FIFTH SECTION

DECISION

Applications nos. 43861/13 and 43883/13 Milan SCHÄFER against the Czech Republic and Viktor TODOROVIČ against the Czech Republic (see appended table)

The European Court of Human Rights (Fifth Section), sitting on 15 December 2022 as a Committee composed of:

Stéphanie Mourou-Vikström , President , Mattias Guyomar, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table (“the applicants”) on 4 July 2013;

the decision to give notice of the applicants’ complaint concerning their allegedly unfair conviction to the Czech Government (“the Government”), represented by their Agent, Mr V. A. Schorm, from the Ministry of Justice, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ conviction, together with another person, for bank robbery, hostage-taking and damage to property committed by an organised group. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicants submitted that their conviction had been based, to a decisive extent, on testimony given by an anonymous witness and had therefore been unfair.

2. The witness in question, one of the applicants’ colleagues, testified at the trial under the pseudonym I.H. and indicated that some time after the criminal offence had been committed, he had eavesdropped from behind a door on a discussion between the applicants, which had led him to believe that they had been involved in the robbery. Although the applicants’ lawyer and the applicants themselves had had an opportunity at the pre-trial and trial stages of the proceedings to put questions to the witness, they argued that his anonymity had prevented them from asking all the questions capable of casting doubt on his testimony. The witness, examined on 23 November 2009 by the Usti and Labem Regional Court, had refused to answer certain questions on the grounds that his identity might be revealed. According to the record of the hearing, he remained outside the courtroom in the presence of a court guard and a policeman while the applicants and their lawyers were in the courtroom. They could only ask him questions through the judge. The applicants also challenged the reasons given by the domestic courts for granting his anonymity, arguing that a risk to life and limb had not been sufficiently demonstrated.

3. The above arguments of the defence were rejected by the domestic courts, including the Constitutional Court, on the grounds that there was sufficient corroborating evidence. The domestic courts referred to the statements of other witnesses and experts, expert reports and documentary evidence, such as scent evidence and telephone records. As regards the first applicant, the domestic courts referred in particular to the fact that he had acquired smoke grenades from a witness, R.S., that he had been absent from work and that he had been near to where the robbery had taken place. As regards the second applicant, they referred to specific scent evidence directly placing him at the crime scene.

THE COURT’S ASSESSMENT

4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

5. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicants submitted that their conviction had been based, to a decisive extent, on the testimony of an anonymous witness.

6. The general principles with regard to the right to obtain the attendance and examination of witnesses can be found in the Grand Chamber judgments of Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, § 100, ECHR 2015), in which the Court once again reiterated its primary concern, namely to assess the overall fairness of criminal proceedings. Although the problems posed by absent witnesses and anonymous witnesses are not different in principle, the latter may raise specific issues (see Bakir v. Turkey , no. 2257/11, §§ 30-36, 13 October 2020). In this context, the Court is mindful that the Czech criminal procedural legislation sets out a specific framework for the examination of an anonymous witness and contains safeguards aimed at compensating handicaps the defence might face in such a situation (see BátÄ›k and Others v. the Czech Republic , no. 54146/09, § 55, 12 January 2017, and Zadumov v. Russia , no. 2257/12, § 63, 12 December 2017).

7. With this in mind, the Court finds that the applicants failed to demonstrate that their defence rights had been restricted to such an extent that it prejudiced the overall fairness of the criminal proceedings against them. It notes in this connection that the anonymous witness in the present case was not a member of the State police, that he presented himself to the police voluntarily and that the defence had an opportunity at the pre-trial stage of the proceedings and later at the trial to put questions to him. Furthermore, his testimony was in any event hearsay, a factor already subjected to particular scrutiny by the domestic courts. This testimony triggered suspicion against the applicants and a wide range of investigative measures were implemented, resulting in the collection of other abundant, although essentially indirect, incriminating evidence. These measures included an analysis of the applicants’ telephone records, searches, verification of their whereabouts on the day of the robbery and shortly thereafter, and expert forensic examinations of their belongings with a view to identifying trace evidence from the crime scene. The Court is thus satisfied that the domestic courts duly assessed the important circumstances of the case and based their decision on the entirety of the evidence considered cumulatively. Furthermore, they examined the weight, coherence and consistency of the anonymous witness’s statements and linked them to other available evidence, and examined the version of the events presented by the defence, assessed it and reasonably dismissed it. The applicants and/or their defence lawyer were able to effectively present their case to the domestic courts, challenge the evidence presented at trial, including the statements of the anonymous witness, and cross-examine other witnesses and experts.

8. The above considerations are sufficient to justify the conclusion that the applicants’ conviction cannot be said to have been based “to a decisive extent” on the testimony of the witness. Accordingly, the Court finds that their complaint under Article 6 §§ 1 and 3 (d) of the Convention is manifestly ill-founded.

9. Given that finding, the Court does not consider it necessary to examine any other arguments or complaints submitted by the parties and concludes that it is appropriate to reject the present applications in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 12 January 2023.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Applicant’s Year of Birth Place of Residence Nationality

Represented before the Court by

Conviction / Appeals

delivered on

1.

43861/13

Schäfer v. the Czech Republic

Milan SCHÄFER 1976 Pardubice Czech

Jan VARGA

Ústí nad Labem Regional Court

23/06/2010

Prague High Court (V rchní soud )

10/03/2011

Supreme Court ( Nejvyšší soud )

11/07/2012

Constitutional Court ( Ústavní soud )

5 and 20/03/2013

2.

43883/13

Todorovič v. the Czech Republic

Viktor TODOROVIČ 1971 Přerov Czech

Jan VARGA