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FOURTH
SECTION
CASE OF CHMURA v. POLAND
(Application
no. 18475/05)
JUDGMENT
STRASBOURG
3
April 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 Chmura v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Vincent A. De
Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18475/05) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Mariusz Chmura (“the
applicant”), on 29 April 2005.
- The
applicant was represented by Mr W. Czech, a lawyer practising
in Kielce. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged that his trial had been unfair, in breach
of Article 6 of the Convention.
- On
10 November 2008 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Skarżysko-Kamienna.
He was suspected of having participated in an organised criminal
gang.
- On
an unspecified date NA, who was a Bulgarian national allegedly
involved in procuring prostitution, filed a criminal complaint
concerning his abduction and robbery.
- On
19 April 1999 NA was heard by the prosecutor. He testified that he
had been abducted, severely beaten and robbed by several men who had
demanded protection money based on the income of foreign prostitutes
working under his supervision. NA had identified the applicant
as one of his attackers from a photograph.
- On
23 April 1999 NA identified the applicant during an identity parade.
On the same day the applicant and NA were confronted. During
the confrontation NA reiterated that he had been severely beaten
and robbed by the applicant and his accomplices who had demanded
protection money from him. The applicant claimed to be innocent.
He stated that he knew NA because he had seen him several times
in front of a bar frequented by prostitutes.
- On
16 July 1999 NA was summoned to testify as a witness in the case.
The summons sent to his Bulgarian address was returned with the
information that NA was resident in Poland. It appears that
subsequently the authorities were unable to locate NA. The
investigation was adjourned in order to obtain evidence from another
Bulgarian national (ZA) by means of legal assistance from the
Bulgarian authorities.
- On
12 February 2002 the applicant was arrested on suspicion of having
kidnapped and robbed NA in November 1998, while acting
in an organised criminal gang led by LC. He was charged
accordingly and detained on remand on the same day.
- On
20 February 2002 the applicant was served with the written grounds
for his statement of charges. The document stated that in light
of the evidence gathered during the investigation,
particularly the testimonies of PK (another victim) and NA,
there was a reasonable suspicion that the applicant had participated
in the abduction and robbery of NA.
- Simultaneously,
in February 2002, the police were still trying to trace NA
in order to summon him for further questioning. It appears that
he had not returned to Bulgaria and that he had changed his place
of residence in Poland. An arrest warrant had been issued
for him in a different criminal case in which he was a
suspect. On 18 March 2002 the Kielce Regional Prosecutor decided to
summon NA for questioning. On the same date NA was arrested and
transported for questioning.
- On
18 March 2002 the applicant’s counsel submitted his power
of attorney to the Kielce District Court. On the following day a
copy of that document was transmitted to the Regional Prosecutor.
- On
19 March 2002 the Regional Prosecutor heard NA. NA undertook to
appear before the Kielce Regional Court on 11 April 2002 to give
evidence.
- On
19 March 2002 the Kielce Regional Prosecutor requested the Kielce
Regional Court to hear NA, pursuant to Article 316 § 1
of the Code of Criminal Procedure (“the CCP”).
The prosecutor justified his request by the risk that it
might not be possible to hear NA at the trial and submitted that the
latter’s testimony would be important for the outcome of the
case. NA had been heard by the prosecutor on several occasions during
the investigation. However, his whereabouts were not established
until 18 March 2002. NA had not been residing at the
address indicated to the authorities in 1999 and his
current address in Poland remained unknown. The prosecutor’s
request also contained a list of suspects and their defence
counsel, including the applicant’s counsel.
- On
20 March 2002 the Kielce Regional Court granted the prosecutor’s
request to hear NA on 11 April 2002 and decided to notify the
applicant, the other co-accused and their counsel of the hearing.
- On
2 April 2002 the Kielce Regional Prosecutor informed the applicant’s
counsel that he and his client could consult the case file of the
investigation from 12 April 2002 and that the date for the final
consultation was fixed for 22 April 2002.
- The
applicant submitted that his counsel had not been notified about
the hearing scheduled for 11 April 2002 but that he had learned
about it by chance and had appeared at it. The Government
maintained that the applicant’s counsel had been duly
informed.
