Murtazaliyeva v. Russia [GC]

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 224

December 2018

Murtazaliyeva v. Russia [GC] - 36658/05

Judgment 18.12.2018 [GC]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Article 6-3-d

Examination of witnesses

Inability of defence in criminal proceedings to question witnesses: no violation

Facts – The applicant was convicted and sentenced to imprisonment in 2005 for having prepared a terrorist act, inciting others to commit acts of terrorism and transportation of explosives. She complained that the domestic courts had not allowed the effective examination of a video used in evidence against her and the questioning of two “attesting witnesses”. The conviction had been based, among other evidence, on the presence of explosives, which were found in her handbag in the course of a search observed by the two witnesses; the defence accused the police of having planted the explosives in the bag themselves.

In a judgment of 9 May 2017, a Chamber of the Court held, in particular: unanimously, that there had been no violation of Article 6 §§ 1 and 3 (b) with regard to the conditions in which the video was examined; and, by five votes to two, that there had been no violation of Article 6 §§ 1 and 3 (d) with regard to the refusal to summon to the trial the above-mentioned two witnesses. On 18 September 2017 the case was referred to the Grand Chamber at the applicant’s request.

Law – Article 6 §§ 1 and 3 (d), as regards the refusal to hear the two attesting witnesses: Beyond their specific characterisation in domestic law, in the circumstances of the case the two witnesses in question had to be considered as “witnesses on her behalf” for the purposes of Article 6 § 3 (d).

(a) Clarification of the general principles – The principles applicable to the attendance and examination of defence witnesses had been set out in Perna v. Italy [GC], where the approach taken by the Court consisted essentially in two questions: (1) did the applicant substantiate his or her request to call a particular witness by referring to the relevance of that individual’s testimony for “the establishment of the truth”; and (2) did the domestic courts’ refusal to call that witness undermine the overall fairness of the proceedings?

In the vast majority of cases prior or subsequent to the Perna judgment, it nevertheless appeared that the Court also consistently analysed the manner in which the domestic courts had decided on such requests. The Court’s carefulness and deference in this respect was in line with the established principle that those courts were best placed to assess evidence; only exceptional circumstances could prompt the Court to conclude that the failure to hear a particular person as a witness had been incompatible with Article 6.

Among the criteria to be applied, the question whether the domestic courts had considered the relevance of a requested witness and provided sufficient reasons for their decision not to examine him or her was therefore an independent and integral aspect, which appeared as the logical link between the two elements of the Perna test, in which it operated as an implicit substantive element. In the interests of clarity and consistency in its practice, the Court found it desirable to make this element explicit.

Such a development was in line with the recent case-law under Article 6 of the Convention, stressing the decisive importance of the domestic courts’ duty to engage in a careful scrutiny of the relevant issues if the defence advanced a sufficiently reasoned claim (see, for example, Dvorski v. Croatia [GC], concerning the denial of access to a lawyer of the suspect’s own choosing during police questioning, or Lagutin and Others v. Russia, in which the applicant alleged that he had been the victim of police entrapment).

Where a request for examination of a witness on behalf of the accused had been made in accordance with domestic law, the Court’s assessment would therefore be based on the following three criteria:

(i) Was the request to examine a witness sufficiently reasoned and relevant to the subject matter of the accusation?

(ii) Did the domestic courts consider the relevance of that testimony and provide sufficient reasons for their decision not to examine a witness at trial?

(iii) Did the decision not to examine the witness undermine the overall fairness of the proceedings?

Although the existing case-law already provided a solid basis in these three areas, the Court found it appropriate to provide the following guidance.

(i) Was the request to examine a witness sufficiently reasoned and relevant to the subject matter of the accusation? – Under the diversity of expressions used in the Perna judgment or subsequently – the relevance of that individual’s testimony for “the establishment of the truth”, or its “ability to influence the outcome of a trial”, or “to strengthen objectively the position of the defence” etc. – what appeared to unite them was the relevance of testimony sought to the subject matter of the accusation and its ability to influence the outcome of the proceedings.

