In the case of Štefančič v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
André Potocki,
Paul Lemmens, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
18027/05) against the Republic of Slovenia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Slovenian national, Mr Branimir Štefančič
(“the applicant”), on 6 May 2005.
The applicant was represented by Mr Z. Klun, a lawyer
practising in Ljubljana. The Slovenian Government (“the Government”) were
represented by their Agent, Mr B. Tratar, State Attorney General.
The applicant alleged that his criminal trial had
been unfair, as he had been convicted on the basis of the statement of a
witness whom he had not had the opportunity to cross-examine and because the
attendance of defence witnesses in court had not been ensured, with the result
that they had not been examined.
On 30 September 2010 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1966 and lives in Škofja
Loka.
On an unspecified date, the applicant and another
individual, M.K., were charged under Article 196, paragraph 2 of the Slovenian
Penal Code with the criminal offence of unlawfully manufacturing and trading in
narcotics. They were accused of being involved in the organisation of drug
trafficking which had been carried out by J.G., who had already been convicted of
this in London. Another person, D.M., who had been convicted in Freiburg (Germany), was involved in the trafficking.
By letter of 7 January 2000 and during a
telephone call on 14 January 2000, the applicant’s lawyer was informed of the
investigating judge’s decision to question J.G. as a witness in London, where he was being held in a prison.
On 18 January 2000 the investigating judge,
accompanied by M.K.’s representative and the public prosecutor, questioned J.G.
in London. J.G. had specified that his participation to the meeting was
conditional upon the fact that he would not be compelled to answer questions
put by the defence; as a consequence, M.K.’s representative was unable to put
any questions to him.
During questioning, J.G. explained that he had
met D.M. in 1990 in Germany. D.M. later contacted him about transporting a car
from Slovenia to elsewhere in Europe and mentioned people from Slovenia, including the applicant, who would organise the transport. J.G. and D.M. came
together to Slovenia on 12 February 1998 and stayed in the Hotel Medno. They were
visited there by the applicant and M.K. On this occasion, J.G. received an
envelope from the applicant: he stated that he thought that it contained money
for the purchase of a car, but later realised that it was a package of heroin
and that he was supposed to smuggle drugs in the future. According to J.G.’s
version of events, he came to Slovenia again on 26 February 1998, taking a train
from Feldkirch (Austria) to Ljubljana. In Ljubljana he met M.K., who told him
about the first drug transfer from Hungary to Germany and gave him a mobile
phone with a Slovenian SIM card. Later that day, J.G. met the applicant and
M.K. at the Hotel Medno. They told him where in Hungary he had to go, but that
plan was never implemented. J.G. subsequently bought a car for a drug transfer
from Croatia to Hamburg. His contact with M.K., who, unlike the applicant,
could speak English, was made using the mobile phone which had been given to
him during his second visit to Slovenia. J.G. met the applicant and M.K. in Munich and Stuttgart, where they told him about a new drug transfer from Croatia to Great Britain. He was again given instructions by M.K. using the mobile phone. J.G.
identified both the applicant and M.K. from a series of photographs.
The trial court subsequently called: (i) witness
D.Š., who testified that he had introduced the applicant to D.M. in the context
of a business involving the sale of apartments; (ii) an undercover agent who
was involved in another case and whose testimony was consequently held by the
trial court to be inadmissible in the proceedings concerning the applicant; and
(iii) an anonymous witness, who also confirmed that the applicant and D.M.
knew each other because they had both been present at the meeting concerning the
sale of certain apartments. The court also admitted as evidence: (i) the statement
taken from J.G. on 18 January 2000 in London; (ii) the guest records of
the Hotel Medno relating to the dates 13 and 27 February 1998; (iii) the records
of phone calls made on the Slovenian SIM card found in possession of J.G. on
the date of his arrest; and (iv) the judgment of the Freiburg Regional
Court concerning the criminal proceedings against D.M.
