Basing a decision on a confession of an accomplice and of a protected witness, which was not affected by unfair exchanges did not violate the fair trial!

JUDGMENT

Xenofontos and Others v. Cyprus 25.10.2022 (app. no.  68725/16, 74339/16 and 74359/16)

SUMMARY

Applicants’ conviction decisively based on confession by accomplice, who was not prompted by any deal, but was later placed in a witness protection programme and spared prosecution: no violation. The three applicants were convicted by the Assize Court of the murder of a private television channel’s CEO and were sentenced to life imprisonment. The court relied to a “most decisive” extent on evidence given by an accomplice, F.H., who was not prosecuted and was later placed in a witness protection programme. The Supreme Court dismissed their appeals.

PROVISION

Article 6 par. 1

PRINCIPAL FACTS

The applicants, Grigoris Xenofontos, Anastasis Krasopoulis and his sister, Elli Krasopouli Skordelli, are
three Cypriot nationals who were born in 1981, 1973 and 1968 respectively. They are currently
serving life sentences in the Central Prison of Nicosia.

The case concerns the shooting dead of an executive of a private television channel and evidence
against the applicants being provided by an accomplice who had been spared prosecution.

Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicants complain that their trial was unfair, as the only evidence against them had come from
that accomplice.

THE DECISION OF THE COURT…

 Article 6 § 1: As established by the domestic courts, there had been no deal between F.H. and the prosecution. F.H. had confessed and turned in the applicants out of remorse, without having been promised anything in return. The Attorney‑General’s decisions to grant him protection and not to charge him had involved the exercise of the official’s discretion, rather than a follow-up on a promise he had given.

The applicants had failed to specify the “extraneous motives” they alleged the police had acted on and to provide any evidence of a deal between F.H. and the prosecution. Furthermore, they had known of F.H.’s identity, the contents of his confession and that he would not be prosecuted. At trial, they had been able to examine at will both F.H. as well as the police officers who had questioned him and had not asked that the Attorney-General be examined.

The Assize Court had been fully aware of the dangers inherent in using accomplice evidence and had taken pains to explain in detail why it believed F.H. Unlike in Zhang v. Ukraine, it had explained why F.H. had changed his mind and confessed. Its assessment of F.H. had been reviewed by the Supreme Court, the only appellate court available. To the extent that the parties had disagreed about the existence of other incriminating evidence against the applicants, the Court considered that its role in that field was limited. It therefore accepted the Supreme Court’s relevant findings and concluded, as argued by the Government, that the conviction had not relied solely on F.H.’s evidence.

In such circumstances, it could not be said that the Nicosia Assize Court’s reliance on the accomplice testimony had rendered the trial unfair.

Conclusion: no violation (six votes to one)

The Court also held, unanimously, that there had not been a violation of Article 6 § 1 in so far as the first applicant complained about the length of the proceedings (5 years and 9 months), their complexity justifying their somewhat lengthy duration.