Individual Application

The Facts

The applicant was convicted of the offence of usury, and the incumbent regional court of appeal dismissed his appeal on the merits. Consequently, his conviction became final.  

The Applicant’s Allegations

The applicant maintained that his right to a fair hearing was infringed, as the witnesses on whose statements his conviction was based had not actually been heard by the court panel that delivered the judgment, yet the panel made assessments as if they had themselves heard the witnesses.

The Court’s Assessment

The principle of immediacy is recognised as a specific aspect of the right to a fair hearing. This principle entails that the judge has direct access to evidence suggested to shed light on the case and has full knowledge of the evidence without any intermediary. This assessment is particularly applicable to witness evidence. This is because the court’s observations on the conduct and credibility of a witness during his/her testimony are crucial for establishing the material truth.

A change in the composition of the panel is not a per se violation of the right to a fair trial. A judge may not be able to conclude a trial for valid reasons, such as health issues, resignation, transfer, retirement, or assignment to another court. In such cases, it is necessary to consider whether the replacement of the judge has undermined the overall fairness of the proceedings, and whether compensatory safeguards have been afforded in this sense.

In this context, making an evaluation through reading/examination of the transcripts of the statements of the witnesses heard in the previous hearings can also be resorted to as a substitute way. However, in cases where the evidentiary value of witness statements must necessarily rely on observations and findings obtainable solely through direct hearing of the witnesses, the reasonable challenges raised by the defence in this regard must be taken into consideration and evaluated by the courts.

In the present case, the applicant was convicted by the court panel, which had not attended the hearings during which the witnesses were heard. Yet the panel relied on the statements of witnesses for the conviction by stating that “the panel had reached the opinion that the witnesses called by the intervening party had testified impartially, and the testimonies of the defence witnesses, being contrary to the ordinary course of life and intended to disguise the truth, were deemed unreliable”. The court panel thereby expressed preference over the witnesses of intervening party and found the statements of the defence witnesses unreliable on the ground of impressions that could be only obtained through direct observation (hearing) of the statements of the witnesses.  As a matter of fact, in determining the evidentiary value of the witness testimonies, the court panel referred to such impressions/conviction that could be gained through direct observation whereas that was not the case. It has been therefore concluded that in the present case, the court panel, composition of which had been changed after hearing of the witnesses, convicted the applicant on the basis of impressions obtained merely by reading the transcripts, which fell foul of the principle of immediacy.

Consequently, the Court has found a violation of the right to a fair hearing under the right to a fair trial.