CASE OF BÁTĚK AND OTHERS v. THE CZECH REPUBLIC
(Application no. 54146/09)
12 January 2017
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 Bátěk and Others v. the Czech Republic,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 29 November 2016,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no. 54146/09) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Czech nationals, Mr Roman Bátěk, Mr Radek Blažej and Mr Karel Elsner (“the applicants”) on 2 October 2009.
2. The applicants were represented by Mr D. Strupek, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice.
3. The applicants alleged, in particular, that the evidence of absent and anonymous witnesses, whose testimonies they could not effectively challenge, had been decisive in their conviction.
4. On 18 March 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1969, 1968 and 1972 respectively and live in Lanžhot (Messrs. Bátěk and Elsner) and Břeclav (Mr Blažej).
6. From September 2003 to January 2004 the applicants were employed by the Lanžhot Customs Office on the border with the Slovak Republic. On 1 December 2003, pursuant to Article 158e of the Code of Criminal Procedure (“the CCP”) an undercover police agent infiltrated the team of customs officers. As a result of her observations over the following two months, the customs officers were suspected of corruption, namely taking bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The undercover agent left the Customs Office on 6 February 2004.
7. During March and April 2004 testimony was taken in the presence of a judge from twenty truck drivers from different countries in accordance with the provisions of Article 158a of the CCP, that is to say this step was taken as an urgent or non-repeatable measure (neodkladný nebo neopakovatelný úkon). The records show that the drivers’ testimonies were similar. According to the applicants, interviews with four of the drivers were of decisive significance. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, were not present at these interviews.
8. Witness I.P.D. testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed. If not, the drivers had to wait for hours to be cleared. He admitted that he had paid bribes on two or three occasions but he could not remember individual customs officers.
Witness C.D. testified that he had always had to pay 5 euros (EUR) in order to avoid inconvenience during customs clearance. He described one customs officer as a corpulent person with thinning brown hair. He did not remember any other officer.
Witness S.B. testified that he had paid 5 EUR on each of the ten trips he had made to pass the customs control. He was not able to describe any of the customs officers.
Witness A.A.U. confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person.
9. On 22 April 2004 the applicants were charged, together with fifteen other individuals, with abuse of the authority of public official and accepting bribes. In February 2005 they were officially indicted.
10. On 14 December 2005 the Břeclav District Court (okresní soud) heard the police agent as an anonymous witness (utajený svědek) under the provisions of Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the courtroom using an audio streaming device. She did not recount any specific case of the acceptance of a bribe, stating only that her reports and the information therein were fully reliable. The third applicant was present at the hearing. He was represented by a defence counsel. The other two applicants were absent and were represented by a substitute defence counsel. Only the third applicant put a question to the anonymous witness.
In the course of the trial, the applicants argued that the agent would have been unable to see any other customs officers from her work-station, that none of the alleged acts had been filmed by the cameras installed at their workplace, and that the officers’ numbered rubber stamps could have been used by other people.
11. On 25 May 2006 the District Court found the applicants and other accused persons guilty as charged. They were sentenced to one year’s imprisonment suspended for two years’ probation and were fined. The court established the factual background to the body of evidence. The agent’s written report constituted directly incriminating evidence. The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers, comparing these with the testimony of the truck drivers, the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance. The District Court stated:
“As regards the defendant Roman Bátěk, he is incriminated by the relevant documentary evidence referring to counts 2 and 3 of the indictment and counts 4 and 5 of the indictment, from which it is apparent that he used a rubber stamp with the number 005 and that his personal number was 20627, these numbers appearing on the relevant documents. When it comes to counts 2 and 3 of the indictment, he is also incriminated by the witness statements of the Bulgarian driver [D.] and the Romanian driver [C.D.] who, according to their records, passed the border crossing point at the time in question, and their papers and travel documents bear the respective numbers of the defendant Bátěk. The above fully corresponds to the report from the defendant’s employer regarding the placement of the defendant, i.e. where ‒ that is to say at which work-station ‒ he was positioned at the time concerned. As to counts 4 and 5 of the indictment, the defendant Bátěk is also incriminated by a police officer of the Czech Republic who saw the defendant accepting a bribe and recorded this fact in the corresponding document, produced in evidence, which also corresponds with the testimony of the undercover agent given before the court.
As regards the defendant Radek Blažej, he is incriminated by the documentary evidence produced as regards counts 6 and 7 of the indictment, specifically the control sheets showing his personal number 16898 and rubber stamp number 090. He is also incriminated by the testimony of the Romanian driver [C.D.] and by a report from his former employer stating the defendant’s whereabouts at the time concerned. As to count 7 of the indictment, the defendant Radek Blažej is also incriminated by the undercover police agent of the Czech Republic who saw the defendant accepting a bribe.
As regards the defendant Karel Elsner, he is incriminated on counts 8, 9 and 10 of the indictment by the documentary evidence produced, especially by control sheets which were stamped with his personal number and also by other use made of his personal number, as is apparent in the corresponding computer records. He is also incriminated by the witness statement of [S.D.], who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place. As to count 9 of the indictment in relation to the defendant Karel Elsner, the witness stated that on 10 November 2003 he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents, from which it is clearly apparent that it was the defendant Elsner who carried out the administrative measures concerned and hence received the bribe. As to count 10 of the indictment, Karel Elsner is also mentioned in the anonymous agent’s report.”
12. The District Court explained that the truck drivers’ statements were read out at the hearing pursuant to Article 211 § 2 b) of the CCP. The drivers had been interviewed in the presence of a judge during the pre-trial stage of the proceedings, because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non-repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage. The undercover police agent was heard as an anonymous witness pursuant to Article 209 of the CCP because of her potential future activities.
