CASE OF KASHLEV v. ESTONIA

SECOND SECTION

CASE OF KASHLEV v. ESTONIA

(Application no. 22574/08)

JUDGMENT

STRASBOURG

26 April 2016

FINAL

26/07/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kashlev v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 8 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22574/08) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a person of undetermined citizenship, Mr Janek Kashlev (“the applicant”), on 5 May 2008.

2. The applicant was represented by Mr A. Repnau, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the criminal proceedings against him had been unfair because an appellate court had convicted him without examining the evidence directly, on the basis of the same evidence on which he had been acquitted at first instance.

4. On 18 April 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1987 and lives in Tallinn.

6. He was charged with causing serious health damage. According to the charges, at 4.30 a.m. on 22 April 2006, he, together with I.J., had repeatedly hit L. on the head outside a nightclub on Harju Street. L. had fallen to the ground and had then been kicked several times. He had sustained serious head injuries which had been life-threatening and caused him permanent health damage.

7. Criminal proceedings in respect of I.J. were discontinued after his death in a car accident on 25 February 2007.

8. The Harju County Court (“the County Court”) heard evidence from the applicant and nine witnesses and examined certain other evidence such as a written forensic expert opinion on L.’s injuries, a telephone activity report concerning the time and location of the applicant’s communications, identification reports based on photographs and a video-recording from a closed circuit television camera near the scene. It also examined I.J.’s statements given during the preliminary investigation.

9. The County Court found that the witness statements were incoherent and that some were contradictory. The witnesses had given different accounts of the events, regarding the number of persons who had been at the scene and attacked L., as well as the attackers’ actions during the scuffle and after L. had fallen to the ground. The court noted that according to I.J.’s statements given during the preliminary investigation, he had hit L. twice, L. had fallen to the ground, and the applicant had arrived afterwards. The court had no reason to doubt what I.J. had said. It also noted that it could not give less credit to the statements of S.G. – according to whom the fight had been between L. and I.J. – merely because he was a friend of the applicant.

10. The court rejected witness statements from K.A., K.S. and K.M. as evidence, as well as identification reports drawn up during the pre-trial investigation identifying the applicant as one of the (probable) attackers of the victim, as their statements in the identification reports did not match their statements before the court. It also pointed to the lack of credibility of some of the witness statements, such as K.M.’s statement, which said that she had recognised the applicant’s eye colour and the look in his eyes, but that she had not seen the colour of his jacket.

11. The County Court considered that there was only indirect evidence against the applicant and concluded that it could not be established beyond doubt that he had committed the offence he was charged with. By a judgment of 30 April 2007 the County Court acquitted him.

12. The prosecutor appealed to the Tallinn Court of Appeal (“the Court of Appeal”). He mainly challenged the County Court’s assessment of the evidence. He did not request a re-examination of the witnesses. He requested that the Court of Appeal quash the County Court judgment and adopt a new judgment convicting the applicant. A copy of the prosecutor’s appeal was sent to the applicant and his lawyer.

13. The Court of Appeal summoned the applicant, his counsel and the prosecutor to a hearing. However, the applicant informed the court in writing that he did not wish to take part and asked for the case to be examined in his absence.

14. At the Court of Appeal hearing, which took place on 4 September 2007, the applicant’s counsel confirmed that he was aware that the applicant did not wish to take part. The prosecutor did not object to examination of the case in the applicant’s absence. The Court of Appeal disclosed the records of the County Court hearings at the prosecutor’s request, to which the applicant’s counsel did not object. Subsequently, the court heard the parties’ arguments. No requests to summon witnesses were made and no witnesses were examined.

15. The Court of Appeal assessed the evidence differently, based on the material in the case file, and found that the applicant’s guilt was established. It considered that it was incorrect to describe the witness statements as contradictory; rather, the witnesses’ attention had been focused on different details and the scope and precision of the information contained in their statements varied. The court provided a comprehensive analysis of the evidence in its judgment, delivered on 18 September 2007, and explained in detail why, and to what extent, it assessed the statements given in the County Court differently from the lower court.