That judgment had established that D.M. and J.G.
knew each other and that they had planned a drug transfer from Slovenia to Central Europe. Moreover, it had been D.M. who had introduced J.G. to the applicant and
M.K. The Freiburg Regional Court had further established that on 12 February
1998 D.M. and J.G. had gone to the Hotel Medno in Ljubljana, where they had met
the applicant and M.K., that a second visit to Slovenia had taken place on 26 February
1998, that J.G. had received a mobile phone from M.K. which had been used to
give him instructions about the drug transfers, that J.G. had delivered drugs
in Hamburg and in Great Britain and that he had met the applicant and M.K.
twice in Germany.
At a hearing on 18 May 2000, the court read out J.G.’s
statement of 18 January 2000. While the public prosecutor and M.K.’s
representative agreed to this, the applicant’s representative objected and
requested that J.G. be examined in court. His request was rejected by the
court, referring to section 340 of the Criminal Procedure Act 1994
(hereinafter, “the CP Act” - see paragraph 22 below).
At a hearing on 29 May 2000, the applicant
requested that his mother, brother and wife be called to give evidence relating
to his state of health and his medical appointments during the period in
question. The court rejected the request, finding that the applicant’s state of
health could be verified on the basis of his medical records.
On 31 May 2000 the applicant was convicted and
sentenced to nine years’ imprisonment for being part of a criminal enterprise,
together with J.G. and D.M., which had drug trafficking from Croatia to Western Europe as its purpose. The court found that the applicant and his co-accused,
M.K., together with D.M., had organised and assisted the sale of heroin which had
been trafficked by J.G. on two occasions in March 1998. On one occasion, 30 kg
of heroin had been trafficked to Hamburg, and on another occasion, 54 kg
of heroin had been trafficked to London. The court also found that the
applicant had not attended any medical appointments on the dates on which the
alleged acts were committed.
In its judgment, the court rejected the
applicant’s argument that J.G. should have been examined at trial. The court
relied on the fact that J.G. had been sentenced to sixteen years in prison and
that it could not therefore have been expected that the British authorities would
bring him before a Slovenian court in order to testify. It also rejected the
applicant’s argument that J.G. was mentally ill, finding that his answers had
been clear and coherent and that the issue of his mental state had already been
assessed by the Freiburg Regional Court, which had found that his testimony had
been fully credible. The court also observed that the defence had been aware that
J.G. would not answer questions other than those put to him by the
investigating judge or the prosecutor. It further found that M.K.’s
representative, who had been present at the examination, had not even attempted
to put questions to J.G., nor had she asked the investigating judge to do so on
her behalf.
In its reasons for convicting the applicant, the
court stated that it had followed the description of the relevant events given
by J.G. on 18 January 2000, which had been coherent and supported by corroborating
evidence. The evidence, including telephone records and train tickets, had supported
J.G.’s statement regarding the trips he had taken in order to bring the drugs
to Hamburg and London. In particular, the train tickets found on J.G. on the
date of his arrest had corresponded to the dates of his alleged meetings with
D.M. Moreover, from the date on which he had received the mobile phone from
M.K. until the date of his arrest in London, J.G.’s Slovenian SIM card had recorded
that calls had been received from different telephone boxes in the area near
Škofja Loka, the city where the applicant and M.K. had lived. These phone calls
had matched with the dates and locations of the drug transfers which J.G. had
allegedly undertaken under the instructions of the applicant and M.K.
In addition, the court found that J.G. had picked
out the applicant and M.K. from twenty-four photos of different people and “had
previously described both of them and stated that he had met them on several
occasions”. It further stated:
“On the basis of the above, the court considers it proven that
the accused colluded with D.M. and J.G. for the purpose of
committing criminal offences. The witnesses confirmed that [the applicant] had met
D.M., and that [his co-accused] had also enquired about him. J.G. indicated the
time from which he had been D.M.’s friend and from which they had reconnected.
