Conviction for robbery based on eyewitness testimony and cross-examination with other evidence. Non-violation of a fair trial

JUDGMENT

Lamatic v. Romania 01.12.2020 (app. no. 55859/15)

see here

SUMMARY

Fair trial and examination of witnesses. Evaluation and cross-examination of evidence. The applicant was charged with robbery, but was acquitted in the first instance court. The appellate court annulled the acquittal and convicted the applicant, based on the testimony of an eyewitness, which it confirmed with other evidence.

The applicant brought an action before the ECtHR alleging breach of the fair trial because he did not apologize before the appellate court and because the latter did not examine the case.
The Court  found that the applicant, assisted by a lawyer, had taken part in the proceedings before the trial court and the appellate court and that his lawyer had been able to present all his defense arguments orally to the appellate court. The fact that he did not testify before the court of appeals was a result of his own decision.

It also pointed out that the appellate court had fully fulfilled its essential role of assessing the evidence and verifying that the eyewitness testimony on which his guilt was based was corroborated by other evidence.

In view of the above and the fact that the applicant himself waived his right to testify in the appellate court, the ECtHR did not find a violation of the fair trial (Article 6 par. 1 of the ECHR).

PROVISION

Article 6 par. 1

PRINCIPAL FACTS

The applicant, Ioan Valentin Lamatic, is a Romanian national who was born in 1992 and lives in Piatra
Neamţ (Romania).

The case concerned the applicant’s allegation that proceedings against him for stealing a handbag
had been unfair.

In November 2014 Mr Lamatic was indicted on three counts of robbery. The first-instance court
went on to convict him of two of the robberies, committed in September 2014, but acquitted him of
the other robbery, committed in July 2014. In the acquittal decision, the court found that video
footage of the first robbery contradicted the victim’s description of her attacker, whom she had later
identified as the applicant, and that, in any case, she would have found it difficult, if not impossible,
to recognise him given that the robbery had taken place at night and from behind.

The appellate court subsequently overturned the lower court’s findings in respect of the robbery
committed in July 2014, and upheld its decision in respect of the other two crimes. It ruled that the
victim’s statements, which had been consistent throughout the proceedings, were corroborated by
the other evidence, namely the footage of the incident, showing a person resembling the applicant
and the description given by the victim, and documents from the applicant’s employer contradicting
his claim that he had been at work at the time of the attack.

The applicant, who was present during the appeal hearing and assisted by his lawyer, waived his
right to be heard again in the appeal proceedings. The appellate court did not re-examine any of the
witnesses.

Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicant complained that the appellate court had overturned his acquittal without rehearing the
victim and that his conviction, which had been based on her testimony, had therefore been unfair.

THE DECISION OF THE COURT…

Τhe Court considers that the issue to be examined in the present case is whether the proceedings against the applicant, taken as a whole, were fair in the light of the specific features of those proceedings.

While it is true that the domestic courts cannot, as a matter of fair trial, properly determine the question of the applicant’s guilt or innocence without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence , the Court nevertheless notes that the applicant, assisted by a lawyer, took part in the hearings at first instance as well as before the appellate court. Evidence was heard from him at the District Court hearing, at which the witnesses were also examined. The applicant did not argue that the defence was prevented from putting questions to the witnesses before the District Court.

Furthermore,  his lawyer was able to orally present to the appellate court all the defence arguments on behalf of the applicant .

In that connection the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, if such waiver is established in an unequivocal manner and attended by minimum safeguards commensurate with its importance.

Ιn the light of the above, the Court considers that in compliance with the requirements of fairness, the applicant was given the opportunity and was able to provide his own version of the events and to cast doubt on the credibility of A.M.D.’s testimony before the first-instance and the appellate courts.

Having regard to the above, and in view of the applicant’s own arguments relating to the unreliability of the witness, the fact that the appellate court did not consider it necessary to re-examine A.M.D. does not appear either arbitrary or unreasonable, as the record of her statements showed that she had provided the same information each time she had given evidence to the domestic authorities . The Court reiterates in this connection that the fact that an appeal court is empowered to overturn an acquittal by a lower court without hearing witnesses in person does not as such and on its own infringe the fair hearing guarantees in Article 6 § .

In examining the reliability of A.M.D.’s testimony in that regard, the appellate court weighed in the balance factors such as its value and significance to the proceedings when corroborated by the other evidence, as well as its reliability, noting that her statements had remained consistent throughout the proceedings.

At this juncture the Court reiterates that the assessment of the trustworthiness of a witness is a complex task which cannot usually be achieved merely by reading a record of his or her words, especially when only some of those words are taken into consideration.

However, in the present case the appellate court’s essential task was not to assess the trustworthiness of an essential witness, namely A.M.D., but rather to verify whether her statements were corroborated by the other evidence in the file, or whether, as held by the first-instance court , such corroborating elements were missing.

Moreover, the appellate court took into consideration her full statements, and not only parts thereof, precisely because they were unvarying and consistent.

Furthermore, the appellate court reversed the first-instance court’s reasoning because at the outset, in its view, the camera footage had shown a person resembling the applicant and resembling the description given by A.M.D. as well as by the other two victims .

The Court therefore considers that in the present case the aspect which the appeal court was called on to assess in deciding on the applicant’s conviction was whether A.M.D.’s statements, which, as already mentioned, remained consistent throughout the proceedings, were corroborated by the other evidence, which was of a more objective nature as it consisted of camera footage and documents contradicting the applicant’s alibi.

Moreover, in finding that the said evidence corroborated the victim’s statements, the appellate court fully exercised its essential role, that of assessing the evidence before it, the way evidence should be assessed being primarily a matter for regulation by national legislation and the domestic courts.

In the light of the above considerations, and in particular the fact that the applicant expressly waived his right to be heard by the appellate court, that he was nevertheless given the opportunity to put forward all his defence arguments, and that the disagreement between the first and final-instance courts concerned the manner of assessing the corroborating evidence, starting from how each of them assessed the camera footage, rather than the reliability and credibility of A.M.D. as such, the Court takes the view that the applicant’s case may be distinguished from other cases in which final-instance domestic courts convicted defendants who had been acquitted by the lower courts, without directly hearing evidence from them or reviewing testimony considered relevant for the defendants’ convictions 

The foregoing considerations are sufficient to enable the Court to conclude that, regard being had to the proceedings as a whole, the overall fairness of the criminal proceedings against the applicant was ensured.

There has accordingly been no violation of Article 6 of the Convention in the particular circumstances of the present case.