16. Notably, the Court of Appeal considered that the County Court had not been justified in rejecting K.A.’s, K.S.’s and K.M’s statements and identification reports as evidence. In respect of K.S., it noted that at the identification procedure she had recognised the applicant by his eyes and eyebrows. The fact that she could not describe his clothing did not discredit her evidence. The court found that it could not be required of a witness to note everything necessary for criminal proceedings. A person could only focus on a single detail rather than on the full picture. Nor was her evidence discredited by her failure to recognise the applicant at the court hearing, as at court hearings witnesses were in a particularly stressful situation. Similar considerations were applied to K.M., who, moreover, had recognised the applicant at the County Court hearing. The fact that K.M. and T.S. (another witness) – who had been together at the time of the events – had taken note of different aspects of the events did not render those statements unreliable; rather, it reflected the fact that the perception and memory of different people differed. Nor did the different expressions used by K.M. at the identification procedure and in court render her statements unreliable. Furthermore, the Court of Appeal found no radical differences between K.A.’s statements in the identification report and in court, and therefore considered that the rejection of his statements as evidence had been not justified either. In conclusion, the Court of Appeal considered that K.A.’s, K.S.’s and K.M.’s statements, as well as their identification reports, had to be taken into account and assessed together with the other evidence.

17. The Court of Appeal also disagreed with the County Court’s position concerning the reliability of S.G.’s statements. It pointed to the fact that his statements, according to which the applicant had arrived at the scene after L. had already fallen to the ground, did not match any of the other witness statements. It also noted that the applicant, S.G. and I.J. had been friends, whereas the other witnesses had had no connection with them. Considering a number of statements by independent witnesses, the court found that I.J. had not been credible in assuming full responsibility and noted that there was no way of finding out why he had done so. It also noted that the applicant’s statements had been inconsistent. He had said during the preliminary investigation that he had seen I.J. hitting L., whereas in court he had said that he had been further away from the scene and denied having seen anything. The court also referred in that connection to the words heard by witnesses from a person whose appearance corresponded to that of the applicant: “Why then did he come to start a quarrel?” If the applicant had arrived at the scene after L. had been knocked down, he would have known nothing about the reasons and initial stages of the conflict and would have had no reason to express himself in such a way.

18. The Court of Appeal noted that since the applicant had acted jointly with another person, it was legally irrelevant which of them had struck L., causing him to fall, although it also referred to K.S.’s statements according to which the last blow had been given by the applicant. The court further analysed at length the subjective element of the offence and concluded that the applicant had acted with the indirect intent of causing serious health damage. Both the intellectual and volitional aspects of intent required under the pertinent case-law had been present in the applicant’s behaviour.

19. The Court of Appeal convicted the applicant as charged and sentenced him to five years’ imprisonment, of which he immediately had to serve two months, the remainder of the sentence being suspended. In sentencing, the court had regard to the fact that the applicant had no previous convictions and that he was a young person in his formative years. A short immediate prison sentence gave him a serious warning for the future.

20. The applicant appealed to the Supreme Court. He challenged the Court of Appeal’s assessment of the evidence and argued that it had not convincingly substantiated its different conclusion from that of the County Court. He pointed out that the Court of Appeal had not directly verified the evidence; he referred in that respect to the conduct of the witnesses, which was of paramount importance in assessing their credibility but which was not reflected in the record of the court hearing. In particular, he referred to K.M.’s hesitant behaviour at the hearing. He considered that the Court of Appeal had assessed the evidence in a selective and arbitrary manner and had given the benefit of the doubt to the prosecution.

21. On 14 November 2007 the Supreme Court decided not to examine the applicant’s appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. The Code of Criminal Procedure (Kriminaalmenetluse seadustik), as in force at the material time, provided:

Article 15 – Direct and oral court hearing

“(1) A decision of a county court may be based only on evidence which has been orally presented and directly examined in the court hearing and noted in the court records.

(2) A decision of an appellate court may be based on:

1. evidence which has been orally presented and directly examined in a court hearing by an appellate court and noted in the court records;

2. evidence which has been directly examined in a county court and disclosed in appeal proceedings.

...”

Article 335 – Court examination in an appellate court

“...

(2) In court examination, an appellate court may disclose the records of a hearing in the court of first instance.

