Rejection of a defendant’s request for expert examination violated his defense right to examine witnesses.
JUDGMENT
Avagyan v. Armenia 22.11.2018 (no. 1837/10)
SUMMARY
An accused of manslaughter of two brothers with poisoning during his trial asked the experts to come in order for them to examine them. The reasoning put forward was that there were contradictory and conflicting expert reports on the cause of the deaths of the victims. The national courts rejected his request and sentenced him to life imprisonment.
The ECtHR held that: (a) the experts were included in the term ‘witnesses’ in Article 6 (3c) of the ECHR; (b) the applicant’s request for an expert’s examination by the court was not absurd; (c) the expert opinions were essential for the case and (d) on the basis of expert opinions, the national courts had to decide whether the death of the victims was an accident or intentional homicide. With this reasoning, the Court found a violation of the defendant’s right to examine the experts.
PROVISION
Article 6 par. 3c
PRINCIPAL FACTS
The applicant, Khosrov Avagyan, is an Armenian national who was born in 1946 and lives in Yerevan.
The case concerned the applicant’s complaint that he had not been able to examine forensic experts
in court although their evidence had played a key role in his conviction for murder.
The charges arose from the fact that he had inherited an apartment from an elderly lady who had
died in January 2007. The initial autopsy found that the lady and her sister, who died at the same
time, had suffered from hypothermia. In June the ladies’ niece complained that the apartment had
actually been left to her in an earlier will and the authorities began an investigation. They ordered
post-mortem forensic examinations, which found that both sisters had died of phosphorous
poisoning.
Mr Avagyan was charged with fraud and two counts of murder for gain in September 2007 and
placed in detention. At his subsequent trial he asked for the experts who had delivered the
conflicting autopsy reports to be summoned but the courts repeatedly rejected that request. He was
found guilty on two counts of aggravated murder for gain and sentenced to life imprisonment in
October 2008. His appeals were all dismissed.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination
of witnesses) of the European Convention on Human Rights, Mr Avagyan complained that he had
not been given the opportunity to examine the experts in order to challenge the credibility of their
opinions, which had been decisive in securing his conviction.
THE DECISION OF THE COURT
The term “witnesses” under Article 6 § 3 (d) of the Convention has an autonomous meaning which also includes expert witnesses. However, the role of expert witnesses can be distinguished from that of an eye-witness who must give to the Court his personal recollection of a particular event. In analysing whether the personal appearance of an expert at the trial was necessary, the Court will therefore be primarily guided by the principles enshrined in the concept of a “fair trial” under Article 6 § 1 of the Convention, and in particular by the guarantees of “adversarial proceedings” and “equality of arms”. That being said, some of the Court’s approaches to the personal examination of “witnesses” under Article 6 § 3 (d) are no doubt relevant in the context of examination of expert evidence and may be applied mutatis mutandis, with due regard to the difference in their status and role.
The admissibility of evidence is primarily a matter for regulation by national law. The Court’s task under the Convention 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. In particular, “as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce … Article 6 § 3 (d) leaves it to them, again as a general rule, to Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses”.
The Court observes that the Criminal Court found the applicant guilty of two counts of aggravated murder and sentenced him to life imprisonment. The case file consisted of six expert opinions which, inter alia, determined the cause of the victims’ deaths. While the two initial opinions issued by the expert A.D. indicated that the two sisters had died as a result of acute heart failure and hypothermia, the additional opinions issued by experts G.H. and A.B. and two further opinions issued by experts S.H. and S.S. revealed that the victims had been poisoned. The applicant asked to have the experts A.D. S.H. and S.S. summoned to appear before the trial court to be able to question them in relation to their controversial opinions but the trial court dismissed his request considering that it was unnecessary to call in these experts. Neither the trial court nor the Criminal Court of Appeal addressed this issue in their judgments.
As the Court has held on many occasions, one of the requirements of a fair trial is the possibility for the accused to confront the witnesses in the presence of the judge who must ultimately decide the case, because the judge’s observations on the demeanour and credibility of a certain witness may have consequences for the accused. The same also applies to expert witnesses : it is the Court’s well-established case-law that the defence must have the right to study and challenge not only an expert report as such, but also the credibility of those who prepared it, by direct questioning.
In the present case, the applicant clearly indicated to the trial court that he wanted to have the expert witnesses examined before the court in order to clarify a number of issues that required specialist knowledge. For the Court, this request was sufficiently clearly formulated in order to explain why it was important for the applicant to hear the witnesses concerned.
The trial court dismissed the applicant’s request by finding that the subsequent expert opinions already explained the content of the first opinion issued by A.D. and therefore it was not necessary to call in the expert witnesses.
The Court considers that the applicant’s request to have A.D., S.H. and S.S. heard by the trial court was not unreasonable. On the contrary, the Court finds that these expert opinions were of fundamental relevance for the case. On the basis of this evidence, the domestic courts needed to decide whether the death of the sisters was an accident or an intentional homicide. The applicant’s request was not unreasonable either when taking into account that he was facing a life sentence. Failing to call the expert witnesses and to examine them during the trial, the trial court was basing its conclusions on expert witness evidence which was never examined during the hearing.
In these circumstances, the omission of the Criminal Court to hear in person the expert witnesses whose statements were later used against the applicant was capable of substantially affecting his fair trial rights, in particular the guarantees for “adversarial proceedings” and “equality of arms”. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
Just satisfaction: 900 euros (EUR) for non-pecuniary damage(echrcaselaw.com editing).
