CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 janvier 2023

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THE NETHERLANDS (Application no. 34507/16)         JUDGMENT   STRASBOURG 10 January 2023         This judgment is final but it may be subject to editorial revision.   In the case of Çaliskan v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Georgios A. Serghides , President ,   Jolien Schukking,   Darian Pavli , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   34507/16) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 June 2016 by a Dutch national, Mr Cem Muhammed Çaliskan (“the applicant”), who was born in 1978 and lives in Doetinchem and who was represented by Mr   W.H.   Jebbink, a lawyer practising in Amsterdam; the decision to give notice of the application to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms   B.   Koopman, and Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs. the parties’ observations; Having deliberated in private on 29 November 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The issue in this case is the inability of the applicant to cross-examine three prosecution witnesses whose statements had been used in evidence in criminal proceedings against him . 2.     On 25 April 2014 the Central Netherlands Regional Court (rechtbank) convicted the applicant, with others, of fraud and attempted fraud and sentenced him to nine months’ imprisonment. The applicant and his co-defendants were found to have adopted false names and posed as bona fide roofers offering their services to owners of houses that they claimed needed repairs. The victims were required to pay cash in advance. After the money had been paid, either no repairs were made or the repairs that were made were substandard. One of the victims was forcibly pressured in his own home to transfer money to the applicant’s bank account. 3.     The Regional Court found that the applicant had played an active role in these fraudulent practices. The evidence on which the applicant was convicted included statements of three victims who had reported accusations of fraud to the police. 4.     On appeal the defence asked to cross-examine these three witnesses. In its judgment the Arnhem-Leeuwarden Court of Appeal (gerechtshof) rejected his request. The request was rejected because the request to question one witness had not been supported by reasons and the other two witnesses were to be questioned about the legal difference between breach of contract and fraud, a legal question that could only be answered by the Court of Appeal itself. More importantly, the Court of Appeal reasoned that since the applicant had invoked his right to silence, it could not see how additional statements of these three witnesses might be relevant to any decision to be taken in the proceedings. 5.     The Court of Appeal convicted the applicant and sentenced him to fifteen months’ imprisonment. 6.     On 15 December 2015 the Supreme Court dismissed the applicant’s appeal on points of law with summary reasoning. 7.     Relying on Article 6 of the Convention, the applicant complained that he ought to have been allowed to cross-examine the three witnesses as their statements had been used as the decisive evidence during the proceedings and there had been no counterbalancing factors. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 8.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 9.     The general principles concerning the right to examine witnesses have been summarised in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos.   26766/05 and 22228/06, §§ 118-47, ECHR 2011), Schatschaschwili v.   Germany ([GC], no. 9154/10, §§ 38-51, ECHR 2015), and Keskin v. the Netherlands (no. 2205/16, §§ 38-51, 19 January 2021). 10.     In the present case the request to cross-examine the prosecution witnesses, submitted by the applicant’s counsel to the Court of Appeal, was rejected. Their earlier statements were admitted as evidence. To examine whether the proceedings, as a whole, were compatible with Article   6, the case-law provides a three-step approach, as set out below. Whether there was a good reason for the non-attendance of the witnesses at trial 11.     As to whether there was good reason for the non-attendance of the witnesses and, consequently, for the admission of the absent witness’s untested statement as evidence: For all three witnesses the Court of Appeal’s rejection was based on the fact that the applicant had invoked his right to remain silent. However, the right of an accused to cross-examine witnesses against him or her cannot be made dependent on his or her renunciation of the right to remain silent (see Keskin, cited above, § 55). For one witness the request was also rejected because the defence had failed to substantiate its interest in the examination. However, the accused is not required to demonstrate the importance of a prosecution witness. If the prosecution has decided that a particular person is a relevant source of information and relies on his or her testimony at the trial, and that testimony is used to support a conviction, it must be presumed that his or her appearance and questioning are necessary (see Keskin, cited above, § 56). In sum, it cannot be said that the Court of Appeal established good factual or legal grounds for not securing the attendance of the prosecution witnesses. Whether the evidence of the absent witnesses was “sole or decisive” 12.     As to whether the evidence of the absent witnesses was the sole or decisive basis for the defendant’s conviction: The statements made by the three witnesses were not the sole basis for the defendant’s conviction. The Court of Appeal did use other evidence (phone records, bank statements and statements made by the applicant). However, having regard to the considerations in relation to the evidence employed by the appellate court, the Court considers that the evidence of the absent witnesses was of such significance or importance as is likely to have been determinative of the outcome of the case. Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured 13.     As to whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair: In the judgment of the Court of Appeal the statements by the three witnesses were listed along with the other evidence substantiating the applicant’s guilt. There is no indication that the Court of Appeal was aware of the reduced evidentiary value of the untested witness statements, nor is there any reasoning as to why it considered that evidence to be reliable. As stated above, there was some additional incriminating evidence supporting the witness’ statements. As for procedural measures aimed at compensating for the lack of opportunity to directly cross-examine the witnesses at the trial, it should be noted that the applicant did have the opportunity to give his own version of the events during the trial. However, the Court considers that an opportunity to challenge and rebut absent witnesses’ statements is of limited use in a situation where a defendant has been denied the possibility to cross ‑ examine the witnesses, and moreover it has repeatedly held that such an opportunity cannot, of itself, be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by the witnesses’ absence (see Keskin, cited above, § 68). No other procedural measures were taken. Having regard to the above, the Court finds that it cannot be said that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured. 14.     In those circumstances the absence of an opportunity for the applicant to cross-examine the prosecution witnesses or have them examined at any stage of the proceedings rendered the trial as a whole unfair. 15.     There has accordingly been a violation of Article   6 §§ 1 and 3 (d) of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.     The applicant claimed 53,965 euros (EUR) in respect of non ‑ pecuniary damage and EUR 339 in respect of costs and expenses incurred before the domestic courts and EUR 392 for those incurred before the Court. 17.     The Government contested the claim in respect of non-pecuniary damage and were of the opinion that the applicant had not established a clear link between the damage claimed and the alleged violation. They also noted that Article 457 § 1 (b) of the Dutch Code of Criminal Procedure provides a basis for reopening proceedings if the Court finds a violation of the Convention. The Government made no comments on the claim for costs and expenses. 18.     The Court refers to its consistent case-law, according to which where, as in the present case, a person is convicted in domestic proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a new trial or the reopening of the domestic proceedings at the request of the interested person would be the most appropriate way to redress the violation (see, among other authorities,   Sejdovic v. Italy   [GC], no.   56581/00, § 126, ECHR 2006-II,   Öcalan v. Turkey   [GC], no.   46221/99 , §   210   in fine , ECHR 2005 ‑ IV; Cabral v. the Netherlands , no.   37617/10, §§   42-43, 28   August 2018; and Chernika v. Ukraine , no.   53791/11 , § 82, 12   March 2020, and Keskin , cited above, § 81). In this connection, it notes that Dutch law provides a basis for reopening proceedings if the Court finds a violation of the Convention. 19.     Therefore, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the present case. 20.     Having regard to the documents in its possession, the Court considers it reasonable to award EUR 731 in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 731 in respect of costs and expenses, plus any tax that may be chargeable to the applicant; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 January 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Olga Chernishova   Georgios A. Serghides   Deputy Registrar   President