Information Note on the Court’s case-law 191

December 2015

Schatschaschwili v. Germany [GC] - 9154/10

Judgment 15.12.2015 [GC]

Article 6

Article 6-3-d

Examination of witnesses

Inability to examine absent witnesses, whose testimonies carried considerable weight in applicant’s conviction: violation

Facts – The applicant was convicted of aggravated robbery in conjunction with aggravated extortion and senten ced to nine and a half years’ imprisonment. As regards one of the offences, the trial court relied in particular on witness statements made by the two victims of the crime to the police at the pre-trial stage. The statements were read out at the trial as t he two witnesses had gone back to Latvia and refused to testify as they continued to be traumatised by the crime.

In a judgment of 17 April 2014 a Chamber of the Court found, by five votes to two, that there had been no violation of the applicant’s rights under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention. On 8 September 2014 the case was referred to the Grand Chamber at the applicant’s request (see Information Note 177 ).

Law – Article 6 § 1 in conjunction with Article 6 § 3 (d): In order to assess whether the overall fairness of the applicant’s trial had been impaired by the use of the statements previously made by witnesses who did not attend the trial, the Court applied and further clarified the test laid down in its Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom ([GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147 ). In particu lar, while it was clear that each of the three steps of the test had to be examined if the questions in steps one (whether there was a good reason for the non-attendance of the witness) and two (whether the evidence of the absent witness was the sole or de cisive basis for the defendant’s conviction) were answered in the affirmative, it remained uncertain whether all three steps of the test had to be examined in cases in which either the question in step one or that in step two was answered in the negative, as well as in what order the steps were to be examined. The Court considered that:

(i) The absence of good reason for the non-attendance of a witness, while it could not of itself be conclusive of the unfairness of a trial, was nevertheless a very importa nt factor to be weighed in the balance when assessing the overall fairness of a trial, and one which could tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d).

(ii) The existence of sufficient counterbalancing factors had to be reviewed not only in cases in which the evidence given by an absent witness had been the sole or the decisive basis for the conviction, but also in those cases where it had carried signif icant weight and its admission could 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.

(iii) It would, as a rule, be pertinent to examine the three steps of the Al-Khawaja test in the order defined in that judgment. However, all three steps were interrelated and, taken together, served to establish whether the criminal proceedings at issue had, as a whole, been fair. It could therefore be appropriate, in a given case, to examine the steps in a different order, in particular if one of the steps proved to be particularly conclusive as to either the fairness or the unfairness of the proceedings .

The Court went on to apply the Al-Khawaja test to the facts of the applicant’s case:

(a) Whether there was good reason for the non-attendance of the witnesses at the trial – The Court noted at the outset that the trial court had considered that the witn esses had not sufficiently substantiated their refusal to testify and had not accepted their state of health or fear as justification for their absence at the trial. After contacting the witnesses individually and proposing different solutions, the trial c ourt had also repeatedly asked the Latvian courts to either have the witnesses’ state of health and ability to testify examined by a public medical officer or to compel them to attend the hearing in Latvia. Since these efforts proved futile the trial court had admitted the records of the witnesses’ examination at the investigation stage as evidence in the proceedings. Thus, the witnesses’ absence was not imputable to the trial court. Accordingly, there had been good reason, from the trial court’s perspectiv e, for the non-attendance of the witnesses at the trial and for admitting the statements they had made at the pre-trial stage in evidence.

(b) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction – The domestic courts did not clearly indicate whether they considered the witness statements in question as “decisive” evidence, that is, as being of such significance as to be likely to be determinative of the outcome of the case. After assessing all the evid ence that had been before the domestic courts, the Court noted that the two victims of the crime were the only eyewitnesses to the offence in question. The only other available evidence was either hearsay or merely circumstantial technical and other eviden ce that was not conclusive. In these circumstances, the evidence of the absent witnesses had been “decisive”, that is, determinative of the applicant’s conviction.

(c) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured – In its reasoning, the trial court had made it clear that it was aware of the reduced evidentiary value of the untested witness statements. It had compared the content of the statements made by the victims at the investiga tion stage and found that they had given detailed and coherent descriptions of the circumstances of the offence. It had further observed that the witnesses’ inability to identify the applicant showed that they had not testified with a view to incriminating him. Moreover, in assessing the witnesses’ credibility the trial court had also addressed different aspects of their conduct in relation to their statements. The trial court had therefore examined the credibility of the absent witnesses and the reliabilit y of their statements in a careful manner.

Furthermore, it had had before it additional incriminating hearsay and circumstantial evidence supporting the witness statements. In addition, during the trial the applicant had had the opportunity to give his own version of the events and to cast doubt on the credibility of the witnesses also by cross-examining the witnesses who had given hearsay evidence. However, he had not had the possibility to question the two victims indirectly or at the investigation stage.

In fact, even though the prosecution authorities could have appointed a lawyer to attend the witness hearing before the investigating judge, these procedural safeguards were not used in the applicant’s case. In this connection, the Court agreed with the a pplicant that the witnesses were heard by the investigating judge because, in view of their imminent return to Latvia, the prosecution authorities considered that there was a danger of their evidence being lost. In this context, and bearing in mind that un der domestic law the written records of a witness’s previous examination by an investigating judge could be read out at the trial under less strict conditions than the records of a witness examination by the police, the authorities had taken the foreseeabl e risk, which subsequently materialised, that neither the accused nor his counsel would be able to question them at any stage of the proceedings.

In view of the importance of the statements of the only eyewitnesses to the offence of which the applicant was convicted, the counterbalancing measures taken by the domestic court had been insufficient to permit a fair and proper assessment of the reliability of the untested evidence. Therefore, the absence of an opportunity for the applicant to examine or have ex amined the two witnesses at any stage of the proceedings had rendered the trial as a whole unfair.

Conclusion : violation (nine votes to eight).

Article 41: no award in respect of damage.

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

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