13. The applicants appealed against the judgment. They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) ‒ and that they could have been granted immunity in exchange for testifying. They also contested the legal grounds and the necessity for the non-disclosure of the identity of the undercover police agent. According to them, she did not risk bodily harm or any other danger of interference with her fundamental rights as required by Article 55 § 2 of the CCP. The argument about her future activities was not sufficient justification. Moreover, the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying.
“(...) the hearing of an undercover police agent as a witness is in practice exceptional, occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof. In such circumstances, and when such an agent is heard as a witness, Article 55 § 2, Article 183a § 4, and Article 209 of the CCP would be applicable. In the instant case, the provisions of the CCP regulating the agent’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated. The first-instance court had no doubts about the agent’s reliability as a witness. She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated, recorded and processed it (...)
Under Article 160 § 4 of the CCP, a non-repeatable measure is a measure which cannot be repeated before the trial court. Questioning a witness who is a foreign national or stateless person without a permanent residence permit in the Czech Republic can be considered to be this kind of measure. None of the witnesses had a link to the Czech Republic of the kind which could have justified the conclusion that they would remain in the country or appear if summoned. The witnesses merely pass through the territory in the course of their work as truck drivers. The interviews with these witnesses were conducted in accordance with the provisions of the Code of Criminal Procedure. The allegations of the defendants that the witnesses did not even know the content of the records they had signed, and that they had been forced to testify and promised immunity if they stated particular facts, are not substantiated by the case file, and no other facts corroborating these allegations have been ascertained. It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of the Břeclav District Court (...). Under Article 158a of the CCP, a judge who performs the urgent or non-repeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof."
15. The applicants filed a constitutional appeal alleging a violation of Article 6 §§ 1 and 3 d) of the Convention and complaining about the depositions of the truck drivers and the anonymous witness.
16. On 2 April 2009 the Constitutional Court (Ústavní soud) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the CCP.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure
Article 55 § 2
“Where the circumstances indicate that, in testifying, a witness or a person close to a witness runs an obvious risk of bodily harm or other serious danger of interference with their fundamental rights, and if it is not possible to ensure the effective protection of the witness in any other way, the criminal justice authority is required to take measures to prevent identification of that witness, including their visual identification; the witness’s name, surname, and other particulars are not to be recorded in the statement, but kept separate from the criminal file and known only to the criminal justice authorities acting in that particular case. The witness shall be informed of the right to have his or her identity concealed and to sign the statement using a fictitious forename and surname by which he or she can subsequently be identified. Where necessary, the criminal justice authority shall take all necessary measures to ensure the protection of these persons. Special law provides for specific protection of witnesses and persons close to the witnesses. In cases where there are no longer reasons to protect the identity of a witness and to keep his or her personal data concealed, the authority conducting the criminal proceedings shall add this information to the criminal file so that the identity of the witness is no longer concealed.”
“1. To document the taking of such a measure, a stenographic record may be made, if necessary, which shall then be attached to the minutes together with its transcription into conventional text; or an audio or video recording or other appropriate means may be used.
2. If an audio or video record is made in addition to the minutes, this fact shall be noted in the minutes drafted about the measure, which shall indicate, in addition to the time, place and manner of its execution, the kind of device used. The technical recording medium shall be attached to the file, or there shall be an indication of where the medium is stored.”
“Where it is deemed necessary to question a witness as an urgent or non-repeatable measure during an investigation at a time before anybody has been charged, the interview must be requested by a prosecutor and shall be conducted in the presence of a judge; the judge shall be responsible for the legality of such questioning and for that purpose may intervene in the questioning. However, the judge shall not be authorised to review the prosecutor’s decision that an urgent and non-repeatable measure is required.”
“1. The presiding judge shall ensure that a witness who has not yet been questioned is not present during the questioning of the defendant and other witnesses. If there is a concern that a witness might not testify truthfully in the presence of the defendant, or if a witness or a person close to him or her is in danger of bodily harm, death or other serious threat, the presiding judge shall take appropriate measures to secure the safety and anonymity of that witness, or shall expel the defendant from the courtroom during the interrogation of such a witness. However, upon his return to the courtroom, the defendant must be informed about the content of the witness’s testimony, may make comments on it, and may ask the witness questions via the presiding judge without having met the witness. In the case of a witness whose identity is to be kept confidential (Article 55 § 2), the presiding judge shall take measures to make it impossible to determine the true identity of the witness.
2. If a witness whose identity is concealed (Article 55 § 2) is questioned during the trial, the court shall take all the necessary steps to verify his or her credibility, even without a corresponding request.”
Article 211 § 2
“The statement of a witness given during pre-trial proceedings may be read out at the trial if the witness:
a) has died or gone missing, is staying abroad and is thus unreachable, or has become ill and is therefore not in a position to be heard, or
b) has been questioned as an urgent or non-repeatable measure under Article 158a.”
18. Amendment no. 274/2008 of the CCP introduced specific rules governing the testimony of police officers acting as undercover agents. It entered into force on 1 January 2009, when the criminal proceedings against the applicants were already complete. The new Article 102a reads:
“1. If a person on active police duty or a police officer from another State
a) who has been deployed in criminal proceedings as an undercover agent or has performed a simulated transaction, or
b) who has recently participated in deploying an agent or performing a simulated transaction,
is to be questioned as a witness, he or she shall be questioned as a witness whose identity and appearance is concealed.