Article 340 – Adoption of a new judgment by an appellate court

“...

(4) On the basis of an appeal lodged by a prosecutor’s office or a victim, an appellate court may:

...

2. set aside the acquittal judgment and adopt a judgment convicting the defendant;

...”

23. In a judgment of 22 June 2011 (case no. 3-1-1-48-11) the Supreme Court noted that the duty of initial assessment of evidence lay with a first-instance court. The principles of direct examination and oral presentation of evidence under Article 15 § 1 of the Code of Criminal Procedure were therefore fully implemented in the proceedings in the court of first instance. That meant, inter alia, direct examination of witnesses and victims at a court hearing as the rule, and disclosure of testimony given during the pre-trial investigation as the exception. Although under the Code of Criminal Procedure an appellate court was in principle entitled to examine and assess evidence to the same extent as a county court, and it could not be ruled out that witnesses would be directly examined during the appeal proceedings, Article 15 § 2 of the Code of Criminal Procedure provided that an appellate court, unlike a county court, could also base its judgment only on evidence examined by the county court and disclosed in the appeal proceedings. The principle of direct judicial examination and oral presentation of the evidence was thus not necessarily implemented in full in the appeal proceedings.

24. However, the Supreme Court, referring to its settled case-law, also reiterated that in order to avoid the assessment of evidence given by a county court as a result of a direct and oral examination being easily changed, an appellate court should provide particularly thorough reasoning in its judgment when reaching an opposite conclusion to that of the county court with regard to the guilt of the accused on the basis of the same body of evidence. In addition to its own analysis of the evidence, an appellate court should also indicate the mistakes made by the first-instance court which had caused its conclusions to conflict with the facts. Failure to indicate the mistakes made by the first-instance court amounted to a lack of reasoning in the judgment of the appellate court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

25. The applicant complained that the Court of Appeal had convicted him only on the basis of the case file without examining any witnesses at its hearing. The Court considers it appropriate to examine this complaint under Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

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 ...”

26. The Government contested that argument.

A. Admissibility

27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

28. The applicant complained that in the determination of a criminal charge against him he had not had a fair hearing in accordance with Article 6 §§ 1 and 3 (d) of the Convention. The Court of Appeal had convicted him only on the basis of the case file without examining him or any witnesses at its hearing. It had based its reasoning on a new interpretation of statements by witnesses it had not examined itself. Without testing them in person, the Court of Appeal had found the statements of witnesses K.S., K.M. and K.A. reliable and those of S.G. unreliable. There had been no good reason for the non-attendance of any of those witnesses. The applicant pointed out that he had had no grounds to appeal or to call any witnesses and that in any event it had not been up to him to request that the prosecution witnesses be summoned to a hearing in the Court of Appeal.

29. The applicant submitted that the first-instance court had acquitted him because he had not been recognised as one of those who had punched the victim. The County Court had thus not gone further in examining the question of his guilt. The Court of Appeal, however, had had to go further and assess the question of his guilt for the first time. In doing so, and without hearing the applicant in person, it had failed to properly assess that question. The same applied to his sentencing.

30. The applicant contended that the Court of Appeal, in so far as it had given a new judgment convicting him, should have taken measures to summon the witnesses and the applicant in order to hear evidence from them directly. Alternatively, it could have quashed the County Court judgment and referred the case back to it for retrial.

(b) The Government

31. The Government argued that the fairness of the criminal proceedings had to be assessed in view of the proceedings in their entirety. They pointed out that in legal practice in Estonia the obligation to make an initial assessment of the evidence lay with the court of first instance. Pursuant to Article 15 § 1 of the Code of Criminal Procedure, a county court judgment could only be based on evidence which had been orally presented and directly examined in the court hearing and noted in the court records. However, under Article 15 § 2 of the Code of Criminal Procedure, an appellate court, unlike a county court, could also base its judgment only on the evidence which had been directly examined in a county court and disclosed in appeal proceedings. The Government distinguished legal systems where the domestic law allowed additional examination of witnesses in the appeal proceedings from those where that was not allowed. Under Estonian legislation, the accused or his counsel could also request witnesses to be summoned to the hearing in an appellate court. The right of the accused under Article 6 §§ 1 and 3 (d) of the Convention to directly examine the witnesses against him was thereby secured.

