FIFTH SECTION
DECISION
Application no. 11216/15
Sigmar BERG
against Austria
The European Court of Human Rights (Fifth Section), sitting on 1 September 2020 as a Committee composed of:
Latif Hüseynov, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 27 February 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sigmar Berg, is an Austrian national who was born in 1967 and lives in Santa Monica, United States of America. His application was lodged on 27 February 2015. He was represented before the Court by Mr D.P. Holiner, a lawyer practising in London.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.Background of the case
3. The applicant in 1998 founded company B. as a limited liability corporation, registered in Austria. He was the sole shareholder and director.
4. In the following years, the applicant looked for investors in order to expand the business and to promote a worldwide expansion of the company. Two foundations, RPR and MFS, purchased some of the shares of the company.
5. In February 2007 the applicant founded a new company in the United States of America (hereinafter ‘USA’), also named B. (hereinafter ‘B. USA’).
6. In an extraordinary general meeting of shareholders on 27 April 2007, the applicant and a representative of MFS took the decision to wind up the B. company. S.P. was appointed as liquidator. No representative of RPR was present at this meeting.
7. From the moment of the founding of the company until the appointment of S.P. as liquidator, the applicant was the sole managing director of company B.
8. On 27 July 2007 insolvency proceedings were initiated against company B. at its own request. The claims filed by the creditors amounted to 639,258 euros (EUR). Eventually, the creditors received a quota of 2.21% of their claims.Criminal proceedings
9. In February 2009 R.P., the founder of RPR, filed a private criminal complaint against the applicant with the public prosecutor.
10. In March 2009 the public prosecutor opened preliminary proceedings against the applicant for fraudulent bankruptcy (betrügerische Krida) of company B. The public prosecutor sent letters and emails to potential witnesses, seeking to verify the authenticity of invoices allegedly paid by B. Some of them, inter alia J.L. and S.P., stated in their written responses to the public prosecutor that the invoices were not issued by their companies or by them directly and that they had never received the said payments.
11. Following a request for legal assistance by the Vienna public prosecutor’s office, witness Y.L. was questioned by the Hong Kong Police Force on 23 August 2010 on his company’s business relationship with the applicant’s company, and witness F.L. on 31 August 2010 sent a statement via e-mail on the same matter. A transcript of Y.L.’s questioning and a copy of F.L.’s e-mail were transmitted to the Vienna public prosecutor’s office by the Hong Kong Department of Justice on 7 September 2010.
12. Following a request for legal assistance by the Austrian authorities, witness A.G. was questioned by the Federal Bureau of Investigation of the United States. A transcript of the witness statement was transmitted to the Austrian Ministry of Justice by the United States Department of State on 15 June 2011.
13. On 9 December 2012 the public prosecutor appointed T.S. as an expert in the preliminary proceedings and instructed him to submit a report dealing with the following questions:
1. Having regard to the balance sheets and the account postings on the bank accounts 5900, 7550, 7660, and 7661 of company B. in the year 2006 and the invoices of S.E., Agent 011, G. Communication, S.P., and V. LLC; do facts arise that may fall under Article 156 (fraudulent bankruptcy) of the Criminal Code (Strafgesetzbuch)?
2. How can the statements of J.L. and S.P. be understood from an accounting point of view?
14. On 30 November 2011 T.S. delivered his report. He came to the conclusion that, on the basis of the available documents, he suspected that the applicant had withdrawn assets from company B. (material assets, brands and licences) in the amount of at least EUR 795,000 without legal basis, even though he must have known that this would result in the company’s insolvency. In addition, if the court were to arrive at the conclusion that the applicant had forged invoices, he would have withdrawn at least EUR 316,000 from company B. without legal basis and without return.
15. On 5 January 2012 the public prosecutor filed a bill of indictment, charging the applicant with fraudulent bankruptcy of company B. The public prosecutor maintained that the applicant had withdrawn assets in his function as managing director of B. in a still unknown amount, but in any case exceeding EUR 50,000 and, by doing so, prevented the payment of the company’s creditors.
