Information Note on the Court’s case-law 194

March 2016

Paić v. Croatia - 47082/12

Judgment 29.3.2016 [Section II]

Article 6

Article 6-3-d

Examination of witnesses

Conviction on basis of statement of overseas witness who could not be cross-examined: violation

Facts – In 2010 the applicant was convicted of stealing a mobile telephone and sentenced to four months’ imprisonment suspended for one year.

In his a pplication to the European Court he complained under Article 6 §§ 1 and 3 (d) of the Convention that he had had no opportunity to question the main witness in the criminal proceedings against him (who was also the victim of the alleged theft).

Law – Articl e 6 §§ 1 and 3 (d): The trial court did not summon the witness to testify at the applicant’s trial on the grounds that she had nothing to add to her previous statement, that she resided abroad and that there was a risk the prosecution would become time-bar red. However, the Court observed that residence abroad could not be considered a good reason for not summoning a witness while it was incumbent on the judicial authorities to ensure that the prosecution did not become time-barred, without undermining the r ights of defence.

The witness’s description of the events constituted the sole, and thus decisive, evidence on which the trial court’s findings of the applicant’s guilt were based.

As to the existence of sufficient counterbalancing factors to compensate fo r the handicaps of the defence, the Court noted that in dealing with the witness’s statement the trial court did not appear to have approached it with any specific caution or to have attached less weight to it because of her absence. On the contrary, the a pplicant’s conviction was based solely on that statement, which was considered “credible and truthful” without further specification. Although at the trial, the applicant had the opportunity to give his own version of the events and to cast doubt on the wi tness’s credibility, neither he nor his lawyer were allowed to examine her at any stage of the proceedings or investigation. When the witness gave her evidence in her home country the applicant was not invited to attend the hearing, either in person or by video-link, or to question her in writing. No video recording of her questioning was shown at the hearing.

The fact that the applicant had been in a position to challenge or rebut the witness’s statement by giving evidence himself or examining a defence witness could not be regarded as a sufficient counterbalancing factor to compensate for the handicap faced by the defence as a result of the admission of the main prosecution witness’s statement.

Conclusion : violation (unanimously).

Article 41: EUR 1,500 in respect of non-pecuniary damage.

(See Al-Khawaha 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.

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