The request for an examination of a witness must include why it is a) important to examine the witness and b) necessary to prove the truth.

JUDGMENT

Zirnīte v. Latvia 11.06.2020 (no.  69019/11)

see here  

SUMMARY

Request and right to examine witnesses. Conditions. Proper penalty for confiscation of assets.

The applicant was charged with embezzlement and money laundering. She was acquitted in the first instance, but in an appeal filed by the Prosecutor, the Court of Appeal annulled the first instance decision and sentenced her to 6 years in prison. As an ancillary penalty, her property was confiscated. In the proceedings before the Court of Appeal, her attorney-at-law requested that a key witness be summoned, who was rejected. The applicant complained of a breach of fair trial and the right to property.

The ECtHR noted that the applicant’s lawyer failed to take advantage of the various procedural opportunities available to her and to adequately substantiate the need for the witness to testify.

In other words, he had to support the request, explaining why it was important for the witness to testify and that his testimony was necessary to support the truth. The Court found that the decision of the Court of Appeal was not arbitrary and was based on various evidence.

It therefore considered that the refusal to summon the witness had not undermined the whole process. No violation of Article 6 §§ 1 and 3 (d) of the Convention was found.

With regard to the subsequent penalty of confiscation of property, he found that the applicant had not lodged an appeal before the Constitutional Court, as provided for in such a matter which raised the question of the constitutionality of a criminal provision. He therefore considered the appeal inadmissible due to non-exhaustion of domestic remedies.

PROVISIONS

Article 6 § 1

Article 6 § 3 d,

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Ilona Zirnīte, is a Latvian national who was born in 1977 and lives in Riga.

The case concerned her complaints that a key witness against her had not been called during appeal
proceedings, preventing the applicant from pointing out contradictions in that witness’s pre-trial and
trial testimonies, and that the criminal punishment of property confiscation had been
disproportionate.

In October 2005 the applicant agreed to sell a limited liability company, SIA Raiņa bulvāra nams,
whose only asset was an apartment building, to a woman, M.R. Shortly before the deal was signed
the applicant arranged for the company to take a loan from a bank, which would then lend it further
to the applicant. Accordingly, 208,000 euros (EUR) was transferred to the applicant’s private account
upon the sale of the company.

Ms Zirnīte was charged in 2007 with large-scale misappropriation of funds and money laundering.
The court heard the applicant and 11 witnesses, including M.R. The applicant was acquitted at first
instance: the court considered that the factual basis of the charges had been established, but it
could not be established beyond reasonable doubt that she had intended to misappropriate the
funds.

On appeal, the Criminal Chamber of the Supreme Court quashed the first-instance judgment in
November 2010 and convicted the applicant of both charges, finding an intent to misappropriate the
funds. The court refused a request by the applicant’s lawyer to call three witnesses back to the
stand, including M.R., whom the lawyer wanted to question again about pre-trial testimony which
the appeal court had not reviewed. The court refused the recall request, finding in particular that the
testimony in question at first instance had been complete.

The applicant received a suspended prison sentence of six years with a confiscation order for
a property called Bramberģes pils. In May 2011 the Senate of the Supreme Court dismissed an
appeal on points of law by the applicant

THE DECISION OF THE COURT…

Article 6

The Court notes that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. The Courts primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. Furthermore, the admissibility of evidence is primarily a matter for regulation by national law and the Courts task is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.

With respect to the defendants rights to call witnesses, the Court has held that, as a general rule, it is for the domestic courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce and whether it is appropriate to call a particular witness. Furthermore, it is not sufficient for defendants to complain that they have not been allowed to question certain witnesses; they must, in addition, support the request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth. It has to be shown that the testimony can reasonably be expected to strengthen the position of the defence. The stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defences request to examine a witness. Finally, the Court has to determine whether the domestic courts decision not to examine a witness undermined the overall fairness of the proceedings.

(b)   Application of the principles to the present case

The Court observes that the applicants complaint concerns the appellate courts refusal to call one particular witness after her lawyer had been prevented from referring to the pre-trial testimony of that witness. According to the applicant, this had resulted in her lawyers inability to expose the contradictions within that witness pre-trial and trial statements. The applicant maintained that her defence position before the appellate court had been based on these alleged contradictions.

Despite the Governments allegation to the contrary, the Court considers that the documents before it support the applicants assertion that the appellate court had prevented her lawyer from referring to M.R.s pretrial statements on the grounds that this evidence had not been reviewed (see paragraph 21 above). At the same time, the Court finds that in spite of the purported importance of those contradictions the defence did not use all available procedural opportunities for drawing the domestic courts attention to the alleged discrepancies in M.R.s statements. In particular, there is no indication that the defence requested M.R. to be summoned to the appeal hearing prior to its closing arguments or that at any stage of the proceedings they requested the allegedly contradictory pre-trial statements to be read out. No such request was made even after referencing this evidence was prevented by the court.

