EHRM, 19-01-2021, nr. 2205/16

When it comes to defence witnesses, it is the Court's established case-law that Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf, the essential aim of that provision, as indicated by the words ‘under the same conditions’, being to ensure a full ‘equality of arms’ in the matter (see, amongst many authorities, Murtazaliyeva v. Russia [GC], no. 36658/05, § 139, 18 December 2018, in which judgment the Court reaffirmed and further clarified the general principles concerning the right to obtain attendance and examination of defence witnesses). The concept of ‘equality of arms’ does not, however, exhaust the content of paragraph 3 (d) of Article 6, nor that of paragraph 1, of which this phrase represents one application among many others (see, among other authorities, Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B).

As a general rule, it is for the domestic courts to assess the relevance of the evidence which defendants seek to adduce, and Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call a particular witness (see Perna, cited above, § 29). It is not sufficient for a defendant to complain that he or she has not been allowed to question certain witnesses; he or she must, in addition, support the request by explaining why it is important for the witnesses concerned to be heard, and their evidence must be capable of influencing the outcome of a trial or must reasonably be expected to strengthen the position of the defence (see Perna, cited above, § 29, and Murtazaliyeva, cited above, §§ 140 and 160). Whether the defendant has advanced ‘sufficient reasons’ for his or her request to call a witness will depend on the role of the testimony of that witness in the circumstances of any given case (ibid., § 161). The Court has formulated the following three-pronged test where a request for the examination of a defence witness on behalf of the accused has been made in accordance with domestic law (ibid., § 158):

As regards the right to the examination of prosecution witnesses, the Court has held that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, cited above, § 39, and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

Contrary to the situation with defence witnesses, the accused is not required to demonstrate the importance of a prosecution witness. In principle, if the prosecution decides that a particular person is a relevant source of information and relies on his or her testimony at the trial, and if the testimony of that witness is used by the court to support a guilty verdict, it must be presumed that his or her personal appearance and questioning are necessary (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 712, 25 July 2013, and Khodorkovskiy and Lebedev v. Russia (no. 2), nos. 51111/07 and 42757/05, § 484, 14 January 2020).

In Al-Khawaja and Tahery (cited above, §§ 119) the Grand Chamber of the Court summarised and refined the principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence. The compatibility of such proceedings with Article 6 §§ 1 and 3 (d) of the Convention must be examined in three steps:

In its Grand Chamber judgment Schatschaschwili (cited above, §§ 111-31) the Court reaffirmed and further clarified those principles. The Court noted that, as a rule, it will be pertinent to examine the three steps of the Al-Khawaja and Tahery test in the order defined in that judgment; it acknowledged, however, that in a given case, it may be more appropriate to examine the steps in a different order, in particular if one of the steps proves to be particularly conclusive as to either the fairness or the unfairness of the proceedings (ibid., § 118). In this latter context the Court made reference, inter alia, to a case in which the statement of the untested witnesses was neither ‘sole’ nor ‘decisive’ (Mitkus v. Latvia, no. 7259/03, §§ 102 and 106, 2 October 2012).

The Court further explained that ‘good reason for the absence of a witness’ must exist from the trial court's perspective, that is, the court must have had good factual or legal grounds not to secure the witness's attendance at the trial. If there was a good reason for the witness's non-attendance in that sense, it followed that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (see Schatschaschwili, cited above, § 119). While the absence of a good reason for the non-attendance of the witness could not of itself be conclusive of the unfairness of the applicant's trial, it was a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) of the Convention (ibid., § 113).

As regards the question whether the evidence of the absent witness whose statements were admitted in evidence was the sole or decisive basis for the defendant's conviction (second step of the Al-Khawaja and Tahery test), the Court reiterated that ‘sole’ evidence is to be understood as the only evidence against the accused and that ‘decisive’ should be narrowly interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (ibid., § 123).

It further held that it is not for the Court to act as a court of fourth instance, its starting-point for deciding whether an applicant's conviction was based solely or to a decisive extent on the depositions of an absent witness being the judgments of the domestic courts. The Court must review the domestic courts' evaluation in the light of the meaning it has given to ‘sole’ and ‘decisive’ evidence and ascertain for itself whether the domestic courts' evaluation of the weight of the evidence was unacceptable or arbitrary. It must further make its own assessment of the weight of the evidence given by an absent witness if the domestic courts did not indicate their position on that issue or if their position is not clear (ibid., § 124).

Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant's conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might 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. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (ibid., § 116).

The Court observes that on 30 September 2014 the Arnhem-Leeuwarden Court of Appeal found the applicant guilty of having been in de facto control of the fraud committed by a company on two other companies (see paragraph 11 above), on the basis, inter alia, of statements made to the police by seven witnesses, A to G (see paragraph 13 above at points 8 to 14). The Regional Court, in convicting the applicant at first instance, had relied on the statements of six of these seven witnesses (see paragraph 5 above). Counsel for the applicant had asked that these witnesses be summoned before the Court of Appeal or the investigating judge so that he could cross-examine them (see paragraphs 6 and 10 above); however, the Court of Appeal had rejected those requests (see paragraphs 8 and 12 above).

