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URL: http://www.bailii.org/eu/cases/ECHR/2014/427.html
Cite as: [2014] ECHR 427
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FIFTH SECTION
CASE OF SCHATSCHASCHWILI v. GERMANY
(Application no. 9154/10)
JUDGMENT
STRASBOURG
17 April 2014
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Schatschaschwili v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 11 March 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9154/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Swiadi Schatschaschwili (“the applicant”), on 12 February 2010.
2. The applicant, who had been granted legal aid, was represented by Mr H. Meyer-Mews, a lawyer practising in Bremen. The German Government (“the Government”) were represented by their Agent, Mrs K. Behr, Regierungsdirektorin, of the Federal Ministry of Justice.
3. By a letter dated 29 December 2013 the applicant’s lawyer informed the Court that the applicant had changed his place of residence from Germany to Georgia where he was now living under a different name. The Court advised the parties on 14 January 2014 that it would continue processing the application under the name Schatschaschwili v. Germany, which was the applicant’s name as referred to in the domestic proceedings at issue as well as in his application lodged with the Court.
4. The applicant alleged, in particular, that neither he nor counsel had been granted an opportunity at any stage of the criminal proceedings instituted against him to examine the only direct witnesses and victims of the crime allegedly committed by him in Göttingen in February 2007 and on whose testimonies the applicant’s related conviction relied in breach of Article 6 § 3 (d) of the Convention.
5. On 15 January 2013 the application was communicated to the Government.
6. The applicant and the Government each filed observations on the admissibility and merits of the application. The Georgian Government, who had been informed of their right to intervene under Article 36 of the Convention, did not make use of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1978. When lodging his application he was detained in Rosdorf prison, Lower Saxony (Niedersachsen).
8. By a judgment of 25 April 2008 (file no. 63 Js 1244/07) the Göttingen Regional Court convicted the applicant of two counts of aggravated robbery in conjunction with aggravated extortion by means of coercion, committed jointly with further perpetrators (gemeinschaftlicher schwerer Raub in Tateinheit mit schwerer räuberischer Erpressung), and imposed an accumulated prison sentence (Gesamtfreiheitsstrafe) of nine years and six months.
9. The crimes were committed in Kassel on 14 October 2006 and in Göttingen on 3 February 2007 respectively.
A. The facts established by the Göttingen Regional Court
1. The events in Kassel
10. The Regional Court found it established that in the evening of 14 October 2006 the applicant, acting jointly with an unidentified accomplice and according to a previously agreed plan, entered by force into an apartment in Kassel and robbed its occupants. The men were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash in there. They had passed by the apartment in the early evening in order to make sure that no clients were present. Shortly afterwards they rang at the door of the apartment which was attended by its tenant Ms L. After having overpowered L. by force the applicant threatened her with a gas pistol that resembled a real gun ordering her to keep silent. He then went to the kitchen where he found the further occupant of the apartment Ms I., a Lithuanian national who lived and worked there as a prostitute. Pointing his gas pistol at I. he forced her to hand over her mobile phone. While his accomplice was watching over the two women, the applicant searched the apartment for valuables and found five further mobile phones as well as 100 euros (EUR) in I.’s purse. The applicant then threatened to shoot the women should they not disclose where they were keeping any additional money. As a result of his threat L. handed over a further EUR 1,000 which she had kept in the pocket of her jacket. The men then left the apartment with their loot. Later that evening an acquaintance of L. whom she had told about the incident called the police which came to the apartment.
2. The events in Göttingen
11. As regards the events on 3 February 2007, the Regional Court established that the applicant, acting jointly with several accomplices, two of whom were the applicant’s co-accused in the proceedings before the court, robbed another apartment located in Göttingen. The men acted according to a plan previously set up among the gang. At the relevant time the apartment was occupied by Ms O. and Ms P., two Latvian nationals who were illegally staying in Germany and working in the apartment as prostitutes. O. and P. were friends of L., one of the victims of the crime committed in Kassel on 14 October 2006, and they had both worked for some time as prostitutes in the Kassel apartment rented by L. before moving to Göttingen.
12. In the evening of 2 February 2007, the day before the crime, one of the applicant’s co-accused together with accomplice R. passed by O. and P.’s apartment in Göttingen with a view to verifying whether the two women were its only occupants and whether it contained any valuables. R. was an acquaintance of O. and P. whom they got to know through their friend L. when they had stayed in her apartment in Kassel. Hence, the unsuspecting women did not object to the men entering the apartment. Following their visit the two men reported to the residual members of the criminal gang that they had spotted a safe in the apartment’s kitchen.
13. On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P.’s apartment pretending to be potential clients while one of the co-accused was waiting in a car parked close to the apartment building and the other co-accused in front of the house. Once inside the apartment B. produced a knife that he had carried along in his jacket. P., trying to escape from the perpetrators, jumped from the apartment’s balcony located approximately two meters off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when passers-by appeared nearby on the street. He then called the co-accused waiting in front of the women’s apartment on his mobile phone and gave him an account of the events. He agreed with the latter on a meeting point where the co-accused were supposed to pick him up with the car once accomplice B. would have left the crime scene and have joined them. In the meantime inside the apartment, B. after having overpowered O. threatened to kill her with his knife should she not disclose where the women kept their money or should she refuse to open the safe for him. Fearing for her life O. opened the safe from which B. removed EUR 300 and also handed over the contents of her wallet in the amount of EUR 250. B. left the apartment at around 8.30 p.m. taking the money and P.’s mobile phone as well as the apartments’ landline phone with him and joined the co-accused. The co-accused and B. then picked up the applicant at the agreed meeting point with their car.
14. At approximately 9.30 p.m. P. rejoined O. at the apartment. The women called their friend L. in Kassel and gave her a brief account of the events. The next day they also told their neighbour E. about the crime. Later that day the women, afraid of remaining alone in the Göttingen apartment, drove to Kassel where they stayed a few days with their friend L. Following short subsequent stays in Frankfurt am Main and back in Göttingen they returned to Latvia in February 2007.
B. The Regional Court’s fact finding and assessment of evidence
1. The events in Kassel
15. The Regional Court based its finding of facts regarding the first crime committed in Kassel on 14 October 2006 on the statements made by the victims L. and I. on the occasion of their police interrogations as well as in the course of the subsequent trial. Both witnesses had identified the applicant without any hesitation as the perpetrator who had carried the gun when presented with his photo on the occasion of their police interviews and later when confronted with him personally at trial. The Regional Court found L. and I.’s testimonies to be consistent and credible and noted that they were supported by the statements of the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigations and who had all been heard as witnesses during the trial.
