Information Note on the Court’s case-law 195

April 2016

Kashlev v. Estonia - 22574/08

Judgment 26.4.2016 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Court of Appeal’s decision to overturn acquittal on the basis of its own assessment of the record of evidence that had been before the trial court: no violation

Facts – Following a brawl outside a nightclub in which a man sustained life-threa tening head injuries, the applicant was charged with causing serious health damage. He attended his trial where he was assisted by a lawyer and was able to question the prosecution witnesses. He was acquitted after the first-instance court rejected the sta tements of certain witnesses as being incoherent or contradictory. The prosecutor appealed. The applicant informed the Court of Appeal in writing that he did not wish to attend the appeal hearing. However, he continued to be represented by his lawyer. Rely ing purely on the record of the evidence from the trial, the Court of Appeal overturned the applicant’s acquittal after finding that the first-instance court had erred in its assessment of the evidence. The applicant was given a mainly suspended prison sen tence.

In the Convention proceedings, the applicant complained that the Court of Appeal had convicted him only on the basis of the case file without examining any witnesses at its hearing.

Law – Article 6 §§ 1 and 3 (d): The Court found that the applicant’ s right to a fair trial had not been breached.

(i) The applicant had unequivocally waived his right to take part in the hearing before the Court of Appeal by informing it in writing of his wish not to take part and asking for the case to be examined in hi s absence (his lawyer had attended the hearing). There was no suggestion that the applicant – who was not in detention – was hindered from seeking legal advice concerning the nature of the appeal proceedings or the possibility of his acquittal being overtu rned.

(ii) The applicant had not requested the examination of witnesses at the appeal hearing. Under the Court’s case-law the requirements of Article 6 §§ 1 and 3 (d) could be met where an accused was able at the pre-trial stage to put questions to prosecution witnesses whose statements were subsequently admitted in evidence at the trial. That principle applied a fortiori to cases such as the applicant’s where the witnesses whose statements were admitted in evidence in the appeal proceedings had been examined at first-instance in the presence of the applicant and he had been able to put questions to them.

(iii) The Court of Appeal had followed the requirement of domestic law to provide particularly thorough reasoning for departing from the first-instance court’s assessment of the evidence. The difference in assessment had resulted mainly from the two courts’ different approach to the coherence or discrepancies within and between the testimony of individual witnesses and their interpretation of the circumstances o f the offence as a whole. There was nothing to suggest that the domestic courts had acted in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law.

(iv) The applicant had appealed to the Sup reme Court, which had thus been able to assess the Court of Appeal’s approach. For the European Court, the requirements, including those of a fair trial, deriving from the Supreme Court’s case-law and that court’s verification that those requirements had b een met had constituted further safeguards for the applicant’s defence rights.

Conclusion : no violation (six votes to one).

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

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