The Court observes that those requests were not rejected on grounds such as death or fear, absence on health grounds or the witnesses' unreachability (see Schatschaschwili, cited above, § 119, with further references), nor on grounds related to the special features of the criminal proceedings (see, for instance, S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V, and D.T. v. the Netherlands (dec.), no. 25307/10 § 47, 2 April 2013); the Court of Appeal's sole justification for the rejection of the requests lay in its finding that the applicant had failed to substantiate the defence's interest in the examination of these witnesses.

In that context the Court of Appeal noted that the defence had not indicated on what points the statements of witnesses A to G were incorrect (see paragraphs 8 and 12 above) and, in addition, that the applicant had availed himself of his right to remain silent when he had been interviewed by police, and that he had not wished to reply to specific questions about his activities for company Fr. which had been put to him by the Court of Appeal at the hearing (see paragraph 12 above). To the extent that these additional observations of the Court of Appeal ought to be interpreted as meaning that it found those facts relevant for its refusal to secure the attendance of the witnesses, the Court considers that the right of an accused to cross-examine witnesses against him or her cannot be made dependent on his or her renunciation of the right to remain silent.

As to any requirement for the defence to substantiate a request to examine prosecution witnesses, the Court reiterates, as already set out in paragraph 44 above, that the underlying principle of the right contained in Article 6 § 3 (d) of the Convention in relation to the examination of prosecution witnesses is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him or her. This principle requires that a defendant be able to test the truthfulness and reliability of evidence provided by witnesses which incriminates him or her, by having them orally examined in his or her presence, either at the time the witness was making the statement or at some later stage of the proceedings (see paragraph 46 above). Therefore, in a situation where the prosecution relies on such a witness statement and the trial court may use that statement to support a guilty verdict, the interest of the defence in being able to have the witness concerned examined in his or her presence must be presumed and, as such, constitutes all the reason required to accede to a request by the defence to summon that witness (see paragraph 45 above).

It does not appear that the Court of Appeal took the relevance of the testimony of witnesses A to G — or lack of it — into account when it decided not to accede to the requests of the applicant to call those witnesses, nor have the Government argued that the testimony of any of the witnesses would have been manifestly irrelevant or redundant.

The Court observes that the Court of Appeal's refusal to accede to the request of the defence was in line with a leading judgment issued by the Supreme Court some three months earlier, in which the latter court had set out how the relevant provisions of the CCP were to be interpreted (see paragraph 19 above). In that ruling, the Supreme Court had held that, under Dutch law, a request by the defence to call a witness might be refused if that request was not substantiated, either at all or sufficiently, and that the defence was thus required to substantiate why the examination of a particular witness was important ‘with regard to any decision to be taken in the criminal case pursuant to Articles 348 and 350 of the CCP’ (see paragraph 19 above at point 2.6).

It appears from the examples given in its judgment that, according to the Supreme Court, requests to call and examine witnesses require substantiation, regardless of whether they concern witnesses for the prosecution or for the defence (see paragraph 19 above at point 2.6). The Supreme Court subsequently stated this explicitly in two further leading judgments of 4 July 2017 — that is, after the conclusion of the domestic proceedings in the present case — in which it explained how the requirement that such requests be substantiated related to the right to a fair trial under Article 6 of the Convention (see paragraph 20 above). It considered that that requirement did not run counter to Article 6 § 3 (d) of the Convention, and in that connection it attached relevance to the fact that the Court had also articulated in its case-law an obligation for the defendant to substantiate a request to call a witness (see paragraph 20 above at point 3.6). At this point in its judgment, in a footnote, the Supreme Court referred to two judgments of the Court: Perna (cited above, § 29) and Poropat (cited above, § 42). It further noted that the provisions of the CCP concerning the calling and examination of witnesses did not distinguish between witnesses who (could) testify against the accused and witnesses who (could) testify on behalf of the accused (see paragraph 20 above at point 3.7.1), and it held that, as regards the requirements to be met by a request to examine a witness, it made no difference in principle whether that request concerned a witness for the prosecution or a witness for the defence (see paragraph 20 above at point 3.7.2).

The Court observes that in the cases which led to the Perna and Poropat judgments, the accused applicants had sought the attendance and examination of witnesses whose testimony they believed could arguably have strengthened the position of their defence, or even led to their acquittal (see Perna, cited above, §§ 17 and 31, and Poropat, cited above, §§ 13 and 46); accordingly, their requests concerned witnesses on their behalf. This is consequently not the same situation as the one which pertains where an accused is confronted with witness testimony which incriminates him or her (see paragraph 45 above).