16. On 29 May 2012 the trial began before the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien; hereinafter ‘the regional court’). In the course of the trial, the applicant objected to the reading out of the statements of those witnesses who could not be examined by the court directly.
17. On 30 May 2012 the applicant submitted a private expert report commissioned by him with the instruction to prepare a counter-statement to T.S.’s expert report. The private expert concluded in his report that the report submitted by T.S. had gone beyond the public prosecutor’s instruction and that T.S. had overstepped his mandate by having assessed evidence on the basis of misguided assumptions. Moreover, T.S. had done this to the detriment of the applicant.
18. During the hearing of 1 June 2012 the regional court held that despite being summoned by email, S.P., who was of unknown abode, neither responded to the court’s order nor did he appear at the trial. The regional court thereupon postponed the trial and decided to summon witnesses J.L., F.L., Y.L., and A.G. regarding the question of the authenticity of the invoices.
19. Subsequently, the regional court summoned the witnesses of known residence in Hong Kong on 27 September 2012 (F.L. and Y.L.) and the United States of America on 11 June 2013 (A.G.) by requests for mutual legal assistance, and the witness of unknown abode outside Austria (J.L.) by email. J.L. could not be summoned as he apparently did not reply to the regional court’s e-mail. A.G. neither responded to the court’s order nor did he appear at the trial.
20. F.L. and Y.L. both expressly refused to come to Austria to give evidence. The regional court attempted to arrange for them to give evidence by video link, at which occasion the applicant and his counsel could have been present. The applicant objected to this proposal.
21. On 3 September 2013 the applicant objected to the appointment of T.S. as court expert and referred to the private expert report he had submitted previously. The applicant further stated that T.S. was biased and not objective, as he had assessed the evidence mostly to his detriment.
22. T.S. stated that he did not consider himself biased.
23. The regional court dismissed the applicant’s objection and appointed T.S. as court expert. It held that there was no appearance of T.S. being biased. As regards differences between T.S.’s conclusions and those the applicant raised, it was up to the court to assess the evidence before it and to evaluate the expert’s report on its plausibility.
24. During the hearing of 4 September 2013 T.S. reiterated his expert report of 30 November 2011 and was then questioned by the public prosecutor and the applicant’s counsel. The regional court dismissed the applicant’s objection regarding the reading out of the statements of witnesses S.P., J.L., F.L., Y.L., and A.G. It found that the requirements of Article 252 § 1 the Code of Criminal Procedure (Strafprozessordnung; hereinafter also ‘the CCP’) for reading out witness statements without having had the possibility to hear them in person at the trial had been met.
25. On the same day, the regional court convicted the applicant of fraudulent bankruptcy, resulting in damage of EUR 580,000, by removing assets of company B., in particular cash (EUR 221,816), investments (EUR 272,000) and inventory stocks (worth EUR 122,000 minus 25,000 US dollars (USD)). The regional court sentenced the applicant to three years’ imprisonment.
26. In its written judgment the regional court based its findings on several pieces of evidence. As regards the authenticity of the invoices and the question whether the contract partners had actually received the amounts of money specified therein, it held that the statements of the absent witnesses read out in court were persuasive. Furthermore, the invoices showed striking divergences from the original documents of the companies which had allegedly issued them. Moreover, the statements of S.P., J.L., F.L., Y.L., and A.G. were corroborated by the fact that all the alleged payments had been made in cash, which was contrary to the usual business practice of B., and without any confirmation of receipt entered in the book‑keeping. It appeared unrealistic that such high cash amounts would not be confirmed upon receipt because there would be the risk that receipt of the money would be contested, which would make it more difficult to recuperate the payment because of the international business relationship. Furthermore all doubtful invoices dated from the same month in December 2006, just before company B.’s application for bankruptcy proceedings. Lastly, the amounts were conspicuously high in comparison to previous payments actually made by B. Regarding one of the companies in question, the regional court did not find any proof for its existence at all since it could neither be found by the US authorities, nor were there any traces indicating its existence through previous business relations with B. (except for the questionable invoice). In addition, according to the invoice in question and to the vague information from the applicant, it was allegedly a US American company. The invoice, however, contained the word “commission” written incorrectly, as well as the grammatically incorrect comment “Directly payed by the showroom”. In the regional court’s view, an internationally active company located in the US probably had employees with sufficient command of the English language. In conjunction with the date of the invoice in close temporal proximity to the other invoices and the insolvency, the court came to the conclusion that the applicant had forged documents and withdrawn assets from the company with criminal intent.
