This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 38

THE PROBLEM WITH WITNESSES - ECtHR Brzuszczyński v. Poland (Article 6 § 3(d) ECHR)


Blogpost written by Marc de Werd

In 'The Problem with Eyewitness Testimony' Laura Engelhardt underlines the importance of recognizing the fallibility of witness memories in judicial procedures:

"The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers. Rarely do we tell a story or recount events without a purpose. Every act of telling and retelling is tailored to a particular listener; we would not expect someone to listen to every detail of our morning commute, so we edit out extraneous material. The act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event. This is why a fish story, which grows with each retelling, can eventually lead the teller to believe it.

Once witnesses state facts in a particular way or identify a particular person as the perpetrator, they are unwilling or even unable—due to the reconstruction of their memory—to reconsider their initial understanding. When a witness identifies a person in a line-up, he is likely to identify that same person in later line-ups, even when the person identified is not the perpetrator. Although juries and decision-makers place great reliance on eyewitness identification, they are often unaware of the danger of false memories."

For this reason the impossibility of the defence to cross-examine (eye)witnesses has become an important issue in the Court's case law. In it's Al-Kawaja and Tahery v. UK Grand Chamber judgment (2011) the Court held:

"118 (-) 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.

119.  Having regard to the Court’s case-law, 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”). The Court will examine below whether the latter rule is to be considered as an absolute rule whose breach automatically leads to a finding that the proceedings have not been fair in violation of Article 6 § 1 of the Convention."

This week the Court had to decide whether or not the impossibility to challenge a witness infringed the defendant's rights in the case of Brzuszczyński v. Poland. The applicant was convicted of a number of offences, including aiding and abetting murder. He complained that he did not have a fair trial, as his conviction was based on statements made by a co-suspect who had committed suicide before the trial started, making it impossible for Mr Brzuszczyński to examine him as a witness.

The Court however found no violation of Article 6 § 3(d). Notwithstanding the difficulties caused to the defence by admitting the statements and the risks involved in doing so, there were sufficient counterbalancing factors to conclude that the admission in evidence of R.N.’s statements, that were sole and decisive, did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention: 

“84.  (-) where a statement of the absent witness is the sole or decisive evidence against the defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. In such a case the Court will subject the proceedings to the most searching scrutiny and will examine whether there were sufficient counterbalancing factors in place, including the existence of strong procedural safeguards.”

In this case according to the Court the Polish judges carried out a very comprehensive and rigorous assessment of all of the evidence: 

“90.  The Court notes that the critical issue in the case, namely the credibility of R.N. and the reliability of his statements, was examined by the domestic courts at length and in great detail (-). The domestic courts explained why there were no grounds to assume that R.N. had wrongly accused the applicant or P.D. of involvement in the impugned crimes. In the circumstances of the present case the Court is satisfied that the necessary care was applied in the evaluation of R.N.’s statements.”

PREVENTIVE DETENTION – Article 5 - In the case of H.W. v. Germany the Court held, unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention. The case concerned the review by the German courts of an offender’s placement in preventive detention, which had been ordered by the sentencing court together with his conviction for sexual offences more than twelve years previously. The Court held in particular that Mr W.’s preventive detention after the expiry of the time-limit for a judicial review of the measure had been arbitrary and that the German courts should have obtained a fresh assessment of Mr W.’s dangerousness by a medical expert.

“111.  The Court finds that considerable time – more than twelve and a half years – elapsed since the domestic courts assessed the applicant’s dangerousness with the help of a medical expert. In such circumstances, a sufficient establishment of the relevant facts concerning a person’s current dangerousness, which resulted from personality disorders and a sexual deviation and thus from a condition the persistence of which is difficult to evaluate by persons without medical expertise, will, as a rule, necessitate obtaining recent expert advice (see for the – similar – standards set up by the Federal Constitutional Court in cases concerning a person’s detention in a psychiatric hospital paragraph 48 above). Moreover, the Court notes that further elements relevant to the development of the applicant’s personality in prison, and thus of his dangerousness, remained unclear. There had, in particular, not been any examination of the question, raised by the prison authorities, whether the applicant’s advancing age or his conversations with the psychological counselling service had initiated any changes in his personality which could be taken up in a new therapy.
(-)
113.  The Court concludes that in the circumstances of the present case, the domestic courts, by failing to – at least attempt to – obtain fresh advice from an external medical expert on the necessity of the applicant’s continuing preventive detention, did not sufficiently establish the relevant facts in this respect. Their decision not to release the applicant, therefore, was not based on an assessment that was reasonable in terms of the objectives pursued by the sentencing Berlin Regional Court when ordering the applicant’s preventive detention.”

