Rejection of a defendant’s request that three decisive prosecution witnesses be heard. Violation of a fair trial
JUDGMENT
Safssafi v. The Netherlands 10.01.2023 (app. no. 61125/19)
SUMMARY
The applicant didn’t have the ability to cross-examine three prosecution witnesses whose statements have been used as evidence in criminal proceedings against him.
The applicant rented a house from a building society, which he then sublet to a couple with the help of a realtor. Later the couple found that the applicant was not the owner of the house and had no right to sublease. In fact, the applicant then entered the house and transferred their belongings. He was convicted of fraud and illegal entry of a dwelling used by another person, based on the deposits of the couple and the broker, as well as the lease.
He appealed and requested that the three witnesses be cross-examined. The Court of Appeal rejected the first request because it had been filed late. It also found that the testimonies of the requested witnesses were not the only and decisive evidence, as they were corroborated by other evidence.
Relying on Article 6 of the Convention, the applicant complained that he should have been allowed to cross-examine the three prosecution witnesses because their statements were the decisive evidence for his conviction.
The Court found that the Court of Appeal had failed to prove valid reasons of fact or law for not ensuring the presence of the prosecution witnesses. It also considered that the testimony of the absent witnesses was so important insofar as it was likely to be decisive for the outcome of the case. Finally, the applicant’s inability to cross-examine the prosecution witnesses or to examine them at any stage of the proceedings and the lack of compensatory factors rendered the trial as a whole unfair.
The Court found a violation of fair trial (Article 6 §§ 1 and 3 of the Convention) and awarded the applicant the costs.
PROVISIONS
Article 6 par. 1
Article 6 par. 3
PRINCIPAL FACTS
The applicant rented a house from a building society. In 2015 he sublet it to a couple (witnesses 1 and 2) with the help of a broker (witness 3). When the couple moved in and tried to register as residents in the local municipality, they found that the applicant was not the owner of the house and was not able to sublet it.
In January 2016 the couple found that the applicant had entered the house and had transferred their belongings. The applicant was convicted by the District Court of the Central Netherlands (rechtbank) of fraud and illegal entry of a dwelling used by another person, based on the deposits of the couple and the broker, as well as the lease agreement.
The applicant appealed against the conviction and requested that the three witnesses be cross-examined. He reiterated the request at the hearing. The Court of Appeal of Arnhem-Leeuwarden rejected the first request because it had been made too late (it had been sent by fax only 9 days, instead of the required 14 days, before the hearing), while the second request, made at the hearing and to which the court applied the ‘necessity criterion’, was rejected because there was no reason to doubt the reliability of the witness statements. The court noted that the defense had the opportunity to examine the witnesses if it had made the request in time. The court also found that witness statements were not the only and decisive evidence, as they were corroborated by other evidence. The Court of Appeal upheld the conviction. On May 21, 2019, the Supreme Court dismissed the appeal on summary grounds.
Relying on Article 6 of the Concention, the applicant complained that he should be allowed to cross-examine the three prosecution witnesses because their statements were the decisive evidence during the proceedings leading to his conviction, there was no good reason for their non-presence and there were no countervailing factors.
THE DECISION OF THE COURT…
In the present case, the request for cross-examination of the prosecution witnesses, submitted by the applicant’s counsel to the Court of Appeal, was rejected. The statements they had previously made were accepted as evidence. In order to examine whether the procedure as a whole was compatible with Article 6, the case-law provides for a three-step approach, as set out below:
A. If there is a serious reason for witnesses not attending the trial
As to whether there was a serious reason for the witnesses not to attend the trial and, consequently, for accepting the unchecked testimony of the absent witnesses as evidence, the Court noted that the rejection of the request for cross-examination of witnesses was based on the fact that the applicant’s counsel had not submitted it in time and there was no reason to doubt the accuracy of the witness statements.
According to the Court, if the prosecution has decided that a particular person is an important source of information and is based on his or her testimony at trial, and that this testimony is used to support a conviction, it must be presumed that his appearance and questioning are necessary.
With regard to the above, it cannot be argued that the Court of Appeal has shown valid reasons of fact or law for not ensuring the presence of the prosecution witnesses.
B. Whether the testimony of the absent witnesses was “unique or decisive”
The testimony of the three witnesses did not constitute the sole basis for the conviction of the accused. The Court of Appeal used other evidence (the miscarriage and the police report confirming that the house was the property of the building society). However, taking into account the considerations regarding the evidence used by the appellate court, the Court considered that the testimony of the absent witnesses was so important insofar as it was likely to be decisive for the outcome of the case.
C. The existence of sufficient compensatory factors to compensate for the disadvantages of the defense.
As to whether there were sufficient compensatory factors, including strong procedural safeguards, to compensate for the disadvantages faced by the defence as a result of the acceptance of the unexamined evidence and to ensure that the trial, considered as a whole, was fair:
The judgment of the Court of Appeal sets out the testimonies of the three witnesses together with the rest of the evidence substantiating the applicant’s guilt. There is no indication that the Court of Appeal was aware of the reduced probative value of the unexamined witnesses. Moreover, one of the reasons invoked by the Court of Appeal in rejecting the applicant’s request to examine the witnesses was that there was no reason to doubt the reliability of their statements. However, neither the minutes of the hearing nor the grounds of the judgment indicate why the Court of Appeal found that evidence to be credible. As mentioned above, there was additional incriminating evidence supporting the testimonies of the witnesses. As regards procedural measures aimed at compensating for the lack of possibility of direct cross-examination of witnesses at the trial, it should be noted that the applicant had the opportunity to give his own version of events during the trial. However, the Court held that the possibility of challenging and rebutting the statements of the absent witnesses was of limited use where the accused did not have the opportunity to cross-examine the witnesses and, moreover, had repeatedly held that this possibility could not, in itself, be regarded as a sufficient compensatory element to compensate for the disadvantage of the defence created by the absence of the witnesses. No other procedural measures were taken. In the light of the above, the Court found that it cannot be assumed that there were sufficient compensatory factors to compensate for the disadvantages under which the defence was based.
Under these circumstances, the applicant’s inability to cross-examine the prosecution witnesses or to examine them at any stage of the proceedings rendered the trial as a whole unfair.
The Court found a violation of Article 6 §§ 1 and 3 of the Convention.
Just satisfaction (Article 41)
The Court awarded the applicant EUR 485 in respect of costs.