Furthermore, the documents submitted before the Court do not demonstrate that the applicants lawyer explained to the appellate court with sufficient clarity why the repeated examination of M.R. was necessary and how it could strengthen the position of the defence. In particular, the pretrial statement the applicants lawyer referred to in his request was not at odds with the testimony that M.R. had given before the first-instance court. The fact that the applicant had informed M.R. that she was taking the loan out on behalf of the victim company was not contested in the criminal proceedings. Instead, it was her failure, inter alia, to inform M.R. of the subsequent transfer of that money to her private account that led to her conviction. Accordingly, in view of the limited arguments advanced by the defence, the Court considers that the reasons given by the appellate court when refusing to summon M.R. were sufficient in the circumstances of the case.

In assessing the overall fairness of the proceedings, the Court draws attention to the scope of the review by the appellate court. The first-instance court had established the actus reus of the crime but had acquitted the applicant because it could not establish beyond reasonable doubt that she had intended to misappropriate the funds. Having reassessed the evidence, the appellate court concluded that an intent on the part of the applicant could be inferred from her actions. Accordingly, it was the assessment of the existence of intent that was crucial for the applicants conviction by the appellate court.

In that respect the Court notes that, even though M.R. was directly affected by the actions that led to the applicants conviction, it cannot be concluded that her testimony was decisive for that conviction. All the findings that were important for the determination of the applicants guilt (such as the increase in the price of the victim company from EUR 5.2 to 5.4 million in view of the loaned money that was to remain in the account; the last-moment request to transfer the loaned money to the applicants private account; and the failure to inform the auditor company or M.R. of the transfer request) were all also based on testimony given by other witnesses, documentary evidence and even the applicants own admissions.

Hence, the reversal of the applicants acquittal was not based on a reassessment of the credibility of M.R.s testimony or a new interpretation of her evidence. Accordingly, the Court concludes that the appeal court could, as a matter of fair trial, properly examine the issues to be determined without directly hearing M.R.

Finally, in view of the fact that the applicants conviction was based on the reassessment of her intent, it is important to note that the applicant herself was examined by the appellate court. Thus, the judges ultimately deciding the case were able to carry out a direct assessment of the evidence given by her in person and were in a position to assess her trustworthiness.

Hence, in view of the defences failure to use various procedural opportunities and to sufficiently substantiate the need for a repeated examination of M.R., the scope of the appellate courts review, the role of M.R.s testimony in the applicants conviction, and the lack of a reinterpretation of her evidence, the Court considers that the appellate courts dismissal of the request to summon M.R. to the appeal hearing did not undermine the overall fairness of the criminal proceedings.

There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

ARTICLE 1 OF THE FIRST ADDITIONAL PROTOCOL

 The Court reiterates that in Latvia a constitutional complaint can only be lodged against a legal provision that infringes the applicants human rights and not against a judicial or an administrative decision as such. Therefore, recourse to the Constitutional Court can only be had in a situation in which the alleged violation of the Convention resulted from the application of a legal provision which is called into question as being contrary to the Constitution. Such a legal provision must constitute the direct legal basis for the individual decision in respect of which the violation is alleged. Thus, a constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from the erroneous application or interpretation of a legal provision, the content of which is not unconstitutional.

With respect to the present case, the Court observes that the applicant in her submissions pointed to numerous deficiencies, which she herself attributed to the domestic regulation. In view of the applicants claim that it was the lack of quality of the law that had led to the breach of her right of property, the Court finds that her grievance did not only concern the interpretation and application of the legal provisions, the content of which she had regarded as constitutional. Accordingly, the applicants arguments concerning the “quality of law” did fall within the competence of the Constitutional Court

The aforementioned is confirmed by the Constitutional Courts decision of 6 January 2011 in case no. 2010-03-01 in which it analysed the punishment of property confiscation and pointed to a great number of deficiencies in the domestic regulation. While the Constitutional Court terminated those proceedings owing to the manner in which the complaint had been formulated, it indicated that the constitutionality of the confiscation punishment ought to be assessed by analysing the provisions of the General Part of the Criminal Law. The Court considers that that decision, which was taken four months before the completion of the applicants case, sufficiently indicated what kind of constitutional complaint ought to be brought in order to protect the right of property with respect to the punishment of property confiscation. The Court also notes that exactly that kind of challenge was brought before the Constitutional Court in case no. 2014-43-01 in which a judgment on the merits was delivered on 8 April 2015. The fact that the Constitutional Court found no violation in that case has no bearing on the effectiveness of that domestic remedy with respect to the applicants case as, by that time, the domestic regulation had already been significantly altered

Accordingly, the Court dismisses the applicants contention that in the specific circumstances of her case a complaint with the Constitutional Court was not a remedy available to her. A mere possibility that the domestic law could have been interpreted in compliance with the Convention does not absolve the applicant from the obligation to bring the proceedings before the Constitutional Court. Furthermore, had the applicant brought a constitutional complaint and had she been successful, she could have requested the criminal proceedings against her to be reopened and a new ruling to be made. In the renewed examination of the case the domestic courts would have been bound by the findings of the Constitutional Court. Thus, as a result of the reopening of the criminal proceedings the alleged violation of the right of property could have been suitably redressed.

The applicants complaint under Article 1 of Protocol No.1 must be therefore rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

 


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