In the light of the evolution of its case-law under Article 6, the Court considered it necessary to clarify this criterion by bringing within its scope not only defence motions to call witnesses capable of “influencing the outcome of a trial”, but also that of other witnesses who could reasonably be expected to “strengthen the position of the defence”.

The sufficiency and relevance of certain reasons to question a witness – having regard to the subject matter of the accusation – could not be evaluated in the abstract: this assessment necessarily entailed consideration of the circumstances of a given case, which included: (1) the applicable provisions of the domestic law; (2) the stage and progress of the proceedings; (3) the lines of reasoning and strategies pursued by the parties and their procedural conduct.

Admittedly, in certain cases the relevance of a defence witness’ testimony might be so apparent that even scant reasoning given by the defence would be sufficient to answer the first question of the Perna test.

(ii) Did the domestic courts consider the relevance of that testimony and provide sufficient reasons for their decision not to examine a witness at trial? – Any assessment of the courts’ response to a motion to examine a witness necessarily entailed consideration of the circumstances of a given case. The courts’ reasoning had to be commensurate – that is, it had to be adequate in terms of scope and level of detail with the reasons advanced by the defence. Since the Convention did not require the attendance and examination of every witness on behalf of the accused, the courts could not be expected to give a detailed answer to every motion of the defence; nonetheless, they were required to provide adequate reasons for their decisions.

Generally, the relevance of testimony and the sufficiency of the reasons advanced by the defence in the circumstances of the case would determine the scope and level of detail of the assessment required from the domestic courts: the stronger and weightier the arguments advanced by the defence, the closer the domestic courts’ scrutiny had to be, and the more convincing their reasoning were they to refuse the defence’s request to examine a witness.

(iii) Did the decision not to examine the witness undermine the overall fairness of the proceedings? – It was indispensable in every case to examine the impact which a decision refusing to examine a defence witness at trial had on the overall fairness of the proceedings. Compliance with the requirements of a fair trial had to be examined on a case-by-case basis, having regard to the development of the proceedings as a whole and not on the basis of isolated consideration of one particular aspect or one particular incident.

In the Court’s opinion, the preservation of overall fairness as the final benchmark for the assessment of the proceedings ensured that the above three-pronged test did not become excessively rigid or mechanical in its application. While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it could not be excluded that in certain, admittedly exceptional, cases considerations of fairness could warrant the opposite conclusion.

(b) Application of the clarified principles to the present case – Firstly, given the manner in which the defence had argued the case, more detailed reasons for the motion to question the attesting witnesses had been required. Since the applicant herself claimed that the explosives had been planted prior to the arrival of the attesting witnesses, the testimony that they could have provided seemed barely relevant in the light of the subject matter of the accusation. Secondly, in view of the general passivity of the defence during the questioning of the police officers about the events surrounding the alleged planting of explosives, and the absence of any specific legal or factual arguments as to the necessity of examining the attesting witnesses, the domestic courts’ reasoning in refusing the motion had been commensurate with the reasons advanced by the defence. Lastly, the overall fairness of the proceedings had not been undermined by this refusal, since the applicant’s conviction had been based on a considerable body of evidence, duly submitted in adversarial proceedings, in which the applicant’s lawyers had had every opportunity to defend her version of events.

Conclusion: no violation (fifteen votes to two).

The Court also held, unanimously, that there had been no violation of Article 6 §§ 1 and 3 (b) with regard to the conditions for admitting a video recording in evidence against the applicant.

(See Perna v. Italy [GC], 48898/99, 6 May 2003; Dvorski v. Croatia [GC], 25703/11, 20 October 2015, Information Note 189; and Lagutin and Others v. Russia, 6228/09 et al., 24 April 2014, Information Note 173)

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