The decision of the ECHR of January 19, 2021 in the case "Keskin v. the Netherlands" (aplication No. 2205/16).
In 2016, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to the Netherlands.
In the case, an aplication was successfully considered against the refusal to summon witnesses from the prosecution, whose testimony was crucial for the court to make a decision on the applicant's criminal case, due to the inability of the defense to substantiate the request for cross-examination, as well as the lack of balancing factors that would compensate for the unequal position of the parties in the case. The case involved a violation of the requirements of subparagraph " d " of paragraph 3 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was found guilty in absentia (based, inter alia, on the testimony of seven witnesses) of de facto directing fraud committed by one legal entity against two other legal entities. The applicant unsuccessfully appealed against the verdict, and in the context of these proceedings, the applicant's request for cross-examination in court of the seven witnesses mentioned was rejected by the Arnhem-Leeuwarden Court of Appeal (gerechtshof), acting as a court of second instance. The applicant's subsequent complaint to a higher court was declared inadmissible for consideration on the merits.
Regarding compliance with paragraph 1 and subparagraph " d " of paragraph 3 of article 6 of the Convention. In order to assess whether the overall fairness of the judicial proceedings against the applicant was called into question due to the use of the testimony of witnesses who were not present at the hearing in the sentencing, the European Court applied the three-step rule formulated by the Grand Chamber of the European Court in the case "Al-Khawaja and Taheri v. United Kingdom" (Al-Khawaja and Taheri v. United Kingdom) (Judgment of 15 December 2011, complaints N 26766/05 and 22228/06 (see: Precedents of the European Court of Human Rights. Special issue. 2020. N 14)) and further clarified by the Grand Chamber of the European Court in the case " Shachashvili v. Germany (Decision of December 15, 2015, complaint N 9154/10 (see: ibid. 2017. N 3).
(a) Whether there were valid reasons for not calling witnesses to the court hearing in the applicant's case. The rejection by the court of second instance of the applicant's request to summon witnesses to court was not due to the fact of the death of the witnesses, the presence of any risks for the witnesses when they appeared in court, the state of health of the witnesses or the lack of an opportunity to establish the whereabouts of the witnesses, was not due to any features of the criminal case against the applicant, but only because the defense party did not justify its interest in questioning these witnesses. In particular, the defense did not indicate in which parts the testimony of the witnesses was unreliable, despite the fact that during the interrogation by the police officers, the applicant exercised his right to remain silent. However, the right of the accused to cross-examine the witnesses against him cannot be made dependent on the waiver of the right to remain silent. Moreover, in the present case, the court of second instance did not take into account the significance of the testimony for the case when it rejected the applicant's petitions, and when considering the complaint, the European Court did not assert that these statements were clearly irrelevant or were superfluous for the consideration of the case.
In addition, the decisions of the European Court referred to by the Supreme Court of the Netherlands concerned the interrogation of a witness by the defense, as opposed to the interrogation of witnesses by the prosecution, which is at issue in the present case. In this regard, the European Court took the opportunity to confirm that subparagraph " d " of paragraph 3 of Article 6 of the Convention includes two different rights: the right to interrogate witnesses testifying against the defendant, and the right to seek to appear in court and to interrogate witnesses on the part of the accused. The European Court has developed general principles that relate exclusively to the right to interrogate or ensure the interrogation of witnesses by the prosecution, as well as general principles, especially with regard to the right to seek appearance in court and the interrogation of witnesses by the defense. In particular, unlike the situation with witnesses from the defense, the accused does not have to prove the significance of the testimony of witnesses from the prosecution. In principle, if the prosecution decides that a person is a source of important information, and it refers to his testimony during the trial, and if the testimony of this witness is used to convict, it should be assumed that the personal presence of this witness in court and his interrogation are necessary (see the Decision of the European Court in the case "Khodorkovsky and Lebedev v. Russia (N 2)" (N 2) of January 14, 2020, complaints N 51111/07 and 42757/07 (see: The Russian Chronicle of the European Court of Justice. 2020. N 4). In other words, it is necessary to presume the interest of the defense in questioning the relevant witness from the prosecution in its presence, and as such this interest is the reason for satisfying the defense's request to summon certain witnesses to court.
Consequently, in the present case, it cannot be considered that the court of second instance has established appropriate factual or legal grounds for justifying the non-admission of witnesses from the prosecution to the court session.
(b) Whether the testimony of the absent witnesses was the sole or decisive basis for the applicant's conviction. The second instance court did not pass a verdict against the applicant solely on the basis of the testimony of seven witnesses. Moreover, it seems that none of the above-mentioned witness statements was sufficient in itself to establish the applicant's involvement in the criminal act, and the court of second instance did not explicitly formulate its position regarding the significance that it attached to these statements. Taking into account the conclusions reached by the court of second instance regarding the facts, the Court decided that the testimony of the absent witnesses was so significant or important that it could affect the outcome of the applicant's case.
Here and further so in the text of the Resolution. As follows from paragraph 5 of the text of the Judgment, the verdict in the applicant's case was handed down by the Overijssel Regional Court (rechtbank).
(c) Whether there were sufficient balancing factors that would compensate for the unequal conditions in which the defense acted. In its decision, the court of second instance did not indicate whether it took into account the low evidentiary value of the unverified testimony, nor did it provide any grounds on which it considered that this evidence was reliable. In addition, no supporting or other evidence was available that could provide similar guarantees in favor of unverified witness statements of the same kind as were considered in the Decision of the Grand Chamber of the European Court of Justice in the case "Shachashvili v. Germany" (Schatschaschwili v. Germany). The applicant had the opportunity to present his version of events, and he could appeal against the reliability of the witness statements. However, the European Court considered that the possibility to appeal and refute the testimony of absent witnesses was irrelevant in a situation where the defendant did not have the opportunity to interrogate witnesses during cross-examination, and such an opportunity, due to the established case-law of the European Court, could not be considered as a sufficient balancing factor that would compensate for the shortcomings of the position of the defense caused by the absence of witnesses from the prosecution in court.
Thus, taking into account the above-mentioned arguments, the European Court held that the applicant's lack of opportunity to cross-examine prosecution witnesses made the trial generally unfair.
The case involved a violation of the requirements of subparagraph " d " of paragraph 3 of article 6 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court decided that the finding of a violation of the Convention in itself is sufficient just compensation for the non-pecuniary damage caused to the applicant.