27. Moreover, the regional court did not believe the applicant’s presentation of facts. It held that he had not submitted any valid or persuasive arguments to counter the written witness statements made by S.P., J.L., F.L., Y.L., and A.G. His assertion that all invoices came from various sources and that the companies in question were only trying to cover up their own criminal acts was implausible and constituted a purely evasive defence. The regional court added that it was unrealistic that during the same month four different international companies all of a sudden were using the applicant’s company B. to conceal their allegedly illegal activities.
28. As regards the remainder of the amount of damage for which the court had convicted the applicant, the regional court concluded that the assets had been removed from the company. Due to the fact that the assets in the amount established were listed in the draft of the balance sheet of 31 December 2016, it must be assumed that they had actually existed. In addition, among the assets were also recorded purchases of tools by B., confirmed by witnesses at trial. The applicant’s position that tools purchased two years prior to the bankruptcy for EUR 505,000 were said to be completely worthless has been considered by the regional court as lacking credibility. In the list of the fixed assets for which the applicant was liable in his function as managing director, a corresponding life span had been given to the purchased tools which proved the exact opposite of the applicant’s claim. The applicant’s further allegation that the inventory stocks were sold by S.P. for only USD 25,000 was implausible, since the inventory stocks were disclosed on the balance sheet at their purchase value. In case of bankruptcy sale, it would run counter to any proper administration of business to sell the goods below this value. The fact that the applicant moved company B.’s operations to the US and continued his business there with his new company B. USA was confirmed by the applicant in telephone calls and conversations with various business partners. According to the expert report, there were no traces of remuneration on the part of B. USA or the applicant for company’s B. goodwill.
29. The applicant lodged a plea of nullity and an appeal against the sentence with the Supreme Court (Oberster Gerichtshof). He complained, inter alia, that the regional court had failed to take reasonable steps to ensure that key witnesses appeared in court for cross-examination, that statements of witnesses who had failed to appear in court had been admitted as evidence and that the same expert previously acting for the public prosecutor had been appointed as court expert.
30. The Supreme Court dismissed the plea of nullity. It held that some of the witness statements had been of such importance that they had to be read out in court regardless of whether the person making the statement appeared at the trial. As regards the regional court’s alleged failure to take reasonable steps to ensure that key witnesses appeared in court for cross-examination, the Supreme Court considered that it had not been feasible to find their place of residence (as regards J.L. and S.P.) or to obtain their presence at the trial, even though they were summoned on the basis of letters rogatory addressed by the court to the US and Hong Kong authorities (as regards A.G., Y.L., F.L.). Furthermore the applicant failed to request an examination by video conference and even expressly opposed it. Thus, the reading out of A.G.’s testimony which he had given before the FBI and Y.L.’s testimony before the police in Hong Kong had been in accordance with the requirements set out in Article 252 § 1 of the Code of Criminal Procedure.
31. Concerning the applicant’s objection to the appointment of T.S. as expert, the Supreme Court stressed that the applicant’s objection mainly resulted from differences in the evaluation of the existing company goods between T.S.’s expert report, and private expert A.S.’s report. Since court experts could be challenged with the same scrutiny as judges, mere differences between a court expert’s report and a private expert’s report were not sufficient to show that the court expert had been biased. The applicant had failed to show that T.S., who according to his own statement had not felt biased, would not have been willing to amend his findings if their incorrectness was proved at trial, nor did the applicant allege any contradictions or errors in the court expert’s report itself. Therefore the appointment of T.S. by the regional court did not violate the applicant’s defence rights.
