The conviction of the accused based on a witness deposition who testified against him because he had a personal benefit of impunity in his own case and the lack of access to the file violated the principles of fair trial.

JUDGMENT

Adamčo v. Slovakia 12.11.2019  (no. 45084/14)

see here 

SUMMARY

Reliability of witnesses, access to the case file and fair trial.

The applicant was first acquitted of the charge of complicity in homicide. An appeal was filed by the Prosecutor who converted the charge from a mere accomplice to a perpetrator and was convicted by a second-instance court on the basis of a witness testimony who subsequently indicted the applicant, dismissing his original testimony. In addition, he had no access to the Prosecutor’s appeal. The domestic courts, even the Constitutional Court, have rejected the remedies he exercised.

The Court recalls that the use of witness testimony for remuneration or other advantages calls into question the fair procedure and notes that the intensity of scrutiny required for evidence by an associate correlates with the importance of the benefit earned by the associate. giving evidence. In the present case, the advantage obtained by M. meant impunity, and since all decisions concerning M.’s prosecution were taken without any judicial review, Strasbourg held that the use of M.’s testimony in the circumstances and his deprivation of the right of access to a public prosecution, did not ensure a fair trial. Infringement of fair trial

PROVISION

Article 6 par. 1

PRINCIPAL FACTS

The applicant, Branislav Adamčo, is a Slovak national who was born in 1978. He is currently in
detention in Leopoldov (Slovakia).

The case concerned his complaint that he had not been given a fair trial when he had been convicted
for murder.

In 2001 Mr Adamčo was charged with murder related to an organised-crime contract killing. He was
first acquitted of being an accomplice in that crime but the prosecution appealed and the charge
was modified as identifying him as the actual killer.

The modified charge relied, among other things, on testimony by a witness who had also given
evidence at earlier stages of the trial but who had then changed his version of events, incriminating
the applicant. Mr Adamčo was convicted of murder and his subsequent ordinary appeal and an
appeal on points of law were unsuccessful.

In 2011 he lodged a complaint with the Constitutional Court, arguing that modifications to the
composition of the formations dealing with his case at the trial level and at the appellate level had
been irregular and that he had not had access to prosecution observations in either of his two
appeals. He also submitted that the evidence from the prosecution witness had been unreliable as
the witness had benefited from his actions because the prosecution had dropped cases against him.
The Constitutional Court rejected his complaint as inadmissible.

Relying in particular on Article 6 (right to a fair trial) of the European Convention on Human Rights,
Mr Adamčo complained, inter alia, that he had no access to prosecution observations on his ordinary
appeal and his appeal on points of law, and that his conviction had been based to a decisive extent
on the testimony of a witness who had had an obvious motive to give evidence in favour of the prosecution rather than tell the truth.

THE DECISION OF THE COURT…

 The applicant complained (i) that he had been denied a hearing by a tribunal established by law as a result of changes in the composition of the formations deciding his case at the trial level and the appellate level; (ii) that the submissions of the prosecution service of 15 August 2008 in reply to his appeal and those of 11 March 2010 in reply to his appeal on points of law had not been served on him whereby he had been deprived of the possibility to reply in his defence; and (iii) that his conviction had to a decisive extent been based on evidence from M., who had had an obvious motivation to testify in line with arrangements with the prosecution rather than to tell the truth.

The applicant complained that the proceedings in his case had not been adversarial in that the observations of the prosecution service of 15 August 2008 in reply to his appeal and of 11 March 2010 in reply to his appeal on points of law had not been served on him and that he had thereby been denied the opportunity to respond to them.

The Courts primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings.

The Court notes, first of all, the Governments argument that the evidence from M. was just one component of a body of evidence incriminating the applicant. Nevertheless, it has not been disputed that the other evidence was indirect, that it formed a part of a whole only when considered with the direct evidence from M., and that a decisive turning point in the trial came when M. changed his version and started incriminating the applicant. Accordingly, the Court finds that the evidence from M. constituted, if not the sole, then at least the decisive evidence against the applicant.

The Court reiterates that the use of statements given by witnesses in return for immunity or other advantages may cast doubt on the fairness of the proceedings against the accused and can raise difficult issues to the extent that, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange, or for personal revenge. The risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated.

Accordingly, on the facts of the present case, the Court considers it appropriate to continue its analysis by looking at how the applicants objection was addressed at the domestic level and then to examine whether the domestic authorities may be said to have subjected the matter to an adequate degree of scrutiny.

In that connection, the Court notes first of all that the scrutiny by the appellate court appears to have been limited to any advantage M. might have received in the context of the trial for the murder of K. and did not in any way examine any advantage he might have received in the context of the prosecution for the murder of O. No details in relation to that prosecution have been disclosed to the Court. But it has remained an uncontested allegation of fact that after he had changed his version the respective charge was dropped, the investigation was closed and he was released from detention pending trial. None of the domestic courts dealing with the applicants case took any position as regards this fact.

In these circumstances, the domestic courts cannot be said to have scrutinised the applicants argument with reference to its factual basis in its entirety.

At the same time, the Court notes that it has been neither argued nor established otherwise that any particular consideration was given in the assessment of the evidence from M. in the applicants trial to the fact that it originated from a witness who was, by his own account, himself involved in the offence. To the contrary, it would rather appear that this evidence was examined and assessed by the domestic courts as any ordinary evidence would be.

Συναφώς, το Δικαστήριο επισημαίνει ότι το μέγεθος του ελέγχου που απαιτείται για τα αποδεικτικά στοιχεία από έναν μάρτυρα συσχετίζεται με τη σπουδαιότητα του πλεονεκτήματος που αποκομίζει ο μάρτυρας αυτός ως αντάλλαγμα για τα αποδεικτικά στοιχεία που καταθέτει. Στην προκειμένη περίπτωση, το πλεονέκτημα που απέκτησε ο μάρτυρας Μ. υπερβαίνει τη μείωση της ποινής ή του οικονομικού οφέλους, αλλά ουσιαστικά ισοδυναμεί με ατιμωρησία για το αδίκημα που κατηγορείτο.

In that regard, the Court notes that the intensity of scrutiny called for with regard to evidence from an accomplice has a correlation with the importance of the advantage that the accomplice obtains in return for the evidence he or she gives. In the present case, the advantage obtained by M. went beyond a reduction of sentence or financial benefit, but practically meant impunity for an offence of unlawful killing.

As regards any judicial review of matters concerning M.s pleabargain arrangements in the applicants own trial, as has been noted above, the review by the appellate court was inadequate , whereas the higher courts failed to respond to his argument altogether. Moreover, it is noted that all the decisions concerning the prosecution of M. were taken under the sole responsibility of the prosecution service with no element of any judicial control.

Accordingly, in view of the importance of the evidence from M. in the applicants trial, the Court finds that, on the specific facts of the present case, its use at the trial was not accompanied by appropriate safeguards so as to ensure the overall fairness of the proceedings.

Violation of Article 6

Just satisfaction: 5,000 euros (EUR) for non-pecuniary damage and EUR 8,000 for costs and expenses(echrcaselaw.com).


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