The refusal of the court to examine the accused witnesses because he had exercised the right to remain silent at the pre-trial, violated the fair trial!
JUDGMENT
Keskin v. the Netherlands 19.01.2021 (app. no. 2205/16)
SUMMARY
Fair trial, right of the accused to examine prosecution witnesses. Compensatory factors.
Before the Court, all evidence against the accused, including prosecution witnesses, must normally be presented at a public hearing in his presence in order to be able to examine and rebut it. There may be exceptions to this principle but they 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 and examine the prosecution witnesses.
The domestic courts did not allow the accused-applicant to examine the prosecution witnesses at the hearing because he exercised his right to remain silent during the pre-trial hearing.
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. This procedural behavior created disadvantages in the defense of the accused without any compensatory factors that would balance the non-examination of witnesses.
The Court found a breach of the fairness of the overall criminal procedure (Articles 6§1 and 3 (d) of the ECHR).
PROVISIONS
Article 6 par. 1
Article 6 par 3 d
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….
rticle 6 § 1 in conjunction with Article 3 § (d): In order to assess whether the overall fairness of the applicant’s trial had been impaired by the use of statements made by the absent witnesses, the Court applied the three-tier test laid down in its Grand Chamber case of Al-Khawaja and Tahery v. the United Kingdom [GC], as further clarified by its Grand Chamber judgment in Schatschaschwili v. Germany [GC]:
(a) Whether there was good reason for the non-attendance of the witnesses at the trial – The Court of Appeal’s dismissal of the applicant’s requests had not been on grounds of death or fear, the witnesses’ state of health or unreachability, or related to the special features of the criminal proceedings, but solely on the ground that the defence had failed to substantiate its interest in the examination of the witnesses. In particular, the defence had not indicated on what points the witness statements had been incorrect, and the applicant had availed himself of his right to remain silent when interviewed by the police. The right of an accused to cross-examine witnesses against him or her could not, however, be made dependent on his or her renunciation of the right to remain silent. Moreover, the Court of Appeal had not taken into account the relevancy of the testimony when dismissing the applicant’s requests, and it had not been argued before the Court that it had been manifestly irrelevant or redundant.
Further, the domestic ruling in this case as well as the Supreme Court’s leading judgments required the substantiation of requests to summon and examine witnesses regardless of whether they concerned witnesses for the prosecution or for the defence. In that respect, the European Court’s judgments referred to by the Supreme Court in two of its leading judgments on the matter and by the Government in their submissions pre-dated and thus had all been superseded by the Grand Chamber’s judgment in Al-Khawaja and Tahery v. the United Kingdom. The latter judgment had consolidated and clarified the Court’s case-law as regards the examination of witnesses.
Furthermore, the Court’s judgments referred to by the Supreme Court concerned the examination of defence witnesses, as opposed to the prosecution witnesses in issue in the present case. The Court therefore took the opportunity to reaffirm that paragraph 3 (d) of Article 6 comprised two distinct rights: a right relating to the examination of witnesses against the accused and a right to obtain the attendance and examination of witnesses on behalf of the accused. The Court had developed general principles which related exclusively to the right to examine, or have examined, prosecution witnesses, as well as general principles specifically concerning the right to obtain the attendance and examination of defence witnesses. In particular, contrary to the situation with defence witnesses, the accused was not required to demonstrate the importance of a prosecution witness. In principle, if the prosecution decided that a particular person was a relevant source of information and relied on his or her testimony at the trial, and if the testimony of that witness was used by the court to support a guilty verdict, it had to be presumed that his or her personal appearance and questioning were necessary (see Khodorkovskiy and Lebedev v. Russia (no. 2)). In other words, the interest of the defence in being able to have the prosecution witness concerned examined in his or her presence had to be presumed and, as such, constituted all the reason required to accede to a request by the defence to summon the witness.
Accordingly, it could not be said in the present case that the Court of Appeal had established good factual or legal grounds for not securing the attendance of the prosecution witnesses.
(b) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction – The Court of Appeal had not based the applicant’s conviction only on the statements of the seven witnesses. Furthermore, it appeared that none of those statements had been sufficient in themselves to establish that the applicant had committed the offence, and the Court of Appeal had not explicitly indicated its position on the weight it had given to them. Having regard to the Court of Appeal’s findings on the evidence, the Court was of the view that the evidence of the absent witnesses had been of such significance or importance as was likely to have been determinative of the outcome of the case.
(c) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured – The Court of Appeal, in its judgment, had given neither any indication that it had been aware of the reduced evidentiary value of the untested witness statements nor reasoning as to why it had considered this evidence to be reliable. Further, no corroborative evidence supporting this untested evidence of the kind as described in the Schatschaschwili judgment had been available or other such evidence that could have provided the same safeguard. The applicant had been able to give his own version of the events in question and it had been open to him to challenge the accuracy of the witnesses’ statements. However, the Court considered that an opportunity to challenge and rebut absent witness statements was of limited use in a situation where a defendant had been denied the possibility to cross-examine witnesses and such an opportunity, on the basis of its well-established case-law, could not be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by the witnesses’ absence.
Consequently, regard being had to the above considerations, the Court held that the applicant’s inability to cross-examine the prosecution witnesses had rendered the trial as a whole unfair.
Article 41: finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
