The rights of the Defence (Article 6.3)
Article 6.3 of the Convention
“3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(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;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used
Witnesses and Evidence
An accused has the right to secure the attendance of defence witnesses and examine their evidence in the same way as the prosecution examine their evidence. The accused does not have an unrestricted right to call witnesses as he or she chooses. This will generally be a matter for the court to determine.
In Doorson the Netherlands the applicant was convicted on the basis of anonymous witnesses questioning, in the presence of his lawyer, who claim to be fearful. / The court held this was justifiable to protect witnesses and preserve anonymity. The procedures followed were sufficient. Reliance on such witnesses exclusively or decisively would not be acceptable.
Al Khawaja & Tahery v UK evidence was given by the deceased’s statement who had committed suicide and a witness who was too fearful to attend. The key question is whether the defendant had the opportunity to test and examine the evidence concerned even if it was decisive.
Because of the dangers of the admission of such evidence it would constitute a very important factor to balancing the scales… one which would require sufficient counterbalancing factors including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This will permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case. There was held to be sufficient safeguards in the circumstances in one case but not in the other.
In Perna v Italy documentary evidence was admitted where there was a request that evidence be given in person. The court If the file is unfair because it is important that witnesses be heard then there may be a breach of Article 6.1.
In SN v Sweden measures to protect children giving evidence in child abuse cases did not breach article 6. Videotaped evidence of an interview with a police officer of a 10-year-old constituted almost the sole evidence of a sexual assault. The accused council was entitled to attend the interview and or give questions for the police to put to the child.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Examination of witnesses
Article 6.3 (d) of the Convention
“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 guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, and the Court’s primary concern under Article 6.1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment, the Court looks at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interests of the public and the victims in proper prosecution and, where necessary, to the rights of witnesses (Schatschaschwili v. Germany [GC], 2015, §§ 100- 101).
Meaning of the term “witness”
The term “witness” has an autonomous meaning in the Convention system, regardless of classifications under national law (Damir Sibgatullin v. Russia, 2012,.45; S.N. v. Sweden, 2002,.45). Where a deposition may serve to a material degree as the basis for a conviction, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (Kaste and Mathisen v. Norway, 2006,.53; Lucà v. Italy, 2001,.41). This may include, for instance, evidence provided by a person in the context of an identification parade or face-to-face confrontation with a suspect (Vanfuli v. Russia, 2011,.110).
The term includes a co-accused (Trofimov v. Russia, 2008,.37; Oddone and Pecci v. San Marino, 2019, §§ 94-95), victims (Vladimir Romanov v. Russia, 2008,.97); expert witnesses (Doorson v. the Netherlands, 1996, §§ 81-82) and police officers (Ürek and Ürek v. Turkey, 2019,.50; Makarashvili and Others v. Georgia, 2022,.62).
Article 6.3 (d) may also be applied to documentary evidence (Mirilashvili v. Russia, 2008,§§ 158-159; Chap Ltd v. Armenia, 2017,.48), including reports prepared by an arresting officer (Butkevich v. Russia, 2018, §§ 98-99).
Right to Examine Witnesses
Given that the admissibility of evidence is a matter for regulation by national law and the national courts, the Court’s only concern under Articles 6 §§ 1 and 3 (d) of the Convention is to examine whether the proceedings have been conducted fairly (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.118).
Article 6 §§ 1 and 3 (d) of the Convention contains a presumption against the use of hearsay evidence against a defendant in criminal proceedings. Exclusion of the use of hearsay evidence is also justified when that evidence may be considered to assist the defence (Thomas v. the United Kingdom (dec.), 2005).
Pursuant to Article 6.3 (d), 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 upon 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 (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.118; Hümmer v. Germany, 2012,.38; Lucà v. Italy, 2001,.39; Solakov v. the former Yugoslav Republic of Macedonia, 2001,
§ 57). These principles particularly hold true when using witness statements obtained during police inquiry and judicial investigation at a hearing (Schatschaschwili v. Germany [GC], 2015, §§ 104-105).
As for applicability in the diverse legal systems of Contracting States, and in particular in the context of both common-law and continental-law systems, the Court has stressed that while it is important for it to have regard to substantial differences in legal systems and procedures, including different approaches to the admissibility of evidence in criminal trials, ultimately it must apply the same standard of review under Articles 6 §§ 1 and 3 (d) irrespective of the legal system from which a case emanates (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.130; Schatschaschwili v. Germany [GC], 2015,.108).
Non-attendance of Witnesses at Trial
Considering the importance of the right to a fair administration of justice in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice, then that measure should be applied (Van Mechelen and Others v. the Netherlands, 1997,.58). Possibility for the accused to confront a material witness in the presence of a judge is an important element of a fair trial (Tarău v. Romania, 2009,.74; Graviano v. Italy, 2005,
In Al-Khawaja and Tahery v. the United Kingdom [GC] (2011, §§ 119-147) the Court clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows (Seton v. the United Kingdom, 2016, §§ 58-59; Dimović v. Serbia, 2016, §§ 36- 40; T.K. v. Lithuania, 2018, §§ 95-96):
(i) The Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rulegive evidence during the trial and that all reasonable efforts should be made to secure their attendance;
(ii) When a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;
(iii) Admitting as evidence statements of absent witnesses results in a potential disadvantage for the criminal defendant, who, in principle, should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at a later stage in the proceedings;
(iv) According to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;
(v) However, as Article 6.3 of the Convention should be interpreted in a holistic examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;
(vi) In particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6.1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards.
