CEDH · CASELAW;CLIN;ENG — 16 juillet 2019

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Iceland - 38797/17 Judgment 16.7.2019 [Section II] Article 6 Criminal proceedings Article 6-1 Fair hearing Acquittal overturned by Supreme Court without rehearing oral testimony it had disregarded as unreliable: violation Facts – The applicant was charged with criminal price collusion, along with twelve other employees of different hardware companies. The main piece of evidence against him was the recording of a telephone conversation, concerning exchanges of information about prices with one of the other accused. The trial court took oral statements from the accused in the presence of the other co-accused, irrespective of whether the latter had already testified. It then acquitted the applicant on the ground that the subjective requirement of negligence was not fulfilled, which it deemed corroborated by oral statements taken from other co-accused. In appeal proceedings before the Supreme Court, although a hearing was held, the accused themselves and the witnesses were not heard again. Under domestic law, the Supreme Court had full jurisdiction to examine questions of fact as well as questions of law – including the evidential value of documentary evidence – but it could not re-evaluate oral evidence given before the trial court without rehearing it. However, the Supreme Court considered that the method followed for hearing the statements of the defendants had “significantly diminished the evidential value” of their testimonies in court. On that finding, the Supreme Court overturned the acquittal of the applicant and sentenced him to nine months’ imprisonment, suspended. The applicant complained that his right to a fair trial had been impeded by the lack of a rehearing of his oral statement before the Supreme Court. Law – Article 6 § 1: Admittedly, the Supreme Court had not been under a formal obligation to summon the applicant to give testimony before overturning his acquittal. Nor was it decisive that the applicant, while being aware his conviction had been sought, had not requested a rehearing (assuming that such a possibility had been open to him): if the direct assessment of evidence was deemed necessary, the appeal court had the duty to act of its own accord to that effect. Thus, the conviction of the applicant was in principle not based on a reassessment of the credibility of the oral evidence as such – in the sense of forming a perception of the veracity of statements, in particular on the basis of the demeanour of the person under examination. Rather, the Supreme Court had concluded that the evidential value of that evidence was “significantly diminished” on technical or procedural grounds – namely the manner in which the evidence had been taken, in particular by allowing the defendants to be present while co-accused were giving evidence. While the Supreme Court had not excluded the oral testimony entirely, it had nevertheless taken a clear position on the reliability of that evidence, and thus on its evidential value in the overall assessment of the applicant’s guilt or innocence. In this context, any substantive distinction between the reliability and the credibility of the oral testimony was imperceptible. The fact was that the Supreme Court had at the very least disregarded, to a considerable extent, part of the evidence which had been taken into account by the trial court when it had acquitted the applicant and based his conviction primarily, if not exclusively, on its own assessment of the content of the telephone conversation between the applicant and one of the co-accused. Although the Supreme Court was entitled under domestic law to re-evaluate the tangible evidence, its reliance on that evidence while wholly or largely discounting the explanations provided in the oral testimony inevitably meant that it had to some extent to make its own assessment for the purposes of determining whether the facts provided a sufficient basis for convicting the applicant. In the Court’s view, this could not be regarded as an application of purely legal considerations to the established facts: it involved a fresh evaluation of the evidence as a whole, resulting in the conviction of the applicant on the basis of evidence which differed from that on which the trial court had relied in order to acquit the applicant. Therefore, as a matter of fair trial and taking into account what was at stake for the applicant, the Supreme Court could not properly examine the issues to be determined on appeal without a direct assessment of the evidence given orally by the applicant, his co-accused and one of the witnesses, which had been relied upon by the trial court in its overall probative assessment of the context in which the telephone conversation in issue had taken place. In the alternative, the Supreme Court had had the option of quashing the acquittal and referring the case back for a retrial. Instead, it had imposed a prison sentence – albeit suspended – on the applicant without having been in a position to assess his character directly. Conclusion : violation (unanimously). Article 41: finding of a violation sufficient in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes