Information Note on the Court’s case-law 200

October 2016

Constantinides v. Greece - 76438/12

Judgment 6.10.2016 [Section I]

Article 6

Article 6-3-d

Examination of witnesses

Admission and use of the incriminating conclusions of an absent expert: no violation

Facts – In the course of a criminal investigation concerning the applicant for forgery and use of forged documents, a graphologist’s expert report was ordere d. The report supported the prosecution case. The applicant subsequently appointed his own expert, who submitted several reports criticising the incriminating report.

At the trial hearing the incriminating report was discussed by the applicant’s expert, wh o defended his own findings. Although the author of the incriminating report had been summoned to appear, she did not attend the hearing and no explanation was given. The applicant was convicted.

On appeal the applicant complained that he had been given no opportunity to put questions to the author of the incriminating report, in breach of his defence rights. However, the Court of Appeal considered it unnecessary to summon the expert in question to appear, taking the view that the applicant’s guilt had been sufficiently established by a consistent body of evidence.

Law – Article 6 §§ 1 and 3 (d): In its judgment in Schatschaschwili v. Germany ([GC], 9154/10, 15 December 2015, Information Note 191 ) con cerning the non-attendance of prosecution witnesses, the Grand Chamber had found that:

(a) the absence of good reason for the non-attendance of a witness could not of itself render a trial unfair, but was nevertheless an important factor in 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);

(b) for the purposes of this overall assessment, the existence of sufficient counterbalancing factors had to be reviewed by the Court not only in cases in which the evidence given by an absent witness had been the sole or the decisive basis for the convic tion, but also in those cases where it had at the very least carried significant weight and its admission could have handicapped the defence;

(c) the extent of the counterbalancing factors necessary in order for a trial to be considered fair depended on the importance of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors had to carry.

The Court considered that these principles were applicable mutatis mutandis to the experts in the present case.

It was true that in the present case the Greek courts had not done everything that could reasonably be expected of them to secure the attendance of the expert who had written the incriminating report.

Furthermore, it was clear from the wording of the first-instance and appeal judgments that the expert report in question had been regarded as an important document.

Nevertheless, several counterbalancing factors had been present.

Firstly, the applicant had had an opportunity to dispute the conclusions of the incriminating report and had availed himself of that opportunity, in particular by submitting three reports prepared by his own expert, who had presented his findings orally at the trial hearing.

Secondly, the applicant h ad never explained – even before the Court – why he had wished to question the author of the report at the appeal hearing. It was true that it might have been inappropriate for him to disclose in advance the questions he wished to put to the expert. Nevert heless, it would have been reasonable for him to at least give some indication as to why he considered such questioning to be absolutely necessary or what it would have added to his own expert’s findings.

Thirdly, the courts had stressed that the content a nd findings of the report in question corroborated the witness evidence and a whole series of other official documents. The report had constituted just one of the items of evidence in the case file, which had contained around a hundred documents totalling some 1,500 pages.

In the Court’s view, the present case was to be distinguished from:

– cases in which the court which convicted the applicant had had before it an expert report obtained by the prosecution without any participation by the defence, and whe re the defence had been unable to challenge the report’s findings at the hearing (see Matytsina v. Russia , 58428/10, 27 March 2014, Information Note 172 );

– cases in which the applicant’s conviction had been based to a decisive extent on the evidence of witnesses against him whom he had been unable to question at any stage (see, among many other cases, Nikolitsas v. Greece , 63117/09 , 3 July 2 014). The present case did not concern witnesses who had made statements concerning events they had witnessed or learnt about by hearsay. Rather, it concerned an expert report which had been prepared by an independent expert appointed by the judicial autho rities during the investigation with the aim of providing the court with information on a technical aspect of the case, and the findings of which had been scrutinised by an expert appointed by the applicant himself.

In sum, while it was true that not every thing possible had been done to compel the person in question to appear, the fact remained that she had been merely an expert and not a witness, that her report had not formed the sole or decisive basis for the applicant’s conviction, and that sufficient c ounterbalancing factors had been present in the applicant’s case for the Court to consider that the requirements of the adversarial principle had been satisfied. Accordingly, the applicant’s defence rights had not been restricted to an extent incompatible with the requirements of a fair trial.

Conclusion : no violation (unanimously).

The Court also held that there had been no violation of Article 6 § 1 with regard to the allegedly insufficient reasoning of the Court of Cassation’s judgment.

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

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