Immediately after J.G.’s release from hospital, D.M. contacted him and took
advantage of his position. It can also be seen from the Freiburg Regional Court’s
judgment that D.M. was in contact with J.G. on a continuous basis. All four of
them were together on 12 February and 13 February in the Hotel Medno, where
they started planning the trafficking.”
The applicant appealed. He alleged that the
judgment had been based predominantly on J.G.’s statement, which was of
questionable credibility. He submitted that the documents in the case file had
shown that J.G. was mentally ill, had been treated in a psychiatric hospital
several times, including most recently shortly before his arrest, and that he
was easily manipulated. For those reasons, the applicant had requested that the
court call J.G. for examination at trial. Referring to Article 6 of the
Convention, the applicant alleged that his right to examine a key witness
should have had precedence over the logistical difficulties and financial
consequences connected with the organisation of the witness’s attendance at the
hearing. He also complained about the court’s refusal to call his mother, his
brother and the representative of his co-accused as witnesses.
On 6 December 2000 the Ljubljana Higher Court
dismissed the appeal. It agreed with the lower court as regards the credibility
of J.G.’s testimony. In relation to the fact that J.G. had not been examined at
the hearing, it found the following:
“The court’s decision to read out the testimony of J.G. was
made under section 340, paragraph 1, point 1, on the well-founded basis
that J.G. was serving a sixteen-year prison sentence in London. The
representative of the accused had been informed of the examination before the
British court beforehand but decided not to attend. The other examinations of
this witness and the final judgment of the German court, which have been
mentioned already, were sufficient to assess the credibility of this witness.
Article 6 of the Convention was not violated because the accused were unable to
directly examine this witness, contrary to the appellant’s incorrect
contention. The proven credibility of this witness was such that the
participation of both accused [in J.G.’s questioning] could not have affected
[his statement’s] evidential value ... As can be seen from the written grounds
of the judgment, the court also relied on J.G.’s statements obtained in the
proceedings before the British courts
and the final judgment of the German court, which were valid evidence because
their lawfulness was not questionable as [a result of the fact that] the
judgments were final. Although M.K.’s representative was unable to put any
questions to J.G. (in accordance with the conditions set by J.G.), the rights of
the defence were not violated as otherwise the witness would have refused to
participate. In this connection, the court rightly found that the [applicant’s]
representative could have put questions to J.G. through the investigating judge
but did not make use of this possibility.”
The applicant and M.K. lodged appeals on points
of law. On 3 April 2003 the Supreme Court of Slovenia upheld their appeals in
part in respect of the legal qualification of the offence and reduced their
sentences to eight years’ imprisonment each. It dismissed the remainder of the
appeals. It found that the applicant’s representative had been given an
opportunity to participate in the examination of J.G. and should have been aware
of the possibility that the witness would not be examined again at trial, as
stipulated in section 167, paragraph 2 of the CP Act (see paragraph 22 below).
It also dismissed the applicant’s argument that he could not have afforded his
representative’s travel expenses, finding that no request had been made to
cover such expenses from State funds.
On 25 July 2003 the applicant lodged a
constitutional appeal alleging a violation of his defence rights. On 6 December
2004 the Constitutional Court dismissed the appeal as manifestly ill-founded.
It endorsed the reasons given by the Supreme Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Procedure Act
The relevant provisions of the CP Act (Zakon
o kazenskem postopku, Official Gazette no. 63/94) read as follows:
Section 167
“...
(2) The aim of an investigation is to gather the
evidence and data necessary for deciding whether to bring charges or
discontinue proceedings, evidence whose reproduction at the main hearing might
be impossible or very difficult, and other evidence which might be useful for
the proceedings and whose taking appears warranted by the circumstances of the
case.”
Section 178
“...
(4) The state prosecutor, the accused and his
defence counsel may attend the examination of a witness. The injured party may
attend the examination of a witness only if the witness is not likely to appear
at the main hearing.
...