2. In exceptional situations and on condition that the questioning cannot endanger life, health or further service duties of persons referred to in sub-section (1) or endanger the life or health of a person close to such person, the questioning may be conducted without concealing the witness’s identity or appearance, but only at the request of a public prosecutor and on the basis of authorisation from the competent director of the security forces.”
Article § 24
“1. In cases where the criminal justice authorities have already adopted measures to conceal the identity of a witness at the pre-trial stage under Article 55 § 2 of the Criminal Procedure Code, the presiding judge (a single judge) shall summon that witness to the court through a police authority which has in its possession the file containing his or her genuine personal details. ...
6. In cases where it is necessary to prevent unauthorised persons, using other technical means if necessary, from identifying such a witness, the presiding judge (a single judge) shall take appropriate measures, with the help of members of a judicial guard if necessary, to make it impossible to identify a witness not only in the courtroom but also in all other parts of the court building.
7. If the investigation file does not contain the details necessary for assessing the credibility of a witness whose identity has been concealed at the pre-trial stage, the presiding judge (a single judge) shall request these details through the court employee who has been appointed by the president of the court to ensure the protection of confidential information. The same procedure shall apply in cases where the witness is heard for the first time during the trial. This information shall be stored separately from the criminal file. After the evidence has been taken by reading out its essential content, without endangering the concealed identity of the witness, the evidence shall be put in a sealed envelope together with the witness’s personal details.”
B. Case-law of the Supreme Court and the Constitutional Court on hearing undercover police agents as anonymous witnesses
20. In judgment no. 9 Tz 85/2000 of 3 May 2000 the Supreme Court observed that neither the investigator nor the trial court had explained satisfactorily why the questioning as an anonymous witness of the police officer concerned had been deemed to meet the criteria laid down in Article 55 § 2 of the CCP, namely that the circumstances indicated that, in testifying, a witness or a person close to the witness would run an obvious risk of bodily harm or other serious danger of interference with his/her fundamental rights and that it was not possible to ensure the effective protection of the witness in any other way. The Supreme Court pointed out in this regard that the defendants had not been convicted of any previous offence, they all enjoyed a good reputation and the offences had been isolated ‒ albeit serious ‒ unlawful actions. The Supreme Court ordered the trial court to reconsider whether it was appropriate to hear testimony from the officer as an anonymous witness.
21. In decision no. III. ÚS 323/04 of 13 January 2005 the Constitutional Court addressed the lawfulness of police officers’ interviews as anonymous witnesses under Article 55 § 2 of the CCP. The Constitutional Court held that it was self-evident that revealing their identity would jeopardise their future professional work. Although the defendant had not uttered any threats, it was clear, given the nature of the criminal activity, that there was a danger of interference with the officers’ fundamental rights. The defendant knew the identity of the witnesses and who had testified against him and he might have reacted accordingly. Moreover, he had had a face-to-face confrontation with one of the witnesses pursuant to Article 104a of the Code of Criminal Procedure and the mere fact that he did not know the identity of the witnesses could not result in a violation of his defence rights or his other basic rights.
22. In decision no. III. ÚS 291/03 of 6 June 2006, the Constitutional Court found that questioning police officers anonymously could be justified if they or their families might be exposed to danger or if they were going to take part in other covert operations. However, such an interference with the rights of the defence also had to respect the principle of proportionality and it was the courts’ task to assess the proportionality of the measure. In the case before it, such proportionality was altogether lacking.
23. In decision no. II. ÚS 583/05 of 13 December 2007, the Constitutional Court found that hearing police officers as anonymous witnesses pursuant to Article 55 § 2 of the CCP was justified on the grounds that revealing their identity might compromise their future work and there was thus a serious danger of interference with their fundamental rights. The Constitutional Court found that the measure in question had been accompanied by adequate procedural safeguards and had thus been proportionate: the Czech police officers had been heard directly in the courtroom, in the presence of the defendants and their defence counsels, who could have asked questions. There had thus been direct contact between the anonymous witnesses and the court and the other procedural parties. The court, the defendants and their counsels had been able to gain an immediate impression as to how the witnesses gave their testimonies and could take part in the questioning. In the case of a Dutch police officer, who used a false name, he had not been present at the courtroom himself but his testimony and all the questions had been transmitted using technical means and the parties had been allowed to react and to put questions to him. The Constitutional Court also underlined the reliability of witnesses who were police officers and distinguished them from other individuals who testified as anonymous witnesses but came from a criminal environment.
24. In decision no. II. ÚS 677/06 of 6 August 2008 the Constitutional Court pointed out that hearing an Austrian police officer as an anonymous witness was lawful, even though he did not allege that there was any threat from the defendant. But given the nature of the crime, there was a serious danger of interference with his fundamental rights. In addition, the defendant knew the identity of the witness, knew who had testified in his case and might react accordingly. The defendant’s defence counsel put fifteen questions in total to the witness. The mere fact that a defendant does not know the real identity of a witness cannot result in an interference with his defence rights or other fundamental rights. In addition, the Constitutional Court took into account that the testimony in question was not decisive evidence and there was a large body of other circumstantial evidence.
25. In its decision no. IV. ÚS 407/07 of 29 October 2009, the Constitutional Court referred to its previous case-law in relation to Article 55 § 2 of the CCP and held that the first requirement for lawfulness is the subsidiarity of the measure. It does not suffice for the witness subjectively to feel endangered and therefore ask to be heard as an anonymous witness. The criminal justice authorities are under an obligation to assess whether the measure is justified and to give reasons for their conclusion. The second requirement is an obligation on the part of the court to take all the requisite steps to assess the reliability of the witness (compare Article 209 § 2 of the CCP) and the defendant cannot be prevented from doing the same.
