Communicated on 16 February 2017
FIRST SECTION
Application no. 43861/13
Milan SCHÄFER against the Czech Republic
and five other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the cases and the complaints
1. Schäfer v. the Czech Republic, no. 43861/13 and Todorovič v. the Czech Republic, no. 43883/13
On 14 December 2007 several armed, camouflaged men entered a bank in Chomutov, ordered everyone to lie down, took cash from the safe and drove away with a hostage. While fleeing the crime scene they shot at pursuing police cars and injured several police officers.
In the course of the investigation the police questioned a number of witnesses. On 6 November 2006 an anonymous witness (utajený svědek) was questioned as an urgent measure (neodkladný úkon) under Article 55 § 2 of the Code of Criminal Procedure (hereinafter “the CCP”). He demanded that his identity not be disclosed, asserting that he himself or his family might be at risk. His name was changed and he was given the pseudonym I.H. The applicants’ lawyers were present during the questioning and could put their own questions to I.H., who was in a separate room with a prosecutor. His replies were relayed to the room where the lawyers were present but his voice was changed. I.H. testified that he was a colleague of the applicants and had heard them discussing the robbery sometime after the crime.
On 23 November 2009 the anonymous witness was examined before the Ústí nad Labem Regional Court (krajský soud) at the main hearing. The record of the hearing shows that he was outside the courtroom, in the presence of a court guard and a policeman, while the applicants and their lawyers were in the courtroom. They could ask him questions through the judge. He refused to answer several questions, stating that his identity would be disclosed if he did.
On 23 June 2010 the Ústí nad Labem Regional Court found the applicants guilty of robbing a bank, taking hostages and damaging property. They were convicted as members of an organised criminal group with another perpetrator and sentenced to twelve years’ imprisonment and forfeiture of money.
The trial court found that the applicants’ testimony was not credible and established the factual background mainly on the basis of witness and expert statements, expert opinions and documents. As regards the anonymous witness, the court noted that there were certain discrepancies between his first statement at the pre-trial stage on 6 November 2006 and the one made in court on 23 November 2009. It therefore decided to rely on his first statement of 6 November 2006. As to the assessment of the evidence itself, the court stated:
“The anonymous witness I.H. rebutted the defence of the accused, Todorovič, Schäfer, and [name of the third convicted person].”
In their appeal, the applicants mainly challenged the alleged arbitrary assessment of the evidence. In relation to the anonymous witness, they noted the inconsistency of his testimony and questioned keeping his identity secret since he had not proved that he had been in danger. In that regard, the applicants complained that the conditions of Article 55 § 2 of the CCP had not been fulfilled and so they could not prove that I.H. had made false statements and thus their defence rights had been violated.
On 10 March 2011 the Prague High Court (vrchní soud) dismissed the appeal, holding that the trial court had assessed the evidence in compliance with the law. Regarding the objection about not disclosing I.H.’s identity, the appellate court found:
“The objection is not reasonable. Not disclosing the identity of the witness I.H. is justified and lawful. The behaviour of the accused shows that they advanced their own interests ruthlessly, without regard to the health and life of persons who stood in their way or who accidentally appeared around them. There is no doubt that if the accused had known the identity of the anonymous witness they could have presented a danger to his health and life. Not disclosing the identity of the witness was justified and proportionate ...”
Furthermore, the appellate court also noted that the anonymous witness was not an agent provocateur and that his testimony had not greatly contradicted itself as he had only used different words to express ideas with similar content and meaning.
On 15 July 2011 the applicants lodged an appeal on points of law (dovolání) but it was rejected as unsubstantiated by the Supreme Court (Nejvyšší soud) on 11 July 2012.
On 15 and 16 October 2012 respectively, the applicants lodged constitutional appeals (ústavní stížnosti) alleging, inter alia, that the lower courts had violated their defence rights as there had been no reason for not disclosing the identity of the anonymous witness. On 5 and 20 March 2013 respectively, the Constitutional Court (Ústavní soud) dismissed their appeals as manifestly ill-founded, considering in particular that the conviction had not been based solely or to a decisive extent on the anonymous witness’s evidence.
2. Lázók v. the Czech Republic, no. 43676/15
On 21 May 2013 the applicant allegedly assaulted a person in a bar in Brno and caused him serious bodily harm.
The police charged the applicant on 29 July 2013. In the course of the pre-trial proceedings several witnesses were questioned, including an eyewitness, I.S., and the barmaid, N.H., who were both Ukrainian nationals, and D.H., who was a homeless person.
According to the documents submitted by the applicant, I.S. was questioned three times in total, twice before the charges had been brought. He testified that the applicant had asked the injured person to go outside, had then knocked him to the ground, and taken his head and struck it strongly on the pavement. The first and second questioning took place in the Czech Republic on 18 and 28 June 2013 respectively. Neither the applicant nor his lawyer were present. The third questioning took place on 12 December 2013 in Ukraine, where the eyewitness had moved. The applicant and his lawyer were not informed when the witness’s statement was to be taken.
N.H. was questioned on 5 August 2013. The applicant’s lawyer was present and could ask her questions. In the course of the proceedings the witness left the Czech Republic and the trial court could not deliver a summons to the main hearing to her so she did not testify in court. The third witness D.H. also testified only at the pre-trial stage as the court was unable to locate him and ensure his presence at the main hearing.
