FORMER FIFTH SECTION
CASE OF PESUKIC v.
SWITZERLAND
(Application no. 25088/07)
JUDGMENT
STRASBOURG
6 December 2012
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 Pesukic v. Switzerland,
The European Court of Human Rights (Former Fifth Section),
sitting as a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
Helen Keller,
Paul Lemmens, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 2 October 2012 and 13 November
2012,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
25088/07) against the Swiss Confederation lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Montenegrin national, Mr Srdan Pesukic (“the
applicant”), on 12 June 2007.
The applicant was represented by Mr T. Reich, a
lawyer practising in Zurich. The Swiss Government (“the Government”) were
represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.
The applicant alleged, in particular, that his
criminal conviction was based to a decisive extent on testimony given by an
anonymous witness.
On 26 November 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Having been informed on 4 December 2009 of their
right to submit written observations, the Government of Montenegro did not
express an intention to take part in the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974. He is currently
detained in a cantonal prison in Regensdorf in Switzerland.
On 15 October 2001, shortly after midnight, N.B.
was killed by a gunshot in the back of his neck in front of the post-office in
Zurich-Schwamendingen. The applicant was suspected of having carried out
the shooting.
On 8 July and 21 August 2002, the prosecution
authority of the canton of Zurich interrogated X as a witness. X declared that
he had been at the crime scene and that he had been able to see, from a
distance of twenty metres, that the applicant had shot the victim in the back
of his neck. During the interrogations, the witness, the investigating judge, a
police officer and a translator were sitting in a separate room, while the
applicant, the former co-accused Z. L., their respective defence counsel
and two police guards were sitting in another room. The interrogation was
transmitted via a sound link, and the witness’ voice was distorted in order to
protect the witness’ anonymity. Following the interrogation, the defence
counsel were given the opportunity to put additional questions via the sound
link.
At the beginning of each interrogation the
applicant’s counsel declared that the modalities of the witness interrogations
did not allow for an adequate exercise of the rights of the defence.
On 29 January 2004, X was interrogated before
the Jury Court of the canton of Zurich (Geschworenengericht). While the
judges, the jury and an interpreter were sitting directly together with the
witness in the hearing room, the applicant, his counsel, the interpreter, the
civil parties, the public prosecutor and the journalists were placed in one of
the court’s deliberation rooms. The interrogation was transmitted via a sound
link and the witness’ voice was distorted in order to prevent his being
identified.
The applicant and his counsel were allowed to
put additional questions to X. The latter, however, refused to answer a number
of questions which the defence counsel considered to be important, notably the
following:
“Why had X arranged a meeting with N.B.?
How did X react after the crime? Did X approach the body? Did he wait for the
police? Did he consume drugs? Was he afraid of someone close to the applicant?
Had he been concretely threatened by someone? Did X have an argument with the
applicant or with Z.L.? Where did X go after the crime? Was he on foot or did
he have a vehicle? Did he have a criminal record? Was he residing legally in Switzerland? Did he wear spectacles?”
On 6 February 2004, the jury court convicted the
applicant of manslaughter (vorsätzliche Tötung) and of several counts of
drug-trafficking and sentenced him to fourteen years and nine months’
detention. The court considered that the testimony given by X was credible and
pertinent. It further considered that the conditions to allow the witness’
anonymity were met. It noted that X had submitted in a credible and convincing
way that his life was in danger in case he testified, as persons close to the
applicant and to Z. L. were ready to take revenge and did not even hesitate to
kill somebody. According to X’s submissions, he was the only person who had
observed the crime and who dared to testify. It thus appeared comprehensible
that X feared reprisals. It was further obvious that the applicant had a motive
to take revenge on the witness who had contributed to his conviction and to
prevent him from making further testimonies.
The fears expressed by X were in line with the
overall picture conveyed by the other witnesses, who showed fear which was
sometimes even bordering to panic when it came to making any concrete
incriminating statements. The court considered that there were concrete
indications that the applicant lived in an extremely violent environment in
which recourse to violence and even to arms was frequent even for seemingly
minor reasons. Moreover, there were specific indications that persons who had
been ready to testify before the jury court had been exposed to death threats.
The court further considered that the measures taken
were both necessary and sufficient to prevent identification of the witness X.
