Does the non compliance with the examination procedure of witnesses affect the principal of fair trial?
JUDGMENT
Shala v. Switzerland 25.07.2019 (no. 63896/12)
SUMMARY
Failure to inform criminal trial witnesses of their right to consular assistance. Intentional homicide and fair trial. No infringement.
The applicant is sentenced by the Swiss courts for murder in the context of a blood feud. Complaints of infringement of fair trial. The applicant criticized the Swiss authorities, in particular for failing to inform three witnesses, Kosovar nationals, of their right to consular assistance under Article 36 of the Vienna Convention (VCCR), and argued that the statements of these witnesses could not be used in the proceedings against him.
The Court held, among other points, that Mr Shala had not shown in a substantiated and tangible
manner how the fact that the Swiss authorities had not informed the three witness of their right to
consular assistance under Article 36 of the VCCR had had the slightest impact on the fairness of the
proceedings against him. The use of statements from these three witnesses by the Swiss courts,
which had moreover based their findings on a whole range of evidence, had thus not rendered the
proceedings as a whole unfair.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Shpend Shala, is a Kosovar national who was born in 1978.
In May 1997 the head of the Shala family was executed in Kosovo2 by a member of the H. family. The
following month, the brother of the presumed perpetrator of that murder was killed in Switzerland.
In January 2001 the Laufenburg District Court (Switzerland) delivered judgments concerning six
members of Mr Shala’s family, including his father, his uncle and his uncle’s son.
In November 2010 Mr Shala was convicted of murder and sentenced to 18 years’ imprisonment. The
district court concluded that Mr Shala and his cousin had fired between 15 and 17 shots into the
victim’s head while he was attempting to escape. An appeal by Mr Shala before the higher court was
dismissed.
Before the higher court, Mr Shala alleged for the first time that there had been a violation of
Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 (VCCR). Mr Shala argued,
in particular, that his father, his uncle and his uncle’s son had not been informed before the district
court of their rights under the VCCR to consular assistance. According to Mr Shala, this procedural
shortcoming had been so serious that it had rendered the statements by these witnesses unusable.
In its decision, the higher court noted that Mr Shala’s father had been informed of his right to the
assistance of a lawyer and an interpreter and that he had unambiguously waived these rights. It also
considered that Mr Shala had had an opportunity to put questions to his father during the hearing. It further emphasised that Article 36 of the VCCR was intended to protect foreign prisoners from discriminatory treatment in relation to non-foreign prisoners and not to guarantee defendants’ right to remain silent.
In April 2012 the Federal Supreme Court upheld that judgment. Mr Shala was subsequently
transferred to Kosovo, where he is serving his sentence.
THE DECISION OF THE COURT…
Article 6 (right to a fair trial)
The Court dismissed the first two complaints as manifestly unfounded, for the following reasons:
The Court noted that the Federal Supreme Court had declared these complaints inadmissible on the
grounds that the supporting reasoning was manifestly insufficient, in accordance with section 42 of
the Federal Court Act of 17 June 2005 (LTF). The Federal Supreme Court had considered, firstly, that
Mr Shala had not shown in his appeal pleadings if and to what extent the procedural rights guaranteed by the Swiss Constitution and by the Convention had been violated or applied arbitrarily.
Secondly, the Federal Supreme Court had noted that Mr Shala had refrained from commenting on
the reasoning provided in the lower court’s judgment.
The Court noted that Mr Shala had not shown in his application that the Federal Supreme Court had
applied section 42 of the LTF arbitrarily in the present case, in violation of Article 6 § 1 of the
Convention. The Court also noted that the statements by Mr Shala’s uncle and his uncle’s son were
not the only evidence against the applicant. Moreover, these witnesses had been excused from
appearing before the higher court, and detailed and objective factual reasons for this had been given
in the judgment.
The Court also noted that Mr Shala’s father had been informed about his right to assistance by a
lawyer and an interpreter from the outset of the proceedings brought against him, and that he had
expressly waived these rights. In addition, Mr Shala’s father had appeared at the hearing before the
higher court and Mr Shala had had the opportunity to put questions to him.
The Court dismissed the third complaint as manifestly unfounded, for the following reasons:
The Court reiterated that, according to its settled case-law, the fact of keeping evidence in the case file which had been obtained from a co-defendant or a witness through torture or degrading treatment rendered the proceedings as a whole unfair. In the present case, the Court found no evidence grounding a suspicion that the statements by the three witnesses had been obtained through investigation methods that were incompatible with Article 3 of the Convention. It was thus, in principle, possible to use the witnesses’ statements in Mr Shala’s trial. The Court also considered that Mr Shala had not shown in a substantiated and specific manner how the fact that the Swiss authorities had not informed the three witnesses of their right to consular assistance under Article 36 of the VCCR had had the slightest impact on the fairness of his trial. Consequently, the use of statements by these three witnesses in Mr Shala’s trial by the domestic courts, which had furthermore based their conclusions on a whole range of evidence, had not rendered the proceedings as a whole unfair(echrcaselaw.com).
