Information Note on the Court’s case-law 247

January 2021

Keskin v. the Netherlands - 2205/16

Judgment 19.1.2021 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Article 6-3-d

Examination of witnesses

Refusal to call prosecution witnesses of decisive weight for trial’s outcome due to defence’s failure to substantiate request for their cross-examination, and lack of counterbalancing factors: violation

Facts - The applicant was convicted in absentia, on the basis, inter alia , of seven witness statements, of having been in de facto control of fraud committed by a company on two other companies. He appealed unsuccessfully and, in the context of these proceedings, his requests to summon these witnesses for cross-examination were rejected by the Court of Appeal. His ensuing appeal in cassation was declared inadmissible.

Law – Article 6 § 1 in conjunction with Article 3  § (d): In order to assess wh ether the overall fairness of the applicant’s trial had been impaired by the use of statements made by the absent witnesses, the Court applied the three-tier test laid down in its Grand Chamber case of Al-Khawaja and Tahery v. the United Kingdom [GC], as f urther clarified by its Grand Chamber judgment in Schatschaschwili v. Germany [GC]:

(a) Whether there was good reason for the non-attendance of the witnesses at the trial –  The Court of Appeal’s dismissal of the applicant’s requests had not been on grounds of death or fear, the witnesses’ state of health or unreachability, or related to the special features of the criminal proceedings, but solely on the ground that the def ence had failed to substantiate its interest in the examination of the witnesses.  In particular, the defence had not indicated on what points the witness statements had been incorrect, and the applicant had availed himself of his right to remain silent wh en interviewed by the police. The right of an accused to cross-examine witnesses against him or her could not, however, be made dependent on his or her renunciation of the right to remain silent.  Moreover, the Court of Appeal had not taken into account th e relevancy of the testimony when dismissing the applicant’s requests, and it had not been argued before the Court that it had been manifestly irrelevant or redundant.

Further, the domestic ruling in this case as well as the Supreme Court’s leading judgm ents required the substantiation of requests to summon and examine witnesses regardless of whether they concerned witnesses for the prosecution or for the defence. In that respect, the European Court’s judgments referred to by the Supreme Court in two of i ts leading judgments on the matter and by the Government in their submissions pre-dated and thus had all been superseded by the Grand Chamber’s judgment in Al-Khawaja and Tahery v. the United Kingdom. The latter judgment had consolidated and clarified the Court’s case-law as regards the examination of witnesses.

Furthermore, the Court’s judgments referred to by the Supreme Court concerned the examination of defence witnesses, as opposed to the prosecution witnesses in issue in the present case. The Court th erefore took the opportunity to reaffirm that paragraph 3 (d) of Article 6 comprised two distinct rights: a right relating to the examination of witnesses against the accused and a right to obtain the attendance and examination of witnesses on behalf of th e accused. The Court had developed general principles which related exclusively to the right to examine, or have examined, prosecution witnesses, as well as general principles specifically concerning the right to obtain the attendance and examination of de fence witnesses. In particular, contrary to the situation with defence witnesses, the accused was not required to demonstrate the importance of a prosecution witness. In principle, if the prosecution decided that a particular person was a relevant source o f information and relied on his or her testimony at the trial, and if the testimony of that witness was used by the court to support a guilty verdict, it had to be presumed that his or her personal appearance and questioning were necessary (see Khodorkovsk iy and Lebedev v. Russia (no. 2)). In other words, the interest of the defence in being able to have the prosecution witness concerned examined in his or her presence had to be presumed and, as such, constituted all the reason required to accede to a reque st by the defence to summon the witness.

Accordingly, it could not be said in the present case that the Court of Appeal had established good factual or legal grounds for not securing the attendance of the prosecution witnesses.

(b) Whether the evidence o f the absent witnesses was the sole or decisive basis for the applicant’s conviction – The Court of Appeal had not based the applicant’s conviction only on the statements of the seven witnesses. Furthermore, it appeared that none of those statements had be en sufficient in themselves to establish that the applicant had committed the offence, and the Court of Appeal had not explicitly indicated its position on the weight it had given to them. Having regard to the Court of Appeal’s findings on the evidence, th e Court was of the view that the evidence of the absent witnesses had been of such significance or importance as was likely to have been determinative of the outcome of the case.

(c) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured –  The Court of Appeal, in its judgment, had given neither any indication that it had been aware of the reduced evidentiary value of the untested witness statements nor reasoning as to why it had considered th is evidence to be reliable. Further, no corroborative evidence supporting this untested evidence of the kind as described in the Schatschaschwili judgment had been available or other such evidence that could have provided the same safeguard. The applicant had been able to give his own version of the events in question and it had been open to him to challenge the accuracy of the witnesses’ statements. However, the Court considered that an opportunity to challenge and rebut absent witness statements was of li mited use in a situation where a defendant had been denied the possibility to cross-examine witnesses  and such an opportunity, on the basis of its well-established case-law, could not be regarded as a sufficient counterbalancing factor to compensate for t he handicap for the defence created by the witnesses’ absence.

Consequently, regard being had to the above considerations, the Court held that the applicant’s inability to cross-examine the prosecution witnesses had rendered the trial as a whole unfair.

Conclusion : violation (unanimously)

Article 41: finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

(See also Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, Legal Sum mary; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, Legal Summary; Khodorkovskiy and Lebedev v. Russia (no. 2), nos. 51111/07 and 42757/05, 14 January 2020)

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

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