N.K. v. Germany

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 220

July 2018

N.K. v. Germany - 59549/12

Judgment 26.7.2018 [Section V]

Article 6

Article 6-3-d

Examination of witnesses

Domestic violence conviction based on strongly corroborated untested evidence by victim refusing to testify, which had been reported by investigating judge: no violation

Facts – Proceedings were initiated against the applicant based on the suspicion that he had committed violent acts against his spouse, R.K. She was examined at the request of the public prosecutor’s office by the investigating judge, after the latter had decided to exclude the applicant from the hearing under the Code of Criminal Procedure, since there was a risk, given the nature of the reported offences, that R.K. would not testify or would not tell the truth in the applicant’s presence. The applicant was not appointed defence counsel to cross-examine R.K at this hearing as procedure required.

The main proceedings were opened against the applicant with R.K. informing the domestic court that she did not wish to give evidence. The right of a – current or former – spouse of the accused not to give evidence was enshrined in the Code of Criminal Procedure but case-law provided an exception for a “spontaneous utterance” made by the witness before or outside his or her formal testimony. The investigating judge was examined on the evidence he had obtained from his examination of R.K. as were the police officers present at the scene with statements made by R.K being qualified as “spontaneous utterance” and used by the domestic court. Subsequently, R.K. stated that she did not consent to the use of the evidence which she had provided to the investigating judge, to the police officers and to the court-appointed medical expert; nor did she consent to the use of the results of the medical examination.

The domestic court convicted the applicant of dangerous assault, coercion and maliciously inflicting bodily injury. He was sentenced to six years and six months’ imprisonment. All appeals were dismissed.

Law – Article 6 § 3 (d): The principles as set out in Al-Khawaja and Tahery and in Schatschaschwili concerning absent witnesses applied, mutatis mutandis, to the present scenario. R.K. had been entitled under the Code of Criminal Procedure to refuse to give evidence against the applicant because she was married to him. Thus, there had been a good reason for her not appearing for cross-examination at the trial and for admitting the evidence of R.K., as reported by the investigating judge and, in part, by two police officers, at the trial. In this regard, the Court could not discern any arbitrariness in the domestic court’s qualification of R.K.’s statement to the police officers as a “spontaneous utterance” and considered that there was no appearance that the applicant’s rights under the Convention had been disrespected by admitting that statement, as reported by the police officers, as evidence.

Regarding the significance of the untested evidence, R.K.’s pre-trial statements had not been the only evidence relied upon by the domestic court. That court had also relied on the statements of the counsellor of the women’s shelter to whom R.K. had provided a detailed account of the incidents and shown her injuries; R.K.’s son, who had heard screams and the applicant and R.K. having an argument; the statements of several neighbours who had seen R.K. immediately after her escape from the marital home with a bleeding head wound in a terrified state, and had seen the applicant leave that home and drive off following that; the letter by R.K. in which she had given examples of the acts committed by the applicant in the period in question; a draft letter her husband had forced her to write to the wife of a former lover of hers; and R.K.’s statement to the police officers, which the court had qualified as “spontaneous utterance”. The domestic court had concluded that the applicant’s conviction could be based on R.K.’s statements, as reported by the investigating judge, for they were corroborated by other significant factors independent of them. This evaluation of the weight of the evidence had been neither unacceptable nor arbitrary. At the same time, R.K.’s statement made at the pre-trial stage had carried at least significant weight for the applicant’s conviction and its admission might have handicapped the defence.

Regarding counterbalancing measures to compensate the handicaps for the defence as a result of the admission of the untested witness evidence at trial, the Government – and the domestic court itself – had agreed that counsel for the applicant should have been appointed who could have examined R.K. during the hearing before the investigating judge. By not doing so, the authorities had taken a foreseeable risk, given that R.K. had been married to the applicant and thus had a right to refuse to testify under domestic law – an eventuality which had subsequently materialised – that neither the applicant nor his counsel would be able to question R.K. at any stage of the proceedings. However, the domestic court had thoroughly and cautiously assessed the credibility of R.K. and the reliability of her statements as reported by the investigating judge and there had been ample and strong corroborating evidence. The applicant had been provided with the opportunity to present his own version of the events, which he had chosen not to do, and to cross-examine the investigating judge when he had given evidence as a witness.

In making an assessment of the overall fairness of the trial, the Court, having regard to the foregoing considerations – notably the weight of R.K.’s statement for the applicant’s conviction, the domestic court’s approach to assessing that statement, the availability and strength of further incriminating evidence and the compensatory procedural measures taken by the domestic court –, found that the counterbalancing factors had been capable of compensating for the handicaps under which the defence had laboured. The criminal proceedings against the applicant, viewed in their entirety, had not been rendered unfair by the admission as evidence of the statement by the untested witness R.K., as reported by the investigating judge.

Conclusion: no violation (unanimously).

(See Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147; and Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191)

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