The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.
These principles have been further clarified in Schatschaschwili v. Germany [GC] (2015, §§ 111- 131) in which the Court confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, The Court explained that given that its concern was to ascertain whether the proceedings as a whole were fair, it should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence.
Good reason for non-attendance of a witness
The requirement that there be a good reason for the non-attendance of a witness is a preliminary question which must be examined before any consideration is given as to whether that evidence was sole or decisive. When witnesses do not attend to give live evidence, there is a duty to enquire whether their absence is justified (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.120; Gabrielyan v. Armenia, 2012, §§ 78, 81-84). In this context, although it is not the Court’s function to express an opinion on the relevance of the evidence produced, failure to justify a refusal to examine or call a witness can amount to a limitation of defence rights that is incompatible with the guarantees of a fair trial (Bocos-Cuesta v. the Netherlands, 2005,.72).
Moreover, the applicant is not required to demonstrate the importance of personal appearance and questioning of a prosecution witness (Süleyman v. Turkey, 2020,.92). In principle, if the prosecution decides that a particular person is a relevant source of information and relies on his or her testimony at the trial, and if the testimony of that witness is used by the court to support a guilty verdict, it must be presumed that his or her personal appearance and questioning are necessary (Keskin v. the Netherlands, 2021, §§ 45, 55-56).
However, as explained in Schatschaschwili v. Germany [GC] (2015,.113) lack of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d).
Obligations of State
Article 6.1 taken together with.3 requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him (Trofimov v. Russia, 2008,
§ 33; Sadak and Others v. Turkey (no. 1), 2001,.67; Cafagna v. Italy, 2017,.42).
In the event that the impossibility of examining the witnesses or having them examined is due to the fact that they are missing, the authorities must make a reasonable effort to secure their presence (Karpenko v. Russia, 2012,.62; Damir Sibgatullin v. Russia, 2012,.51; Pello v. Estonia, 2007,.35; Bonev v. Bulgaria, 2006,.43; Tseber v. the Czech Republic, 2012,.48; Lučić v. Croatia, 2014, §§ 79-80). It is not for the Court to compile a list of specific measures which the domestic courts must have taken in order to have made all reasonable efforts to secure the attendance of a witness whom they finally considered to be unreachable. However, it is clear that they must have actively searched for the witness with the help of domestic authorities including the police and must, as a rule, have resorted to international legal assistance where a witness resided abroad and such mechanisms were available. Moreover, the need for all reasonable efforts on the part of the authorities to secure the witness’s attendance at trial further implies careful scrutiny by domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (Schatschaschwili v. Germany [GC], 2015, §§ 121-122).
However, impossibilium nulla est obligatio, provided that the authorities cannot be accused of a lack of diligence in their efforts to afford the defendant an opportunity to examine the witnesses in question, the witnesses’ unavailability as such does not make it necessary to discontinue the prosecution (Gossa v. Poland, 2007,.55; Haas v. Germany (dec.), 2005; Calabrò v. Italy and Germany (dec.), 2002; Ubach Mortes v. Andorra (dec.), 2000; Gani v. Spain, 2013,.39). Moreover, in cases where a witness has gone into hiding and has been evading justice the domestic courts face a situation where, in practical terms, they have no means to locate a witness and it would be excessive and formalistic to compel the domestic courts to take steps in addition to the efforts already made by the respective authorities within a special legal framework for the search of persons evading justice. In such cases the trial court, prior to concluding that there is good reason for the non-attendance of a witness, must satisfy itself, in the first place, that the witness is evading justice, and, secondly, that the defendant is informed thereof in a way affording a possibility to comment on the measures taken (Lobarev and Others v. Russia, 2020, §§ 33-34).
Good reason for the absence of a witness must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (Schatschaschwili v. Germany [GC], 2015,.119).
There are a number of reasons why a witness may not attend trial, such as absence owing to death or fear (Mika v. Sweden (dec.), 2009,.37; Ferrantelli and Santangelo v. Italy, 1996,.52; Al- Khawaja and Tahery v. the United Kingdom [GC], 2011, §§ 120-125), absence on health grounds (Bobeş v. Romania, 2013, §§ 39-40; Vronchenko v. Estonia, 2013,.58), or the witness’s unreachability (Schatschaschwili v. Germany [GC], 2015, §§ 139-140; Lučić v. Croatia, 2014,.80), including his or her detention abroad (Štefančič v. Slovenia, 2012,.39). However, the fact that the witness is absent from the country where the proceedings are being conducted is not in itself sufficient reason to justify his or her absence from the trial (Gabrielyan v. Armenia, 2012,.81). Nor does the fact that the witness lives in another part of the same country suffice of itself to justify his or her absence from the trial (Faysal Pamuk v. Turkey, 2022, §§ 51-58, where the trial court used the possibility of requesting the examination of witnesses by the courts of their places of residence if they were residing somewhere other than where the trial was taking place).
