Refusal of the national court to allow the accused to examine prosecution and defense witnesses! Violation of a fair trial
JUDGMENT
Keskin v. The Netherlands 19.01.2021 (app.no. 2205/16)
SUMMARY
Defendant’s right to be examined by prosecution and defense witnesses. Fair trial, equality of arms. Compensatory factors and their criteria.
According to the Court’s case-law, all evidence against it must be presented in the presence of the accused at a public hearing for the purpose of rebuttal, including prosecution witnesses. Exceptions to this principle are possible but should not infringe the rights of the defense, which, as a rule, require the accused to be given a sufficient and appropriate opportunity to challenge the evidence and to examine the prosecution witness, or when the witness testifies or at a later stage of the proceedings.
In the present case the applicant was convicted by the domestic courts and at the hearing he was not allowed to examine prosecution witnesses because, at the pre-trial stage, he exercised his procedural right to remain silent.
The ECtHR found that the conviction against the applicant was based on the testimony of prosecution witnesses, without verifying their credibility. The applicant was also not allowed to examine these witnesses as well as to propose defense witnesses.
All these shortcomings of the defense were not compensated to adequately compensate for the lack of examination of witnesses. Strasbourg cited criteria for assessing compensatory factors.
The ECtHR found a violation of a fair trial (art. 6§ 1 and 3d).
PROVISIONS
Article 6 par. 1
Article 6 par. 3d
PRINCIPAL FACTS
The applicant, Vahap Keskin, is a dual Turkish and Dutch national who was born in 1972 and lives in
Hengelo (the Netherlands).
The case concerned criminal proceedings against the applicant in which he had been prevented from
cross examining witnesses.
On 30 July 2013 the applicant was convicted in absentia of fraud committed via a company on the
basis of, among other things, the statements of six witnesses. He was sentenced to nine months’
imprisonment, which was partially suspended, and ordered to pay 59,300.42 euros in damages.
He appealed, arguing that he had not directed the fraud, asking to cross-examine the six witnesses
mentioned above along with a seventh witness who had also made statements against him. Despite
the support of the prosecution, the request to cross-examine was rejected, by the Arnhem
Leeuwarden Court of Appeal, which stated that the interests of the applicant were unsubstantiated.
His conviction and the damages order were upheld, but the court reduced his prison sentence to six
months.
On 8 September 2015 a cassation appeal by the applicant, claiming a failure to ensure a fair trial,
was declared inadmissible by the Supreme Court.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial) of the European Convention on Human Rights
the applicant complained of being denied a fair hearing owing to his inability to put questions to
witnesses.
THE DECISION OF THE COURT…
(a) Relevant principles
The Court’s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 .
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. 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.
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:
(i) Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?
(ii) Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?
(iii) Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings?
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.
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, on the basis, inter alia, of statements made to the police by seven witnesses, A to G . The Regional Court, in convicting the applicant at first instance, had relied on the statements of six of these seven witnesses. 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; however, the Court of Appeal had rejected those requests .
As to any requirement for the defence to substantiate a request to examine prosecution witnesses, the Court reiterates,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. 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.
The Court noted that the Court of Appeal’s refusal to accept the defense’s request was in line with a decision of the Supreme Court. According to that judgment, the Supreme Court had held that, under Netherlands law, a defense request to call a witness could be rejected if that claim was not substantiated, in whole or in part, in accordance with Articles 348 and 350 of the Code of Civil Procedure. .Κ.Κ. ».
At this point in his judgment, in a footnote, the Supreme Court referred to two judgments of the Court: Perna and Poropat. It also noted that the provisions of the Code of Criminal Procedure regarding the summoning and examination of witnesses do not distinguish between witnesses who (could) testify against the accused and witnesses who (could) testify in favor of the accused, and held that, as regards the requirements to be met in a witness examination request, made no difference in principle whether the request concerned a prosecution or defense witness.
The Court took this opportunity to reaffirm the general principles regarding the right of an accused to examine prosecution witnesses, which show that the defense’s interest in being able to examine such witnesses is in principle presumed.
The above considerations led the Court to conclude in the present case that it cannot be said that the Court of Appeal proved well-founded or legal reasons for not ensuring the presence of witnesses from A to Z.
The absence of a reasonable reason for the absence of witnesses is not in itself evidence of an unfair trial. However, it is a very important factor to be weighed in the overall balance together with the other relevant considerations, especially if the testimony of witnesses was the only or decisive basis for the conviction and if there were sufficient compensatory factors.
The Court noted from the outset that the evidence relied on by the Court of Appeal for the conviction was not limited to the testimony of Witnesses A to Z. However, the Court considered that the evidence of the absent witnesses was so important or decisive in .
With regard to compensatory factors, the Court reiterated that there must be balancing factors that allow for a fair and correct assessment of the credibility of witnesses.
It adopted the following elements related to the assessment of the adequacy of the compensatory factors: the court’s approach to the unverified evidence, the availability and validity of supporting evidence for the unverified testimony of witnesses and the procedural measures taken against the lack of opportunity to examine witnesses directly at trial.
The Court first noted that the testimonies of witnesses A to C were included together with the other evidence substantiating the applicant’s guilt, without the decision containing any indication that the Court of Appeal was aware of the reduced probative value of the unverified witnesses, or because he considered the evidence to be credible. The Court then observed that there was no evidence in the present case to support the non-cross-evidential evidence or other corroborative evidence that could have provided the same guarantee.
The Court held that the opportunity to challenge the absence of witness testimony has limited use in a situation where the accused is unable to cross-examine witnesses, and has repeatedly held that such an opportunity alone cannot be considered adequate compensatory factor to balance the defense disadvantage created by the absence of witnesses. This also applies in the present case. In view of the above, the Court finds that it cannot be said that there were sufficient compensatory factors to balance the defense’s shortcomings.
Those considerations are sufficient to enable the Court to conclude that the applicant’s inability to examine the prosecution witnesses in detail rendered the trial unfair in its entirety. Consequently, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by Mr Keskin and that the respondent State
was to pay him 692.65 euros (EUR) for costs and expenses.