32. The Government noted that in the case at hand all the requested witnesses had been examined at the County Court hearing, where the applicant and his counsel had had the opportunity to examine and cross-examine them and had made use of that opportunity.

33. The Government further noted that the defence had been aware of the content of the prosecutor’s appeal and of his requests to the Court of Appeal, including the fact that the prosecutor had asked that the applicant be convicted purely on the basis of the County Court case file because, according to him, it had misinterpreted the collected evidence. The defence had also been aware of the Court of Appeal’s powers, including its power to set aside the acquittal judgment and issue a judgment convicting the defendant. The applicant thus had had no basis to presume that the first-instance judgment would stand and that the Court of Appeal would not come to different conclusions. For that reason the defence should have used all procedural possibilities to argue against the prosecutor’s appeal. It had been clear for the defence that if the prosecutor did not request the attendance of the witnesses at the Court of Appeal hearing, the witnesses would not be heard unless the defence made a request to that effect. Regardless of the foregoing, the applicant had decided not to participate in the Court of Appeal hearing and his counsel had made no requests for witnesses to be summoned.

34. The Government emphasised that in the present case a public hearing had been held in the Court of Appeal to which the applicant and his counsel had been summoned. The applicant had unequivocally waived his right to participate in the hearing and that waiver had been accepted by his counsel who had attended the hearing. Furthermore, the applicant’s counsel had agreed with the prosecutor’s request to disclose the records of the hearings of the first-instance court, by which the Court of Appeal had been given the right to rely on the information contained in them. The defence had not wished to re-examine any of the witnesses, although the prosecutor had clearly said that he did not wish the case to be returned to the first-instance court but rather that the Court of Appeal itself made a new judgment on the basis of the existing and disclosed witness statements.

35. The Government noted that although in principle it was possible to repeat the full proceedings conducted by the court of first instance in appeal proceedings, that did not mean that an appellate court should fully re-examine each criminal case on its own initiative. On the contrary, it would be expensive and inexpedient, as the time factor had a negative effect on the examination of evidence and the establishment of facts. In the applicant’s case all the evidence had been examined by the County Court and duly disclosed by the Court of Appeal.

36. The Government also pointed out that, according to the Supreme Court’s case-law, where an appellate court reached a completely different conclusion from that of the first-instance court, the appellate court had to indicate the mistakes made by the first-instance court in assessing the evidence. The Government considered that in the present case the Court of Appeal had very precisely observed the guidelines of the Supreme Court and explained in detail in its judgment why it had assessed differently the statements of individual witnesses given in the County Court as well as the statements as a whole.

2. The Court’s assessment

(a) General principles

37. The Court reiterates that in the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297‑A; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005, and Hermi v. Italy [GC], no. 18114/02, § 58, ECHR 2006‑XII).

38. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168). The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115; Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134; and Hermi, cited above, § 60). Nevertheless, the Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani, cited above, § 32, and Popovici v. Moldova, nos. 289/04 and 41194/04, § 68, 27 November 2007).

39. Furthermore, 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 that provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

40. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national legislation and the domestic courts (see, amongst others, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010, with further references, and Al-Khawaja and Tahery, cited above, § 118).

41. All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, however. As a general rule, paragraphs 1 and 3 (d) of Article 6 cannot be interpreted as requiring in all cases that questions be put directly by the accused or his lawyer, whether by means of cross-examination or by any other means, but rather that the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when the witness makes his statement or at a later stage (see Al-Khawaja and Tahery, cited above, § 118). The use in evidence of statements obtained at the police inquiry and judicial investigation stages is not in itself inconsistent with the provisions cited above, provided that the rights of the defence have been respected (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261‑C).

42. Lastly, the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol, cited above, § 35). In addition, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171‑A; Hermi, cited above, § 73; and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II).

(b) Application of these principles to the present case

43. The Court considers that the issue to be examined in the present case is whether the proceedings against the applicant, taken as a whole, were fair in the light of the specific features of these proceedings.

44. The Court notes at the outset that the applicant, assisted by a lawyer, took part in the hearing at first instance. He was heard at the County Court hearing where all relevant witnesses were also examined. It is not in dispute that the defence could and did put questions to the witnesses before the County Court.