The court had taken a number of measures to compensate the restrictions imposed
on the rights of the defence. Firstly, the witness had not been examined by the
regional prosecutor (Bezirksanwalt), but by the president of the court.
Secondly, the identity of X had been confirmed by the police-officer in charge
of the investigation and had been known to the regional prosecutor and to the
president of the court.
Thirdly, the police officer and the regional
prosecutor gave testimony about X’s reputation and credibility. It had thus
been known that X had no criminal record and that there was no indication that
he had any contact with the drug trafficking scene. There was further no
indication that X had been in any way involved in the crime. It was further
known that X spoke the Serbo-Croatian language. Conversely, the regional
prosecutor refused to divulge any detailed information on X’s private and professional
background, his education, his family situation and his residence status. The
jury court considered, however, that this information was of minor importance
for the assessment of credibility and that the information available gave the
court a sound basis for assessing the general credibility of the witness.
The court further noted that X had been
interrogated in front of the complete court and that all persons participating
in the decision-making process could gain a personal impression of the witness
and of his reaction to the questions put to him. Furthermore, the court had
taken into account that, under the case-law of the European Court of Human
Rights, a conviction could not be exclusively based on testimony given by an
anonymous witness. The principle of a public hearing had been safeguarded by
allowing the press directly to follow the interrogation from the separate room
in which the defence was seated. The court considered that the core rights of
the defence had been safeguarded and that the measures taken had been
proportionate.
Referring to the Court’s case-law, the jury
court considered that a criminal conviction must not be exclusively based on
testimony given by an anonymous witness. Accordingly, the court considered that
it could not rely on the anonymous witness’ testimony insofar as this
constituted the only evidence available. The jury court resumed its examination
by laying out general principles for the assessment of the credibility of
evidence by witnesses. It considered that the applicant’s own submissions,
according to which he could not have been present at the crime scene as he
first entered Swiss territory in January 2002 - and thus after the victim had
been killed - were contradictory and thus lacked credibility. Conversely, the
court considered the testimony given by the anonymous witness, who submitted
that he had seen the applicant shooting the victim, to be credible.
The jury court further considered that there had
been other evidence linking the applicant to the crime. There was, in
particular, witness and circumstantial evidence allowing the conclusion that
the applicant had been residing in the Zurich region since August 2001, that he
had known the victim and that he had engaged in drug trafficking with him. As
regarded the shooting of the victim, the court considered that the statements
made by the witness Z. L., who had declared in a credible and convincing way to
the police that the applicant had explained to him some days after the incident
that he had killed N.B. before the latter could kill him, weighed heavily
against the applicant, notwithstanding the fact that Z. L. did not repeat these
allegations during the court proceedings, but stated that he could not remember
what had happened. The testimony given by Z. L. during the police investigation
was supported by the convincing submissions made by the anonymous witness, and
by testimony given by a witness who had presumably met the applicant
immediately after the crime. Relying on all available evidence, the jury court
concluded that there was no doubt that N. B. had been shot by the
applicant. With regard to the concrete factual circumstances, the jury court
considered that the prosecution based its submissions mainly on testimony given
by the anonymous witness. It followed that, for formal reasons, these
circumstances could not be taken into account and that it had to be assumed in
the applicant’s favour that the concrete circumstances had not been proven. It
followed that there was no sufficient factual basis which would allow the
conclusion that the applicant acted with a particular degree of scrupulousness
(besonders skrupellos) which would lead to the crime being characterised
as murder.
The applicant lodged a nullity appeal (Nichtigkeitsbeschwerde)
with the Court of Cassation (Kassationsgericht) of the canton of Zurich.
By decision of 19 December 2005 the Court of
Cassation quashed the judgment and remitted the case to the lower court. That
court noted that the anonymous witness had been heard in camera and that
the applicant’s counsel did not have the possibility directly to question the
witness. Neither the applicant nor his counsel had ever seen the witness, whose
personal details remained secret. The court further noted that the witness
refused to answer a number of questions which the defence considered important
(see paragraph 11, above). The court did not call into question that the legal
conditions for granting anonymity were fulfilled in the instant case and
confirmed the first instance court’s finding that it had been necessary to
protect X against possible reprisals.
