Failure of key witnesses to testify at the hearing and refusal of the Court of appeal to take into consideration the sworn statement of one witness who had retracted his initial testimony against him. Violation of a fair trial and the right to examine witnesses
JUDGMENT
Panagis v. Greece 05.11.2020 (app. no. 72165/13)
SUMMARY
The right to examine witnesses by an accused. The applicant was sentenced to six months in prison for forgery and use of a forged document on the grounds that he had issued a residence permit to a Romanian national.
Impossibility of examination by the accused at any stage of the proceedings of two prosecution witnesses, who testified only at the stage of the preliminary investigation, and who were absent. These witnesses, although there were other prosecution witnesses, were important because they were the only ones to testify that the applicant was a forger. The other witnesses did not know who committed the crime.
The appellate court refused to take into account the affidavit of one of these two prosecution witnesses, which was given before a notary in Romania, in which he withdrew his initial testimony against the accused.
The ECtHR held that there were no compensatory factors in the testimony of the two missing witnesses and given the non-reading of the affidavit of one witness in combination with the absence of compensatory factors, and the failure to justify the non-testimony of the two witnesses the fairness of the proceedings as a whole had been jeopardized and the right of witnesses to be examined had also been violated (Article 6 §§ 1 and 3 (d) of the ECHR).
The Court awarded € 2,000 for non-pecuniary damage.
PROVISIONS
Article 6 § 1
Article 6 § 3 (d)
PRINCIPAL FACTS
The applicant, Athanasios Panagis, is a Greek national who was born in 1968. He lives in Corinth
(Greece). Between 1999 and 2004 Mr Panagis was a municipal employee at the town hall of Loutraki
(Greece).
The case concerned the sentencing of Mr Panagis to six months’ imprisonment for forgery and use of
forgeries on the ground that he had issued a residence certificate to a Romanian national in return
for a sum of money and had forged the latter’s signature. The events took place in 2004. The trial
culminated in a final conviction in 2013. At the end of the proceedings, Mr Panagis’s sentence was
not enforced, in accordance with the provisions of a new law (no. 4198/2013) which entered into
force in October 2013.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial / right to examine witnesses) of the European
Convention, Mr Panagis complained in particular that he had never been given the opportunity at
any stage of the proceedings to examine the statements of two prosecution witnesses given at the
investigation stage. He also complained about a refusal by the Court of Appeal to take into
consideration the sworn statement, given before a notary in Romania, of one of those witnesses,
who had retracted his initial testimony against him.
THE DECISION OF THE COURT…
Serious reason justifying the non-examination of witnesses
The Court reiterated that only the existence of a serious reason justifies the non-appearance / examination of a witness at the trial and, consequently, the acceptance as evidence of his testimony. If there was a substantive reason justifying the absence of the witness, there could be a valid reason or justification for the court to accept the unverified testimony of the witness as evidence.
In the present case, the Court noted that at the stage of the preliminary examination, P.L. was examined twice, on 25 February 2005, by the competent bodies and P.C. four times, on 24 and 25 February 2005. The two witnesses named the applicant as a forger. They were called to appear during the hearing of the case in the Three-Member Misdemeanor Court of Corinth and in the hearing of the appeal in the Three-Member Misdemeanor Court of Nafplio, but these witnesses did not appear.
The criminal court of first instance gave no explanation for their absence and proceeded with the testimony of three other prosecution witnesses and a defense witness. On the other hand, the Court of Appeals, after finding that the two witnesses had been duly summoned and on time, claimed that they could not appear and testify because they were living abroad in an unknown address. The Court of Appeal added that taking into account the fact that the efforts of the judicial authority were exhausted without the possibility of summoning witnesses, it considered that it was impossible for them to appear and testify in court themselves and thus decided that were made during the pre-trial.
The ECtHR recalled that the absence of a witness in a trial could be explained by various reasons (Al-Judge and Tahery, §§ 120-125, Bobeş v. Romania, no. 29752/05, §§ 39 -40, 09.07.2013 , Vronchenko v. Estonia, no. 59632/09, § 58, 18.07.2013) and that it is not its duty to replace the national judge regarding on the necessity or expediency of summoning a witness. The Court understands that, in the view of the national courts, the examination of the two witnesses at the hearing was not necessary to establish the truth. However, the Court has already ruled that if the public prosecutor decides that a particular person is an important source of information and relies on his or her testimony in court and that the testimony of that witness is used by the court to reach a conviction, it should be the personal presence and examination of this witness is necessary, unless his testimony is obviously irrelevant or unnecessary (Cevat Soysal v. Turkey, no. 17362/03, § 77, 23.09.2014).