(6) If a person who has been sent a notice of any intended
questioning fails to appear, the questioning may be performed in his absence. ...
(7) The parties and defence counsel present during a
questioning session may seek clarification of certain matters by putting
questions to the accused, witness or expert. As a rule, the questions shall
first be put by the state prosecutor, then by the accused and his counsel and
finally by the investigating judge. The investigating judge shall not allow a
question or an answer if they are not permitted or are irrelevant to the matter
considered. ... Persons present at a questioning session shall have the right
to demand that their remarks concerning the asking of individual questions be
entered in the record, and may propose that individual pieces of evidence be
taken.
...”
Section 183
“If the parties and defence counsel did not attend certain a
questioning session and the investigative judge considers that it would be
advantageous for the further course of the procedure if they were acquainted
with critical evidence, he shall inform them that this evidence will be
available within a specific period and that they may make motions for new
evidence to be taken.”
Section 288
“(1) ... Witnesses and experts proposed by the
prosecutor in the indictment and by the accused in his defence to the indictment,
except those whose examination at the main hearing is not necessary in the
opinion of the presiding judge, shall also be summoned to the main hearing. ...”
Section 337
“(1) If it transpires in the course of the main
hearing that a witness or an expert is unable to appear in court or his
appearance would involve great difficulty, and the panel maintains that his
testimony is important, the panel may order that he be examined outside the
main hearing by the presiding judge, or a judge on the panel, or the
investigating judge of the court in whose territory the witness or the expert
resides.
...
(3) The parties and the injured person shall always
be advised when and where a witness shall be examined, or when and where an
inspection or reconstruction of an event shall take place, and shall be
instructed that they may attend these events. If the defendant has been remanded
in custody, the panel shall determine whether his presence is necessary during
these actions. ...”
Section 340
“(1) In addition to the instances specified in the
present Code, the records of the testimonies of witnesses, co-defendants or
convicted persons who were involved in the offence, as well as expert reports
and expert opinions, may on the basis of a decision of the panel be read out
only in the following instances:
(i) if the persons questioned have died, or have
been affected by a mental disease, or cannot be found, or are unable to appear
in court due to old age, illness or some other weighty reason, or their
appearance would involve great difficulty;
(ii) if witnesses or experts refuse to testify at
the main hearing without legal justification.
(2) Subject to the consent of the parties, the panel
may decide that the record of a previous examination of a witness or an expert,
or the written findings and opinion of the expert, be read out in court in the
absence of the witness or the expert, whether or not the witness or the expert
were summoned to appear at the main hearing.
...
(4) The reasons for the reading out of the record
shall be indicated in the record of the main hearing ...”
Section 342
“After the examination of each
witness or expert, as well as after the reading of each record or other written
document, the presiding judge shall invite the parties and the injured person
to make comments if they so wish.”
B. Case-law of the Constitutional Court, of the
Supreme Court and of the Higher Courts
The Constitutional Court held that the “extreme
ill-health” of two witnesses (the alleged victims of a crime) was a “justified
and unavoidable derogation” from the principle of direct examination of
witnesses. Nevertheless, the accused should have been given the opportunity to
question the victims, and in this respect it was enough that he had been
invited, during the investigation, to be present at their examination conducted
by the investigating judge (decision Up-207/99 of 4 July 2002; see also
judgment no. III Kp 11324/2010 of the Ljubljana Higher Court of 9 June
2010). In a decision of 18 October 2007 (Up-849/05), the Constitutional Court
considered that it was not possible to refer to a violation of the right to
examine the witnesses for the prosecution when the authorities had acted with
due diligence in their efforts to ensure that the accused had the benefit of
this right (it is worth noting that in this case, according to the
Constitutional Court, the statements of the victims were not the sole and key
evidence against the accused).