The Constitutional Court found in the aforementioned case that both requirements were met. The courts gave satisfactory reasons for executing the measure pursuant to Article 55 § 2 of the CCP. In relation to the rights of the defence, all the accused, including the defendant, could ask questions and observe the reactions of the witnesses. Thus, even though the defence was put in a more difficult position, the degree of the restriction was minimalised. As far as the second requirement was concerned, the courts adduced a large body of evidence and carefully assessed the reliability of particular testimonies. In addition, the defendant was able to put questions to the witnesses. Furthermore, the Constitutional Court pointed out that these testimonies were not the sole evidence against the defendant as other evidence existed, including wiretaps and other physical evidence.
III. RELEVANT INTERNATIONAL LAW
26. Mutual assistance in criminal matters between the Czech Republic and Bulgaria and Romania is governed, in particular, by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, supplemented by bilateral treaties with Bulgaria of 25 October 1958, and with Romania of 25 November 1976.
27. The European Convention on Mutual Assistance in Criminal Matters establishes common rules in the field of mutual assistance in criminal matters, such as the questioning of witnesses or experts. Requests for mutual assistance are made by way of letters rogatory, which should be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
28. The applicants complained that they had not had an opportunity to question the witnesses - who were foreign truck drivers ‒ during the pre-trial proceedings. They also alleged that the legal requirements allowing the hearing of witnesses anonymously had not been met in their case. They relied on Article 6 §§ 1 and 3 d) of the Convention:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
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; ...”
29. The Government contested these arguments.
30. 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.
1. The parties’ submissions
(a) The applicants
31. The applicants submitted that there had not been sufficient justification for the failure to summon the absent witnesses to testify and for concealing the identity of the undercover police agent. Moreover, the courts had not taken any positive steps to allow the defence to cross-examine the truck drivers who had been questioned before the applicants were charged. The Břeclav District Court had merely stated that there had been a legal basis for reading out the records of their testimonies at the hearing and the Brno Regional Court had added that the witnesses were foreign nationals with no ties to the Czech Republic. The applicants also noted that the argument that the drivers had not been summoned because they were always travelling had not been raised by the Government until a later stage. As regards the anonymous witness, the applicants pointed out that the legal requirements set out in Articles 55 § 2 and 209 of the CCP had not been met as there had been no risk of bodily harm or other serious danger of interference with her fundamental rights when testifying. The offence had not been a serious one (the applicants were charged with accepting bribes of 10 to 25 EUR), the criminal proceedings had not concerned organised crime, and revealing her identity would not have jeopardised her future professional duties. They argued that the Court’s case-law requires the courts to assess whether the defendants might put the agent or people close to her at risk (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 61, Reports of Judgments and Decisions 1997 III). In this regard, the applicants submitted that it was an exaggeration ‒ and even completely absurd ‒ to suggest that they might threaten or attack the police agent.
32. The applicants also argued that their conviction had been based to a decisive extent on testimonies they challenged, alleging that neither the truck drivers nor the agent had been able to describe the actions of which they had been accused, and that the evidence was not corroborative. As regards the documentary evidence, that alone could not prove that the applicants had accepted bribes.
33. The applicants referred to Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 and Pesukic v. Switzerland, no. 25088/07, 6 December 2012, and argued that the difficulties caused to the defence by admitting testimony from absent or anonymous witnesses must be accompanied by adequate procedural safeguards allowing for a correct and fair assessment of the reliability as evidence of such testimony. The courts had failed to ensure that these requirements were met. The reliability of the truck drivers had not been subjected to any scrutiny, for example by interrogating them further or questioning other individuals known to them. As for the police agent, the applicants had known her identity because she had worked with them for two months. However, as she had not testified in the courtroom, the applicants, their defence counsels and the judge had been unable to observe her reactions at first hand.
(b) The Government
34. The Government maintained that there had been adequate grounds for taking the step of obtaining testimony from the truck drivers as an urgent or non-repeatable measure under Article 158a CCP because they were foreign nationals who could not be summoned before a court to testify. These witnesses usually travelled outside their country of residence and outside the Czech Republic and they became inaccessible to the authorities once they had left the Czech Republic. Ensuring their appearance before the trial court or questioning them through the medium of international judicial assistance would have required considerable time and financial resources and the whole criminal proceedings would have lasted significantly longer. Moreover, despite the existence of a legal framework offering mutual judicial assistance in criminal matters, in reality the procedure was often difficult and the results uncertain. In the instant case, the seriousness of the offences meant that it was necessary to act expeditiously. In relation to the use of an agent pursuant to Article 158e of the CCP, the Government argued that such a measure had been self-evident in terms of the seriousness of the criminal activity in question and the courts had explained the reasons why her identity had not been disclosed. The Government also noted that it had not been commonplace to use video conferencing facilities at the time when the witnesses were heard and the District Court was not technically equipped for such a procedure.
35. The Government also argued that neither the testimonies of the truck drivers nor those of the anonymous witness contained sole or decisive evidence. The conclusion that the applicants were guilty had been based on a whole body of evidence, including documentary evidence and the testimonies of other witnesses before the trial court. The applicants had also had the opportunity to comment on and challenge all the evidence. The Government also pointed out that the truck drivers had been interviewed in the presence of a judge who had ensured the legality of the questioning. These witnesses could be considered reliable because their statements had been in line with the adduced documentary evidence. As regards the anonymous witness, the applicants could have questioned her. Moreover, the agent’s reliability had not been called into question as she was a police officer and her actions had been supervised by the state prosecutor and the High Court in accordance with the CCP.