2. The events in Göttingen
16. As regards the establishment of facts in relation to the second crime committed in Göttingen the Regional Court relied in particular on pre-trial statements made by the victims O. and P. in the course of police interrogations in the period from 15 to 18 February 2007 and before an investigating judge on 19 February 2007.
17. By a decision of 21 February 2008 the Regional Court, dismissing a related objection by the defence, ordered that the records of O. and P.’s interrogations by the police and the investigating judge be read out at the trial and be admitted as evidence in the proceedings in accordance with Article 251 (1) and (2) of the German Code of Criminal Procedure (see Relevant domestic law below). The said article provides for such possibility in the event insurmountable impediments make it impossible to hear a witness in the foreseeable future. The Regional Court pointed out in this context that it had not been possible to hear the witnesses in the course of the trial since they had returned to their home country Latvia shortly after their interrogations at the investigative stage and all attempts to enable their examination at the main hearing had been to no avail.
18. The Regional Court specified that O. and P. had been summoned to appear before the Regional Court on 24 August 2007, the third day of the trial. However, they both had refused to attend the hearing relying on medical certificates dated 9 August 2007 that indicated their unstable post-traumatic emotional and psychological condition. Consequently, on 29 August 2007 the court had sent letters to both witnesses asking under what conditions they would be ready to testify at trial. While an acknowledgement of receipt had been returned for both letters, no response had been obtained from P. O. for her part had informed the Regional Court in writing that due to the fact that she was still traumatised by the crime, she would neither accept to appear at the trial in person nor would she agree to be examined by means of an audio-visual transmission. O. had further mentioned that she had nothing to add to her statements made in the course of the interviews before the police and the investigating judge in February 2007.
19. The Regional Court nevertheless requested legal assistance from the Latvian authorities and asked for the witnesses to be heard by a court in Latvia and the hearing to be transmitted by voice and image (audiovisuelle Vernehmung). However, a witness hearing scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before by the presiding Latvian judge on the ground that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorders as a consequence of the crime and that a further confrontation with the events in Göttingen would risk aggravating their condition. The witnesses had further claimed that following threats by the accused they feared possible acts of revenge.
20. The Regional Court informed their Latvian counterpart by a letter dated 21 February 2008 that according to the standards of German law of criminal procedure the reasons advanced by the witnesses were not sufficiently substantiated to justify their refusal to testify. The court suggested to the competent Latvian judge to have the witnesses examined by a public medical officer (Amtsarzt) and, alternatively, to coerce them to attend the hearing.
21. As the letter remained unanswered, the Regional Court considered that it did not dispose of any further legal means to enforce a hearing of O. and P. Having further regard to the fact that the recently renewed medical certificates indicated that the witnesses’ state of health would not change any time soon, the Regional Court concluded that it was impossible to have the witnesses examined in the foreseeable future. Pointing out that courts were under an obligation to conduct proceedings involving the deprivation of liberty expeditiously and in view of the fact that the accused had already been held in custody for a considerable period of time, the court was of the opinion that it could not be justified to further delay the proceedings.
22. Consequently, a further objection against the introduction of the witnesses’ pre-trial statements by counsel of one of the co-accused was rejected by the Regional Court and the records of the witnesses’ police interrogations and interviews with the investigative judge were read out during a hearing on 26 February 2008.
23. In its judgment running to some 152 pages, the Regional Court pointed out that in assessing the available evidence it had been aware of the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies. It had further taken into account that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses of the crime in Göttingen at any stage of the proceedings. At the time of the last pre-trial interrogation of O. and P. on 19 February 2007, the applicant had not been informed about the preliminary criminal proceedings initiated against him with a view to not putting the investigations at risk. No warrant for his arrest had yet been issued and he had not been represented by counsel. The investigating judge had excluded the applicant from the hearing in accordance with Article 168 (c) of the Code of Criminal Procedure since he had been concerned that the witnesses would be afraid of telling the truth in the presence of the accused. The Regional Court further emphasised that at the investigative stage there had been no indication that O. and P. who had testified on several occasions before the police and then before the investigating judge would refuse to repeat their statements at a subsequent trial.
24. The Regional Court held that notwithstanding the resulting restrictions for the defence, the trial as a whole had been fair and had complied with the requirements of Article 6 § 3 (d) of the Convention. The court was thus not prevented from admitting O. and P.’s pre-trial statements as evidence in the proceedings. It had made considerable efforts to enable a direct examination of O. and P. by the accused and counsel for the defence at trial. Moreover, once the witnesses had proved to be unavailable the Regional Court had ensured that a maximum of further witnesses who had been in contact with O. and P. in relation to the events at issue could be heard at trial. Finally, the court had taken several items of evidence as corroborating O. and P.’s pre-trial testimonies into account when assessing their evidentiary value.
25. In the Regional Court’s opinion the records of O. and P.’s interrogations at the investigative stage showed that they had given detailed and coherent descriptions of the circumstances of the crime. Minor contradictions in their statements could be explained by their concern not to disclose their illegal residence status and activities to the authorities and by the psychological strain they had been subject to during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why the witnesses had not pressed charges immediately after the events and why the police had only been informed of the crime on 12 February 2007 by their friend L. As regards O. and P.’s’ failure to identify the applicant when confronted with several photos of potential suspects during the police interrogations, the court observed that the witnesses’ attention during the incident had been focussed on the further perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that the witnesses, as opposed to the defence’s allegations, had not testified with a view to incriminating him.
26. In the court’s opinion the fact that the detailed description of the events in the witnesses’ pre-trial statements were consistent with the account they had given the morning after the crime to their neighbour E., who had been heard as a witness during the trial, was a further strong indication for their credibility and the veracity of their statements. This witness had further testified that on the evening of 3 February 2007 at around 9.30 p.m. another neighbour, an elderly woman who got scared when she heard noise coming from O. and P.’s apartment, had called on her and asked her to accompany her to the women’s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours were ringing the bell.
27. The Regional Court further observed that O. and P.’s description of the events also coincided with their friend L.’s recollection of her conversations with O. and P. following the crime as reproduced during L.’s witness hearing at trial. In addition, the police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at trial that they had found the witnesses to be credible.