In a judgment of 21 May 2009 (no. I Ips
14/2009), the Supreme Court noted that, according to section 340(1) of the CP
Act (see paragraph 22 above), the records of statements could be read at
trial in the event that the witnesses could not be found. If the accused was
provided with an opportunity “to be present at the hearing of this evidence”,
the statements in question could be read out even without his consent.
Furthermore, there was no violation of the procedural rights of the accused if
he and his counsel were summoned to attend the examination of a witness who
could not give evidence at trial (see judgment no. I Ips 507/2008 of 9 April
2009, and judgment no. I Ips 190/2006 of 17 May 2007). Conversely, such a
violation would occur when, in the absence of any obstacle to such an act, the
investigating judge failed to inform the suspect of the examination of a witness
whose statements were subsequently read out at trial (see judgment no. I Ips
88/2008 of 16 October 2008).
Section 340 of the CP Act indicates the cases in
which it is admissible to make an exception to the principle that evidence at
the main hearing shall be taken directly before the trial chamber (the
“principle of immediacy” - see Supreme Court judgment no. I Ips 330/2006 of 24 April
2008). A party who has explicitly agreed to the reading of a witness’s
testimony cannot rely upon the right to cross-examine the witness in question
at the trial hearing (see decision no. Kp 115/2000 of the Celje Higher Court of
23 March 2000, and decision no. Kp 28/2008 of the Koper Higher Court of 6 February
2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION BY REASON OF ADMITTANCE AND USE AGAINST THE APPLICANT OF THE
STATEMENT MADE BY J.G. IN LONDON
The applicant considered that his conviction had
been based to a decisive extent on the statement made to the investigating
judge by J.G. and underlined that, in breach of Article 6 § 3 (d) of the
Convention, he had not been given the opportunity to cross-examine this key witness
directly and/or at trial with a view to adversarial argument.
Insofar as relevant, Article 6 of the Convention reads as
follows:
“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;
...”
The Government contested that argument.
A. Admissibility
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. Arguments of the parties
(a) The Government
The Government underlined that the admissibility
of evidence was primarily a matter for regulation by national law and that the
use of evidence obtained at the pre-trial stage was not in itself incompatible
with Article 6 of the Convention. In the present case, the decision of the
first-instance court had been issued following an extensive and
exhaustive hearing of evidence and had been upheld by all of the domestic
appellate courts. The first-instance court had rightly based its judgment on the
statement of J.G., who had been examined by the investigating judge in London
and whose statement had been in all key respects identical to his defence
before the criminal court in London and consistent with the findings of the
final judgment of the Freiburg Regional Court sentencing the fourth member of
the criminal group, D.M., for the same criminal offence. The possibility that
J.G. had been manipulated should be excluded, as his mental capacity had been verified
and several questions and follow-on questions had been put to him.
Moreover, the first-instance judgment had not been
exclusively based on J.G.’s statement, but had also relied on other evidence,
namely: the statements of other witnesses; the records of the testimony given
before the British authorities by J.G.; the guest book of the Hotel Medno for 13
and 27 February 1998; the records of the outgoing and incoming phone
numbers of 30 April 1999 on J.G.’s Slovenian SIM card; a chemical analysis of
54.3 kilograms of heroin; the criminal records of the defendants; and the
judgment of the Freiburg Criminal Court in the case against D.M. The
credibility of the J.G.’s statement had been corroborated by the telephone
calls recorded as received by his Slovenian SIM card, which had fully matched
his recollection of the time and locations of his movements though different
countries. Furthermore, his meeting with D.M. had been confirmed by a train
ticket and his meetings with the defendants had matched with the dates on which
J.G. and D.M. had stayed at the Hotel Medno. In the Government’s opinion, J.G.’s
statement had been neither the sole nor the decisive evidence against the
applicant, but rather a piece of evidence supported by a number of other pieces
of parallel evidence (see, mutatis mutandis, Mika v. Sweden (dec.),
no. 31243/06, 27 January 2009).
