Information Note on the Court’s case-law 229

May 2019

Famulyak v. Ukraine (dec.) - 30180/11

Decision 26.3.2019 [Section V]

Article 6

Article 6-3-d

Examination of witnesses

Inability to cross-examine witnesses during re-trial: inadmissible

Facts – The applicant’s conviction for aggravated robbery was quashed and remitted for retrial before a different judge. All witness evidence given in the course of the first t rial had been recorded in the trial transcript and was available to the new judge. The victim appeared at the trial and was examined by the trial judge. The victim, despite having been repeatedly summoned, failed to appear for subsequent hearings. Likewise , the three police officers were summoned but failed to appear. The applicant was again convicted. The applicant complained, inter alia , that he had been unable to cross-examine the victim and the three police officers in the course of the retrial.

Law – A rticle 6 §§ 1 and 3 (d): The opportunity for the accused to examine the witness in the presence of the judge who ultimately decided the case was an important element of fair criminal proceedings. The observations made by the court about the demeanour and c redibility of a witness might have important consequences for the accused. Therefore, a change in the composition of the trial court following the hearing of an important witness should normally lead to the rehearing of that witness.

However, that could no t be deemed to constitute a prohibition on any changes in the composition of a court during the course of a case. In some cases there might be administrative or procedural factors that rendered a judge’s continued participation in the case impossible. Meas ures could be taken to ensure that the judges who continued hearing the case had an appropriate understanding of the evidence and arguments, for example by making transcripts available – where the credibility of the witness concerned was not in issue – or by arranging for a rehearing of the relevant arguments or of important witnesses before the newly composed court.

Even though the applicant’s case concerned a change in the composition of the trial court as part of the ordinary appeal and remittal process, the situation was sufficiently similar to make it unnecessary for the Court to adopt a different approach. The principles of the Court’s case-law concerning the right to examine witnesses for the prosecution were also of relevance.

The applicant had had a full opportunity to examine the witnesses in question, the victim and the three police officers, at the initial trial. The reasons why the Court of Appeal had quashed the original trial court judgment appeared to have been largely technical and did not g o to the key matter of the applicant’s guilt. In fact, it appeared from the Court of Appeal’s remarks that it had found the key fact of the case – that the applicant had attacked the victim – sufficiently proven, and indeed wished additional aspects of tha t attack, which it considered had been shown by the evidence, to be reflected in the trial court’s judgment.

Even though the reasons for the quashing of the initial trial court’s judgment had been technical, the domestic law required, in an imperative manner, that the composition of the trial court be changed.

There was nothing to indicate that there was any need to examine the matter the applicant raised again in the course of the retrial, notably in view of the nature of the reasons on which the Court of Appeal had quashed the initial judgment.

In that sense, the handicap for the defence created by the absence o f certain witnesses from the retrial and the lack of a practical opportunity for the applicant to cross-examine them in the course of the retrial had been overcome by the fact that the applicant had had an opportunity to examine them in the course of the i nitial trial. In that respect, the Court considered that the principle, established in its case-law, according to which the ability to confront a witness for the prosecution at the investigation stage was an important procedural safeguard which could compe nsate for the handicaps faced by the defence on account of absence of such a witness from the trial.

For the same reasons there was not such a deviation from the principle of immediacy as to undermine the fairness of proceedings as a whole.

The victim, who se testimony had indeed been a key element in the evidence against the applicant, had in fact been examined in the course of the retrial. The new trial judge had had an opportunity to observe the victim and, to some extent, to form an opinion of his eviden ce, even if the applicant had not been able to cross-examine him in the presence of that judge. The new judge had also had before her all witness evidence, including that of a witness under cross-examination, given in the course of the first trial, recorde d in the trial transcript. As to the other witnesses, the three police officers, it did not appear that their evidence had played a decisive role in the applicant’s conviction. The matters on which they testified were not ones which the Court of Appeal had instructed the trial court to clarify in the course of the retrial. In such circumstances, the fact that the new trial judge had had the transcripts of their examination at her disposal was sufficient to ensure that she had had an adequate understanding o f the evidence.

Conclusion : inadmissible (manifestly ill-founded).

(See also Al Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147 ; and Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click her e for the Case-Law Information Notes