Lastly, different considerations apply with regard to the questioning of attesting witnesses for a search, when their testimony has been adduced by the prosecution (Murtazaliyeva v. Russia [GC], 2018, §§ 136-137). Attesting witnesses act as neutral observers of an investigative measure and, unlike material witnesses, they are not expected to have any knowledge of the case. Thus, they do not testify about the circumstances of the case or the defendants’ guilt or innocence. Accordingly, their attendance at the hearing will only be necessary exceptionally, such as if the domestic courts rely on their statements in a substantial manner or that their testimony in court could otherwise influence the outcome of the criminal proceedings against the applicant (Shumeyev and Others v. Russia (dec.), 2015,.37). In other words, the absence of attesting witnesses from criminal trials does not infringe the guarantees of Article 6 §§ 1 and 3 (d) of the Convention insofar as their testimony is limited to the manner of conducting investigative measures and is, in essence, redundant evidence (Murtazaliyeva v. Russia [GC], 2018,.136).
Nevertheless, when the domestic trial court specifically refers to the statements of the attesting witnesses in convicting the applicant and lists them as elements of evidence separate from the relevant police reports which those witnesses certified, then it is appropriate to examine the matter of non-attendance of those witnesses at the trial and reliance on their pre-trial statements in light of the Al-Khawaja and Tahery and Schatschaschwili principles (Garbuz v. Ukraine, 2019,.40). On the other hand, when the defence intends to rely on the testimony of attesting witnesses, such witnesses are to be considered as “witnesses on behalf” of the defence within the meaning of Article 6.3 (d) of the Convention (Murtazaliyeva v. Russia [GC], 2018,.138).20
The Importance of the Witness Statement
An issue concerning admission into evidence of statements of witnesses who did not attend the trial arises only if the witness statement is the “sole” or “decisive” evidence, or it it “carried significant weight” in the applicant’s conviction (Seton v. the United Kingdom, 2016,.58; Sitnevskiy and Chaykovskiy v. Ukraine, 2016,.125, where the witness statement was not of any such importance).
The “sole” evidence is to be understood as the only evidence against the accused. The term “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive. The evidence that carries “significant weight” is such that its admission may have handicapped the defence (Schatschaschwili v. Germany [GC], 2015, §§ 116 and 123).
In this context, as it is not for the Court to act as a court of fourth instance, its starting point for determining the importance of a witness statement for an applicant’s conviction is the judgment of the domestic courts. The Court must review the domestic courts’ evaluation in light of its standards for the assessment of importance of a witness statement as evidence and decide whether the domestic courts’ evaluation of the weight of the evidence was unacceptable or arbitrary. It must further make its own assessment of the weight of the evidence given by an absent witness if the domestic courts did not indicate their position on that issue or if their position is not clear (ibid.,.124).
The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair. These counterbalancing factors must permit a fair and proper assessment of the reliability of that evidence (ibid.,.116 and 125).
In Schatschaschwili v. Germany [GC] (2015, §§ 126-131, with further references) the Court identified certain elements that may be relevant in this context:
- Whether the domestic courts approached the untested evidence of an absent witness with caution, having regard to the fact that such evidence carries less weight, and whether they provided detailed reasoning as to why they considered that evidence to be reliable, while having regard also to the other evidence available (Przydział v. Poland, 2016,.53; Daştan v. Turkey, 2017,.31). Any directions given to the jury by the trial judge regarding the absent witnesses’ evidence is another important consideration (Simon Price v. the United Kingdom, 2016,§ 130);
Existence of a video recording of the absent witness’s questioning at the investigation stage;
- Availability at trial of corroborative evidence supporting the untested witness statement, such as statements made at trial by persons to whom the absent witness reported the events immediately after their occurrence; further factual evidence, forensic evidence and expert reports; similarity in the description of events by other witnesses, in particular if such witnesses are cross-examined at trial;
- The possibility for the defence to put its own questions to the witness indirectly, for instance in writing, in the course of the trial, or, where appropriate, in the pre-trial stage of the proceedings (Paić v. Croatia, 2016,.47). However, pre-trial confrontations conducted before an investigator who did not meet the requirements of independence and impartiality, who had the largely discretionary power to block questions and in which the applicants were unrepresented, are not a substitute for the examination of witnesses in open court (Chernika v. Ukraine, 2020,.45);
- Possibility for the applicant or defence counsel to question the witness during the investigation stage. These pre-trial hearings are an important procedural safeguard which can compensate for the handicap faced by the defence on account of absence of a witness from the trial (Palchik v. Ukraine, 2017,.50). Moreover, the Court has accepted that in exceptional circumstances there may be reasons for hearing evidence from a witness in the absence of the person against whom the statement is to be made on the condition that his lawyer was present during the questioning (Šmajgl v. Slovenia, 2016,.63). However, there may nevertheless be circumstances where the defence counsel’s involvement alone may not suffice to uphold the rights of the defence and the absence of a direct confrontation between a witness and the accused might entail a real handicap for the latter. Whether an applicant’s direct confrontation with the witness against him or her was needed, is a matter to be determined on the facts of each case on the basis of the Court’s criteria for the assessment of the overall fairness of the proceedings under Article 6.3 (d) (Fikret Karahan v. Turkey, 2021,§§ 39-40);
- The defendant must be afforded the opportunity to give his or her own version of the events and to cast doubt on the credibility of the absent witness. However, this cannot, of itself, be regarded a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured (Palchik v. Ukraine, 2017,.48). Moreover, domestic courts must provide sufficient reasoning when dismissing the arguments put forward by the defence (Prăjină v. Romania, 2014,.58). In this connection, the Court has not been ready to accept apurely formal examination of the deficiencies in the questioning of witnesses by the domestic higher courts when their reasoning could be seen as seeking to validate the flawed procedure rather than providing the applicant with any counterbalancing factors to compensate for the handicaps under which the defence laboured in the face of its inability to examine a witness (Al Alo v. Slovakia, 2022,.65). Also, in some instances, an effective possibility to cast doubt on the credibility of the absent witness evidence may depend on the availability to the defence of all the material in the file related to the events to which the witness’ statement relates (Yakuba v. Ukraine, 2019, §§ 49-51).
In view of the autonomous meaning given to the term “witness”, the above principles concerning absent witnesses are accordingly relevant in cases of absent expert witnesses. (Constantinides v. Greece, 2016, §§ 37-52). However, in this context, the Court has explained that the role of an expert witness can be distinguished from that of an eyewitness, who must give to the court his personal recollection of a particular event. In analysing whether the appearance in person of an expert at the trial was necessary, the Court is therefore primarily guided by the principles enshrined in the concept of a “fair trial” under Article 6.1 of the Convention, and in particular by the guarantees of “adversarial proceedings” and “equality of arms” (see, for instance, Kartoyev and Others v. Russia, 2021, §§ 74 and 81). Nevertheless, some of the Court’s approaches to the examination in person of “witnesses” under Article 6.3 (d) may be applied, mutatis mutandis, with due regard to the difference in their status and role (Danilov v. Russia, 2020,.109).
Other Restrictions on the Right to Examine Witnesses
The above principles related to absent witnesses are accordingly applicable to other instances in which a defendant was not in a position to challenge the probity and credibility of witness evidence, including its truthfulness and reliability, by having the witnesses orally examined in his or her presence, either at the time the witness was making the statement or at some later stage of the proceedings, or where the witnesses do appear before the trial court but procedural irregularities prevent the applicant from examining them (Chernika v. Ukraine, 2020,.46).
This may concern the admission into evidence of statements made by witnesses whose full identity is concealed from the accused (anonymous testimony) (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.127; Scholer v. Germany, 2014,.51; Balta and Demir v. Turkey, 2015, §§ 36- 41; Asani v. the former Yugoslav Republic of Macedonia, 2018, §§ 36-37; Süleyman v. Turkey, 2020); witnesses, including the co-accused, who refuse to testify at trial or to answer questions from the defence (Craxi v. Italy (no. 1), 2002,.88; Vidgen v. the Netherlands, 2012,.42, concerning co- accused; Sofri and Others v. Italy (dec.), 2003; Sievert v. Germany, 2012, §§ 59-61, Cabral v. the Netherlands, 2018,.33, Breijer v. the Netherlands (dec.), 2018, §§ 32-33, concerning witnesses), and other witnesses who are questioned under special examination arrangements involving, for instance, impossibility for the defence to attend the witnesses’ questioning (Papadakis v. the former Yugoslav Republic of Macedonia, 2013,.89) or impossibility for the defence to have access to sources on which a witness based his or her knowledge or belief (Donohoe v. Ireland, 2013, §§ 78-79).
It should also be noted that the principles related to the admission into evidence of statements of absent witnesses accordingly apply to instances where the outcome of the proceedings complained of does not comprise guilt or innocence, but rather the factual circumstances relevant for the ultimate severity of sentence. Thus, where witness testimony could influence the outcome of an applicant’s case in relation to determining the severity of the sentence, the Court will proceed to examine whether the impossibility to question that witness at any stage of the proceedings handicapped the applicant’s defence to the point of rendering the trial against him or her as a whole unfair (Dodoja v. Croatia, 2021, §§ 33-37).
However, when a witness makes a statement at the pre-trial stage of the proceedings and then retracts it or claims to have no longer any recollection of facts when cross-examined at the trial, theprinciples related to absent witnesses will not necessarily apply. In other words, a change of attitude on the part of a witness does not of itself give rise to a need for compensatory measures. Indeed, the Court has refused to hold in the abstract that evidence given by a witness in open court and on oath should always be relied on in preference to other statements made by the same witness in the course of criminal proceedings, not even when the two are in conflict. In such a situation, the Court will seek to determine whether the proceedings as a whole, including the way in which evidence was taken, were fair (Vidgen v. the Netherlands (dec.), 2019, §§ 38-41; see also Makeyan and Others v. Armenia, 2019, §§ 40-48).21 Moreover, in such instances, other procedural guarantees may be of importance such as, for instance, the principle of equality of arms between the prosecution and the defence in examining a witness who has retracted his or her statement that was of a decisive importance for the applicant’s conviction (Bonder v. Ukraine, 2019, §§ 79-81).