The decision to read out J.G.’s statement had
been based on section 340(1) of the CP Act, as the court had held that the
fact that the witness was serving a sixteen year prison sentence in England was
a weighty reason for his inability to appear in court. According to the
Government, in such circumstances it would have been virtually impossible to
question J.G. before a court in Slovenia.
Moreover, the applicant had been given an
adequate and proper opportunity to challenge and question the witness. Indeed,
his lawyer had been informed in due time (on 7 January by letter and on 14
January 2000 by phone) about the examination of J.G. in England, but had failed to attend. By attending, the applicant’s lawyer would have had the opportunity
to ask questions on behalf of the applicant and to make comments on and motions
about J.G.’s statement. The defence had accepted the risk that it might not be
possible to exercise those rights at the main hearing. The investigating judge had
examined J.G. on 18 January 2000 in London, in the presence of the state
prosecutor and counsel for the applicant’s co-defendant, M.K. It did not appear
from the case file that the applicant or his lawyer had informed the court that
they would not attend the examination of the witness as a result of difficulties
arising from a lack of financial resources. They had also failed to ask that
the applicant’s lawyer’s travel expenses be paid from State funds. The defence had
not explicitly stated, at that stage or later in the proceedings, which
questions it would have put to J.G. had he been summoned to appear at the trial
hearing.
It was to be borne in mind that the Slovenian
courts had also legitimately relied on the testimony given by J.G. in the
criminal proceedings in England and on the content of the final judgment
delivered in Germany. These documents had given enough grounds to assess the
credibility of the witness. The fact that during questioning on 18 January
2000 counsel for the applicant’s co-defendant had not been allowed to put
questions to J.G. could not constitute a violation of the rights of the
defence, as J.G. would otherwise have not answered any questions or the
examination would have been interrupted. Counsel could have put questions to
J.G. through the investigating judge, but had failed to make use of this
possibility.
According to the Government, the applicant could
not rely on the judgments given by the Court in the cases of Kostovski v.
the Netherlands (20 November 1989, Series A no. 166) and Lüdi v.
Switzerland (15 June 1992, Series A no. 238), which concerned different
factual situations (use of the statements of anonymous witnesses). In the
present case, the witness had not been anonymous, had been examined before an investigating
judge and the applicant had been given the opportunity to examine him in
England through counsel (this last element also differentiated the present case
from A. v. Finland, no. 40156/07, 28 September 2010). Relying
on Gorgievski v. the former Yugoslav Republic of Macedonia (no.
18002/02, 16 July 2009), in which the Court concluded that there had been no
violation of Article 6 §§ 1 and 3 (d) of the Convention, the Government argued
that in the domestic proceedings the essential aim of a full “equality of arms”
had been achieved.
(b) The applicant
The applicant did not submit observations in
reply, but reiterated his wish to have his case examined by the Court.
2. The Court’s assessment
(a) General principles
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. In addition, the Court’s primary concern under
Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings
(see Taxquet v. Belgium [GC], no. 926/05, §
84, 16 November 2010, with further references therein). 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 victim(s) 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 notable 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 Gäfgen, cited above, § 162, and the references therein).
The Grand Chamber has recently clarified the
principles to be applied when a witness does not attend a public trial (see Al-Khawaja
and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 119-147,
15 December 2011). These principles may be summarised as follows:
(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, like in
the case of Al-Khawaja and Tahery, cited above, the death of the
witness 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 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 the 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 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 supportive
evidence: the stronger the corroborative 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
balance 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.
(b) Application of these principles to the present
case
(i) Whether there was a good reason for admitting the
evidence of J.G.
In the present case, the decision to admit J.G.’s
pre-trial statement as evidence was based on section 340(1)(i) of the CP Act, a
provision according to which “the records of the testimonies of witnesses ...
may be read out ... if [the] appearance [of the witness at trial] would involve
great difficulty” (see paragraph 22 above). According to the domestic courts,
the great difficulty in question concerned the fact that J.G. had been sentenced
to sixteen years’ imprisonment and was serving his sentence in London, and it could not be expected that the British authorities would bring him before
the Slovenian courts in order to testify (see paragraph 15 above).