45. Furthermore, the Court notes that after the applicant’s acquittal by the first-instance court the prosecutor lodged an appeal with the Court of Appeal. A copy of the appeal was served on the applicant and his lawyer and both of them were summoned to the Court of Appeal hearing. However, the applicant informed the court in writing of his wish not to take part and asked for the case to be examined in his absence. The Court notes that it has not been argued that the applicant – who was not in detention – was hindered from seeking legal advice concerning the nature of the proceedings before the Court of Appeal or their possible outcome, including the possibility that the first-instance acquittal judgment would be overturned and the applicant convicted by the Court of Appeal as requested by the prosecutor. The Court further notes that, according to the record of the Court of Appeal hearing, the applicant’s lawyer – who was present – submitted that he was aware of the applicant’s wish not to take part. The Court thus considers that the applicant unequivocally waived his right to take part in the hearing before the Court of Appeal (see, generally, Hermi, cited above, § 73, with further references; compare and contrast Popovici, cited above, § 73, where the Government failed to adduce any evidence in support of their submission that the applicant had refused to attend the hearing in question). The Court does not therefore need to further examine the question of whether the special features of the proceedings concerned would have allowed an appellate court to decide the case without a direct assessment of the evidence given by the applicant in person. In that respect the present case differs from a number of cases the Court has dealt with where the defendant in criminal proceedings had not been heard by an appellate jurisdiction since no oral hearing had been held at all (see Igual Coll v. Spain, no. 37496/04, § 7, 10 March 2009; Marcos Barrios v. Spain, no. 17122/07, § 10, 21 September 2010; and García Hernández v. Spain, no. 15256/07, § 8, 16 November 2010), had not been heard in person regardless of the hearing having taken place (see Lacadena Calero v. Spain, no. 23002/07, § 10, 22 November 2011) or had been able to address the court but had not been heard during the trial (see Constantinescu v. Romania, no. 28871/95, § 58, ECHR 2000-VIII, and Popa and Tănăsescu v. Romania, no. 19946/04, §§ 28 and 50, 10 April 2012).

46. As regards the question of whether the Court of Appeal was required to re-examine the witnesses – who had already been examined at the County Court hearing – in person, the Court underlines again that the applicant, who was assisted by a lawyer, was aware of the content of the prosecutor’s appeal (see paragraph 12 above). The applicant was equally aware of the Court of Appeal’s powers to convict him. In this context, the Court considers it significant that the applicant did not request in any manner the examination of witnesses at the appellate court’s hearing (compare Destrehem v. France, no. 56651/00, §§ 45-47, 18 May 2004, where the Court, in finding a violation, relied on the fact that the applicant had requested summoning the witnesses but in spite of that request the court of appeal nevertheless had overturned the first-instance judgment without summoning the witnesses; contrast with Flueraş v. Romania, no. 17520/04, § 60, 9 April 2013).

47. It is true that the Court has found that one of the requirements of a fair trial is the possibility for the accused to confront the witnesses in the presence of a judge who must ultimately decide the case, because the judge’s observations on the demeanour and credibility of a certain witness may have consequences for the accused (see Hanu v. Romania, no. 10890/04, § 40, 4 June 2013). At the same time, according to the Court’s settled case-law, the admissibility of evidence or the way it should be assessed are primarily matters for regulation by national legislation and the domestic courts (see among many other authorities, Al-Khawaja and Tahery, § 118; García Ruiz, § 28; and Schenk, §§ 45-46, all cited above). Exceptions to the principle that all evidence against the accused must normally be produced in his presence at a public hearing with a view to adversarial argument are possible but must not infringe 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 Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001-X, and Al-Khawaja and Tahery, cited above, § 118, with further references to Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II). The Court considers that if it has been accepted that the defendant’s ability to put questions to witnesses against him during the pre-trial proceedings can meet the requirements of Article 6 §§ 1 and 3 (d) and that the testimony of such witnesses can be admissible as evidence, those requirements are, a fortiori, met when the witnesses in question have been examined before the first-instance court in the presence of the defendant who could put questions to them and the appellate court admits those statements as evidence. The Court notes that it has not been argued that the proceedings before the first-instance court in the present case did not meet the fair trial requirements of Article 6 §§ 1 and 3 (d).