32. The Supreme Court transferred the appeal against the sentence for decision by the Vienna Court of Appeal (Oberlandesgericht), which on 4 December 2014 reduced the sentence to two and a half years’ imprisonment.Relevant domestic law and practice
33. For an extensive summary of the domestic law and the relevant practice regarding the appointment and challenging of experts see J.M. and Others v. Austria (nos. 61503/14 and 2 others, §§ 80-97, 1 June 2017).
34. Pursuant to Article 252 § 1 of the Code of Criminal Procedure, minutes of the examination of co-defendants, minutes of the taking of evidence, official notes and other official writings containing statements of witnesses or co-defendants, the examinations of expert reports and audio‑video recordings of witnesses, defendants and co-defendants can only, at the risk of nullification, be read-into-evidence or shown, inter alia, in the following situations: if the individual to be examined has died in the meantime; or if his/her place of abode is unknown, or a personal appearance cannot reasonably be accomplished on account of age, sickness, frailty, remote residence/presence, or any other substantial ground.
COMPLAINTS
35. The applicant complained under Article 6 § 1 and Article 6 § 3 (d) of the Convention that his right to a fair trial was violated by the appointment as court expert of the same person who had previously acted as an expert for the prosecution and who had wrongly assessed the evidence. Furthermore, the applicant alleged that the Austrian authorities failed to ensure the attendance of several key witnesses at trial, depriving him of the opportunity to examine them.
THE LAW
36. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant part of which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law. ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
37. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, and the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment, the Court looks at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interests of the public and the victims in proper prosecution and, where necessary, to the rights of witnesses (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-101, ECHR 2015, with further references).Appointment of T.S. as court expert
38. As regards the applicant’s complaint that T.S. was appointed by the court even though he had previously acted as expert for the public prosecutor, the Court observes that this question has been dealt with in detail in J.M. and Others v. Austria (cited above, §§ 122‑128), which concerned a similar complaint.
39. In J.M. and Others the Court has found that if a bill of indictment is based on the report of an expert who was appointed in the preliminary investigations by the public prosecutor, the appointment of the same person as expert by the trial court entails the risk of a breach of the principle of equality of arms, which however can be counterbalanced by specific procedural safeguards (ibid., cited above, § 121).
40. In particular, the Court identified the relevance of following procedural safeguards (ibid., cited above, §§ 124-128):
“124. Firstly, the Court notes that [the expert] F.S. was not employed by the public prosecutor’s office or a Ministry, but was a professor of law at a university in Germany. [...] Nor did F.S.’s remuneration depend on whether the accused were convicted or not. F.S. was not, economically or otherwise, dependent on the public prosecutor’s office.
125. Secondly, the Court notes that F.S. was present at the hearing of 9 August 2012, when he gave a brief summary of his written report and answered questions raised by the court and the parties. Although the legal regulation granted the officially appointed expert a special status in the trial and allowed him to question witnesses and the accused on his own, he did not play any active role in the trial (see para. 59). The applicants had also been free to rely on assistance by private experts for support in the trial, for example when questioning the expert. [...]
126. Thirdly, the Court observes that F.S. was under a strict legal obligation to be objective and could have been challenged for bias if there had been relevant reasons for raising doubts as to his full impartiality and objectivity. Therefore the fact that he had been appointed by the prosecutor and that the indictment had been based on his expert report did not mean that he would side with the prosecution.
127. Fourth, as regards the possibility of challenging the expert F.S. for bias, it appears that the Regional Court did not merely reject the applicants’ challenge on the ground of Article 126 § 4 CCP. Rather, it examined the allegations as to the bias of F.S. and his lack of competence in the concrete case but eventually dismissed them as unfounded. [...]