The Court accepts that the practical
difficulties connected to the transfer of the witness from the United Kingdom
to Slovenia were legitimate reasons justifying his non-attendance at the trial.
In this connection, it notes that the transfer of a convicted prisoner from one
State to another entails a complex procedure requiring a number of security
measures, notably when the two countries concerned are at significant distance.
States cannot be considered obliged to run such a procedure in all the cases.
This is especially true where, as in the present case, there is a possibility
to hear the witness at stake in the country where he is held in custody. Therefore,
the Court considers that there was sufficient
justification for admitting J.G.’s statement.
(ii) Whether the testimony of J.G. was decisive for
the applicant’s conviction and whether the domestic system provided the
applicant with adequate procedural safeguards
The Court notes that the domestic courts relied
on J.G.’s testimony, which they considered fully credible (see paragraphs 15
and 19 above). The first-instance court followed the description of the
relevant events given by J.G. on 18 January 2000, which in its opinion was
coherent (see paragraph 16 above).
However, the Slovenian judges found several pieces
of evidence corroborating J.G.’s account, notably the records of the Hotel
Medno, the train tickets found on J.G. on the date of his arrest and the
telephone records of his Slovenian SIM card, as well as the judgment of the
Freiburg Regional Court and J.G.’s statements obtained in the proceedings
before the British courts (see paragraphs 10, 11, 16 and 19 above). These
elements confirmed J.G.’s whereabouts and the contacts he had had with persons
residing in Slovenia. Moreover, other oral evidence produced before the
first-instance court (see paragraph 10 (i) and (iii) above) proved that the
applicant and D.M., one of the persons implicated in the drug-trafficking, knew
each other and, as pointed out by the Government (see paragraph 30 above),
54.3 kilograms of heroin were found and chemically examined.
Under these circumstances, the Court is of the
opinion that J.G.’s testimony was not the sole or decisive evidence against the
applicant, but rather one of the elements which, examined in their individual
probative value as well as in relation to the other available pieces of
parallel evidence, led the Slovenian courts to convict the applicant for
drug-trafficking (see, mutatis mutandis, Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII, and Carta v. Italy, no. 4548/02, § 52, 20 April 2006).
As the corroborative evidence pointed out in
paragraph 41 above was particularly strong, the evidence of the absent witness
cannot be treated as decisive. It follows that, differently from the case of Tahery,
cited above, the applicant’s defence rights were not, as such, unduly
restricted by the absence of J.G. at trial.
Moreover, it is to be noted that in the present
case the witness whose statement had been admitted in lieu of live evidence at
trial was examined at a prior stage of the proceedings by the investigating
judge, notably during a meeting held in London on 18 January 2000. The public
prosecutor and a representative of the applicant’s co-accused were also present
(see paragraph 8 above). The applicant’s representative was invited to this questioning
session (see paragraph 7 above), but decided not to attend (see paragraph 19
above), thus missing an opportunity to test the truthfulness and reliability of
J.G.’s testimony.
It is true that J.G. had made his attendance to
the meeting conditional upon the fact that he would not be compelled to answer
questions put by the defence and that M.K.’s representative, who was present at
the questioning, could not directly cross-examine him (see paragraphs 8, 15 and
19 above). The Court notes, however, that J.G. could have refused to answer
questions by the defence even if he had been examined at trial.
Moreover, as pointed out by the domestic courts,
the defendants’ representatives could have tried to put questions to J.G.
through the investigating judge (see paragraphs 15 and 19 above). Should he
refuse to answer, it was open to the applicant to use this fact before the
Slovenian courts to undermine J.G.’s credibility. It is also worth noting that
the defence had a fair opportunity to comment on the evidence which was
produced and to argue that little weight should be given to a statement made by
a witness who had not been present at trial and failed to do so.
