The refusal of a basic witness to be examined in the audience for non-self-incrimination and the right of the accused to be examined

JUDGMENT 

Cabral v. The Netherlands 28.08.2018 (no. 37617/10)

see here  

SUMMARY

Robbery in a supermarket. Unique evidence regarding the guilt of the plaintiff – the accused – the testimony – of his accomplice to the police, which was revoked by the witness in the court of first instance. Appearance of the witness at the Court of Appeal but refusal to testify by exercising the right of non-self-incrimination (he had previously exerted an ex-officio criminal prosecution against him for a false witness in the First Court). The ECtHR ruled that the Dutch Courts did not provide sufficient procedural compensation for the defensive defect of the accused of his inability to examine the witness and challenge his testimony to the police. Infringement of Article 6 (1) and (3d) of the ECHR.

PROVISIONS

Article 6 § 1

Article 6 § 3 (d)

PRINCIPAL FACTS 

The applicant, Euclides Cabral, is a Netherlands national who was born in 1987 and lives in Rotterdam (the Netherlands).

The case concerned the applicant’s complaint that he had been tried and convicted of a supermarket robbery without being able to examine a key witness. Mr Cabral was convicted in August 2006 of, among other crimes, a supermarket hold-up. A key piece of evidence for the conviction was the testimony of an accomplice, which had also incriminated Mr Cabral. The accomplice later withdrew his statement, but was not believed by the court.

Relying on his own privilege against self-incrimination, the accomplice refused to answer any questions put by the defence in the appeal proceedings, which ended in March 2008 by upholding the first-instance judgment. The Supreme Court dismissed an appeal on points of law by the applicant in January 2010.

Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination of witnesses), Mr Cabral complained that he had been convicted “solely or to a decisive extent” on the basis of statements made to the police by a witness who had been allowed to refuse to give evidence under cross-examination by the defence.

THE DECISION OF THE COURT 

Violation of Article 6 §§ 1 and 3 (d)

Just satisfaction: The Court held that the finding of a violation constitued in itself sufficient just satisfaction for any non-pecuniary damage sustained by Mr Cabral. It awarded him EUR 94 for costs and expenses(echrcaselaw.com editing). 


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