128. In conclusion, the Court considers that the applicants’ doubts as to F.S.’ impartiality were not objectively justified. Moreover, the fact that the defence was able to rely on the assistance of privately commissioned experts when questioning the court-appointed expert in the trial or formulating requests for the taking of evidence did provide it with sufficient means for effectively defending the applicants’ case. Thus, the applicants did have a reasonable opportunity to present their case and were not placed at a substantial disadvantage vis-à-vis the prosecution. [...] Thus in the circumstances of the case, there was no breach of the principle of equality of arms in the criminal proceedings conducted against the applicants.”
41. Turning to the present case, the Court notes that the provisions containing procedural safeguards in the Code of Criminal Procedure are the same as in J.M. and Others. Firstly, the Court observes that the expert at issue in the present case was not employed by the public prosecutor’s office or a Ministry and that his remuneration did not depend on whether the accused were convicted or not. He was therefore neither economically or otherwise dependent on the public prosecutor’s office.
42. Secondly, T.S. was present at all hearings and, even though he played an active role by putting several questions to the applicant and to some witnesses, he also answered every question when examined by the applicant’s lawyer. The applicant could also have relied on assistance from private experts for support during the trial when questioning T.S., but he did not make use of this opportunity.
43. Thirdly, the Court notes that T.S. was under a strict legal obligation to be objective and could have been challenged for bias if there had been relevant reasons for raising doubts as to his full impartiality and objectivity. In the trial before the regional court, however, the applicant appears not to have challenged the court expert because he had already been appointed by the prosecutor, but merely because of allegedly wrongful assumptions and assessment of evidence in his report.
44. Fourth, in its decision to dismiss the applicant’s objection, the regional court acknowledged as a fact that T.S. had already been involved as an expert in the preliminary proceedings and held that his expert report had to be evaluated by the regional court in its assessment of evidence, but that there were no indications of T.S. not being objective. The regional court based its findings regarding the company structure and the business purpose of B. and its asset value in the years 2004, 2005 and 2006 on the expert report which it considered plausible and comprehensible and added that the report was supported, inter alia, by the balance sheets for these years and by the contents of the company register case (Firmenbuchakt) concerning B. The Supreme Court examined the applicant’s allegations regarding the differences to the private expert report’s findings and dismissed them as unfounded.
45. In the light of the above, the Court finds that in the instant case there is no reason to come to a different conclusion than in J.M. and Others, namely that the applicant’s doubts as to T.S.’s impartiality were not objectively justified.
B.Attendance of key witnesses and reading of their statements
46. The applicant further complained that the Austrian authorities had failed to ensure that key witnesses attended the trial so that he could examine them. In this regard the Court reiterates that, pursuant to Article 6 § 3 (d) of the Convention, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial arguments. Exceptions to this principle are possible, but must not infringe upon the rights of the defence which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Hümmer v. Germany, no. 26171/07, § 38, 19 July 2012). These principles particularly hold true when using witness statements obtained during police inquiry and judicial investigation at a hearing (see Schatschaschwili, cited above, §§ 104-105).
47. According to the principles developed in Al-Khawaja and Tahery (cited above, § 152), it is necessary to examine in three steps the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence. The Court must examine
(i) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence;
(ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction; and
(iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair.
48. These principles have been further clarified in Schatschaschwili (cited above, §§ 111-131) in which the Court confirmed that the absence of good reason for the non-attendance of a witness could not, in and of itself, be conclusive of the lack of fairness of a trial. Nonetheless, it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Given that its concern was to ascertain whether the proceedings as a whole were fair, the Court found that it should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence.Whether there was a good reason for the non-attendance of the witnesses at the trial
49. Good reason for the absence of a witness must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence. In cases concerning a witness’s absence owing to unreachability, the Court requires the trial court to have made all reasonable efforts to secure the witness’s attendance (ibid., § 120). Indeed, Article 6 § 3 (d) requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him. The domestic courts must have actively searched for the witness with the help of the domestic authorities, including the police and must, as a rule, have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili, cited above, §§ 119-20, with further references).