2. The Court’s assessment
(a) General principles
36. The Court reiterates 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 that Article which must be taken into account in any assessment of the fairness of proceedings, and the Court will therefore consider the applicants’ complaint under both provisions taken together. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, taking into account the rights of the defence, but also the interests of the public and the victims, in seeing crime properly prosecuted (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100 and 101, 15 December 2015, Paić v. Croatia, no. 47082/12, § 27, 29 March 2016, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 250-251, ECHR 2016) and, where necessary, the rights of witnesses (see, for example, Al-Khawaja and Tahery, § 118, cited above).
37. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all the evidence against him must normally be produced in his presence at a public hearing for the purpose of adversarial argument (see Schatschaschwili, cited above, §103, and Paić, cited above, § 28). There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07, 32786/10 and 34278/10, § 81, 12 May 2016). It should be noted 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 Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016).
38. In Al-Khawaja and Tahery, cited above, §§ 119-147, the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows (see Seton, cited above, § 58, and Poletan and Azirovik, cited above, § 82; for a shorter summary see Paić, cited above, §§ 29-30):
(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;
(ii) typical reasons for non-attendance are, as in the case of Al-Khawaja and Tahery (cited above), the death of the witness in question or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;
(iii) 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;
(iv) the admission as evidence of the statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by such witnesses by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;
(v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are deemed to have been unduly restricted;
(vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. 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 supporting evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;
(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;
(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to be balanced in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.
39. Those principles have been further clarified in the Schatschaschwili case (cited above, §§ 111-131), in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). The Court recalls in this regard that in cases concerning a witness’s absence owing to an inability to contact the witness, the domestic courts must, as a rule, have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili, cited above, §121).
40. Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom, no. 55287/10, §§ 58 and 59, 31 March 2016).
(b) Application of these principles to the present case
(i) Whether there was good reason
41. The Court reiterates that good reason for the absence of a witness must exist from the trial court’s perspective, that is to say, the court must have had good factual or legal grounds for not having been able to secure the witness’s attendance at the trial. If there was good reason for the witness’s non-attendance in that sense, it follows that there was good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (see Schatschaschwili, cited above, § 119). There are a number of reasons why a witness may not attend trial (see Al-Khawaja and Tahery, cited above, §§ 120-125), including situations where the witness proved to be untraceable (see Tseber v. the Czech Republic, no. 46203/08, § 48, 22 November 2012, and Paić, cited above, § 34).
42. In cases concerning a witness’s absence because he or she was unreachable, the Court requires the trial court to have made all reasonable efforts to secure the witness’s attendance. They must have actively searched for the witness with the help of the domestic authorities including the police and must, as a rule, have sought to international legal assistance in cases where the witness resided abroad and such mechanisms were available. This implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Schatschaschwili, cited above, §§ 120 - 122).
(α) Absent witnesses - the truck drivers
43. The Court observes that the truck drivers’ testimonies had been collected pursuant to Article 158a of the CCP at the pre-trial stage of the criminal proceedings, in the presence of a judge, and before the applicants had been officially charged. The authorities deemed taking this step as an urgent and non-repeatable measure to be justified because the witnesses were foreign nationals. The trial court endorsed this reasoning and read out the transcript of their testimonies at the hearing in accordance with Article 211 § 2 of the CCP. The appellate court upheld the lawfulness thereof and added that the witnesses had neither permanent residence permits nor other ties to the Czech Republic.
44. The present case is therefore an instance of potentially unreachable witnesses, where the domestic courts have failed to resort to international legal assistance (see Schatschaschwili, cited above, §121). The Court has adopted a strict approach in some previous cases, and in the instant case it reiterates that the mere fact that these witnesses resided outside the Czech Republic and travelled frequently could not be considered to constitute “good reason” justifying the failure to have them examined and the admission of their evidence in their absence. The authorities had at their disposal the means to locate and summon them and yet there is nothing in the case file to suggest that any efforts were made to obtain their attendance at the proceedings against the applicants (see Bonev v. Bulgaria, no. 60018/00, § 44, 8 June 2006, and Tseber, cited above, § 50). However, the absence of “good reason” is not the end of the matter because it is a consideration which is not in itself conclusively indicative of a lack of fairness in a criminal trial, although it constitutes a very important factor to be weighed up in the overall balance, together with the other relevant considerations (see Seton, cited above, § 62).
(β) Hearing the police agent as an anonymous witness
45. The Court observes that the undercover police agent who infiltrated the team of customs officers in order to gather evidence against them was heard as an anonymous witness under Articles 55 § 2 and 209 of the CCP.
46. In the Court’s opinion, the balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the State’s police force. Although their interests ‒ and indeed those of their families ‒ also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 56, Reports of Judgments and Decisions 1997 III). On the other hand, the Court has recognised that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities for his own or his family’s protection and so as not to impair his usefulness for future operations (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238, and Van Mechelen, cited above, § 57).
47. Turning to the present case, the Court observes that both the District Court and the Regional Court gave as the reason that the agent’s identity had not been disclosed the fact that disclosure might impair her usefulness for future operations. In this regard the Court is aware of the difficulties inherent in the police’s task of searching for and gathering evidence for the purpose of detecting and investigating offences. To perform this task, they are increasingly obliged to make use of undercover agents, informers and covert practices, particularly in tackling organised crime and corruption (see, mutatis mutandis, Ramanauskas v. Lithuania [GC], no. 74420/01, § 49, ECHR 2008). The interest of the public in ensuring that corrupt practices are prosecuted is beyond doubt and there is also a legitimate interest on the part of the police authorities in corruption cases in preserving the anonymity of an undercover agent for operational reasons (see, mutatis mutandis, Lüdi, cited above, § 49). Therefore, it cannot be said that the Czech courts did not have good reason for concealing the identity of the police agent and hearing her as an anonymous witness.
