Case of Schatschaschwili v. Germany (Application no. 9154/10)
The applicant was convicted of armed robbery following a trial where the previous testimony of the two victims was read into evidence because they did not appear in court. When the witnesses reported the incident to the police, they said they were departing shortly for their home country Latvia and did not plan on returning to Germany. As a result, the prosecution asked the investigating judge to question the witnesses in order to obtain a statement that could be used at a subsequent trial. The investigating judge conducted the witness hearing without the applicant’s presence because he was concerned that the witnesses would not tell the truth in the presence of the applicant due to stress and shock they had suffered during the crime. The applicant was not informed of this proceeding, and neither he nor an attorney representing his interest was present or able to cross examine the witnesses. The trial court tried to compel the witnesses to appear at the applicant’s trial to testify by filing a mutual assistance request with the court in Latvia to order their appearance. However, the Latvian court said the witnesses were unavailable to attend the trial in Germany due to medical issues and provided medical certificates documenting that fact. As a result, the court permitted the witnesses’ testimony given to the investigating judge at the witness hearing to be read into evidence at the applicant’s trial.
Violation of Article 6 §§ 1 and 3(d)
The Grand Chamber found that the admission of witnesses’ testimony into evidence violated the applicant’s right to a fair trial because he did not have the opportunity to cross examine the two witnesses. In reaching this conclusion, the Grand Chamber followed previous ECHR jurisprudence that used a three part test for admitting witness testimony when a witness does not attend the trial: (i) whether there was a good reason for the non-attendance of the witness; (ii) whether the evidence of the absent witness was the sole of decisive basis of the defendant’s conviction; and (iii) whether there were sufficient counterbalancing factors or procedural measures to compensate for the lack of opportunity to cross-examine the witness at trial. The Grand Chamber agreed there was a good reason for the witnesses’ absence at trial because the trial court made a sufficient effort to compel the witnesses to attend through a mutual assistance request. However, it found the second two parts of the test to be lacking. It found the testimony of the two witnesses to be a decisive factor in the applicant’s conviction because it directly identified and linked him to the crime where the other evidence admitted was peripheral. Further, it found insufficient procedural measures to compensate for the applicant’s inability to cross-examine the witnesses at trial, noting that the applicant was not notified of the witness hearing when it was requested to preserve testimony since the witnesses were returning to Latvia and would not likely attend the trial. As a result, neither the applicant nor an attorney representing his interests were able to cross examine the witnesses prior to trial when they provided the statements used against the applicant to convict him. Therefore, the Grand Chamber held there was a violation of Article 6 (Right to a Fair Trial) of the European Convention of Human Rights.
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