With regard to the applicant’s rights under
Article 6 of the Convention, the court considered that the maintenance of the
anonymity of the witness X and the fact that X had been shielded from sight and
that his voice had been distorted seriously interfered with the defence’s right
to confront the witness. The fact that the prosecution and the presiding judge
were aware of the witness’ identity could not be regarded as a counterbalancing
factor as such. Given the fact that all judges were accountable for the
judgment, and that it was the role of the defence to examine the findings of
the prosecution from the defendant’s point of view, it appeared problematic
that the presiding judge had knowledge that was superior to that of the other
members of the court, including the jury, and that the latter had more
knowledge than the defence. Adequate compensation could only be conceivable if
at least the defence had the right directly to take part in the interrogation
of the witness and was given the opportunity to assess the witness’
credibility; however, this possibility was not granted in the instant case.
Relying on the Court’s case-law (the court
referred to the cases of Doorson v. the Netherlands, 26 March 1996, Reports
of Judgments and Decisions 1996-II and Van Mechelen and Others v.
the Netherlands, 23 April 1997, Reports of Judgments and Decisions
1997-III), the court considered that the criminal court could not rely on
the testimony given by the anonymous witness for two separate reasons: Firstly,
according to the case-law of the Court, it was decisive whether the applicant’s
defence counsel had been present during the interrogation of the anonymous
witness or had at least been in a position to follow the interrogation via an
audio-visual link and to put questions. As this had not been the case,
the modalities of the witness’ interrogation did not comply with the standards
set up by the Court and were thus contrary to Article 6 § 3 (d) of the Convention.
Secondly, the court examined whether the
testimony given by the anonymous witness had to be regarded as being “decisive”
for the applicant’s conviction within the meaning of the “sole or decisive”
rule developed by the Court. It noted that the anonymous witness was the only
direct witness of the crime at issue, as the remaining witnesses only gave
evidence by hearsay. It was thus obvious that the anonymous witness’ testimony
had more than only minor relevance for the assessment of the evidence. Even
though the evidence given by other - indirect - witnesses carried a certain
weight, the anonymous witness had to be regarded as the decisive evidence (“massgebliches
Beweismittel”), and was decisive to an extent which, under the Court’s
case-law, excluded the possibility of having recourse to this evidence in order
to establish the applicant’s guilt.
On 3 February 2006 the senior public prosecutor
(Oberstaatsanwalt) of the canton of Zurich lodged a nullity appeal
against the decision of the Court of Cassation.
By judgment of 2 November 2006 the Federal
Tribunal (Kassationshof) quashed the decision of 19 December 2005 and
remitted the case to the Court of Cassation. That court considered that the
lower court’s judgment did not comply with the principle of free appreciation
of the evidence under Article 249 of the Federal Law on Criminal Procedure (Grundsatz
der freien Beweiswürdigung, see relevant domestic law, below).
The Federal Tribunal confirmed that it had been
necessary to protect the witness by shielding his appearance both from the
applicant and from the applicant’s counsel. It considered that the counsel was
not under any legal obligation to transmit information on the witness’ identity
to the applicant. Even if such a duty existed, the risk that the defence
counsel did not respect this obligation or inadvertently divulged information
to his client was unacceptably high. The tribunal further considered that it
was compatible with Article 6 of the Convention to consider the testimony given
by an anonymous witness insofar as it could complete - like a mosaic stone -
the picture gained through other evidence, which was in itself not sufficient
to support an establishment of guilt, but established a strong suspicion, and
thus contributed to a full establishment of guilt.
The tribunal further reviewed the other evidence
examined by the jury court and concluded that this evidence, taken separately,
would have been sufficient “to establish a strong suspicion of a criminal
offence, or even to establish his guilt”. The tribunal reiterated that the jury
court had considered that the testimony given by the witness X had been
credible and that it was, furthermore, in line with the scientific conclusion
that the victim had been killed by gunshot in the back of his neck on 15
October 2001.
The tribunal concluded that the anonymous
testimony only served as one piece of a mosaic which enforced the conclusion
drawn from the remaining evidence. It followed that the criminal courts were
not prevented from taking this evidence into account.