(ii) Whether the evidence was “sole or decisive”
48. Moving on to the second stage of the test in Al-Khawaja and Tahery, that is to say, the question of whether or not the evidence of the absent witness whose statements were admitted in evidence constituted the sole or a decisive basis for the defendant’s conviction, the Court reiterates that it should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but was nevertheless satisfied that it carried significant weight and its admission might have constituted a handicap to the defence (see Schatschaschwili, cited above, § 116, and Seton, cited above, § 59).
(α) Absent witnesses - the truck drivers
49. The Court observes that there is little or nothing in the case file to support the finding that the drivers’ depositions could be described as “determinative of the outcome of the case”. The trial court based its conclusion regarding the guilt of each of the applicants on two to three different pieces of documentary evidence: primarily it was the written report by the police agent who had witnessed the first and the second applicants accepting bribes and it was corroborated especially by the customs documents bearing the rubber stamps displaying their personal numbers, as well as by the truck drivers’ travel documents confirming the exact time and place of the customs clearance, supported by the records of the applicants’ verified presence at work at a particular time (see paragraph 11 above). Moreover, as is apparent from the file, although the truck drivers described the customs officials’ general practice of accepting bribes, they were unable to describe specific individuals. While, for the above reasons, the testimonies of the truck drivers therefore may not have constituted sole or decisive evidence providing a basis for the applicants’ conviction, the fact remains that they carried significant weight, and the admission thereof may have entailed a handicap for the defence (see Schatschaschwili, cited above, § 116).
(β) Anonymous witness - the police agent
50. The Court observes that although the statement given by the undercover police agent at the hearing before the District Court on 14 December 2005 assisted the prosecution in confirming the facts of the case, it cannot be described as “determinative of the outcome of the case”. Indeed, the District Court attributed special weight to the documentary evidence, namely the agent’s own written report, customs documents bearing the applicants’ personal rubber stamps, the truck drivers’ travel documents and other documents proving their presence at the customs office at the exact time of the customs clearance. In this regard the Court reiterates that the assessment of whether or not the evidence is decisive depends on the strength of the supporting evidence (see Schatschaschwili, cited above, § 123). Therefore, considering the extent and weight of other evidence and bearing in mind the importance ascribed thereto by the national courts, the agent’s testimony cannot be treated as decisive. Nevertheless, it still carried significant weight. Consequently, given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court still needs to determine whether there existed sufficient factors to counterbalance any handicaps that the admission of that evidence might have entailed for the defence (see Seton, cited above, § 64).
(iii) Whether there were sufficient counterbalancing factors
51. The Court points out that the following elements were identified by the Grand Chamber in the case of Schatschaschwili as being relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine witnesses at the trial (see Schatschaschwili, cited above, § 145, and Paić, cited above, § 38).
(α) Absent witnesses - the truck drivers
52. The Court observes that in the national courts’ judgments there is no indication that they approached the statements given by the truck drivers with any specific caution, nor did the fact that they were absent witnesses prompt the national courts to attach less weight to their statements (compare, for example, Al-Khawaja and Tahery, cited above, § 157, and Paić, cited above, § 43). On the other hand, the Court notes that the trial court carried out a rigorous assessment of all the evidence, and weighed up its value and significance to the proceedings. It is also evident that the national courts had before them, additional incriminating evidence supporting the statements made by the truck drivers, as shown above (see paragraph 11). Moreover, the testimonies in question were of a merely corroborative nature as none of the depositions could directly incriminate any of the customs officers and, if anything, showed only certain patterns of behaviour at particular a customs office. As the trial court explained in its judgment, it was other documentary evidence that was decisive for the outcome of the case.
53. In this regard, it should be also noted that the Czech Code of Criminal Procedure provides for measures enabling the prosecution to have the evidence of witnesses whom they expect to become unavailable to testify at trial taken at the pre-trial stage. Article 158a of the CCP provides for the hearing of a witness before charges are brought where this can be considered necessary as “an urgent or non-repeatable measure” and for the reading out of a witness’s statement at the trial if the witness concerned does not attend. The conduct of the investigation at this early stage, including recourse to the measures provided for under Article 158a of the CCP, was conducted in the presence and under the supervision of a judge (see paragraph 17 above). While this is not in itself a substitute for the defendant’s right to examine those who accused him (see Tseber, cited above, § 62), the Court considers that, by ensuring the lawfulness of the procedures followed by the police, it did provide one of the procedural safeguards protecting the right to a fair trial.
54. The Court takes note of the fact that the applicants had the opportunity to present their own version of events and to cast doubt on the credibility of the absent witnesses, pointing out any incoherence or inconsistency with the other evidence (see Schatschaschwili, cited above, § 131). In addition, the identities of the witnesses were known to the defence, which was able to identify and investigate any motives they may have had for lying, and the applicants could therefore contest the witnesses’ credibility effectively, albeit to a lesser extent than in a direct confrontation (see Garofolo v. Switzerland (dec.), no. 4380/09, § 56 2 April 2013, and Brzuszczyński v. Poland, no. 23789/09, § 88, 17 September 2013). As is apparent from the file, the defence did not allege any incoherence or inconsistency in the truck drivers’ testimonies but rather considered them as poor evidence and in a general way implied that the truck drivers had been promised impunity. The appellate court explained that there were no grounds to assume that these witnesses were motivated by the promise of impunity and ruled out this possibility. The depositions were carried out in the presence of the judges at the Břeclav District Court which supervised the legality of their execution (see paragraph 14 above).