- On
11 April 2002 a judge of the Kielce Regional Court heard NA. The
hearing was video recorded. The applicant’s counsel requested
that the hearing be adjourned on the grounds that he
had not had the opportunity to consult the case file of the
prosecution, at least as regards the part concerning the previous
statements of NA. The prosecutor opposed those requests and
submitted that the case file had not been made accessible due to
the need to protect the witness. The prosecutor acknowledged
that the case file would be made accessible to all
authorised persons as from the following day. The court refused
the request for adjournment since it was not competent to decide
on the issue of access to the case file of the investigation
without the prosecutor’s prior permission. The counsel
maintained that hearing the witness without his having consulted
the case file would in effect prevent him from defending his
client. The court decided to proceed with the hearing of NA. The
applicant, his counsel and some of the other co-accused left the
courtroom in protest.
- During
the hearing NA described the events in which the applicant and his
associates had been allegedly involved. He stated that he recognised
the applicant as one of the persons who had committed the alleged
offences. Subsequently, he replied to questions put by the prosecutor
and two of the accused.
- On
26 April 2002 the prosecution filed a bill of indictment with
the Kielce Regional Court. The applicant was charged with having
participated in a criminal gang and with having abducted, deprived
of liberty and robbed NA on 2 November 1998.
Other members of the same criminal gang were charged with extortion,
robbery, kidnapping and profiting from prostitution.
- The
trial started in July 2002 and the court held in total twelve
hearings up to 28 May 2003. The trial court made several attempts
to summon NA to the hearings with the assistance of the police.
It also sought the assistance of the Bulgarian embassy in Poland in
tracking down NA. All efforts failed. At the hearing held on 13 May
2003 the trial court decided to show the video recording
of the hearing of 11 April 2002 at which NA had given
his testimony.
- On
4 June 2003 the Kielce Regional Court convicted the applicant
of having participated in an organised criminal group and
of having abducted, deprived of liberty and robbed NA. LC and
other members of the gang were also convicted. The applicant was
sentenced to four years’ imprisonment and a fine. The court
based its judgment to a decisive extent on the testimony of NA,
who had identified the applicant and the other co accused as the
persons who had abducted him.
- The
trial court underlined that NA had been heard at the preparatory
stage of the proceedings pursuant to Article 316 § 3 of the CCP
at the prosecutor’s request, having regard to the
risk that it might not be possible to hear him at the main
hearing. NA was a Bulgarian national and did not have a permanent
abode in Poland. The court had unsuccessfully attempted to
summon him to appear at the main hearing, but the police’s
efforts to locate him had been in vain. The court noted that the
applicant’s counsel had requested permission to consult the
case file and to adjourn the hearing of NA; however that request was
refused in view of the prosecutor’s objection. In this respect
the trial court found that the applicant and his counsel
had freely forfeited the opportunity to put questions to
NA. In the court’s view, even without knowledge of the case
file, they could have put questions to the witness in relation to the
content of his testimony.
- On
23 October 2003 the applicant’s counsel lodged an appeal
against the judgment. He complained, relying on Article 6 §
1 of the Convention, that the applicant’s defence rights had
been breached in that the trial court and the prosecutor had deprived
him of the opportunity to have access to the case file of
the prosecution prior to the only hearing of the main witness. He
maintained that he could not have put questions to the witness
without knowing the content of the file, in particular the
witness’ previous testimony. In that way he was deprived of a
possibility to pinpoint major differences in the statements of NA
given at various stages of the investigation. The
applicant’s counsel submitted that the case file had been ready
before 11 April 2002, as all investigative actions, except
for the hearing of NA, had already been completed. The
applicant’s counsel argued that this had made the whole trial
unfair and that the prosecutor’s actions had amounted to a
deliberate hindering of his procedural rights. Moreover, the
authorities had allowed NA to leave the country by releasing him and
returning his passport although he had committed other offences.
Lastly, the applicant’s counsel pointed to certain factual
inconsistencies in the statements of NA related, inter alia,
to the date of the alleged abduction as well as the applicant’s
role in it.