The Court noted that, at the first hearing, the trial court did not comment on the non-appearance of the missing witnesses and did not respond to the applicant’s allegation that the authorities had not taken steps to appear before the court. In addition, no further steps were taken to locate them in Romania and at its meeting of 02.10.2012, the Court of Appeal referred only to the call notification report which stated that the witnesses could not be located at their previous address in Greece, a fact on which the Supreme Court also relied.
However, the ECtHR considered that this reluctance of the courts to examine in depth the seriousness of the reason justifying the absence of these two witnesses was not in itself decisive
Whether the disputed statements constituted the sole or decisive basis of the conviction
The Court also noted that, in its decision, the Court of Appeal stated that the testimony of the two witnesses was not the only evidence. But they were taken into account at the same time as the testimony of the other three prosecution witnesses, the testimony of the defense witness, as well as the documents included in the list of documents to be read and other documents submitted by the applicant. The Court recalled that, in order to determine the significance and seriousness of the absent witnesses, and in particular whether those testimonies were the sole or decisive basis for the applicant’s conviction, the Court had to take into account in particular the assessment of the national courts.
In the present case, the Court notes that, although the testimony of those witnesses was not the only evidence against the applicant, the national courts did not clearly state whether they considered them to be ‘decisive’, in the sense given in the Al-Khawaj and Tahery cases. , that is, as evidence of such importance that they are likely to influence and determine the decision on the case (Schatschaschwili § 142). Although the national courts have stated that they relied on all the evidence in the case as a whole, in the Court’s view, it is common ground that the P.L. and P.C. played a decisive role in the applicant’s conviction (Kuchta v. Poland, no. 58683/08, § 58, 23.01.2018).
The Court noted that the two missing witnesses were the only ones to identify the applicant as the perpetrator. As for the other prosecution witnesses, during the hearing before the Court of Appeal, the first witness K.M. testified that he did not know if the applicant had committed the offense, the second AG was not sure of anything and the third P.P. testified that the offense could have been committed by anyone else. The testimony of witnesses during the hearing before the criminal court did not contain anything against the applicant other than the fact that he was present from time to time at the town hall premises. Furthermore, neither the courts nor the Government have indicated whether one or more of the documents read at the hearing were decisive in establishing the applicant’s guilt.
Regarding the possible existence of compensatory elements
With regard to the possible existence of compensatory evidence, the Court observed from the outset that the Court of Appeal refused to read at the hearing and assess the relevance of the affidavit drawn up before a notary by the PC witness, in which it re-examined and testimony concerning the applicant. This statement, which had been lodged with the Court of Appeal, was of great importance to the applicant in the circumstances of the case, as it was capable of undermining the belief that the applicant was the perpetrator. Even if at the end of the proceedings the appellate court had to rule adversely against the applicant, it could have reasoned that it did not find the P.C. of his first statement given at the hearing. In the Court’s view, the reading of this testimony constituted a measure which, by its very nature, could compensate for the impossibility of examining the two witnesses and which would allow the Court of Appeal to shed more light on their credibility and the probative value of their testimonies. The Court emphasized that it did not intend to rule on the assessment of this evidence, which is a prerogative of the domestic courts, but noted that this reading of the affidavit could be offset by there is another such element in the present case.
Evaluation of the fair process as a whole
In the light of the foregoing, and in particular the absence of compensatory factors, the Court could only note the decisive nature of the P.L. and P.C. testimonies in the context of the preliminary investigation and their reading during the hearing before the Court of Appeal. In the absence of any other strong evidence to substantiate these allegations, the fairness and fairness of the proceedings as a whole had been jeopardized.
The Strasbourg Court held that the applicant’s rights of defense had been restricted in relation to the requirements of a fair trial and found a violation of Article 6 §§ 1 and 3 (d) of the ECHR.
Just satisfaction: The ECtHR awarded an amount of 2,000 euros for non-pecuniary damage.