28. The Regional Court noted that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at trial or by means of an audio-visual examination, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully.
29. In this context it had been of relevance that O. and P.’s testimonies as well as the statements of the further witnesses at trial had been supported by further significant and admissible evidence such as data obtained through tapping of the applicant’s and the co-accused’s mobile phones and by means of a satellite-based global positioning system (“GPS”). Such information had been gathered within the scope of police surveillance measures carried out at the relevant time in relation to preliminary criminal proceedings initiated against the accused on suspicion of racketeering and extortion (Schutzgelderpressung) in the Göttingen drug scene. The link between the evidence obtained in the course of such separate investigations and the crime at issue could only be made after O. and P. had reported the incident of 3 February 2007 to the police. It followed from the recordings of two mobile phone conversations between one of the co-accused and the applicant in the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims’ apartment accompanied by B. and that he had jumped from the balcony in order to chase one of the escaping victims whom he failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time-frame in which the robbery in issue had occurred.
30. Finally, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity in this respect, their own statements at trial had at least confirmed that one of the co-accused together with R. had visited the apartment at Göttingen on the evening before the crime and that the applicant and B. had been present in the apartment at the time of the incident the following day. The applicant had testified that he and B. had come to the apartment with a view to making use of the women’s services as prostitutes. He further had conceded that he had followed P. when she escaped over the balcony and explained that he had done so in order to prevent her from calling the neighbours or the police since he had been afraid of getting problems in view of his criminal record and the problems he had previously had with prostitutes on a similar occasion in Kassel.
31. In the court’s view the body of evidence taken together gave a coherent and complete overall picture of the events that supported the version provided by witnesses O. and P. and refuted the contradictory statements made by the applicant and the co-accused in the course of the trial.
C. The subsequent proceedings
32. Counsel for the applicant lodged an appeal on points of law against the judgment of the Göttingen Regional Court in which he complained that the applicant had not been able to examine the only direct witnesses of the crime committed in Göttingen at any stage of the proceedings in breach of Article 6 §§ 1 and 3 (d) of the Convention. He argued that such inability had been imputable to the domestic authorities. According to the Federal Court of Justice’s case-law counsel had to be appointed for an unrepresented accused if the key witnesses for the prosecution were to testify before an investigating judge and the accused was excluded from this hearing. However, at the time of the witness hearing the applicant had not even been informed about the preliminary proceedings instituted against him and the public prosecution authorities had not requested that defence counsel be appointed for him. Consequently, O. and P.’s testimonies ought to have been excluded from the trial.
33. By written submissions dated 9 September 2008 the Federal Public Prosecutor General (Generalbundesanwalt) moved that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings pursuant to Article 349 (2) of the Code of Criminal Procedure (see Relevant domestic law below). The Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (“Totalausfall des Fragerechts”), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence. The Regional Court had assessed the contents of the records of the witnesses’ testimonies read out at trial particularly carefully and critically. Furthermore, it had not made their statements the sole or decisive basis of the applicant’s conviction but had taken further significant evidence into account. In view of the various layers of corroborating evidence the applicant had had ample opportunities to put into question the credibility of the two main witnesses and to effectively defend himself. The Federal Prosecutor, endorsing the Regional Court’s related arguments, further pointed out that there was nothing to demonstrate that the restrictions to the defence’s right to examine the witnesses had been imputable to the domestic authorities.
34. By written submissions of 28 September 2008 the applicant replied to the Federal Prosecutor’s observations and requested the Federal Court of Justice to hold a hearing in the appeal proceedings.
35. By a decision of 30 October 2008 the Federal Court of Justice, referring to 349 (2) of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded.
36. By written submissions of 17 November 2008 the applicant complained of a violation of his right to be heard (Anhörungsrüge) on the ground that no hearing had been held in the appeal proceedings and that the Federal Court of Justice’s decision rejecting his appeal did not provide any reasons.
37. In its decision of 9 December 2008 rejecting the applicant’s complaint the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 (2) of the Code of Criminal Procedure implied a reference to the respective reasoning provided by the Prosecutor General.
38. By a decision of 8 October 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Federal Court of Justice dated 30 October and 9 December 2008 for examination without providing reasons.
39. It follows from the applicant’s submissions that he has meanwhile left prison and returned to his native country Georgia.
II. RELEVANT DOMESTIC LAW
40. Article 160 of the Code of Criminal Procedure stipulates that as soon as the public prosecution authorities obtain knowledge of a suspected criminal offence either through a criminal complaint or by other means they shall investigate the facts with a view to deciding whether public charges are to be preferred. The public prosecution authorities shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that evidence, the loss of which is to be feared, is taken.
41. Pursuant to Article 168 (c) (2) of the Code of Criminal Procedure, the prosecutor, the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings. The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation, in particular if it is to be feared that a witness will not tell the truth in the presence of the accused (Article 168 (c) (3) of the Code of Criminal Procedure). The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation (Article 168 (c) (5) of the Code of Criminal Procedure).
42. Defence counsel may be appointed during preliminary proceedings; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory (Article 141 (3) of the Code of Criminal Procedure). The assistance of defence counsel is mandatory if, inter alia, the main hearing is held at first instance before the Regional Court or the accused is charged with a serious criminal offence (Article 140 (1) nos. 1, 2 and 7 of the Code of Criminal Procedure).
43. In a leading judgment of 25 July 2000 (published in the official reports, BGHSt, volume 46, p. 96 et seq.) the Federal Court of Justice held that Article 141 (3) of the Code of Criminal Procedure required, in view of Article 6 § 3 (d) of the Convention, the investigative authorities to consider the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing. In the event such key witness would dispose of a statutory right not to testify at the accused’s possible ensuing trial, the appointment of counsel was, as a rule, necessary in order to counter the danger that the accused would be deprived of his right under Article 6 § 3 (d) to examine the key witness at any stage of the proceedings.
44. Article 238 (1) of the Code of Criminal Procedure states that the presiding judge shall conduct the hearing, examine the defendant and take the evidence. Article 240 (2) stipulates that the presiding judge shall, upon request, give permission to the public prosecution office, to the defendant, and to defence counsel, as well as to the lay judges to address questions to the defendant, witnesses and experts. According to Article 244 (2) the court, in order to establish the truth, shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.