- On
26 February 2004 the Kraków Court of Appeal dismissed
the appeal. It noted that the testimony of NA was the key
evidence for the applicant’s conviction. With regard
to the allegations that the applicant’s defence rights had
been breached, the Court of Appeal established that the
applicant and his counsel had been duly summoned and had appeared
at the hearing of NA. It reiterated that the decision whether
to allow access to the case file at the investigation stage of
the proceedings lay with the prosecutor, and that ensuring the
confidentiality of the materials at that stage had been
important for the outcome of the investigation. It was for this
reason that the CCP authorised the applicant’s counsel to
examine the case file only at the final stage of the investigation.
The fact that the applicant and his counsel were
to take part in the hearing of the witness did not make
it obligatory for the prosecutor to allow them access to the
case file. The prosecutor had noted during the court session on 11
April 2002 that the accused would be progressively allowed to examine
the case file as from the following day.
- The
Court of Appeal further noted that it transpired from the minutes of
the hearing that the applicant’s counsel had requested the
adjournment of the hearing with a view to consulting all the
evidence in the case file. However, granting such a request would
have resulted in a significant delay. It was therefore reasonable for
the prosecutor to have refused leave on account of concerns
for NA’s safety, having regard to the fact that some members
of the gang were still at large and that the testimony of that
witness was the key evidence in the case. In those circumstances the
Court of Appeal found that the court had not acted in bad faith when
it went ahead with the hearing of NA in accordance with Article 316 §
3 of the CCP.
- The
Court of Appeal observed that had the applicant’s counsel
considered it necessary to consult the statements of NA made during
the investigation prior to the hearing of NA, and knowing the
date fixed for that hearing, he should have filed the relevant
request in advance in order to enable the prosecutor to
rule on the request. However, the applicant’s counsel
failed to do so and thus deprived himself of the possibility
to appeal against the prosecutor’s refusal.
Moreover,
had the applicant’s counsel been present at the hearing of NA,
nothing would have prevented him from putting questions to the
witness on the basis of the information he had obtained
from his client or with respect to the contents of the
witness’ testimony given at the hearing. The Court
of Appeal concluded that there had been no violation
of Article 6 § 1 of the Convention in the
case, and the trial court had correctly found that the counsel and
the accused had the right, but not the obligation, to
participate in the hearing of a witness carried out under Article 316
§ 3 of the CCP. By leaving the courtroom they had
waived their right to participate in the hearing of the
witness. Further, the Court of Appeal considered in detail the
issue of the alleged lack of consistency in NA’s
statements with regard to the applicant’s role in the
abduction; however, it rejected them as ill founded.
- On
22 July 2004 the applicant’s counsel lodged a cassation appeal
with the Supreme Court. He raised similar complaints to those
set out in his appeal, maintaining that his lack of
knowledge of the content of the case file had made the
applicant’s defence illusory.
- On
8 December 2004 the Supreme Court dismissed the cassation appeal as
manifestly ill-founded.
II. RELEVANT DOMESTIC LAW
- Article
316 § 3 of the 1997 Code of Criminal Procedure reads as follows:
“If there is a danger that the witness cannot be
heard at the hearing, a party or the prosecutor or other
body conducting proceedings may submit a request to have the witness
heard by a court.”
- Article
156 § 5 of the Code concerns access to the file during
investigation. It provides:
“Unless otherwise provided by law, during the
preparatory proceedings parties, defence counsel and legal
representatives shall be allowed to consult the files and make
certified copies and photocopies but only with the permission of the
person conducting the preparatory proceedings. With the permission of
a prosecutor and in exceptional circumstances access to the
files in the preparatory proceedings may be given to another
person.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b)
AND (d) OF THE CONVENTION
- The applicant complained under Article 6 §§
1 and 3 (b) and (d) of the Convention that the proceedings
in his case had been unfair because he had not been allowed to
examine the only witness against him in conditions that
would have guaranteed respect for his defence rights. He maintained
that the manner in which the witness had been heard
by the court had breached the principle of equality of
arms. His prosecution and conviction were based on the inconsistent
testimony of the witness whose statements he had effectively
been prevented from challenging since he had had no knowledge of
the content of the case file against him. Article 6 §§
1 and 3 (b) and (d) 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:
(b) to have adequate time and facilities for
the preparation of his defence;...
