CEDH · CASELAW;CLIN;ENG — 12 novembre 2019

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Slovakia - 45084/14 Judgment 12.11.2019 [Section III] Article 6 Criminal proceedings Article 6-1 Fair hearing Conviction based to a decisive degree on statements by accomplice arising from plea-bargaining arrangement, without adequate scrutiny thereof: violation Facts – The applicant was convicted of murder, in the context of organised crime. At the domestic level he unsuccessfully complained (i) that the observations of the prosecution service on his appeal and appeal on points of law had not been served on him, and (ii) that his conviction had been based on evidence from a witness (M.) who had been motivated by the prosecution to testify falsely against the applicant in return for impunity. The order of events as regards the latter complaint was as follows: –     prior to the applicant’s conviction : (i) M. had been charged with the murder of O. and detained pending trial on that charge, but was released from detention and the investigation in respect of that charge was closed upon his changing his version of events to incriminate the applicant, and (ii) the bringing of charges against M. for being the applicant’s accomplice in the murder of K. was temporarily suspended. –     after the applicant’s conviction (although pending appeal on points of law) : (i) M. was investigated for perjury, but the decision to open that investigation was quashed, and (ii) M. was formally charged with the murder of K., but his prosecution for that murder was terminated with final effect. The applicant’s arguments challenging M.’s credibility as a witness before the domestic courts were only examined by the court of appeal (the cassation court and the Constitutional Court gave no specific reply in that connection). The court of appeal found (i) that by changing his previous position in the applicant’s trial M. had merely incriminated himself in addition to the applicant, and that he had obtained no advantage since his prosecution for the murder of K. had only been suspended, and (ii) that M.’s evidence had been corroborated by other incriminating evidence. Law – Article 6: The following reasons led the Court to the conclusion that, in view of the importance of M.’s evidence to the applicant’s trial, its use at the trial had not been accompanied by appropriate safeguards so as to ensure the overall fairness of the proceedings. (a)     Impact of the evidence in issue – The other evidence against the applicant had been indirect and had formed part of a whole only when considered with the direct evidence from M.; his changing his version of events could therefore be regarded as a decisive turning-point in the trial. Accordingly, M.’s evidence had constituted, if not the sole, then at least the decisive evidence against the applicant. (b)     Advantages obtained by the testimony-giver in the different trials – Firstly, the domestic courts had not scrutinised the applicant’s argument with reference to its factual basis in its entirety. Indeed, it transpired form the order of events that, at the time of the applicant’s conviction and appeal, the benefits M. had allegedly obtained in return for incriminating the applicant had consisted of (i) the charge of the murder of O. being dropped, the investigation being closed, and his being released from detention pending trial on that charge, and (ii) the bringing of charges for the murder of K. being suspended. However, the court of appeal had limited its scrutiny to any advantage M. might have received within that same trial (for the murder of K.). Any advantage he might have received in the context of the prosecution for the murder of O. had not been examined. But the fact remained that after M. had changed his version of events the charge had been dropped, the investigation had been closed and he had been released from detention pending trial. None of the courts had taken any position as regards these facts. Secondly, the courts’ conclusion that M. did not gain any advantage was contradicted by the subsequent development consisting of (i) the quashing of the decision to open an investigation into the suspicion that he had committed the offence of perjury, and (ii) the termination of his prosecution for the murder of K., which had been granted expressly and specifically in return for his testimony. Admittedly, the outcome of this development post-dated the applicant’s trial. However, during the applicant’s trial, M.’s prosecution for the murder of K. had already been suspended. This had been a preliminary step towards the ultimate termination of that prosecution. Thirdly, the advantages M. obtained had been extended to him under the authority of the prosecution service, which in Slovakia is organised as a single hierarchy. This presupposed a degree of coordination, which in the present case was further suggested by a certain personal overlap in the form of the involvement of the same prosecutor in the various proceedings. The preliminary advantage M. had had the benefit of at the time of the applicant’s trial could not be dissociated from the overall advantage he had received in relation to his own prosecution for the murder of K. in return for his testimony incriminating the applicant. Fourthly, neither had any particular consideration been given to the fact that M.’s evidence originated from a witness who was, by his own account, himself involved in the offence, whereas the advantage obtained by him went beyond a mere reduction of sentence or financial benefit and practically meant impunity for an offence of unlawful killing. Fifthly, M.’s plea-bargain arrangements in the applicant’s own trial were not subject to appropriate judicial review. The review by the court of appeal had been inadequate, and the higher courts had failed to respond to the applicant’s argument altogether. Moreover, all the decisions concerning the prosecution of M. had been taken under the sole responsibility of the prosecution service with no element of any judicial control. The Court also found that the failure to send the applicant a notification of the observations of the prosecution service on his appeal and appeal on points of law had breached his right to a fair hearing. Conclusion : violation (unanimously). Article 41: EUR 5,000 in respect of non-pecuniary damage; claims for pecuniary damage dismissed. (Contrast Habran and Dalem v. Belgium , 43000/11 and 49380/11, 17 January 2017, Information Note 203 )   © 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