45. Pursuant to Article 251 (1) and (2) of the Code of Criminal Procedure the examination of a witness may be replaced by reading out a record of another examination or a certificate that contains a written statement originating from the witness if the latter has died or cannot be examined by the court for another reason within a foreseeable period of time. Examination of a witness may also be replaced by reading out the written record of his previous examination by a judge if illness, infirmity, or other insurmountable impediments prevent the witness from appearing at the main hearing for a long or indefinite period.
46. Article 257 of the Code of Criminal Procedure stipulates that after each co-defendant has been examined and after evidence has been taken in each individual case the defendant shall be asked whether he or she has anything to add. According to Article 258 of the said Code, the public prosecutor and subsequently the defendant shall further be given the opportunity to present their arguments and to file applications after the taking of evidence has been concluded
47. The rules concerning an appeal on points of law against judgments of the criminal courts are to be found in Articles 333 to 358 of the Code of Criminal Procedure. Article 337 stipulates that such appeal may be filed only on the ground that the judgment was based upon a violation of law. According to Article 345 (2) representation by counsel is mandatory for submission of the appeal. Article 349 (2) and (3) stipulates that the court may, upon a reasoned application by the public prosecution authorities, dismiss a convict’s appeal on points of law by unanimous decision and without a hearing in the event it deems the appeal to be manifestly ill-founded. The public prosecution authorities shall notify the complainant of such application and the reasons advanced in its support. The complainant may submit a written response to the appellate court within two weeks. If the latter does not follow the prosecution’s request and holds a hearing it shall decide on the appeal by means of a judgment.
48. Articles 112 et seq. of the Code of Criminal Procedure concern detention on remand. Pursuant to Article 112 § 1, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where, inter alia, certain facts warrant the conclusion that there is a risk of a suspect’s absconding (Article 112 § 2 no. 2).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
49. The applicant complained that his trial had been unfair and that the principle of equality of arms was infringed in that neither he nor counsel had been granted an opportunity at any stage of the criminal proceedings to examine O. and P., the only direct witnesses and victims of the crime allegedly committed by him in Göttingen in February 2007.
He invoked Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention, which, as far as relevant, read as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
50. The Government contested that argument.
A. Admissibility
51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
52. The applicant maintained that the requirement under Article 6 § 3 (d) to grant an accused the right to examine or have examined witnesses against him with a view to testing their credibility constituted a procedural guarantee that aimed at ensuring compliance with the principle of equality of arms in criminal proceedings. It followed that evidence obtained from witnesses whom only the investigative authorities but not the defence had been able to question was inadmissible and had, as a rule, to be excluded by the trial court. While acknowledging that exceptions to this rule might apply under special circumstances, such as, for instance, in cases where restrictions to an accused’s right to confront a witness at trial were strictly necessary with a view to protecting the latter, such considerations were not of relevance in the case at hand.
53. The applicant submitted in this context that it had been imputable to the domestic authorities that O. and P., the main witnesses against him, could not be examined by the defence at any stage of the proceedings. Since it had been evident that the witnesses would leave Germany in due course after their pre-trial interview by the investigating judge, the authorities would have been under an obligation pursuant to Article 168 (c) of the Code of Criminal Procedure to give the applicant an opportunity to attend the witnesses’ hearing. In the alternative, they should have appointed counsel for him and allow the latter’s presence at the interview with a view to granting the defence the possibility to confront the witnesses. Notwithstanding this procedural flaw in the preliminary proceedings, the Regional Court had the minutes of O. and P.’s examination by the investigating judge read out at the applicant’s trial and admitted them as evidence.
54. The applicant further contended that at the trial stage the domestic authorities had not availed themselves of all appropriate means to ensure that the witnesses be available to testify. They could, for instance, have granted O. and P. a temporary residence permit for this purpose and counter a possible risk that they would be subject to threats and pressure on the part of the applicant by including them into a witness protection program. The domestic authorities had further not considered whether it would have been possible to arrange for the witnesses’ examination by an official of the German embassy in Latvia once all other attempts to question them by intermediary of the Latvian authorities had failed.
55. In the applicant’s view, the disadvantages for the defence resulting from the domestic authorities’ failure to grant the applicant an opportunity to confront O. and P. had not been compensated by the prosecution authorities or the domestic courts in the course of the proceedings. It was the Court’s established case law that a conviction could not rely exclusively or to a decisive degree on depositions that have been made by witnesses whom the accused has had no opportunity to confront at any stage of the proceedings like it had been the case in the proceedings at issue.
56. The applicant concluded that the rights of the defence had been restricted to an extent which was irreconcilable with the guarantees contained in Article 6 §§ 1 and 3 (d) of the Convention.
(b) The Government
57. The Government took the view that it followed from the relevant parts of the judgment’s reasoning (see above paragraphs 17-20) that the Göttingen Regional Court had taken all reasonable steps to arrange for an examination of O. and P. in the course of the main proceedings. Once all attempts to convince the witnesses to attend trial or to arrange for their hearing abroad by a Latvian judge had failed, the Regional Court had rightly considered that it did not dispose of any further legal means to enforce a hearing of O. and P. and that it was impossible to question them as witnesses in the foreseeable future.
58. It had also not been imputable to the domestic authorities that O. and P. could not be examined by the applicant at the pre-trial stage. It had been justified to exclude him from the witnesses’ hearing before the investigating judge in order not to jeopardise the purpose of the then still covert investigations. The investigating judge had had reasonable grounds for assuming that the witnesses would be afraid of telling the truth in the presence of the suspected perpetratrors and that the applicant, once informed about the pending investigations, would try to intimidate O. and P. with a view to influencing their testimony.
59. The Government further maintained that the domestic authorities had not been obliged to appoint defence counsel for the applicant at the investigative stage. At that point in time it had not been foreseeable that the witnesses, who had previously testified on several occasions before the police, would refuse to repeat their statements, at least by means of an audio-visual transmission, in the course of a subsequent trial. The witnesses had, in particular, not disposed of a statutory right not to testify in court like, for instance, in the case of family members of an accused. The appointment of defence counsel had further carried the risk that the latter would inform the applicant of the preliminary proceedings. This would not only have endangered the conduct of the investigations for the reasons stated above but also created a risk of the applicant absconding. Contrary to the applicant’s submissions, it had not been possible to issue an arrest warrant against him already prior to O. and P.’s hearing by the investigative judge since the strong suspicion that he had committed a criminal offence justifying his possible detention on remand had only resulted from such witness hearing.