(β) Anonymous witness - the police agent
55. The Court notes that the domestic legal framework, in the form of Article 209 of the CCP and the accompanying instruction issued by the Ministry of Justice, lays down the detailed conditions under which courts may hear witnesses anonymously. The law provides for two specific procedural safeguards designed to ensure a fair trial and addressing especially matters such as the credibility of evidence: firstly there is the possibility of contesting the reliability of an anonymous witness and the credibility of his or her testimony and, in this regard, the possibility of putting questions to him or her; secondly Article 209 § 2 of the CCP requires the trial court to take all necessary measures to assess the witness’s reliability without the submission of any petition in this regard (see paragraphs 17 and 19 above).
56. In assessing the application of that legal framework in the present case, the Court finds that the trial court took proper note of the factors set out in Article 209 of the CCP. The evidential material in the case file suggests that it organised the hearing of 14 December 2005 especially in order to hear the anonymous witness using voice-streaming media. The witness was questioned in a separate room, her identity having been ascertained by the judge outside the courtroom, and she was instructed as a witness in accordance with the CCP. All eighteen defendants, including the applicants, were properly summoned.
57. As the transcript of the court hearing shows, all the defendants and their legal representatives had the opportunity to confront the witness, put questions to her directly and comment on her testimony. However, as she was in a separate room, they could not make their own judgment as to her demeanour (see Van Mechelen, cited above, § 62). The hearing was attended by only the third applicant. The first and the second applicants excused themselves and their defence counsel authorised a substitute representative to attend the hearing. At the hearing, the third applicant made one comment and asked one question. The representative of the first and the second applicants was inactive. It must therefore be stated that, as far as the first and the second applicant are concerned, they did not attempt to conduct any confrontation with the intention of comparing their stories with the statements of the undercover agent or casting doubt on her credibility. The Court thus considers that, in substance, they may be considered to have waived their right to cross-examine the witness (see, mutatis mutandis, Poletan and Azirovik, cited above, § 87).
58. Moreover, the Court finds that even if there is no doubt that the witness’s identity remained undisclosed to the defence ‒ given that her personal details and address were withheld from the applicants and their legal representatives ‒ the Court must take into consideration the fact that the applicants knew her, if not by her authentic professional identity, at least by her physical appearance, as a result of having worked with her in the customs office. Therefore, as is not unusual in practice, some disclosure took place in the form of a material used in the course of cross-examination. As the Court already noted, the extent of the disclosure has an impact on the extent of the handicap under which the defence is labouring (see Ellis and Simms v. the United Kingdom (dec.), no. 46099/06, 10 April 2012). In the present case, the defence were able to challenge the reliability of the evidence of the undercover police agent and undermine her version of events, in particular, as the transcript of the court hearing shows, knowing the work-station at which and timeframe during which she had worked at the customs office, the defence argued that she could not physically have seen the customs officers taking bribes.
59. In addition, the Court also notes that the Regional Court explained that there were no indications of anything undermining the agent’s credibility, that her statement was reliable and that the allegation that she had consulted others before giving her answers during the hearing in a separate room was also unsubstantiated (see paragraph 14 above).
60. In making an assessment of the overall fairness of the trial, the Court must take into account the available counterbalancing factors viewed in their entirety in the light of its finding as to the importance of the evidence supporting the applicants’ conviction (see Schatschaschwili, cited above, § 161), bearing in mind that any such assessment will be a relative one (see, Seton, cited above, § 68).
61. The Court is mindful of the difficulties encountered by the authorities, bearing in mind that the case at hand involved eighteen defendants and a large number of witnesses, including twenty truck drivers from different countries who travelled across Europe rather than remaining at their usual places of residence, and who were heard as witnesses at the pre-trial stage of the proceedings in the presence, and under the supervision, of a judge (see, mutatis mutandis, Bonev, cited above, § 44). The Court also notes in this regard the fact that it had apparently not been commonplace to use video conferencing facilities at the time when the witnesses were heard. As regards the anonymous witness, the Court considers in particular that the Czech courts had good reason for concealing the identity of the police agent and hearing her as an anonymous witness (see paragraph 44 above).
62. Therefore, noting the trial court’s rigorous assessment of all the evidence, which shows no sign of arbitrariness (see, mutatis mutandis, Seton, cited above, § 57), and bearing in mind the public interest in seeing the crime of corruption properly prosecuted (see, mutatis mutandis, Schatschaschwili, cited above, § 101), the Court finds that ‒ attaching significant weight to the fact that neither the truck drivers’ depositions nor the interview with the agent were the sole or decisive evidence and that there was indeed other, substantial and decisive incriminating documentary evidence ‒ the lawfully administered procedural safeguards were, in the circumstances of the present case, capable of counterbalancing certain handicaps under which the defence laboured. It cannot therefore be said that the criminal proceedings, looked at as a whole, were rendered unfair.
63. Accordingly, the Court is satisfied that the admission as evidence of the absent witnesses’ depositions and the hearing of the undercover police agent as an anonymous witness did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
FOR THESE REASONS, THE COURT,
1. Declares, unanimously, the application admissible;
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 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lazarova Trajkovska and Bianku is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA AND BIANKU
Regrettably, we cannot share the opinion of the majority that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) in this case. We are of the opinion that the proceedings against the applicant in this case were not fair and that there has been a violation of the above-mentioned provisions of the Convention. There are two reasons for our disagreement with the majority, both related to the interpretation and the application in the present case of the Al-Khawaja/Schatschaschwili principles.