On 12 February 2007 the Court of Cassation
rejected the applicant’s nullity appeal. On 19 April 2007 the Federal Tribunal
rejected the applicant’s appeal.
II. RELEVANT DOMESTIC LAW
Article 249 of
the Federal Law on Criminal Procedure as in force at the relevant time reads as
follows:
“The court shall be free to interpret the evidence. It is
not bound to any rules on admissible evidence”.
Article 131 a of the Code of Criminal Procedure
of the Canton of Zurich as in force at the relevant time provided:
“(1) In case of considerable or serious danger, appropriate specific
measures can be taken for the protection of witnesses or third persons. It is,
in particular, possible
1. to exclude the public,
2. to keep personal data confidential,
3. to exclude direct confrontation between the witness and the
defendant or third persons and
4. to dissimulate the witness’ appearance and voice by
technical means.
(2) These measures have to be proportionate and are permissible
only if it is impossible to avert the impending danger by other means.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that his criminal
conviction was based to a decisive degree on testimony given by an anonymous
witness whom the applicant could not properly examine or have examined during
the hearing, contrary to Article 6 §§ 1 and 3 (d) of the Convention, which
reads as follows:
“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. They further submitted that the applicant had failed
to exhaust domestic remedies with respect to the modalities of the testimony
given by the other, non-anonymous witnesses.
A. Admissibility
The Court notes that the applicant, in his
application before the Court, did not complain about any restrictions of the
rights of the defence with regard to the examination of the other,
non-anonymous witnesses. It follows that the Government’s objection based on
non-exhaustion of domestic remedies in this respect is to be rejected.
The Court further notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the applicant
The applicant submitted that his criminal
conviction by verdict of the Jury Court of the canton of Zurich was to a
decisive extent based on the testimony given by the anonymous witness X.
According to the applicant, the other evidence referred to in the judgment
might at the most prove that the applicant was residing in Switzerland at the time the victim had been shot, but did not allow any conclusions as to the
circumstances of the criminal act.
The applicant further submitted that counsel for
the defence had not been able to question the anonymous witness properly. The
defence especially did not have an adequate possibility to impeach the witness’s
credibility, either by receiving answers to a number of relevant questions (see
paragraph 11, above) or by having the possibility of direct confrontation. The
applicant further pointed out that only the court, but not the defence, had the
possibility directly to observe the witness when giving testimony. The
situation was thus comparable to that adjudicated by the Court in the case of Van
Mechelen (cited above), in which the Court found a violation of the
applicant’s Convention rights.
According to the applicant, it had not been
properly established during the proceedings that there had been a real danger
for the witness. Furthermore, the witness did not answer any questions of the
defence relating to the reasons for anonymity. Even if it should have been
justified to preserve the witness’ anonymity, there had been no reasons
preventing the witness from answering the defence’s questions with regard to
certain facts and circumstances of the case. The measures taken by the Jury
Court of the canton of Zurich had not been sufficient to counterbalance the
restrictions on the rights of the defence. It followed that the restrictions
imposed on the rights of the defence were disproportionate and violated the
applicant’s rights under the Convention.
2. Submissions by the Government
The Government contested that the applicant’s
conviction was based to a decisive degree on the testimony given by the
anonymous witness. They submitted that the Federal Tribunal, in its decision of
6 November 2006, after having examined the other evidence available, considered
that the testimonies given by other, non-anonymous witnesses were sufficient to
at least cast severe doubts on the applicant’s innocence. Furthermore, the
evidence given by the anonymous witness X had been supported by scientific
evidence according to which the victim had been killed by a gunshot in the back
of his neck. It followed that the anonymous testimony merely complemented the
other means of evidence which, even though indirectly, sufficed to cast a
justified suspicion on the applicant or even to establish the applicant’s
guilt, having particular regard to the thorough examination of the evidence by
the jury court.
The applicant and his counsel had had the
opportunity to examine the witness both before the prosecution authority and
before the jury court. Before the jury court, the witness was examined in the
presence of the judges, the jury and of an interpreter; furthermore, the
witness’ identity had been duly checked and his reputation and credibility had
also been established. Even though the applicant, his counsel, an interpreter,
the civil parties and the press had been in a separate room, the defence had
the possibility to put additional questions which the witness answered insofar
as he did not run the risk of divulging information which might have given an
indication as to his identity.