(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;”
A. Admissibility
- The
Government claimed that the applicant had not exhausted relevant
domestic remedies. Firstly, he had not appealed against the refusal
to allow him to consult the case file under Article 159 of the CCP.
Secondly, the applicant had not requested to have the witness NA
heard again. Thirdly, he could have lodged a constitutional
complaint, challenging the constitutionality of Articles 316 § 3
and 391 § 1 of the CCP which had been applied in his case.
- The
applicant disagreed that any of those remedies would have been
effective.
- The
Court considers it appropriate to join the Government’s plea
of inadmissibility on the ground of non-exhaustion of domestic
remedies to the merits of the case.
- It
notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. The
Court further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The applicant’s submissions
- The
applicant argued that his trial had been unfair as he had been
prevented from preparing questions and cross-examining NA whose
evidence had served as the sole basis for his conviction. The hearing
of NA had taken place before the prosecution had filed the bill of
indictment with the court. The prosecutor had taken for granted that
it would be impossible to examine that witness at the trial. In
those circumstances, the hearing of NA should have respected the
principles of fairness, in particular by giving the applicant’s
counsel adequate prior notice of the date of the hearing
and enabling him to consult the case file, at least as regards the
earlier statements of NA. The applicant stated that his counsel had
not been notified of the date of NA’s hearing and had only
appeared at it because he had been present in the
court house on the same day for another hearing.
- The
applicant objected to the fact that he had been given permission to
consult the part of the case file concerning the earlier testimony of
NA only on the day after the hearing of NA. Furthermore, all of the
accused were detained and thus posed no threat to the witness. He
submitted that the prosecutor’s concern for the safety of the
witness had been irrelevant. The applicant averred that by
refusing him leave to consult the minutes of the testimonies
of NA, which included different versions of the events and the
alleged role of the applicant, the authorities had prevented
his counsel from challenging those contradictions. The
proceedings were unfair since the prosecution had had full knowledge
of the evidence in the case, while the defence had been
totally deprived of access to it.
- The
applicant disagreed with the argument that by leaving the courtroom
his counsel had deprived himself of the opportunity to put
questions to NA. He observed in this respect that the principle of
equality of arms would not have been respected at the hearing
owing to his defence counsel’s lack of knowledge
of the evidence against him. Lastly, the applicant
submitted that after the hearing of NA on 11 April 2002, the witness
had not appeared in response to the summons of the court. Thus,
there was no possibility to challenge NA or his statements at
the trial.
2. The Government’s submissions
- The
Government submitted that limitations on the right of the accused
to have an adequate opportunity to challenge and question a witness
against him were compatible with the requirement of a fair trial
if they were justified by the need to protect public interests
or the fundamental rights of other parties to the
proceedings and provided that the rights of the defence have been
respected.
- The
Government asserted that pursuant to Article 316 § 3
of the CCP, the investigative authorities had to anticipate
the possibility that a witness might not be able to appear at
trial. In such cases, the prosecutor could submit a request to have a
witness heard by the court in order to minimise the risk that
the accused would be unable to challenge the witness’
statements. The hearing of a witness under Article 316 § 3
was similar to the oral hearing at the main trial; however, such
hearing was in fact part of the preparatory proceedings with all
the limitations that applied at that stage of the proceedings. During
such a hearing a witness was first granted the opportunity to express
himself freely on the case and later on other parties could put
questions to the witness in the order prescribed by the CCP.
- In
the Government’s view, the applicant had been given an adequate
opportunity to examine NA. Both the applicant and his defence counsel
were duly informed about the date and place of the hearing and they
both appeared. However, they waived their right to examine the
witness since the applicant’s counsel left the courtroom and
the applicant asked to be escorted back to his cell. Furthermore, the
applicant had also had the opportunity to challenge NA’s
testimony at the trial. A recording of the testimony was shown during
the trial and the applicant had contended that some passages in the
testimony were inconsistent with other statements of NA.