1. How good is good enough for the justification of the absence of a witness under Schatschaschwili?
First, we disagree in relation to the question of the good reason for admitting the evidence of an absent witness and the application of this principle in the case at hand. In our case, the Government observed that the missing witnesses were Romanian and Bulgarian nationals who, because of their profession as truck drivers, would be very difficult to locate and summon to attend the proceedings against the applicant. We fully understand that. We note that the Government are pleading the principle of impossibilium nulla obligatio est as a good reason for admitting the evidence of an absent witness, which is the same argument they raised in their third-party intervention in Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015). Are we faced with such an impossibility in the present case and were the reasons advanced by the Government sufficient to argue that it was impossible to locate the truck drivers?
We do not think that the analysis in Schatschaschwili of the “good reason for admitting the evidence of an absent witness” means that the national authorities should not make all reasonable efforts to locate the witnesses whose testimonies have been admitted by the national courts and guarantee their attendance at the hearing. Indeed, in Schatschaschwili (ibid., § 120) the Court confirmed that in cases concerning a witness’s absence owing to unreachability, the trial court was required to have made all reasonable efforts to secure the witness’s attendance (see Gabrielyan v. Armenia, no. 8088/05, § 78, 10 April 2012; Tseber v. the Czech Republic, no. 46203/08, § 48, 22 November 2012; and Kostecki v. Poland, no. 14932/09, §§ 65 and 66, 4 June 2013). The Court went on to specify (see Schatschaschwili, cited above, § 120) that
“The need for all reasonable efforts on the part of the authorities to secure the witness’s attendance at the trial further implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Nechto, cited above, § 127; Damir Sibgatullin, cited above, § 56; and Yevgeniy Ivanov, cited above, § 47).”
The approach by the Brno Regional Court confirms that there was not even any intention to make such efforts, as long as the questioning of the truck drivers was based on Article 158a of the Czech Code of Criminal Procedure (“the CCP” - see paragraphs 7 and 14 of the judgment). For the national authorities, the fact that the witnesses were foreign nationals seems to have been a good enough reason to not even try to locate them. The majority are rather inconclusive as to this point (see paragraph 61 of the judgment). We respectfully disagree. In our opinion, “difficulties encountered by the authorities” and the “fact that it had apparently not been commonplace to use video conferencing facilities at the time when the witnesses were heard” should not serve automatically as carte blanche allowing the national authorities to not even think about trying to locate witnesses and ensure their appearance at the trial. The authorities should have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili, cited above, § 121), rather than dismissing them from the outset as very difficult to implement. In this regard we agree with the position taken by legal writers that
“... it would be wrong to conclude..., without further nuances, that the mere fact that a witness is abroad makes his appearance in court always impossible, and even less so in a single European area of justice. In sum, the fact that a witness is in foreign country within the EU should no longer be considered equivalent to an impossibility to call him to appear in court.”
What is striking, in our opinion, is that the authorities were able to locate and to question the truck drivers when this was needed for the purposes of the prosecution, under Article 158a of the Czech CCP. After that it became prima facie impossible to locate them.
We consider that mere “difficulties by the national authorities”, and the lack of any attempt by the national courts to ensure that foreign nationals can give evidence before them, are not a good enough reason to justify the absence of witnesses under the Schatschaschwili logic.
2. The existence of counterbalancing factors to justify the lack of any attempt to make sure witnesses attend the proceedings
It is well known that in Schatschaschwili (cited above, § 112) the Court accepted that “the requirement to provide a justification for not calling a witness has been developed in its case-law in connection with the question whether the defendant’s conviction was solely or to a decisive extent based on evidence provided by an absent witness (see Al-Khawaja and Tahery, cited above, § 128)”. In the following paragraph (§ 113) the Court considered that
“the absence of good reason for the non-attendance of a witness cannot of itself be conclusive of the unfairness of a trial. This being said, the lack of a good reason for a prosecution witness’s absence is a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d).”
It is true that the Court has developed the Al-Khawaja standard of the “good reason for admitting the evidence of an absent witness as a preliminary question” into the standard of a “very important factor” which might, in exceptional cases, not have a preliminary character any more, “in particular if one of the steps proves to be particularly conclusive as to either the fairness or the unfairness of the proceedings” (ibid., § 118). However, it does not seem, at least to our mind, that in Schatschaschwili the Court abandoned the criterion that there should always be good reasons for admitting the evidence of an absent witness. For us, it confirmed the general rule according to which witnesses should give evidence during the trial and all reasonable efforts must be made to secure their attendance; this stands as a fundamental aspect of a fair trial guaranteed under Article 6.
In view of the lack of any attempt by the authorities to locate the truck drivers when it came to the admission of their statements as evidence, and the lack of any specific caution on the part of the trial court, and also bearing in mind that the procedural safeguard under Article 158a of the CCP does not, in itself, seem to be sufficient to counterbalance the defendant’s right to examine these witnesses (see Tseber, cited above, § 62), and that counsel for the defence was not offered, even theoretically, any opportunity whatsoever to question the truck drivers, we are of the opinion that there were not sufficient counterbalancing factors to compensate for the clear handicaps faced by the defence as a result of the admission as evidence of the absent witnesses’ depositions. The analysis of the majority in this case could have the effect of watering down to almost nothing the general rule that witnesses should give evidence during the trial and that all reasonable efforts must be made to secure their attendance (see Schatschaschwili, cited above, § 105).
. See Lorena Bachmaier Winter, “Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the ECtHR’s Case Law”, Utrecht Law Review, Vol. 9, No. 4, p. 127-146, September 2013.