 2015 and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili v. Germany, cited above, § 101 and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011). It is also notable 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 Gäfgen , cited above, § 162, and the references therein).

45 . In Al-Khawaja and Tahery v. the United Kingdom , cited above, §§ 119 ‑ 147 , the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. Insofar as relevant to the present case, these principles may be summarised as follows:

46 . The principles in Al-Khawaja and Tahery v. the United Kingdom 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.

2. Application of the general principles to the present case

47. In Al ‑ Khawaja and Tahery the Court not only accepted that “fear of retaliation” constituted a “good reason” for the non-attendance of a witness at trial, but it held that where that “fear” is attributable to the defendant or those acting on his behalf with his knowledge and approval, it would be appropriate to allow the evidence of that witness to be introduced at trial without the need for him to give live evidence or be examined by the defendant or his representatives – even if such evidence was the sole or decisive evidence against the defendant (see paragraph 45 above). In other words, in such a case the defendant must be taken to have waived his right to question the witnesses under Article 6 § 3 (d) of the Convention.

48. In the present case the trial judge concluded as a matter of fact, on the basis of the material available to him, that AS had been put in a state of extreme fear by one of the defendants or by someone associated with them with their knowledge and/or approval. He therefore found to the criminal standard that the defendants had been associated with the threats (see paragraph 20 above). Insofar as the applicants now seek to challenge the evidential basis for the judge ’ s finding, the Court reiterates that, as a general rule, it is for national courts to assess the evidence before them (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). It cannot, therefore, substitute its judgment on this matter for that of the trial judge, who was in the best position to assess the evidence and make a factual finding on this issue.

49. In Al ‑ Khawaja and Tahery the Court required that before a witness could be excused from testifying on grounds of fear, the trial court should be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable (see paragraph 45 above). There is nothing to suggest that this requirement was not met in the present case. On the contrary, it is clear that AS was visited by a Detective Constable who explained various forms of witness protection to him and warned him that he might be summonsed, but AS indicated that even if he were summonsed he would not say a nything in court (see paragraph 16 above). It is true that the Court of Appeal held that as a matter of best practice AS should nevertheless have been brought to court by whatever appropriate means because there was a good chance that once there he would consent to give evidence (see paragraph 30 above). However, this does not negate the trial judge ’ s factual finding that AS had been put in a state of extreme fear by one of the defendants or by someone associated with them.

50. In light of the above considerations, the Court finds that the applicants can be said to have waived their rig ht to question AS under Article 6 § 3 (d) of the Convention.

51. That being the case, it is not necessary for the Court to consider whether the evidence of AS was “sole or decisive”, or whether there existed adequate “counterbalancing factors”. Nevertheless, it notes that although the trial judge accepted that AS ’ s evidence was, “in a sense”, “sole or decisive”, there existed other evidence incriminating the applicants, including cell-site evidence putting their telephones in the right proximity at approximately the right time (found by the Court of Appeal to constitute “powerful evidence that the second applicant ’ s telephone was at the scene of the crime and that he had it in his possession” – see paragraph 29 above); contact between the relevant parties; and, in relation to the first applicant, a substantial amount of scientific evidence linking him with various objects connected with the crime (see paragraph 19 above).

52. Furthermore, the Court recently held in Seton v. the United Kingdom , no. 55287/10 , § 65, 31 March 2016 that the domestic legal framework in the United Kingdom (see paragraphs 31 - 36 above) provides an array of procedural safeguards designed to ensure a fair trial, going to matters such as credibility of evidence, stopping the case when the evidence is unconvincing, and the trial court ’ s general discretion to exclude evidence.

53. As to the application of that legal framework in the present case, it is recalled that the trial judge fully considered the requirements of sections 114 and 116 of the 2003 Act and section 78 of the 1984 Act and concluded that it would not be unfair to admit the evidence of AS (see paragraphs 21-22 above). Although the applicants complain that that evidence was not “demonstrably reliable”, the trial judge expressly found that it was. In any case, the Court requires that the evidence of the absent witness be either “demonstrably reliable” or that its reliability can properly be tested and assessed ( Al ‑ Khawaja and Tahery , cited above, § 139) and the trial judge found that AS ’ s evidence could be tested and could be commented upon fully. Having particular regard to the identification evidence, he noted that as it had been captured on a DVD recording the steps that AS went through in the identification process were very transparent and could be fully tested and assessed by a jury. There would therefore be no injustice if the DVD were played to the jury. Likewise, the written statement in which he “firmed up” the identification gave a clear line of reasoning as to exactl y what happened (see paragraphs 21-22 above).

54. In addition, in his summing up at the end of the trial the judge expressly cautioned the jury about both the difficulties relating to identification evidence and about the limitations of AS ’ s evidence (see paragraphs 24-25 above). Consequently, there were sufficient counterbalancing factors in place to ensure a fair and proper assessment of the reliability of AS ’ s evidence by the jury.

55. Accordingly, the Court is satisfied that the applicants ’ complaint under Article 6 § 3(d) of the Convention is manifestly ill-founded and therefore inadmissible pursuant to Article 35 § 3(a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 December 2016 .

             Renata Degener Kristina Pardalos              Deputy Registrar President