48. Furthermore, the Court has had regard, in the present case, to the reasoning related to the radically different assessment of the witness statements by the domestic courts. It reiterates in this connection that it is not its task to act as an appellate court or, as is sometimes said, as a court of fourth instance, for the decisions of domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. The domestic courts are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, among many other authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B; Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX; and Karpenko v. Russia, no. 5605/04, § 80, 13 March 2012). In the instant case, the Court notes that there is nothing in the case file which might lead to the conclusion that the domestic courts acted in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law. On the contrary, the Court considers that adequate safeguards against arbitrariness were in place in the proceedings against the applicant. The Court notes that the difference in the County Court’s and Court of Appeal’s assessment of the evidence mainly resulted from the courts’ different approach to the coherence or discrepancies within and between the testimony of individual witnesses and their interpretation of the circumstances of the offence as a whole. The Court also notes in this connection that the Court of Appeal, following the Supreme Court’s pertinent case-law (see paragraph 24 above), provided – as required by the Supreme Court – particularly thorough reasoning as to why it had come to a conclusion different from that of the County Court, and indicated what mistakes the latter had made, in the Court of Appeal’s view, in assessing the evidence. The Court observes, in particular, that the Court of Appeal disagreed with the County Court’s rejection of certain witness statements and identification reports as evidence and, having taken into account that evidence, arrived at a conclusion different from that of the County Court (see paragraphs 10 and 15 et seq. above).

49. The Court further notes that an appeal against the Court of Appeal judgment could be lodged with the Supreme Court. The applicant, through his lawyer, made use of that possibility and the Supreme Court was thus able to verify whether its case-law in that area had been followed by the Court of Appeal. While deciding whether to examine the applicant’s appeal, it had in substance a possibility to assess the appellate court’s approach. The Court considers that the requirements deriving from the Supreme Court’s case-law and its verification in the present case that those requirements had been met constituted further safeguards for the applicant’s defence rights.

50. The Court finds that because of the existence of the above safeguards against arbitrary or unreasonable assessment of evidence or establishment of the facts, the present case is different from a number of previous cases where the Court found a violation of the Convention (contrast, for example, Flueraş, cited above, and Hanu, cited above; see also the cases referred to in paragraph 45 above). In those cases the domestic law or binding case-law did not contain any rules comparable to those in the instant case.

51. In conclusion, given that the applicant unequivocally waived his right to take part in the Court of Appeal hearing, that the defence was able to put questions to the witnesses before the first-instance court in proceedings the compatibility of which with the fair trial guarantees enshrined in Article 6 §§ 1 and 3 (d) has not been put into question, that the applicant, who was assisted by a lawyer, did not request the examination of witnesses at the appellate court’s hearing, that the Court of Appeal followed the requirement of domestic law to provide particularly thorough reasoning for departing from the assessment given to the evidence by the first-instance court, including the indication of mistakes made by it, and that an appeal against the Court of Appeal judgment to the country’s highest court allowed the latter to verify whether the requirements of domestic law, including those of a fair trial, had been met, the Court finds that the applicant’s right to a fair trial was not breached in the present case.

There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

52. Lastly, the applicant complained that he had had no possibility to appeal against his conviction and directly submit his arguments to a higher court since the judgment convicting him had been delivered by the Court of Appeal and the Supreme Court had decided not to examine his appeal.

53. This complaint falls to be examined under Article 2 of Protocol No. 7 to the Convention. The Court considers that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. In several member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so (see, for example, Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000-I (extracts); Kristjansson and Boasson v. Iceland (dec.), no. 24945/04, 10 April 2007; and Dorado Baúlde v. Spain (dec.), no. 23486/12, 1 September 2015). Moreover, the second paragraph of Article 2 of Protocol No. 7 specifically refers to exceptions to the right to appeal in criminal matters in cases where the person concerned was convicted following an appeal against acquittal. The Court finds therefore that there is no appearance of a violation of the provision cited. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the complaint concerning the applicant’s conviction by the Tallinn Court of Appeal without examining any witnesses at its hearing admissible and the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge I. Karakaş is annexed to this judgment.