Moreover, the Perna judgment — to which reference is made in paragraph 42 of the Poropat judgment — pre-dates the Al-Khawaja and Tahery judgment (cited above), in which the Grand Chamber consolidated and clarified its case-law as regards the examination of witnesses for the prosecution under Article 6 § 3 (d). This also applies to the four other Court rulings to which the Government refer in their submissions of 4 September 2017 (see paragraph 37 above) and which were issued between 2005 and 2010. Accordingly, in so far as those four rulings are not in line with the principles enunciated in Al-Khawaja and Tahery, they were superseded by that Grand Chamber judgment, which was rendered in 2011 and thus before the present case was decided in the domestic courts (see paragraphs 5, 11 and 17 above). In addition, it is to be noted that none of the four cases referred to by the Government concerned a situation like that in the present case, where a request to call prosecution witnesses was rejected at the domestic level for the reason that it lacked substantiation. The Court takes this opportunity to reaffirm the general principles relating to the right of an accused to examine or have examined witnesses against him or her, as set out in paragraphs 44–45 above, from which it follows that the interest of the defence in being able to have those witnesses examined in its presence must in principle be presumed (see also paragraph 60 above).

The above considerations lead the Court to the conclusion in the present case that it cannot be said that the Court of Appeal established good factual or legal grounds for not securing the attendance of prosecution witnesses A to G.

The absence of a good reason for the non-attendance of the witnesses is not of itself conclusive of the unfairness of the applicant's trial. However, it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations, notably whether the evidence of the witnesses was the sole or decisive basis for the conviction and whether there were sufficient counterbalancing factors (see Schatschaschwili, cited above, § 113).

The Court notes at the outset that the evidence on which the Court of Appeal relied for its guilty verdict was not restricted to the statements of witnesses A to G (see paragraph 13 above); the conviction of the applicant was thus not based on their statements alone (see Al-Khawaja and Tahery, cited above, § 131). Moreover, it appears to the Court that none of those statements can by themselves be considered capable of proving that the applicant had been in de facto control of the fraud on companies Jo. and Co. committed by company Fr. The Court of Appeal did not explicitly indicate its position on the weight of the evidence given by the absent witnesses (see paragraph 50 above and, a contrario, Seton v. the United Kingdom, no. 55287/10, § 63, 31 March 2016). Having regard to the considerations in relation to the evidence employed by the Court of Appeal (see paragraph 14 above), the Court considers that the evidence of the absent witnesses was of such significance or importance as is likely to have been determinative of the outcome of the case (see paragraph 49 above).

The Court reiterates that there must be counterbalancing factors which permit a fair and proper assessment of the reliability of the untested witness evidence. It has found the following elements of relevance in the assessment of the adequacy of counterbalancing factors: the trial court's approach to the untested evidence, the availability and strength of corroborative evidence supporting the untested witness statements, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, cited above, §§ 125-31 and 151).

The Court firstly notes that the statements of the witnesses A to G were listed along with the other evidence substantiating the applicant's guilt, without the judgment containing any indications that the Court of Appeal was aware of the reduced evidentiary value of the untested witness statements, or containing reasoning as to why it considered that evidence to be reliable (see paragraphs 13–14 above; see also, mutatis mutandis, Avetisyan v. Armenia, no. 13479/11, § 63, 10 November 2016).

Next, the Court observes that no corroborative evidence supporting the untested evidence of the kind as described in paragraphs 125-31 of the Schatschaschwili judgment was available in the present case, or other corroborative evidence that could have provided the same safeguard.

As regards procedural measures which may have been capable of compensating for the defence's lack of opportunity to cross-examine the witnesses, the Court notes that the applicant was able, in the course of the domestic proceedings, to give his own version of the events in question, which he did at the hearing held before the Court of Appeal on 16 September 2014 (see paragraph 9 above). It further appears from the reasoning employed by the Court of Appeal for its refusals to allow the applicant to cross-examine witnesses that it had been open to him to challenge the accuracy of the statements which those witnesses had made to the police (see paragraphs 8 and 12 above). In this context the Court observes that, at the abovementioned hearing, the applicant disputed that witness D could have recognised him from a particular photograph and that he had had contact with a number of the witnesses who had claimed that they had had contact with him (see paragraph 9 above). The Court considers that an opportunity to challenge and rebut absent witnesses' statements is of limited use in a situation where a defendant has been denied the possibility to cross-examine the witnesses, and moreover it has repeatedly held that such an opportunity cannot, of itself, be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by the witnesses' absence (see, mutatis mutandis, Trampevski v. the former Yugoslav Republic of Macedonia, no. 4570/07, § 49, 10 July 2012, and Riahi v. Belgium, no. 65400/10, § 41, 14 June 2016). This is also the case here.

Having regard to the above, the Court finds that it cannot be said that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured.

The foregoing considerations are sufficient to enable the Court to conclude that the applicant's inability to cross-examine the prosecution witnesses rendered the trial as a whole unfair. There has, accordingly, been a violation of Article 6 §§ 1 and 3 (d) of the Convention.