The Government further submitted that the
measures taken by the Zurich authority had been necessary in order to preserve
the victim’s anonymity. The authorities did not have any milder means at their
disposal to preserve the witness’ anonymity. The Government pointed out that
the applicant knew the witness by sight and could thus have easily recognised
him. In the light of this, it would have been particularly risky directly to
confront the anonymous witness with the defence counsel, given that the counsel
was under no legal obligation to keep quiet about details which might unveil
the witness’ identity. Even if such a duty existed, the risk that the defence
counsel did not respect this obligation and thus jeopardised the witness’
safety would have been unacceptably high.
The Government finally submitted that the rights
of the defence had not been restricted during the examination of the other,
non-anonymous witnesses.
3. Assessment by the Court
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). As to the content of Article 6 § 3 (d), the Grand Chamber
explained that it enshrines the principle that, before an accused can be
convicted, all evidence against him must normally be produced in his presence
at a public hearing with a view to adversarial argument. Exceptions to this
principle are possible but must not infringe the rights of the defence, which,
as a rule, require that the accused should be given an adequate and proper
opportunity to challenge and question a witness against him, either when that
witness makes his statement or at a later stage of proceedings (see Al-Khawaja
and Tahery, cited above, § 118 and Van Mechelen and Others, cited
above, § 51). In the context of absent witnesses, the Grand Chamber set
out two considerations in determining whether the admission of statements was
compatible with the right to a fair trial. First, it had to be established that
there was a good reason for the non-attendance of the witness. Second,
even where there was a good reason, where a conviction was based solely or to a
decisive extent on statements made by a person whom the accused had had no
opportunity to examine, the rights of the defence might be restricted to an
extent incompatible with the guarantees of Article 6. Accordingly, when the
evidence of an absent witness was the sole or decisive basis for a conviction,
sufficient counterbalancing factors were required, including the existence of
strong procedural safeguards, which permitted a fair and proper assessment of
the reliability of that evidence to take place (see Al-Khawaja and Tahery,
cited above, §§ 119 and 147).
As the Grand Chamber indicated in Al-Khawaja
and Tahery, the problems posed by absent witnesses, at issue in that case,
and anonymous witnesses, as in the present case, are not different in principle
(see Al-Khawaja and Tahery, cited above, § 127 and Ellis, Simms
and Martin against the United Kingdom (dec.), nos. 46099/06 and
46699/06, § 78, 10 April 2012). Accordingly, in assessing the fairness of
a trial involving anonymous witnesses called to give oral evidence before the
court, this Court must examine, first, whether there are good reasons to keep
secret the identity of the witness. Second, the Court must consider whether the
evidence of the anonymous witness was the sole or decisive basis of the
conviction. Third, where a conviction is based solely or decisively on the
evidence of anonymous witnesses, the Court must subject the proceedings to the
most searching scrutiny. If the defence is unaware of the
identity of the person it seeks to question, it may be deprived of the very
particulars enabling it to demonstrate that he or she is prejudiced, hostile or
unreliable. In view of this, the Court must be satisfied that there are
sufficient counterbalancing factors, including the existence of strong
procedural safeguards, to permit a fair and proper assessment of the
reliability of that evidence to take place (see Al-Khawaja and Tahery,
cited above, § 147, and Ellis, Simms and Martin, cited above, § 78).
As to the reasons for admitting the anonymous
witness, the Court observes that the decision not to disclose X’s identity to
the public or to the defence was inspired by the need to obtain evidence from
him while at the same time protecting him against the possibility of reprisals
by the applicant or by persons close to the applicant. The Court further notes that
the applicant knew the witness X by sight, that the crime at issue was set in
the drug-trafficking scene and that the jury court had considered that X’s
fears that his life was in danger in case he testified was in line with the
overall picture conveyed by the other witnesses, who showed acute fear when it
came to making any concrete incriminating statements (compare paragraphs 12 and
13, above). As this assessment of the threats does not appear far-fetched (also
compare Doorson, cited above, § 71), the Court accepts that there had
been relevant reasons to keep the witness’ identity undisclosed.