60. In the Government’s view the ensuing restrictions for the rights of the defence had been compensated in the course of the proceedings. The witness statements made by P. and O. at the pre-trial stage had been corroborated by the testimonies of further witnesses as well as the analysis of the data obtained through tapping of the applicant’s and the co-accused’s mobile phones and by means of GPS and had thus not constituted the sole basis of the applicant’s conviction. Furthermore, in its assessment of the available evidence the Regional Court had taken into account that the applicant did not have a possibility to confront O. and P. at any stage of the proceedings and that the statements of some of the witnesses heard at trial constituted hearsay evidence. As a consequence it had scrutinised the available evidence particularly carefully and critically with a view to evaluating the witnesses’ credibility and analysing any possible contradictions in their testimonies.
61. The Government concluded that in the present case the rights of the defence had not been restricted to an extent that was incompatible with the procedural safeguards provided for in Article 6 § 3 (d) or the principle of equality of arms and that the proceedings against the applicant taken as a whole had been fair.
2. The Court’s assessment
62. The Court recalls 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. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among other references, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Doorson v. the Netherlands, 26 March 1996, § 70, Reports of Judgments and Decisions 1996-II). It is also recalled in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).
63. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II, and Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001-X).
64. The Court notes that the present application does not concern witnesses whose identity are concealed from the accused. In the instant case the victims and only direct witnesses of the events at issue refused to attend and testify at trial and could thus neither be heard by the trial court nor was the defence able to examine them or observe their demeanour under questioning with a view to forming their own impression of their probity and credibility. Their witness statements made at the pre-trial stage during police interrogations as well as before an investigative judge in the presence of the public prosecutor were nevertheless read out at trial and admitted as evidence by the Regional Court. On the occasion of O. and P.’s examinations at the investigative stage the applicant had not yet been notified of the preliminary criminal proceedings pending against him and counsel had not been appointed for him. The defence did thus at no stage of the proceedings have an opportunity to confront the witnesses.
65. As regards the introduction of testimonies by witnesses who are absent at trial and who could not be questioned by the accused at any stage of the proceedings, the Court has clarified in its judgment in the case of Al-Khawaja and Tahery, cited above, §§ 119-147) that in determining whether the admission of such evidence was compatible with the right to a fair trial it had first to be established that there was a good reason for the non-attendance of the witness. Second, where the evidence of an absent witness was the sole or decisive basis for a conviction, sufficient counterbalancing factors were required, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).
66. Since then, the Court has examined cases concerning, inter alia, the admission of evidence from an anonymous witness which was possibly decisive (Ellis and Simms v. the United Kingdom (dec.), no. 46099/06, § 81, 10 April 2012), from an anonymous witness which was found to be of “considerable weight” (Pesukic v. Switzerland, no. 25088/07, § 49, 6 December 2012) and from an absent witness which was found to be neither sole nor decisive (Štefančič v. Slovenia, no. 18027/05, § 42, 25 October 2012). In all these contexts, the Court proceeded to examine whether the safeguards were sufficient to counterbalance the admission of the untested evidence and carried out an overall examination of the fairness of the proceedings in order to determine whether the defendant’s rights have been unacceptably restricted.
67. As to the reasons for admitting O. and P.’s testimonies, the Court notes at the outset that the Göttingen Regional Court did not base its decision to continue the trial without hearing the witnesses and to admit their pre-trial statements as evidence on the witnesses’ alleged fear to testify but rather on the fact that it had been impossible to coerce them to attend trial in Germany or to arrange for their examination by a court in Latvia.
68. The Court has previously held that with respect to statements of witnesses who proved to be unavailable for questioning in the presence of the defendant or his counsel, that paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him. Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII; D. v. Finland, no. 30542/04, § 41, 7 July 2009; and Gossa v. Poland, no. 47986/99, § 55, 9 January 2007). However, impossibilium nulla est obligatio; provided that the authorities cannot be accused of a lack of diligence in their efforts to award the defendant an opportunity to examine the witnesses in question, the witnesses’ unavailability as such does not make it necessary to discontinue the prosecution (see, in particular, Artner v. Austria, 28 August 1992, § 21, Series A no. 242-A; Scheper v. the Netherlands (dec.), no. 39209/02, 5 April 2005; Mayali v. France, no. 69116/01, § 32, 14 June 2005; and Haas v. Germany (dec.), no. 73047/01, 17 November 2005).
69. The Court observes in this regard that the domestic authorities made several attempts to enable the witnesses’ examination during the main proceedings. Once all efforts to summon O. and P. to appear before the Göttingen Regional Court at trial had failed, the German authorities requested legal assistance from their Latvian counterparts and asked for the witnesses to be heard by a court in Latvia and the hearing to be transmitted by voice and image. Such hearing did, however, not take place on the ground that the witnesses, relying on medical certificates, had demonstrated to the Latvian courts that they were still suffering from post-traumatic disorders as a consequence of the crime and feared possible acts of revenge by the accused. The Regional Court’s objection that according to the standards of German law of criminal procedure the reasons advanced by the witnesses were not sufficiently substantiated to justify their refusal to testify and their proposal that the Latvian courts might consider coercing them to attend the hearing went unanswered. It was only at this point in time that the Regional Court concluded that it did not dispose of any further legal means to enforce a hearing of O. and P. and, having regard to the fact that the recently renewed medical certificates indicated that the witnesses’ state of health would not change any time soon, that it was impossible to have them questioned in the foreseeable future. The Court, as opposed to the applicant’s submissions, finds that in view of the witnesses’ persistent refusal to testify there is nothing to establish that the German authorities would have had further effective means at their disposal with a view to arranging for a confrontation of O. and P. by the defence during the main proceedings. By contrast, it shares the Government’s view that the Regional Court made reasonable efforts to enable the witnesses’ examination at trial and that it had not been imputable to the German authorities that all attempts in this regard remained fruitless.
70. While it would clearly have been preferable for the defence to directly confront the witnesses, the Court observes that the domestic courts were expected to clarify the circumstances of the case and that the interests of justice were obviously in favour of admitting O. and P.’s statements. The witnesses’ unavailability at trial could not be allowed to block the prosecution and in the circumstances it was open to the Regional Court, subject to the rights of the defence being respected, to have regard to their statements obtained at the pre-trial stage, in particular in view of the fact that it could consider those statements to be corroborated by other evidence obtained during trial (compare Asch v. Austria, 26 April 1991, § 28, Series A no. 203; Artner, cited above, § 22; and Gossa, cited above, § 61).
