CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 15 décembre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s9A597DC0 { width:115.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FIFTH SECTION DECISION Application no. 43676/15 Dušan LÁZÓK against the Czech Republic   The European Court of Human Rights (Fifth Section), sitting on 15   December 2022 as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Mattias Guyomar,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 43676/15) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 November 2015 by a Czech national, Mr Dušan Lázók (“the applicant”), who was born in 1960 and lives in Brno, and was represented before the Court by Ms   V.   Malenovská , a lawyer practising in Brno; the decision to give notice of the complaint concerning the alleged unfairness of criminal proceedings to the Czech Government (“the Government”), represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaint that his conviction was in breach of Article 6 §§ 1 and 3 (d) of the Convention on account of his inability to examine three witnesses for the prosecution during the trial. 2.     On 20 June 2014 the Brno Regional Court found the applicant guilty of assaulting a person in a bar in Brno on 21 May 2013 and sentenced him to eight and a half years’ imprisonment for having caused the victim serious bodily harm. The applicant and the victim had both been severely intoxicated; a quarrel between them had begun in the bar and then continued outside, where the applicant, in the presence of I.S., had, among other things, hit the victim’s head violently against the ground. The conviction referred to the pre ‑ trial statements of D.H. and N.H., both present at the bar, and of I.S., an eyewitness to the beating, as well as to the forensic medical report. The first two witnesses were questioned at the investigation stage, on 5 and 27 August 2013 respectively, in the presence of the applicant’s lawyer, who was allowed to put questions to them. Neither of them could be located at the trial stage. It appears from the trial court’s judgments that their statements were only relevant in so far as they concerned I.S., the third witness. After the incident, I.S., who had been interviewed by the police and by a judge in June 2013, had subsequently returned to Ukraine, his home country, where he was questioned by the Ukrainian authorities at the request of the Czech authorities. At the trial the parties disputed whether the defence had been provided with a genuine opportunity to take part in the questioning of I.S. The domestic courts established that the defence had been informed of his questioning in Ukraine but had refused to travel there. The applicant’s lawyer had then been consulted on the questions to be put to the witness by the local authorities. 3.     Further appeals by the applicant were rejected by the Olomouc High Court on 2 September 2014, by the Supreme Court on 4 February 2015 and by the Constitutional Court on 19 May 2015. The applicant complained that his lawyer had not been provided with a genuine opportunity to put questions to I.S. in Ukraine. In rejecting the appeals, the domestic courts found that there had been no violation of the rights of the defence and that in any event, the forensic medical report was the most important evidence and was consistent with the description of the incident given on several occasions by   I.S. THE COURT’S ASSESSMENT 4.     Referring to Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained that the criminal proceedings which had led to his conviction had been unfair on account of the use of the testimony of absent witnesses whom he had been unable to examine at the trial. 5.     The relevant principles on absent witnesses were summarised by the Court in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 152, ECHR 2011) and Schatschaschwili v. Germany ([GC], no.   9154/10, § 118, ECHR 2015), in which it reiterated its primary concern, that of evaluating the overall fairness of the proceedings. 6.     In the present case, even applying a very strict degree of scrutiny in its assessment, the Court finds that the applicant failed to demonstrate that the overall fairness of the proceedings which resulted in his conviction had been irretrievably prejudiced by the lack of an opportunity to examine, or have examined, the three prosecution witnesses at his trial. As regards D.H. and N.H., the importance of their testimony has not been sufficiently demonstrated, since neither of them witnessed the beating and they were able to provide very little information about the circumstances surrounding it. In any event, the defence had an opportunity to put questions to both of them at the pre-trial stage of the proceedings. The Court therefore concludes that their statements were neither the sole basis nor a decisive basis for the applicant’s conviction. 7.     As regards I.S., the applicant did not explain how the inability to put questions directly to that witness had prejudiced his defence. Indeed, nothing in the case file demonstrates that the applicant disputed having had a fight with the victim, nor did he allege that he had been attacked by the victim or propose any other version of the events. I.S.’s statements collected by the police, with a judge present, were consistent with the forensic medical report, which confirmed the manner in which the injuries had been inflicted on the victim and was relied on by the domestic courts. The nature of the victim’s injuries ruled out any possibility other than his having been beaten by the applicant. The Court therefore does not discern sufficient grounds to disagree with the reasoned conclusions of the domestic courts in this regard. 8.     To sum up, the applicant and his defence lawyer were able to effectively present their case before the domestic courts and challenge the evidence presented at the trial, including the pre-trial statements of the witnesses. The trial court duly assessed the material circumstances of the case, examined the weight, coherence and consistency of the witnesses’ statements, linked those statements to other available evidence, in particular forensic evidence, and dismissed the arguments presented by the defence on reasonable grounds. 9.     The above considerations are enough to conclude that the proceedings as a whole were fair. Accordingly, the Court finds that the complaint under Article 6 §§ 1 and 3 (d) of the Convention concerning the absence of the three witnesses from the trial and the applicant’s inability to have them examined is manifestly ill-founded. 10.     Given that finding, the Court does not consider it necessary to examine any other arguments submitted by the parties and concludes that it is appropriate to reject the present application in accordance with Article 35 §§   3 and 4 of the Convention. 11.     It follows that the application must be rejected in accordance with Article   35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 12 January 2023.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President