In the Court’s view, the present case falls to
be distinguished from the case of Van Mechelen. While in the latter case
the interrogation of anonymous witnesses took place under similar circumstances
as in the instant case, the Court considered that the Government had failed
sufficiently to establish as to why it had been necessary to maintain the
police officers’ anonymity (see Van Mechelen, cited above, §§ 60 et
sequ.). Conversely, in the instant case, the Court does not have reason to
doubt the necessity of protecting the witness X’s anonymity.
Turning to examine whether the testimony of X
was the sole or decisive evidence against the applicant, the Court observes
that the jury court relied on X.’s testimony, which they considered credible
and convincing (see paragraphs 17 et seq., above). However, the jury
court also relied on other evidence corroborating X.’s account. There was, in
particular, witness and circumstantial evidence allowing the conclusion that
the applicant had been residing in the Zurich region at the time of the crime,
that he had known the victim and that he had engaged in drug trafficking with
him. As regarded the shooting of the victim, the court considered that the
statements made by the witness Z. L., who had declared in a credible and
convincing way to the police that the applicant had explained to him some days
after the incident that he had killed N.B. before the latter could kill him,
weighed heavily against the applicant, notwithstanding the fact that Z. L. did
not repeat these allegations during the court proceedings. The testimony given
by Z. L. during the police investigation was supported by testimony given by a
further, non-anonymous witness who had presumably met the applicant immediately
after the crime. Relying on all available evidence, the jury court concluded
that there was no doubt that N. B. had been shot by the applicant.
The Court observes that the jury court relied to
a certain extent on the testimony given by the anonymous witness in order to
establish the applicant’s guilt. The cassation court even considered the
testimony given by X to be decisive. While the Federal Tribunal put the
importance of X’s testimony in perspective, it did not state as a certainty
that the remaining evidence, taken on its own, would have been sufficient for
establishing the applicant’s guilt. The Court further observes that, while X
was the sole witness who directly observed the shooting and was ready to
testify, the jury court could rely on other evidence corroborating X.’s
testimony. Having regard to these circumstances, the Court considers that the
testimony given by X. was not the sole evidence against the applicant, but did
carry considerable weight in the establishment of the applicant’s guilt.
It is accordingly necessary carefully to examine
whether there were adequate counterbalancing factors in place. The Court notes
in this context that the trial court was well aware of the necessity of
counterbalancing the restrictions imposed on the defence by the hearing of the
anonymous witness. It enumerated the following measures taken in order to
safeguard the rights of the defence. Firstly, the witness had not been examined
by the regional prosecutor, but by the president of the court. Secondly, the
identity of X had been confirmed by the police-officer in charge of the
investigation and had been known to the regional prosecutor and to the
president of the court. Thirdly, the police officer and the regional prosecutor
gave testimony about X’s reputation, his criminal record and credibility. Furthermore,
X had been interrogated before the complete court and all persons participating
in the decision-making process could gain a personal impression of the witness
and of his reaction to the questions put to him. Lastly, the jury court took
into account that, under the case-law of the European Court of Human Rights as
applicable at the relevant time, a conviction could not be exclusively based on
testimony given by an anonymous witness. Consequently, the jury court did not
rely on X’s submissions with regard to the immediate circumstances of the
crime.
The Court further observes that the Federal
Tribunal carefully examined the question as to whether the applicant’s defence
counsel could be allowed to be present at the interrogation of the anonymous
witness but considered that the risk that the witness’ identity became known to
the applicant was inacceptably high (see paragraph 26, above). The defence was
thus prevented from observing X’s demeanour under direct questioning, and thus
from testing his reliability (see Van Mechelen and Others, cited above,
§ 59 and Kostovski v. the Netherlands, 20 November 1989, § 42, Series A
no. 166). On the other hand, the applicant’s counsel was able to put questions
to the witness via a sound link, which the witness answered as long as he did
not risk betraying his identity. All members of the jury court were able
directly to observe the witness’ reactions.
Having regard to the above considerations and,
in particular, to the careful examination by the domestic courts, the Court
considers that, notwithstanding the handicaps under which the defence laboured,
there were sufficient counterbalancing factors to conclude that the
circumstances under which the anonymous witness X was heard did not result in a
breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d).
There has accordingly been no violation of
Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention.
Done in English, and notified in writing on 6 December 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