- With
regard to the issue of access to the case file, the Government
maintained that any lack of access to the case file prior to the
hearing of NA by the court on 11 April 2002 did not give rise to
unfairness. The refusal to allow consultation of the case file
was grounded in the necessity to protect NA since the
authorities would not have been able to ensure his safety if the
hearing had had to be adjourned. Furthermore, the applicant’s
counsel had requested to consult the case file during the hearing of
NA. Had he done so earlier, the prosecutor and the court could
have made arrangements to ensure the safety of the witness and thus
grant the request.
- The
Government stressed that the applicant had sufficient knowledge of
the content of the case file. Not only had he participated in
several investigative actions, such as the identity parade, he had
also been confronted with the witness NA. He had also received
written grounds for the statement of charges.
3. The Court’s assessment
- In the recent judgment of the Grand Chamber in
the case of Al Khawaja and Tahery v. the United Kingdom
(nos. 26766/05 and 22228/06, § 118, 15 December 2011), the
Court recalled that the guarantees in paragraphs 3 of Article 6 are
specific aspects of the right to a fair hearing set forth in
paragraph 1 of this provision which must be taken into account in any
assessment of the fairness of proceedings. In addition, the
Court underlined that its primary concern under Article 6 § 1 is
to evaluate the overall fairness of the criminal proceedings (see,
also 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 victims that crime is properly
prosecuted (see Gäfgen v. Germany [GC],
no. 22978/05, § 175, ECHR 2010 ...) and, where
necessary, to the rights of witnesses (see, amongst many
authorities, Doorson v. the Netherlands, 26 March 1996,
§ 70, Reports of Judgments and Decisions 1996 II).
Furthermore, 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 references therein).
Article
6 § 3 (d) enshrines the principle that, before an accused can
be convicted, all evidence against him must normally be produced
in his presence at a public hearing with a view to adversarial
argument. 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 Lucà v. Italy, no. 33354/96, §
39, ECHR 2001 II; Solakov v. “the former Yugoslav
Republic of Macedonia”, no. 47023/99, § 57, ECHR
2001 X).
- There are two requirements which follow from the above
general principle. First, there must be a good reason for the
non-attendance of a witness. Second, when a conviction is
based solely or to a decisive degree on depositions that have been
made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at the
trial, the rights of the defence may be restricted to an extent
that is incompatible with the guarantees provided by Article 6
(the so-called “sole or decisive rule”; see
Al-Khawaja and Tahery v. the United Kingdom [GC],
cited above, § 119).
- 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. 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 in the case (see Al-Khawaja and Tahery v.
the United Kingdom [GC], cited above, § 147).
- In
the present case the applicant alleged that the proceedings had been
unfair because he had not been given an opportunity to examine
the only witness against him. It is not in dispute
that the statements of NA were decisive evidence for the applicant’s
conviction in respect of the charges relating to the abduction and
robbery of NA.
- The
Court notes that NA was not heard by the trial court. However, it
appears that the Kielce Regional Court made all reasonable efforts
to secure NA’s attendance at the trial by seeking police
assistance as well as enlisting the help of the Bulgarian
embassy in Poland (see paragraph 22 above). In those
circumstances it was legitimate for the trial court to have
resort to the evidence given by NA at the pre-trial hearing held on
11 April 2002. The video recording of that hearing was shown at the
trial. The court had the opportunity to observe the conduct of NA
during the pre-trial hearing and the applicant was able to contest
the truth of NA’s statements (see, mutatis mutandis,
Accardi and Others v. Italy (dec.), no.
30598/02, ECHR 2005 II).
- The Court further notes that the prosecutor requested
the Kielce Regional Court to hear NA at the investigation stage,
having regard to the apparent difficulties in tracking down
the witness, who was a foreign national, and the importance of his
testimony for the case. The request was granted. For the Court those
considerations were certainly legitimate, having regard to the
interests of the public and victims that crime is properly
prosecuted. It further appears that by organising an adversarial
hearing of NA at the investigation stage the authorities
wished to pre-empt any risk that the crucial witness might not be
available to give testimony at the trial (compare and contrast,
Kachan v. Poland, no. 11300/03, §§ 38-41, 3 November
2009).