A.I.K.
S.H.N.

DISSENTING OPINION OF JUDGE KARAKAŞ

1. I do not agree with the majority that there has been no violation of Article 6 §§ 1 and 3(d) of the Convention.

2. The applicant was convicted by an appeal court following the prosecutor’s appeal against the first instance court’s judgment of acquittal. The appeal was based on the allegedly incorrect assessment of evidence, mainly witness statements. The Court of Appeal did not examine the evidence directly but found the applicant guilty by assessing the witness statements differently. Neither the Court of Appeal nor the Supreme Court heard evidence directly from the applicant or witnesses.

3. According to the Court’s case-law, the fact that an appeal court is empowered to overturn an acquittal by the lower court without summoning the defendant and without hearing the latter in person does not itself infringe the fair hearing guarantees in Article 6 § 1 (see Botten v. Norway, 19 February 1996, § 48, Reports of Judgments and Decisions 1996‑I).

4. However, where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see, among many others, Ekbatani v. Sweden, 26 May 1988, § 32, Series A no. 134; Constantinescu v. Romania no. 28871/95, § 55; Sándor Lajos Kiss v. Hungary, no. 26958/05, § 22, 29 September 2009; Sinichkin v. Russia, no. 20508/03, § 32, 8 April 2010; Lacadena Calero v. Spain, no. 23002/07, §§ 36 and 38, 22 November 2011; Hanu v. Romania, no. 10890/04, § 32, 4 June 2013; Vaduva v. Romania no. 27781/06 § 37, 25 February 2014; and Gómez Olmeda v. Spain, no. 61112/12, § 35, 29 March 2016).

5. In the determination of criminal charges, hearing the defendant in person should be the general rule. Any derogation from this principle should be exceptional and subject to restrictive interpretation (see, notably, Popa and Tănăsescu v. Romania, no. 19946/04, § 46, 10 April 2012). The domestic courts are under a duty to take positive measures to summon and hear the accused, even if the latter has made no specific request (see Botten v. Norway, cited above, § 53; Vaduva v. Romania, cited above, § 45; Sigurþór Arnarsson v. Iceland, no. 44671/98, § 38, 15 July 2003; Igual Coll v. Spain, no. 37496/04, § 32, 10 March 2009; and Găitănaru v. Romania, no. 26082/05, § 34, 26 June 2012). The only derogation permitted is when it is established that the accused has waived his right in an unequivocal manner and his waiver was attended by minimum safeguards (Calmanovici v. Romania, no. 42250/02, § 108, 1 July 2008, and Popovici v. Moldova, nos. 289/04 and 41194/04, § 73, 27 November 2007).

6. In the present case, the Court of Appeal summoned the applicant but he informed the court in writing that he did not wish to take part (paragraph 13 of the judgment). It is not clear from the facts why the applicant is considered to have waived his rights unequivocally. Such a waiver on the part of the applicant must be established in an unequivocal manner (see, mutatis mutandis, Oberschlick v. Austria (no. 1), 23 May 1991, § 51, Series A no. 204, and Popovici v. Moldova, cited above, § 73). However, the Government did not adduce any evidence in support of the affirmation that there had been an unequivocal waiver. In my view, the majority do not have a sufficient factual basis in order to distinguish this case from other similar cases where the Court emphasised the necessity for an appeal court to take positive measures to hear the accused person.

7. As regards the question of re-examination of the witnesses by the Court of Appeal, the majority found it significant that the applicant did not in any manner request that witnesses be examined at that stage (paragraph 46 of the judgment) with reference to Destrehem v. France (no. 56651/00, §§ 45-47, 18 May 2004), where the applicant had requested the summoning of the witnesses but the Court of Appeal had not heard them.