(iii) Conclusion
Against this background,
and viewing the fairness of the proceedings as a whole, the Court considers
that J.G.’s statement was not the sole or decisive evidence against the
applicant and that the defence had at its disposal some procedural safeguards
capable of counterbalancing, at least in part, the absence of this witness at
trial. It follows that the admission in evidence of J.G.’s statements did not
result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d)
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION BY REASON OF THE REJECTION OF THE APPLICANT’S REQUEST TO CALL WITNESSES
ON HIS BEHALF
The applicant further complained that his
request to call his mother and brother, as well as the lawyer of his
co-accused, as witnesses at the hearing was rejected.
The Court reiterates that, as a general
rule, it is for the national courts to assess the evidence before them, as well
as the relevance of the evidence which defendants seek to adduce (see, among
other authorities, Barberà, Messegué and Jabardo v. Spain, 6 December
1988, § 68, Series A no. 146). More specifically, Article 6 § 3 (d) leaves
it to them, again as a general rule, to assess whether it is appropriate to
call witnesses, in the autonomous sense given to that word in the Convention
system (see Asch v. Austria, 26 April 1991, § 25, Series A no.
203). It is accordingly not sufficient for a defendant to complain that he
has not been allowed to question certain witnesses: he must, in addition,
support his request by explaining why it is important for the witnesses
concerned to be heard and their evidence must be necessary for the
establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29,
6 May 2003).
Article 6 § 3 (d) “does not require the attendance
and examination of every witness on the accused’s behalf: its essential aim, as
is indicated by the words ‘under the same conditions’, is a full ‘equality of arms’
in the matter” (see, among other authorities, Engel and Others v. the
Netherlands, 8 June 1976, § 91, Series A no. 22, and Bricmont v. Belgium,
7 July 1989, § 89, Series A no. 158). The principle of equality of arms
implies that the applicant must be “afforded a reasonable opportunity to
present his case under conditions that do not place him at a disadvantage
vis-à-vis his opponent” (see Bulut v. Austria, 22 February 1996, § 47, Reports
1996-II, and Popov v. Russia, no. 26853/04, § 177, 13 July
2006). In particular, where the applicant’s conviction is based primarily on
the assumption of his being in a particular place at a particular time, the
principle of equality of arms and, more generally, the right to a fair trial,
implies that the applicant should be afforded a reasonable opportunity to
challenge this assumption effectively (see Popov, cited above, § 183).
In the present case, the witnesses requested by
the applicant (his close relatives and his co-defendant’s lawyer) were proposed
with the aim of having them testify as to his state of health and his medical
appointments during the period in which he allegedly committed the offences. The
first-instance court rejected this request, reasoning that these facts
could have been verified on the basis of the applicant’s medical records (see
paragraph 13 above). Those records showed that the applicant had not
attended any medical appointments on the dates on which the alleged acts were
committed (see paragraph 14 above).
The Court agrees with the Slovenian tribunal on
this point and considers that the decisions in which the national authorities
refused the applicant’s request are not open to criticism under Article 6, as
he has not established that his request for evidence to be taken from his close
relatives and from his co-defendant’s lawyer would have brought new and
relevant facts to light that would have been relevant for the determination of the
charges against him (see, mutatis mutandis, Priebke
v. Italy (dec.), no. 48799/99, 5
April 2001, and Perna, cited above, §§
30-32). Nor was he put in a situation of disadvantage vis-à-vis the
prosecution.
Under these circumstances, no appearance of a violation of
Article 6 §§ 1 and 3 (d) of the Convention can be ascertained under
this head.
It follows that this complaint 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 UNANIMOUSLY
1. Declares the complaint concerning the
admittance and use against the applicant of the statement made by J.G. in
London admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention by
reason of the admittance and use against the applicant of the statement made by
J.G. in London.
Done in English, and notified in writing on 25 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