- The
applicant claimed that he and his counsel had not been duly summoned
to the hearing on 11 April 2002. The Court observes that the
applicant was in custody on remand and it appears from the file that
he was duly notified of the hearing and brought to it. As regards the
applicant’s counsel, he alleges that he was not properly
notified about the hearing and that his appearance was a mere
coincidence. However, the Court finds this assertion
uncorroborated, having regard to the documents produced by the
parties and, particularly, to the Court of Appeal’s findings in
this respect (see paragraph 26 above).
- The
other aspect of the applicant’s grievance is that he was not
in a position to challenge effectively the testimony of NA
at the hearing owing to the refusal to allow him to consult the case
file of the investigation. The Court does not agree with
this argument.
- Firstly,
as noted by the Court of Appeal (see paragraph 28 above), the
applicant’s counsel could have requested the prosecutor to
allow him access to the file earlier than on the date of the hearing
(11 April 2002) as he had been notified in good time of the
date (20 March 2002).
- Secondly,
the prosecutor’s refusal to allow consultation of the case file
on the day of the hearing of NA was motivated by concerns for NA’s
safety which was a legitimate factor, considering that some members
of the same gang were still at large. In those
circumstances, the Court accepts that there was a degree of
urgency in proceeding with the hearing of NA and that it was
reasonable to refuse access to the case file in order not to delay
the hearing of that witness. The Court is not persuaded that
the prosecutor’s refusal to allow consultation of the file
on the day of the hearing and his earlier decision of 2
April 2002 to authorise consultation of the case file only as from 12
April 2002 reveal any intention to hinder the rights of the defence.
It notes in this respect that the final consultation of the case file
by defendants and their counsel is the last procedural step
before the filing of the bill of indictment with the court.
- Thirdly,
and most importantly, the Court considers that even without prior
consultation of the file, there was no real impediment
for the applicant’s counsel to put questions to
witness NA with a view to challenging his testimony. It should
be noted that the applicant himself had earlier been confronted with
NA who had identified him as one of the perpetrators of the
abduction and robbery. In addition, the applicant received the
written grounds for the statement of charges against him. This
document included, in particular, the facts and evidence which served
as the basis for the charges against the applicant.
Accordingly, in the Court’s view, the applicant and
his counsel had sufficient information enabling them to subject
NA’s credibility to scrutiny and cast doubt on the truth
of his depositions. It considers that the refusal of access
to the case file prior to the hearing of NA did
not prejudice the rights of the defence. Furthermore, the
applicant and his counsel would have been able to put questions to NA
had they chosen to take part in the hearing on 11 April 2002.
- Having
regard to the foregoing, the Court considers that in the
circumstances of the case the applicant had had an adequate
opportunity to challenge NA’s evidence against him in the
context of an adversarial procedure during the investigation stage of
the proceedings. Furthermore, the Court of Appeal considered the
issue of the alleged lack of consistency in the statements of NA and
dismissed the applicant’s allegations in this respect as
ill-founded. There are no other elements in the case to sustain
an argument that the rights of the defence were not respected.
- Against
this background, and viewing the fairness of the proceedings as a
whole, the Court considers that the use in evidence of NA’s
statements given at the hearing on 11 April 2002 was consistent with
the requirements of a fair trial and did not result in a breach
of Article 6 §§ 1 and 3
of the Convention. Accordingly, there has been no violation
of this provision.
- Having
regard to its conclusion that the fairness of the proceedings has not
been infringed in the present case, the Court finds that it is not
necessary to rule on the Government’s objection of
non-exhaustion of domestic remedies.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
preliminary objection on the ground of non-exhaustion and
declares the application admissible;
- Holds that there has been no violation
of Article 6 §§ 1 and 3
of the Convention and decides in consequence that it
is not necessary to answer the Government’s
above-mentioned preliminary objection.
Done in English, and notified in writing on 3 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President