50. Applying the above principles to the instant case, the Court notes that the regional court admitted the evidence of the absent witnesses as two of them, J.L. and S.P. (see paragraphs 18 and 19 above), were of unknown residence outside Austria. The regional court had tried to summon them via email, which seemed the only practicable way to contact them, but neither of them had responded or appeared at the trial. As regards the three witnesses whose location was known (F.L., Y.L. and A.G.), the regional court summoned them by letters rogatory addressed to the United States and Hong Kong authorities, but the witnesses did not appear at the trial, with two of them having expressly refused to testify before the court. The Court notes that the domestic courts proposed to the applicant that witnesses F.L. and Y.L. be questioned via video conference. However, he explicitly objected to this course of action (see paragraph 20 above). The Court is therefore satisfied that the domestic courts complied with their duty actively to attempt to ensure the witnesses’ appearance at trial.
The Court hence considers that the admittance of the untested witness statements was a measure of last resort from the point of view of the trial court.Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction
51. The Court reiterates that “sole” evidence is to be understood as the only evidence against the accused. “Decisive” evidence should be narrowly interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (see Al‑Khawaja and Tahery, cited above, § 131, and Schatschaschwili, cited above, § 123).
52. Even though it cannot be concluded from the regional court’s reasoning that the evidence of the absent witnesses was sole or decisive, as the court also relied on various other evidence (for example differences regarding the appearance of the invoices in comparison to other invoices of the relevant companies, the amount of the payment, the date of payment, the method of payment, the difference between the assets in the balance sheet for 2006 and the actual present assets when the bankruptcy proceedings were initiated), the Court still considers that they may have carried weight in the applicant’s conviction.Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured
53. The fact that the domestic courts approached the untested evidence of an absent witness with caution has been considered by the Court to be an important safeguard. The courts must have shown that they were aware that the statements of the absent witness carried less weight. The Court has taken into account, in that context, whether the domestic courts provided detailed reasoning as to why they considered that evidence to be reliable, while having regard also to the other evidence available. A considerable safeguard is the availability at the trial of corroborative evidence supporting the untested witness statement (see Schatschaschwili, cited above, §§ 126 and 128).
54. Turning to the instant case, the Court notes that the regional court expressly mentioned that the witness statements had only been provided in written form, and therefore approached the untested evidence of the absent witnesses with caution. The court provided detailed reasoning as to why that evidence was considered reliable, while at the same time also having regard to the other evidence available (see paragraph 52 above), which strongly corroborated the untested witness statements.
55. Moreover, the defendant must be afforded the opportunity to give his own version of the events and to cast doubt on the credibility of the absent witness, pointing out any incoherence or inconsistency with the statements of other witnesses. Where the identity of the witness is known to the defence, the latter is able to identify and investigate any motives the witness may have for lying, and can therefore contest effectively the witness’s credibility, albeit to a lesser extent than in a direct confrontation (see Schatschaschwili, cited above, § 131, with further references).
56. In the instant case, the applicant has not alleged that he had not been able to bring forward during the trial his own version of the events. Indeed, the regional court examined all arguments the applicant brought forward to contest the witnesses’ credibility and addressed them in its judgment, but came to the conclusion that, seen in context of other available evidence, these arguments could not be followed (see paragraph 27 above). The Court would add that the regional court’s assessment of the evidence available was comprehensive and extensively argued, and covered all relevant elements.
57. The Court concludes from the above that the assessment of the reliability of that evidence had been fair and proper (see Al-Khawaja and Tahery, cited above, § 147, and Schatschaschwili, cited above, § 125), and that there had been sufficient counterbalancing factors to compensate for the non-attendance of the witnesses at the trial.
C.Conclusion
58. The Court finds, in the light of the above and all the material in its possession, that neither of the issues complained of discloses any appearance of a violation of the right to a fair hearing guaranteed under Article 6 § 1 and Article 6 § 3 (d) of the Convention.
59. Accordingly, the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 September 2020.
Anne-Marie DouginLatif Hüseynov
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy