Individual Application

The Facts

The Chief Public Prosecutor’s Office launched an investigation against the applicant for membership of a terrorist organisation. The applicant was indicted for membership of an armed terrorist organisation based on the statements of certain witnesses.

The assize court (the court) ordered hearing of the witnesses named in the indictment by letter of request. Accordingly, six witnesses were heard on various dates by way of letters rogatory. These statements taken by the requested court and containing allegations regarding the applicant’s activities within the organisation, were read out to the applicant. In response, the applicant submitted in his defence that he did not accept these abstract statements. Subsequently, he requested that the witnesses be summoned and heard before the trial court. At a later stage of the proceedings, the Chief Public Prosecutor’s Office presented a final opinion on the merits, seeking the applicant’s conviction for membership of an armed terrorist organisation based on the witness statements. Following this, the applicant’s defence counsel submitted a written defence on the merits to the court between hearings. In the written defence, it was claimed, inter alia, that the applicant had not been confronted with the witnesses and that no in-person identification procedure had been conducted.

Upon the conclusion of the hearings, the incumbent court convicted the applicant of membership of an armed terrorist organisation, relying on the witness statements as evidence. The applicant’s appeal on facts and law—wherein he argued, inter alia, that he had been unable to examine the witnesses—was dismissed. Following the dismissal of his request, the applicant lodged a subsequent appeal in cassation, reiterating that he had not been confronted with the witnesses. This request was likewise dismissed, and the judgment became final.

The Applicant’s Allegations

The applicant maintained that his right to examine witnesses had been violated, as he had not been afforded the opportunity to examine the witnesses whose statements were relied upon as the basis for his conviction.

The Court’s Assessment

In its previous judgments concerning the right to examine witnesses, the Constitutional Court has held that a three-level test must be applied in assessing whether the admission of witness statements obtained prior to or outside the trial as evidence for conviction has undermined the fairness of the proceedings as a whole. Accordingly, it must first be determined whether there was a valid reason for the absence of the witness at trial. Second, it must be assessed whether the testimony of the witness—whom the defendant was unable to examine or have examined—constituted the sole or decisive basis for the conviction. If the statement in question is found to be the sole or decisive evidence, the third step is to determine whether sufficient counterbalancing procedural safeguards were in place to compensate for the limitations imposed on the defence.

In the present case, the court based the conviction on the statements of witnesses whom the applicant had not been able to examine at trial. However, the court did not provide any assessment as to whether securing the attendance of these witnesses at the hearing would have posed a particular difficulty; instead, it considered the mere fact that the witnesses resided outside its territorial jurisdiction as a sufficient ground for obtaining their statements through letters rogatory. Therefore, in the present case, the public authorities failed to fulfil their obligation to provide a sufficient justification for the restriction imposed on the applicant’s right to examine witnesses.

The mere absence of a valid reason for the non-attendance of the witnesses at trial is not, in itself, sufficient to conclude that the right to a fair trial has been violated. It must also be determined whether the conviction was based solely or to a decisive extent on the statements of witnesses whom the defendant was unable to examine. An examination of the reasoned judgment rendered in respect of the applicant reveals that no evidence other than the statements of the absent witnesses—given against the applicant—was relied upon. Accordingly, the statements of these witnesses must be regarded as the sole basis for the applicant’s conviction.

The Constitutional Court then proceeded to assess whether sufficient counterbalancing procedural safeguards had been provided in order to offset the difficulties faced by the defence. In its assessment, the Court noted that, despite Article 180 (5) of Code no. 5271, which provides that “where the necessary infrastructure exists, witnesses or experts shall be heard through the simultaneous use of audio-visual communication technology,” there was no explanation or documentation as to why the witnesses in question had not been heard via the audio-visual information system (“the SEGBIS”). Although the witnesses’ written statements were read out during the hearing, the applicant had not been present when those statements were recorded and thus could not question the witnesses against him—even remotely via audio-visual transmission—nor did he have the opportunity to observe their responses and demeanour. As a result, he was unable to draw the court’s attention to any inconsistencies or reactions that might have cast doubt on the credibility of their statements. Likewise, the trial court, which ultimately rendered the judgment on the merits, was deprived of the opportunity to observe the witnesses’ demeanour while testifying. In conclusion, the witnesses’ statements were relied upon -in the absence of a real opportunity to test their reliability and accuracy- as the sole basis for the applicant’s conviction, yet no sufficient counterbalancing safeguards were provided to compensate for the restrictions imposed on the defence. In this context, the failure to hear the witnesses either in person at trial or via SEGBIS has been found to have undermined the overall fairness of the proceedings.

Consequently, the Court has found a violation of the right to examine witnesses within the scope of the right to a fair trial.