While the problems raised by anonymous and absent witnesses are not identical, the two situations are not different in principle, since each results in a potential disadvantage for the defendant. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.127; Asani v. the former Yugoslav Republic of Macedonia, 2018,.33).
In particular, the Court has held that precise limitations on the defence’s ability to challenge a witness in proceedings differ in the two cases (anonymous and absent witnesses). Absent witnesses present the problem that their accounts cannot be subjected to searching examination by defence counsel. However, their identities are known to the defence, which is therefore able to identify or investigate any motives for falsification. On the other hand, anonymous witnesses about whom no details are known as to their identity or background, present a different problem: the defence faces the difficulty of being unable to put to the witness, and ultimately to the jury, any reasons which the witness may have for lying. However, in practice, some disclosure takes place which provides material for cross-examination. The extent of the disclosure has an impact on the extent of the handicap faced by the defence. Thus, given the underlying concern in both types of cases, the Court has consistently taken a similar approach in the context of anonymous witnesses to that which it has followed in cases involving absent witnesses (ibid.,.36).
The use of statements made by anonymous witnesses to convict is not under all circumstances incompatible with the Convention (Doorson v. the Netherlands, 1996,.69; Van Mechelen and Others v. the Netherlands, 1997,.52; Krasniki v. the Czech Republic, 2006,.76).
While Article 6 does not explicitly require the interests of witnesses to be taken into consideration, their life, liberty or security of person may be at stake, as with interests coming generally within the ambit of Article 8 of the Convention. Contracting States should organise their criminal proceedings so that those interests are not unjustifiably impaired. The principles of a fair trial therefore require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify (Doorson v. the Netherlands, 1996,.70; Van Mechelen and Others v. the Netherlands, 1997,.53).
Domestic authorities must have adduced relevant and sufficient reasons to keep secret the identity of certain witnesses (Doorson v. the Netherlands, 1996,.71; Visser v. the Netherlands, 2002,
§ 47; Sapunarescu v. Germany (dec.), 2006; Dzelili v. Germany (dec.), 2009; Scholer v. Germany, 2014,
The Court’s case-law shows that it is more common for witnesses to have a general fear of testifying, rather than that fear being directly attributable to threats made by the defendant or his agents. For instance, in many cases, the fear has been attributable to the notoriety of the defendant or his associates. There is, therefore, no requirement that a witness’ fear be attributable directly to threats made by the defendant in order for that witness to be excused from presenting evidence at trial. Moreover, fear of death or injury of another person or of financial loss are all relevant considerations in determining whether a witness should be required to give oral evidence. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.124; Balta and Demir v. Turkey, 2015,.44).
The Court has also held that the balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the State’s police force. Although their interests ‒ and indeed those of their families
‒ also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances. On the other hand, the Court has recognised that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities for his own or his family’s protection and to not impair his usefulness for future operations (Van Mechelen and Others v. the Netherlands, 1997, §§ 56-57; Bátěk and Others v. the Czech Republic, 2017,.46; Van Wesenbeeck v. Belgium, 2017, §§ 100-101).
If the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. In such cases, the handicap faced by the defence must be sufficiently counterbalanced by the procedures followed by the judicial authorities (Doorson v. the Netherlands, 1996,.72; Van Mechelen and Others v. the Netherlands, 1997,.54; Haas v. Germany (dec.), 2005; Asani v. the former Yugoslav Republic of Macedonia, 2018,
Witnesses in Sexual Abuse Cases
Criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In assessing whether the accused received a fair trial, the right to respect for the private life of the alleged victim must be taken into account. Therefore, in criminal proceedings concerning sexual abuse, certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with the adequate and effective exercise of the rights of the defence. In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicap under which the defence operates (Aigner v. Austria, 2012,.37; D. v. Finland, 2009,.43; F and M v. Finland, 2007, § 58; Accardi and Others v. Italy (dec.), 2005; S.N. v. Sweden, 2002,.47; Vronchenko v. Estonia, 2013, § 56).
Having regard to the special features of criminal proceedings concerning sexual offences, Article 6.3 (d) cannot be interpreted as requiring in all cases that questions be put directly by the accused or his or her defence counsel through cross-examination or by other means (S.N. v. Sweden, 2002,
§ 52; W.S. v. Poland, 2007,.55). Relatedly, the Court has held that since a direct confrontation between the defendants charged with criminal offences of sexual violence and their alleged victims risks further traumatisation of the victim, personal cross-examination by defendants should be subject to the most careful assessment by the national courts, the more so the more intimate the questions are (Y. v. Slovenia, 2015,.106; see also R.B. v. Estonia, 2021, concerning the participation in the proceedings of a four-year old alleged victim of sexual abuse by a parent).
However, this does not mean that measures related to the protection of victims, particularly the non-attendance of a witness to give evidence at the trial, are applicable automatically to all criminal proceedings concerning sexual offences. There must be relevant reasons adduced by domestic authorities for applying such measures and, as regards the possibility of excusing a witness from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable (Al-Khawaja and Tahery v. the United Kingdom [GC], 2011,.125; Lučić v. Croatia, 2014,.75).
52. The accused must be able to observe the demeanour of the witnesses under questioning and to challenge their statements and credibility (Bocos-Cuesta v. the Netherlands, 2005,.71; P.S.
v. Germany, 2001,.26; Accardi and Others v. Italy (dec.), 2005; S.N. v. Sweden, 2002,.52).
53. The viewing of a video recording of a witness account cannot alone be regarded as sufficiently safeguarding the rights of the defence where no opportunity to put questions to a person giving the account was given by the authorities (D. v. Finland, 2009,.50; A.L. v. Finland, 2009,.41).
Witnesses who refuse to testify in court
In some instances, a witness’ refusal to give a statement or answer questions in court may be justified in view of the special nature of the witness’ position in the proceedings. This will be the case, for instance, if a co-accused uses one’s right to protection against self-incrimination (Vidgen v. the Netherlands, 2012,.42). The same is true for a former co-suspect refusing to give a statement or answer questions at the hearing as a witness (Sievert v. Germany, 2012, §§ 59-61), or a former co- suspect who is facing the charges of perjury for trying to change his initial statement inculpating the applicant (Cabral v. the Netherlands, 2018,.34). Moreover, this may concern a witness who relied on testimonial privilege in order to not testify at the trial due to her relationship with one of the co- accused (Sofri and Others v. Italy (dec.), 2003) or a witness who refused to give a statement due to a fear of reprisals (Breijer v. the Netherlands (dec.), 2018, §§ 32-33).
In each of these cases, the Court must assess whether the proceedings as a whole were fair and whether there was a possibility of putting the incriminating statement of a witness to the test in order to satisfy itself that the defence’s handicap was offset by effective counterbalancing measures (Sievert v. Germany, 2012,.67; Cabral v. the Netherlands, 2018,.37; Breijer v. the Netherlands (dec.), 2018, § 35).
Right to call Witnesses for the Defence
As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. Article 6.3(d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses. It does not require the attendance and examination of every witness on the accused’s behalf; its essential aim, as is indicated by the words “under the same conditions”, is full “equality of arms” in the matter (Perna v. Italy [GC], 2003,.29; Murtazaliyeva v. Russia [GC], 2018,.139; Solakov v. the former Yugoslav Republic of Macedonia, 2001,.57).
Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the domestic courts to decide whether it is necessary or advisable to examine a witness (S.N. v. Sweden, 2002,.44; Accardi and Others v. Italy (dec.), 2005). However, when a trial court grants a request to call a defence witness, it is obliged to take effective measures to ensure the witnesses’ presence at the hearing (Polufakin and Chernyshev v. Russia, 2008,.207) by way of, at the very least, issuing a summons or by ordering the police to compel a witness to appear in court (Murtazaliyeva v. Russia [GC], 2018,.147).
There may be exceptional circumstances which could prompt the Court to conclude that the failure to examine a person as a witness was incompatible with Article 6 (Murtazaliyeva v. Russia [GC],2018,.148; Dorokhov v. Russia, 2008,.65; Popov v. Russia, 2006,.188; Bricmont v. Belgium, 1989, § 89; Pereira Cruz and Others v. Portugal, 2018, §§ 220-232, concerning the refusal by an appellate court to question a witness for the defence who had retracted his incriminating statement against the applicant).
It is not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard, and their evidence must be necessary for the establishment of the truth and the rights of the defence (Perna v. Italy [GC], 2003,.29; Băcanu and SC « R » S.A. v. Romania, 2009,§ 75). If the statement of witnesses the applicant wished to call could not influence the outcome of his or her trial, no issue arises under Articles 6 §§ 1 and 3 (d) if a request to hear such witnesses is refused by the domestic courts (Kapustyak v. Ukraine, 2016, §§ 94-95).
When a request by a defendant to examine witnesses is not vexatious, is sufficiently reasoned, is relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to his or her acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (Vidal v. Belgium, 1992,.34; Polyakov v. Russia, 2009, §§ 34- 35; Sergey Afanasyev v. Ukraine, 2012,.70; Topić v. Croatia, 2013,.42).
Having regard to the above considerations in its case-law, in Murtazaliyeva v. Russia [GC], 2018 (§ 158) the Court has formulated the following three-pronged test for the assessment of whether the right to call a witness for the defence under Article 6.3 (d) has been complied with: (1) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation; (2) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and (3) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings.
In respect of the first element the Court held that it is necessary to examine whether the testimony of witnesses was capable of influencing the outcome of a trial or could reasonably be expected to strengthen the position of the defence. The “sufficiency” of reasoning of the motions of the defence to hear witnesses will depend on the assessment of the circumstances of a given case, including the applicable provisions of the domestic law, the stage and progress of the proceedings, the lines of reasoning and strategies pursued by the parties and their procedural conduct (ibid.,
As to the second element of the test, the Court explained that generally the relevance of testimony and the sufficiency of the reasons advanced by the defence in the circumstances of the case will determine the scope and level of detail of the domestic courts’ assessment of the need to ensure a witness’ presence and examination. Accordingly, the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness (ibid.,
With regard to the overall fairness assessment as the third element of the test, the Court stressed that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion (ibid., §§ 167-168).
In Kikabidze v. Georgia, 2021, §§ 56-60, the Court examined a situation where the defence application to admit a list of witnesses to be called on behalf of the defence into evidence was rejected on procedural grounds because the defence had produced the list after the expiry of the relevant time-limit. The de facto outcome of that decision was that in the course of the jury trial – introducedin the domestic legal order shortly before the trial in the applicant’s case – not a single witness was heard on behalf of the defence. The Court found that state of affairs troubling, particularly given the nature of the subject matter of the criminal case (an aggravated murder committed in prison in the presence of some seventy prisoners), the absence of evidence other than witnesses, and the fact that the case was decided by a jury. The Court therefore considered that, from the point of view of the Convention requirements of fair trial, and the applicant’s right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, the decision to exclude all witnesses proposed by the defence had to be motivated by weighty reasons going beyond the issue of the applicant’s compliance with a procedural time-limit. On the facts of the case, the Court found that the presiding judge’s rejection of the defence witness list in its entirety resulted from a rigid and restrictive application of domestic law to the applicant’s detriment, which was particularly troubling given the absence of established judicial practice following implementation of the cardinal reform of the criminal procedure shortly before the applicant’s trial (see, by contrast, Rusishvili v. Georgia, §§ 49-52).
Interpretation (Article 6.3 (e))
Article 6.3 (e) of the Convention
“3. Everyone charged with a criminal offence has the following minimum rights:
(e) to have the free assistance of an interpreter if he cannot understand or speak the language usedin court.”
The requirements of paragraph 3 (e) of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1. The Court thus examines complaints regarding effective interpretation under both provisions taken together (Baytar v. Turkey, 2014,.48).
It is important that the suspect be aware of the right to interpretation, which means that one must be notified of such a right when “charged with a criminal offence” (Wang v. France, 2022, §§ 73- 78). This notification should be done in a language the applicant understands (Vizgirda v. Slovenia, 2018, §§ 86-87).
Like the assistance of a lawyer, that of an interpreter should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right. In the absence of interpretation, whether an accused was able to make informed choices during the proceedings can be cast into doubt. Therefore, initial defects in interpretation can create repercussions for other rights and may undermine the fairness of the proceedings as a whole (Baytar v. Turkey, 2014, §§ 50, 54-55).
a. If the accused “cannot understand or speak the language used in court”
The right to free assistance of an interpreter applies exclusively in situations where the accused cannot understand or speak the language used in court (K. v. France, Commission decision of 7 December 1983; Baytar v. Turkey, 2014,.49). An accused who understands that language cannot insist upon the services of an interpreter to allow him to conduct his defence in another language, including a language of an ethnic minority of which he is a member (Bideault v. France, Commission decision of 9 December 1987; Lagerblom v. Sweden, 2003,.62).
The fact that a defendant has basic command of the language of the proceedings or, as may be the case, a third language into which interpretation is readily available, should not by itself bar that individual from benefiting from interpretation into a language he or she understands sufficiently well to fully exercise his or her right to defence (Vizgirda v. Slovenia, 2018,.83).
Where the accused is represented by a lawyer, it will generally not be sufficient that the accused’s lawyer, but not the accused, knows the language used in court. Interpretation of the proceedings is required as the right to a fair trial, which includes the right to participate in the hearing, requires that the accused be able to understand the proceedings and to inform his lawyer of any point that should be made in his defence (Kamasinski v. Austria, 1989,.74; Cuscani v. the United Kingdom, 2002,.38).
Article 6.3 (e) does not cover the relations between the accused and his counsel but only applies to the relations between the accused and the judge (X. v. Austria, Commission decision of 29 May 1975). However, impossibility of an applicant to communicate with his or her lawyer due to linguistic limitations may give rise to an issue under Article 6 §§ 3 (c) and (e) of the Convention (Lagerblom v. Sweden, 2003, §§ 61-64; Pugžlys v. Poland, 2016, §§ 85-92).
The right to an interpreter may be waived, but this must be a decision of the accused, not of his lawyer (Kamasinski v. Austria, 1989,.80).
Protected elements of the criminal proceedings
Article 6.3 (e) guarantees the right to the free assistance of an interpreter for translation or interpretation of all documents or statements in the proceedings which it is necessary for the accused to understand or to have rendered into the court’s language in order to have the benefit of a fair trial (Luedicke, Belkacem and Koç v. Germany, 1978,.48; Ucak v. the United Kingdom (dec.), 2002; Hermi v. Italy [GC], 2006,.69; Lagerblom v. Sweden, 2003,.61).
Article 6.3 (e) applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings (Kamasinski v. Austria, 1989,.74; Hermi v. Italy [GC], 2006,.70; Baytar v. Turkey, 2014,.49).
However, it does not go so far as to require a written translation of all items of written evidence or official documents in the proceedings (Kamasinski v. Austria, 1989,.74). For example, the absence of a written translation of a judgment does not in itself entail a violation of Article 6.3 (e) (ibid.,.85). The text of Article 6.3 (e) refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention (Hermi v. Italy [GC], 2006,.70; Husain v. Italy (dec.), 2005).
In sum, the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his or her version of the events (Hermi v. Italy [GC], 2006; Kamasinski v. Austria, 1989,.74; Güngör v. Germany (dec.), 2002; Protopapa v. Turkey, 2009,.80; Vizgirda v. Slovenia, 2018,.79).
The obligation to provide “free” assistance is not dependent upon the accused’s means; the services of an interpreter for the accused are instead a part of the facilities required of a State in organising its system of criminal justice. However, an accused may be charged for an interpreter provided for him at a hearing that he fails to attend (Fedele v. Germany (dec.), 1987).
The costs of interpretation cannot be subsequently claimed back from the accused (Luedicke, Belkacem and Koç v. Germany, 1978,.46). To read Article 6.3 (e) as allowing the domestic courts to make a convicted person bear these costs would amount to limiting in time the benefit of the Article (ibid.,.42; Işyar v. Bulgaria, 2008,.45; Öztürk v. Germany, 1984,.58).
Conditions of Interpretation
The obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation. Thus, a failure of the domestic courts to examine the allegations of inadequate services of an interpreter may lead to a violation of Article 6 § 3 (e) of the Convention (Knox v. Italy, 2019, §§ 182-187).
Nevertheless, it is not appropriate to lay down any detailed conditions under Article 6.3 (e) concerning the method by which interpreters may be provided to assist accused persons. An interpreter is not part of the court or tribunal within the meaning of Article 6.1 and there is no formal requirement of independence or impartiality as such. The services of the interpreter must provide the accused with effective assistance in conducting his defence and the interpreter’s conduct must not be of such a nature as to impinge on the fairness of the proceedings (Ucak v. the United Kingdom (dec.), 2002).
Obligation to identify interpretation needs
The verification of the applicant’s need for interpretation facilities is a matter for the judge to determine in consultation with the applicant, especially if he has been alerted to counsel’s difficulties in communicating with the applicant. The judge has to reassure himself that the absence of an interpreter would not prejudice the applicant’s full involvement in a matter of crucial importance for him (Cuscani v. the United Kingdom, 2002,.38).
While it is true that the conduct of the defence is essentially a matter between the defendant and his counsel (Kamasinski v. Austria, 1989,.65; Stanford v. the United Kingdom, 1994,.28), the ultimate guardians of the fairness of the proceedings – encompassing, among other aspects, the possible absence of translation or interpretation for a non-national defendant – are the domestic courts (Cuscani v. the United Kingdom, 2002,.39; Hermi v. Italy [GC], 2006,.72; Katritsch v. France, 2010,.44).
The defendant’s linguistic knowledge is vital and the court must also examine the nature of the offence with which the defendant is charged and any communications addressed to him by the domestic authorities, in order to assess whether they are sufficiently complex to require a detailed knowledge of the language used in court (Hermi v. Italy [GC], 2006,.71; Katritsch v. France, 2010, § 41; Şaman v. Turkey, 2011,.30; Güngör v. Germany (dec.), 2002).
Specifically, it is incumbent on the authorities involved in the proceedings, in particular the domestic courts, to ascertain whether fairness of the trial requires, or required, the appointment of an interpreter to assist the defendant. This duty is not confined to situations where the foreign defendant makes an explicit request for interpretation. The Court has held that in view of the prominent place the right to a fair trial holds in a democratic society, the obligation arises whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings, for example if he or she is neither a national nor a resident of the country in which the proceedings are being conducted. It also arises when a third language is envisaged to be used for the interpretation. In such circumstances, the defendant’s competency in the third language should be ascertained before the decision to use it for the purpose of interpretation is made (Vizgirda v. Slovenia, 2018,.81).
It is not for the Court to set out in any detail the precise measures that should be taken by domestic authorities with a view to verifying the linguistic knowledge of a defendant who is not sufficiently proficient in the language of the proceedings. Depending on different factors, such as the nature of the offence and the communications addressed to the defendant by the domestic authorities, a number of open-ended questions might be sufficient to establish the defendant’s language needs. However, the Court attaches importance to noting in the record any procedure usedand decision taken with regard to the verification of interpretation needs, notification of the right to an interpreter and the assistance provided by the interpreter, such as oral translation or oral summary of documents, so as to avoid any doubts in this regard raised later in the proceedings (ibid.,.85).
87. In view of the need for the right guaranteed by Article 6.3(e) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (Kamasinski v. Austria, 1989,.74; Hermi v. Italy [GC], 2006,.70; Protopapa v. Turkey, 2009,.80).