CEDH · CASELAW;CLIN;ENG — 13 avril 2006

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France - 75699/01 Judgment 13.4.2006 [Section I] Article 6 Article 6-3-d Examination of witnesses Inability of applicant to examine or have examined any witnesses at any stage of proceedings: violation   Facts : Following a police investigation concerning a property development project, the applicant was summoned to stand trial on charges of forgery of private documents, uttering forgeries and misappropriation of assets. The Criminal Court found the applicant guilty and gave him a suspended sentence of two years’ imprisonment, also ordering him to pay a fine and damages. The applicant appealed and requested the examination of the witnesses against him and on his behalf. He relied on the fact that there had been no confrontation with the witnesses against him and that defence witnesses had not been examined. The Court of Appeal rejected the request to have the witnesses examined, finding that it would not help to establish the constituent elements of the charges. It upheld the judgment except in respect of the award of damages, which it increased. The applicant appealed unsuccessfully on points of law. The Court of Cassation held in particular that the request for the examination of witnesses had been made for the first time on appeal. Law : Articles 6(1) and 6(3)(d) – The applicant’s request for the examination of witnesses had been dismissed by the Court of Appeal, and as he had not made any such request at first instance he had been unable to examine or have examined the witnesses in question. His appeal on points of law was dismissed in particular on the ground that his request for the examination of witnesses had been made for the first time on appeal. In the Court’s view, if a request for the examination of witnesses submitted on appeal were to be found admissible only where such a request had been made at first instance, the requirements of a fair trial might be infringed in so far as the exercise of the rights of the defence would be significantly diminished. In this case, however, the Court of Appeal had dismissed the request for a hearing on the merits and not simply because the applicant had failed to make it at first instance. As to the proceedings leading to the conviction, the Court of Appeal had not based its finding of guilt solely on the evidence of witnesses against the applicant. However, the Court considered that an examination of all the acts performed throughout the proceedings, when considered as a whole, revealed an imbalance detrimental to the exercise of the rights of the defence. The applicant had been unable, at any stage in the proceedings, to examine or have examined witnesses of any kind. Despite the complexity of the case there had been nothing more than an ordinary police investigation, after which the applicant had been directly summoned to stand trial. No judicial investigation had been opened and no investigating judge appointed, with the result that during the pre-trial proceedings the applicant had been unable to apply for any investigative measures and had not been confronted with his accusers. At the trial stage his sole request for the examination of witnesses and confrontation was dismissed. In short, the applicant’s whole system of defence had been undermined, relying as it did on the adversarial and public examination of witnesses, both those against him and those to be called on his behalf. The examination of the witnesses, as sought by the applicant, could have contributed to the necessary balance and equality throughout the proceedings between the prosecution and the defence. The general logic of criminal proceedings required that the applicant should be afforded the right to examine or have examined a witness of his choosing. Conclusion : violation (unanimously). Article 41 – The Court reiterated that a retrial or the reopening of the case at the applicant’s request represented, in principle, an appropriate way of redressing the violation. It made an award for 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