8. In the Destrehem case, the Court of Appeal had not summoned the witnesses as requested by the applicant but it had taken oral statements from him and had found him guilty essentially on the basis of the witness statements before the first-instance court. The appellate court had based the applicant’s conviction on a new interpretation of the same evidence without hearing the witnesses (§ 45):

“It can thus be seen from the judgment of 31 March 1999 that the Court of Appeal had essentially based the applicant’s conviction on a new interpretation of various testimony without hearing the witnesses who had given it, in spite of the applicant’s requests to call them. It was as if the Court of Appeal, having doubts about the credibility of the defence witnesses, had ‘disqualified’ them beforehand, without examining them, and had merely relied on its impression to take the opposite position to that of the court below, which had acquitted the applicant on the basis, in particular, of those witnesses’ statements. The appellate court was, admittedly, entitled to assess the various information that had been gathered, together with the relevance of the evidence that the applicant wished to adduce. Nevertheless, the applicant was found guilty on the basis of the very testimony which had cast sufficient doubt on the charge against the applicant in the mind of the court below that it had acquitted him at first instance. In those circumstances, the Court of Appeal’s refusal to examine the witnesses, in spite of the applicant’s request to that effect, prior to finding him guilty, significantly undermined the rights of the defence”

9. In Destrehem, even though the Court made reference to the applicant’s request to summon the witnesses, this was not the decisive point of the Court’s reasoning. The main point is that the applicant was convicted on the basis of a new interpretation of the statements without hearing the witnesses, which is also the situation in the present case.

10. Moreover, in its recent case-law the Court has not taken into account at all whether the applicant had asked to have the witnesses summoned or not.

11. The case-law is rather to the effect that even when the accused had not asked for the witnesses to be summoned, the appeal court should have taken positive measures ex proprio motu in this regard.

12. For example, in Flueraş v. Romania (no. 17520/04, 9 April 2013), the Court, after reiterating its finding in Destrehem (cited above, § 45), reached the same conclusion:

“59. The Court of Appeal essentially based the applicant’s conviction on a new interpretation of various testimony without hearing the witnesses who had given it. It thus reached the opposite conclusion to that of the courts below, which had acquitted the applicant on the basis, in particular, of the statements given by those witnesses during the hearings before them. Whilst it was for the appellate court to assess the various information that had been gathered, together with the relevance of the evidence that the applicant wished to adduce, it can nevertheless be said that the applicant was found guilty on the basis of the very testimony which had cast sufficient doubt on the charge against the applicant in the minds of the courts below that they had acquitted him at first instance and on appeal. In those circumstances, the failure by the Timişoara Court of Appeal to examine those witnesses, prior to finding him guilty, significantly undermined the rights of the defence (see Destrehem v. France, no. 56651/00, § 45, 18 May 2004, and Găitănaru, cited above, § 32).

60. Lastly, in so far as the Government emphasised that the applicant had not asked the Court of Appeal to examine the witnesses in question, the Court finds that the appellate court had a positive obligation to take steps to that end ex proprio motu, even if the applicant had not expressly made such a request (see, mutatis mutandis, Botten, cited above, § 53, and Dănilă, cited above, § 41).”

13. In Dan v. Moldova (no. 8999/07, 5 July 2011) the Court was not convinced that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant – and, in so doing, overturning his acquittal by the first-instance court – could, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the prosecution witnesses. The Court considered that those who had the responsibility for deciding the guilt or innocence of an accused ought, in principle, to be able to hear witnesses in person and assess their trustworthiness. The assessment of the trustworthiness of a witness is a complex task which usually cannot be achieved by a mere reading of his or her recorded words (ibid., § 33).

14. It is clear that according to the case-law, where an appeal court examines the evidence in order to decide on the acquittal or the conviction of an accused, it cannot decide without a direct examination of that evidence, and especially not without hearing the witnesses, even if the accused does not request that they be heard (Găitănaru v. Romania, cited above; Flueraş v. Romania, cited above; Dan v. Moldova, cited above; and Serrano Contreras v. Spain, no. 49183/08, 20 March 2012).

15. In addition, it is difficult to understand how the possibility of lodging an appeal with the Supreme Court – an appeal on points of law – could be a safeguard for the applicant’s defence rights; this is also an element in other similar cases where the Court found a violation of Article 6 §§ 1 and 3(d).

16. Having regard to the foregoing, I do not see any particular reason to depart from the existing case-law. This explains why I voted for a violation of Article 6 §§ 1 and 3(d) of the Convention.

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