71. The Court further notes that when ordering that the records of O. and P.’s interrogations by the police and the investigating judge be read out at trial, the Regional Court pointed to its obligation to conduct proceedings involving the deprivation of liberty expeditiously. In view of the fact that at that point in time the accused had already been held in custody for a considerable period of time, the Court finds that the domestic court’s reasoning that it could no longer be justified to delay the proceedings was not immaterial for its decision to admit the untested evidence.
72. Turning to examine whether O. and P.’s testimony was the sole or decisive basis for the applicant’s conviction, the Court accepts the Government’s submissions that the records of the witnesses’ pre-trial statements were not the only evidence before the Regional Court. The court also referred to, inter alia, the testimonies of further witnesses heard at trial, such as O. and P.’s neighbour E. and their friend L., as well as to the analysis of the data obtained through tapping of the applicant’s and the co-accused’s mobile phones and by means of GPS.
73. The Court reiterates that where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (see Al-Khawaja and Tahery, cited above, § 131). It notes in this connection that the Federal Prosecutor in his submissions in the appellate proceedings, as endorsed by the Federal Court of Justice in its decision of 30 October 2008, stated that in view of the important additional evidence taken into account by the Regional Court, O. and P.’s statements could not be said to have been the decisive basis of the applicant’s conviction. At the same time the Court observes that concerning the events in relation to the robbery as such, O. and P. were the only direct witnesses and that the corroborating evidence referred to in support of their description of the crime was either hearsay itself or circumstantial. As regards the applicant’s and his co-accused submissions at trial demonstrating that they had both been present in the victim’s apartment at the time of the incident, the Court notes that this could at best provide indirect support for the accusation that they had attacked O. and P.
74. In view of the foregoing, the Court considers that while O. and P.’s witness statements may not have been the sole or decisive evidence grounding the applicant’s conviction, their testimonies clearly carried considerable weight in the establishment of the applicant’s guilt. Accordingly, it considers it necessary to examine whether there were adequate counterbalancing factors and safeguards in place (see Pesukic v. Switzerland, cited above, § 50) in order to ensure that the disadvantage caused to the applicant by admitting the witnesses’ pre-trial statements did not restrict his defence rights to an extent incompatible with the requirements of Article 6 § 3 (d) of the Convention. The Court observes that similar considerations are reflected in the Regional Court’s judgment of 25 April 2008 stating, that since neither the accused nor counsel had been able to examine O. and P., the significant witnesses against the accused, the trial court was requested to take a cautious approach in assessing their statements made at the investigative stage and could only base its decision on such testimony if the latter was corroborated by other significant items of evidence.
75. In this context the Court notes, firstly, that German law on criminal procedure provides for measures enabling the prosecution to have evidence of witnesses whom they expect to become unavailable to testify at trial taken at the pre-trial stage. At the same time domestic law contains procedural safeguards in Article 168c of the Code of Criminal Procedure with a view to granting the defence an opportunity to participate in the examination of key witnesses for the prosecution at the investigative stage. In this context the Court accepts the Government’s argument that having regard to the domestic authorities’ obligation to conduct an effective investigation into the offence at issue and taking into account the need to protect O. and P., the victims and witnesses of the crime, the investigative judge’s decision not to inform the applicant of the witness hearing at the pre-trial stage had been justified. Having regard to the violent manner in which the investigated crime had been committed, the judge’s concern that the suspected perpetrators would put pressure on the witnesses once they or counsel were informed of the latters’ hearing, thus jeopardising the ongoing investigations, was not unfounded. The Court further takes note of the Government’s submission that at the time of the interview before the investigative judge it had not been foreseeable for the domestic authorities that the witnesses, who had already given evidence to the investigative authorities on several occasions, would refuse to attend a subsequent trial or to agree at least to be examined by means of an audio-visual transmission in Latvia. In this context it is also relevant to note that O. and P. did not dispose of a statutory right not to testify at the applicant’s ensuing trial under German criminal procedure such as, for instance, family members of an accused (see, a contrario, Hümmer v. Germany, no. 26171/07, §§ 41 and 43, 19 July 2012). The Court therefore finds that there is nothing to establish that the domestic authorities have failed to observe the procedural safeguards under domestic law ensuring that the accused rights under Article 6 § 3 (d) be guaranteed in an effective manner.
76. The Court further observes that when assessing the available evidence the Regional Court pointed to the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies and as a consequence scrutinised them thoroughly with a view to evaluating the witnesses’ credibility and to clarify any possible contradictions in their statements. As regards the evidence by the further witnesses heard at trial, the Regional Court explicitly pointed to the fact that it was hearsay and had to be assessed particularly carefully.
77. Concerning the statements of O. and P. as such, the Regional Court concluded that the records of the witnesses’ examinations at the investigative stage showed that they had given detailed and coherent descriptions of the circumstances of the crime and that minor contradictions could be explained by the context in which the statements had been made. The Court agrees with the Regional Court’s finding that the fact that the account of the events given by O. and P. to their friend L. and neighbour E. coincided with the detailed description contained in their pre-trial statements provided a strong indication for the credibility and veracity of such testimony. Moreover, E. had testified that the evening of the crime another neighbour had called on her because she had heard noise coming from O. and P.’s apartment, thus adding a further corroborating element that did not result from the account given by the victims but from a further independent source. The Regional Court also considered that the statements of the further witnesses heard at trial, as well as O. and P.’s testimonies obtained at the investigative stage, had been supported by the data obtained through tapping of the applicant’s and the co-accused’s mobile phones and GPS. The Court considers that the arguments advanced by the Regional Court were not immaterial for its conclusion that O. and P.’s pre-trial statements were credible and consistent (see De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004). In these circumstances the Court is satisfied that the necessary care was applied in the evaluation of the witnesses’ testimonies and considers that the Regional Court was able to conduct a fair and proper assessment of their reliability.
78. Against this background, the Court shares the view expressed by the Government and the domestic courts that the body of evidence available in the instant case taken together gave a coherent overall picture of the events that supported the version provided by O. and P. and refuted the contradicting statements made by the applicant and the co-accused in the course of the trial. In this connection the Court also accepts the Government’s argument that the similar way in which the crimes in Kassel and in Göttingen had been committed and the personal link between the two crimes resulting from the fact that L., the victim of the crime previously committed in Kassel, had been the confident of O. and P. provided a further indication that the applicant had been familiar with the commission of crimes of the kind at issue.
79. The Court does not overlook that O. and P., when confronted with photos of potential suspects during their police interrogations, failed to identify the applicant as a perpetrator of the crime and that the applicant, by means of a possible confrontation with O. and P., intended to prove his initial allegation that he had not been present at the crime scene at all. It observes, however, that in the course of the trial the applicant himself, while denying any participation in the robbery, had conceded that he had been present in the victim’s apartment at the time of the incident and that he had followed P. when she had escaped over the balcony. Thus, a possible examination of the witnesses by the defence could no longer have served the purpose initially pursued by the applicant. In this connection the Court also takes note of the Government’s submissions that the applicant did not substantiate what further purpose he wanted to achieve by confronting O. and P. and did not avail himself of the possibility to cast doubt on the veracity of their testimonies once the records of their examinations at the investigative stage had been read out at trial. The Court recalls in this context that O. and P.’s identity was known to the applicant and it was therefore open to him to challenge their reliability if he wished to do so and to point out any incoherence in their statements or any inconsistencies with the statements of the further witnesses heard at the trial. Furthermore, the applicant, who was represented by counsel throughout the proceedings, was able to provide his own version of the events and to put into question the probity of the additional evidence obtained in the course of the trial.
80. In view of these considerations, the Court also finds that, contrary to the applicant’s submissions, the fact that the public prosecutor was present on the occasion of the witnesses’ pre-trial interview and granted an opportunity to question them, did not infringe the principle of equality of arms enshrined in Article 6 § 3 (d). The Court observes that according to German criminal procedure the public prosecution authorities are under an obligation to conduct an objective and neutral investigation of the prosecuted crime and to consider the incriminating as well as exonerating circumstances of the case. It further notes that domestic law requires the trial court to extend, proprio motu, the taking of evidence to all facts and means of proof relevant with a view to establishing the truth and actual circumstances of the case (see Sievert v. Germany, no. 29881/07, § 59, 19 July 2012). There is nothing to establish that the prosecution authorities or the Göttingen Regional Court did not observe these requirements on the occasion of the applicant’s trial in the case at hand.
81. Examining the fairness of the proceedings as a whole, the Court concludes that there were sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of O. and P.’s statements. Accordingly, there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
82. Relying on Article 6 § 1 of the Convention the applicant further alleged that his right to a public hearing had been breached on the ground that the Federal Court of Justice had dismissed his appeal on points of law against the Regional Court’s judgment in a written procedure and without providing any reasons in its related decision of 30 October 2008. Such lack of reasoning made it impossible for the accused to verify whether his right to be heard had been respected by the court and was furthermore contrary to the requirements of the Code of Criminal Procedure. Hence, the decision of the Federal Court of Justice had not complied with the formal requirements of domestic law and the execution of the applicant’s prison sentence imposed in the criminal proceedings at issue consequently infringed Article 5 § 1 of the Convention.
83. The applicant contended in this connection that relying on Article 349 (2) of the German Code of Criminal Procedure it had become the Federal Court of Justice’s established practice to dismiss, at the public prosecutor’s reasoned request, appeals lodged by the accused by means of a decision without holding a hearing and without providing reasons for the dismissal. By contrast, in the event of appeals lodged by the public prosecution authorities a hearing was scheduled as a rule by the Federal Court of Justice and the appellate proceedings were concluded by a reasoned judgment. Such practice infringed the right of the accused to an oral hearing as well as the principle of equality of arms, both constituting aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention.
84. Furthermore, the fact that German criminal procedure requested an accused to be represented by counsel when lodging an appeal on points of law and at the same time did not provide him with the possibility to compel the appellate court to hold a hearing amounted to a denial of his right to defend himself in person pursuant to Article 6 § 3 (c) of the Convention.
85. The Court has examined the complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
86. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the complaint under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention admissible and the remainder of the application inadmissible;
2. Holds, by five votes to two, that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
Done in English, and notified in writing on 17 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) separate opinion of Judge Power-Forde;
(b) declaration of Judge Zupančič.
M.V.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
1. When it comes to the adjudication of criminal matters, domestic courts are, in principle, better placed than is this Court to assess the evidence that is before them since they see the character and the demeanour of all witnesses at trial. This Court’s primary concern is to evaluate the overall fairness of criminal proceedings, taken as a whole.
2. There are aspects of the instant case, however, that leave me with considerable doubts about the fairness of applicant’s trial. O and P-both illegally resident in Germany-were, reportedly, the victims of a break-in and an attempted robbery at their apartment from which they operated a prostitution service. After some time, they made statements to the investigative authorities which, regrettably, are not set out in the judgment. The precise contents thereof are not known. These statements were admitted, in their entirety, as evidence against the applicant who stood accused of the having committed the aforesaid crimes.
3. Neither O nor P-the only people who had witnessed the crime-gave evidence at the applicant’s trial. On no occasion, whether prior to or during his trial, did the applicant have an opportunity to cross-examine them. He could not test their general reliability as truthful characters nor could he question them as to their memories of events. He could not ask them why they had failed to identify him from photographs. He could not test their evidence in any way nor challenge the accuracy thereof. The trial court itself never heard nor observed the two key complainants. It had no way of assessing their disposition or demeanor as witnesses.
4. The principles in Al-Khawaja and Tahery v. the United Kingdom[1] are clear. Where a witness is absent, the Court must be satisfied that good reasons have been given for same. The Court has made it clear that even where the evidence of an absent witness has not been sole or decisive, a violation of Article 6 will be found when there has been no good reason shown for the failure to have the witness examined.[2] This is because as a general rule witnesses should give evidence during the trial and that all reasonable efforts should be made to secure their attendance.
5. In Al-Khawaja and Tahery the Court examined the explanation given for the non-attendance of a witness at each applicant’s trial. One reason was death and the other was fear. It was accepted that in both cases a trial may proceed despite the non-attendance of a witness. However, the Court concluded:-
“[G]iven the extent to which the absence of a witness adversely affects the rights of the defence, the Court would emphasize that, when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable.” (§ 125)
6. Neither death nor fear was advanced as a reason for the absence of the two key witnesses in the applicant’s trial (§ 67). The Court notes only that they ‘refused to attend and testify at trial’ (§ 64). If ‘all available alternatives’, including the adoption of ‘special measures’, are required to be pursued before one can excuse a fearful witness from testifying, one might expect, at the very least, that similar efforts would be required of authorities before a court could excuse a witness who just refuses to attend.
7. I am not at all convinced that admitting the untested evidence of O and P at the applicant’s trial was ‘a measure of last resort’. Apart from one failed witness hearing (in Latvia) which had been scheduled for the 13th of February 2008 and one unanswered letter of the 21st of February 2008, nothing further was done after that date to have the witnesses testify whether by video-link, anonymously or otherwise. It seems that the domestic authorities allowed the requirement for proceedings to be conducted expeditiously (§ 21) to take precedence over the greater obligation to conduct them fairly.
8. I do not share the majority’s confidence that the interests of justice ‘were obviously in favor of admitting O and P’s statements’ (§ 70). It declares that their non-availability ‘could not be allowed to block the prosecution’. It appears to overlook the fact that justice may, at times, require the postponement or even the prohibition of a trial in circumstances where witnesses who are vital to securing a conviction cannot be cross-examined and where there are insufficient safeguards in place to counter-balance the unfairness visited upon the accused.
9. The testimony of the absent witnesses in this case was, manifestly, central to securing the applicant’s conviction. All other corroborative evidence was, as the majority accepts, either hearsay or circumstantial (§ 73). That being so, the counter-balancing safeguards needed to compensate for the obvious unfairness caused to the applicant should be particularly robust. The requirement for such safeguards is to ensure that the untested evidence is demonstrably reliable or that its reliability can properly be tested and assessed (Al Khawaja, § 139).
10. The first safeguard relied upon by the majority is said to be Article 168(c) of the German Code of Criminal Procedure which provides the defence with an opportunity to cross-examine key witnesses at the investigative stage if it is likely that such witnesses would become unavailable to testify at trial (§ 75). Laudable as such a provision may be, it is clear that it was of no benefit whatsoever to the applicant in this case. He was excluded from the investigative hearing because the judge considered that the witnesses would be afraid to tell the truth in his presence (§ 23). He was, thus, clearly a suspect at that point, a proposition which the Government accepts (§ 58).
11. The same Criminal Code of Procedure (Article 141.3) provides that defence counsel may be appointed during preliminary proceedings if the prosecution considers such counsel will be mandatory in the main proceedings. The appointment of such counsel is mandatory if (as in this case) the main first instance hearing is before a Regional Court. It is also mandatory if the accused is charged (as transpired in this case) with a serious offence. The Federal Court of Justice confirmed that the appointment of such counsel should be considered if the key witness for the prosecution was to testify before an investigating judge ‘and the accused was excluded from the hearing’.
12. Despite the existence of these statutory ‘safeguards’ none of them was, in fact, of any benefit to the applicant. Although the main first instance hearing was to be held before the Regional Court-thus triggering the mandatory appointment of counsel-the applicant was not, in fact, represented at the preliminary hearing. He was, at that time, of course, only a suspect and not an accused. The purported justification for his exclusion from the preliminary hearing, however, is remarkable. He was excluded, it is submitted, because he was not really a suspect, the ‘strong suspicion’ of his having committed a criminal offence had resulted only from the hearing itself (§ 59). This proposition is entirely inconsistent with the reason why the investigating judge adopted the measure excluding him in the first place (see § 10 above). The reasons offered for the non-appointment of defence counsel are equally extraordinary. Despite their known unlawful status and activities it was not foreseeable that O and P would leave the jurisdiction and refuse to return to testify at trial. Furthermore, no defence counsel was appointed to represent the applicant’s interests at the preliminary hearing because such a counsel might actually tell him about the hearing (§ 59).
13. In view of the foregoing, it is difficult to see how the purported and primary ‘procedural safeguards’ upon which the majority relies were in any way helpful to the applicant. He was not afforded the benefit which they were designed to bestow and thus they did not, in any way, counter-balance the unfairness caused to the applicant by his inability to cross-examine the two key witnesses at his trial.
14. The other safeguards referred to in the judgment-the trial court’s ‘scrutiny’ of the absent witnesses’ statements and its reference to assessing ‘hearsay’ carefully-did little, if anything, to compensate for the applicant’s inability to cross-examine O and P. The trial court’s ‘scrutiny’ of the statements did not compensate for its inability to observe and assess the demeanour and disposition of their authors. The hearsay evidence of neighbour ‘E’, was testimony only in relation to the fact of having been told what she was told by O and P. It was not testimony as to the truth of what she had been told. The circumstantial evidence (the GPS data)-which I agree could, at best indirectly support the prosecution’s case-was, nevertheless, met with a plausible explanation proffered by the accused (§ 30). Moreover, what the majority refers to as an ‘independent’ and ‘further corroborating element’-namely E’s claim (see § 77) that a different unidentified neighbour had told her that she had heard ‘noise coming from O and P’s apartment on the evening in question’-does little to point to the guilt of the applicant.
15. None of those who testified at the applicant’s trial was present at the scene. No one claimed to have seen him commit the offence. O and P-neither of whom was either law-abiding or lawfully resident-were the only witnesses to the events of 3 February 2007. They did not press charges immediately. No complaint was made until 12 February 2007. Having made statements at the investigative stage-they then exited the jurisdiction of the respondent State before the end of the same month. They did not identify the applicant from photographs that were shown to them. They did not testify that he was the culprit (§ 26). They did not give evidence against him at trial. He was, nevertheless, convicted of having committed the offences in question.
16. The untested evidence of O and P was clearly of great weight. Whilst their statements may have been coherent they cannot be said to belong to the category of evidence that can be described as ‘demonstrably reliable’ (Al-Khawaja and Tahery, § 160). As in the case of Tahery, their evidence weighed heavily in the balance and required sufficient counterbalancing factors to compensate for the consequential difficulties caused to the defence by its admission. The procedural safeguards relied upon by the majority, whether taken alone or in combination, were not, for the reasons set out above, a sufficient counter-balance to compensate for the denial of the applicant’s minimum right to examine or have examined witnesses against him as guaranteed by Article 6 § 3 (d) of the Convention.
DECLARATION OF JUDGE ZUPANČIČ
I do not share the majority’s conclusions in finding no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.