PRESUMPTION OF INNOCENCE – Article 6 - In its decision in the case of Asbl Eglise de Scientologie v. Belgium the Court unanimously declared the application inadmissible.  The case concerns a complaint by the Church of Scientology, a non-profit association, that statements to the media by the Belgian authorities about an investigation concerning it constituted a violation of its right to have a fair hearing and to be presumed innocent. The Court reiterated that it had to ascertain whether proceedings were fair in their entirety. As there had not yet been any final judgment by the Belgian courts on the relevant “charge”, the part of the application concerning an alleged violation of the right to a fair hearing was premature and therefore had to be dismissed. In addition, given that the sole evidence submitted by the applicant association consisted of press articles, the Court took the view that the content of the remarks allegedly made by the authorities could not be attributed to them with certainty. It had not been shown that by informing the public about the inquiries in progress the authorities had breached the duty of discretion required of them by the principle of the presumption of innocence.

PRIVATE LIFE - Article 8 - In Von Hannover v. Germany (no. 3) the Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention . The case concerned a complaint lodged by Princess Caroline von Hannover relating to the refusal of the German courts to grant an injunction prohibiting any further publication of a photograph of her and her husband taken without their knowledge while they were on holiday. The photograph was accompanied by an article about the trend amongst the very wealthy towards letting out their holiday homes. The Court held that the German courts had taken into consideration the essential criteria and the Court’s case-law in balancing the different interests at stake in the case.

DEFAMATION – Article 10 - In the case of Stojanović v. Croatia the Court held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the Convention. The case concerned defamation proceedings brought by the Croatian Minister of Health against Mr Stojanović following the publication of two articles in 1997 reproducing critical statements attributed to the latter – which he denied having made – resulting in Mr Stojanović being ordered to pay damages to the minister. The Court rejected an objection by the Croatian Government to the effect that Article 10 was not applicable. It underlined that the extent of liability in defamation must not go beyond a person’s own words, and that an individual may not be held responsible for statements or allegations made by others:

“39.  The Court reiterates that the extent of liability in defamation must not go beyond a person’s own words, and that an individual may not be held responsible for statements or allegations made by others, be it an editor or journalists (see Reznik v. Russia, no. 4977/05, § 45, 4 April 2013). Therefore, in a situation such as the one in the present case, where the applicant actually argues (see paragraph 38 above) that, by attributing to him, in connection with the interview in which he had criticised the policy of the Minister of Health, statements he had never made and ordering him to pay damages for those statements, the domestic courts had indirectly stifled the exercise of his freedom of expression, he may rely on the protection of Article 10 of the Convention. That is so because, if the applicant’s argument proves to be correct, the damages he was ordered to pay would be likely to discourage him from making criticisms of that kind in future (-). The Court therefore finds that Article 10 of the Convention is applicable to the present case.”

PRISONER VOTING RIGHTS - Article 3 of Protocol No. 1 -  In the case of Söyler v. Turkey the Court held, unanimously, that an automatic and indiscriminate ban on prisoners’ voting rights in Turkey is too harsh. The case concerned a complaint brought by a businessman convicted for unpaid cheques that he was not allowed to vote in the 2007 Turkish general elections while he was being detained in prison or in the 2011 general elections after his conditional release.

The Court found in particular that the ban on convicted prisoners’ voting rights in Turkey was automatic and indiscriminate and did not take into account the nature or gravity of the offence, the length of the prison sentence or the prisoner’s individual conduct or circumstances. The application of such a harsh measure on a vitally important Convention right had to be seen as falling outside of any acceptable room for manoeuvre of a State to decide on such matters as the electoral rights of convicted prisoners. Indeed, the ban was harsher and more far-reaching than any the Court has had to consider in previous cases2 against the United Kingdom, Austria and Italy as it was applicable to convicts even after their conditional release and to those who are given suspended sentences and therefore do not even serve a prison term. The Court held in particular:

“33.  (-) the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a wide margin of appreciation in this sphere. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (-).

34.  However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (ibid. § 84 and the cases cited therein).

35.  Furthermore, an indiscriminate restriction applicable automatically to prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances, must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1 (-).

45.  (-) having regard to the nature of the offence committed by the applicant, the Court is also unable to see any rational connection between the sanction and the conduct and circumstances of the applicant. It reiterates in this connection that the severe measure of disenfranchisement must not be resorted to lightly and that the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned (-).

46.  In light of the above, the Court cannot conclude that the legislature in Turkey has shown the requisite concern which, according to the Grand Chamber in the above-mentioned case of Scoppola (no.3), should exist in order to adjust the application of the measure to the particular circumstances of each case by taking into account such factors as the gravity of the offence committed and the conduct of the offender (-).”

Courtesy Press Service of the European Court of Human Rights in Strasbourg