On 20 June 2014 the Brno Regional Court (krajský soud) found the applicant guilty of grievous bodily harm and sentenced him to eight and a half years’ imprisonment. The trial court established the factual background of the incident mainly on the basis of the testimony of the three above-mentioned witnesses and on the opinion of a medical expert. However, being unable to ensure the witnesses’ presence at the trial, the court read out their statements. In that regard, the trial court observed:
“It can be stated, in line with the defence’s arguments, that the testimony of the witness [I.S., full name of the witness], which was made several times, contains certain discrepancies. However, in contrast to the defence, the court did not consider the contradictions as substantial, but only as partial and not particularly important. ...”
The applicant appealed, challenging the allegedly wrong assessment of the evidence as he had been found guilty mainly on the basis of the testimony of witnesses who had not appeared in court. In addition, he argued that the trial court had minimised the inconsistency of their testimony and had not made enough of an effort to secure his right to ask questions and to ensure the presence of key witnesses at the main hearing. Furthermore, he pointed out that his lawyer had not been informed about the questioning of the key witness I.S. in Ukraine.
On 2 September 2014 the Olomouc High Court (vrchní soud) dismissed the appeal, considering, inter alia, that the eyewitnesses’ testimony had been consistent and that the applicant’s lawyer had been informed about the possibility to take part in the questioning in Ukraine. In addition, the appellate court stated there had been no errors in the way the trial court had proceeded in relation to the absent witnesses.
The applicant appealed on points of law (dovolání), objecting to the alleged erroneous assessment of the evidence and alleging a violation of the principles of in dubio pro reo and of equality of arms. On 4 February 2015 the Supreme Court (Nejvyšší soud) dismissed the appeal, considering that the lower courts had given the applicant sufficient reasons for their assessment of the evidence. The Supreme Court found that the medical expert opinion had been of crucial importance.
The applicant lodged a constitutional appeal (ústavní stížnost) alleging that his right to a fair trial had been violated. On 19 May 2015 the Constitutional Court (Ústavní soud) dismissed the appeal as manifestly ill-founded, holding that the proceedings before the general courts had been lawful and the decisions adequately reasoned. The court stated that the applicant’s conviction had been based on a wide range of evidence, especially witness testimony. Although I.S.’s testimony had contained a certain number of discrepancies, it had been unambiguous regarding the substantive circumstances of the crime. Furthermore, the Constitutional Court took into account the fact that the applicant’s lawyer had not shown any interest in participating in I.S.’s questioning in Ukraine and that therefore, even though he had not been informed about the concrete date, the evidence had been adduced lawfully.
3. Barsegian v. the Czech Republic, no. 6261/16
On 17 January 2008, at around 10 a.m., a certain H.H. was shot dead in the applicant family’s apartment. Several people were present at the time of the shooting, all Armenian nationals. According to the case file, they were all questioned shortly after the incident by the police, including A.B., who was questioned on 24 January 2008 as an urgent measure (neodkladný úkon).
He testified that he had been sleeping in the same room as H.H. when the applicant had come in and asked him to leave as he wanted to discuss something with H.H. A.B. went into the bathroom. After about ten to fifteen minutes he had heard screaming, had rushed back into the room and seen H.H.’s body and other members of the family still trying to resuscitate him. He had not seen the applicant anywhere in the apartment. A.B. left the Czech Republic on 27 January 2008.
The applicant, an Armenian national, also left the Czech Republic on an unspecified date.
On 21 July 2009, following proceedings held in absentia, the Prague Municipal Court (městský soud) acquitted the applicant. On 5 March 2010 the Prague High Court (vrchní soud) quashed the judgment and remitted the case to the first-instance court for a retrial.
On 19 November 2010 the Municipal Court convicted the applicant of murder and carrying a weapon without a licence. It sentenced him to twelve years’ imprisonment and expulsion from the Czech Republic and ordered the seizure of the gun.
On 16 March 2011 the High Court revoked the part of the judgment relating to the seizure of the gun.
The Supreme Court (Nejvyšší soud) dismissed an appeal on points of law (dovolání) filed by the applicant on 14 December 2011.
Meanwhile, on 9 November 2011, the applicant had been apprehended in Yerevan in Armenia under an international arrest warrant. He was transferred to the Czech Republic on 26 April 2012.
On 12 July 2012 the Municipal Court decided on a fresh examination of the merits of the case against the applicant and quashed its judgment of 19 November 2010 and the decision of the High Court of 16 March 2011.
On 28 November 2012 the Municipal Court again found the applicant guilty of murder and carrying a weapon without a licence. It imposed the same sentence of twelve years’ imprisonment and expulsion and ordered the seizure of the gun. The trial court established the factual background of the case based on the testimony of the absent witness, A.B., that had been given at the pre-trial stage, the testimony of police officers who had been in the apartment after the shooting on 17 January 2008 as well as on ballistics and forensic reports. As regards the testimony of the absent witness, the trial court established that he was serving a prison sentence in Russia and therefore only had his statement read out. As is clear from the case file, the trial court made no attempt to contact and question the witness.
In his appeal, the applicant argued that his conviction had been based to a decisive extent on the testimony of the absent witness, who, however, had never been heard in court and that neither the applicant nor his defence lawyer had been able to put questions to him. The trial court had known his whereabouts, he had not been unreachable and it had been important to hear him as he had been a possible suspect.
On 3 April 2013 the High Court quashed the Municipal Court’s impugned decision in the part concerning the seizure of the gun. The High Court considered that A.B.’s testimony had not been the sole evidence and it had been unnecessary to hear him in court. The High Court stated:
“It is not necessary to repeat the questioning of the witness [A.B.]. The testimony, which was available to the Prague Municipal Court and which was read out pursuant to Article 211 para. 2 (b) CCP on the grounds of the witness being unavailable, is perfectly usable under procedural rules. ... the witness was questioned in pre-trial proceedings as an urgent and non-repeatable measure under Article 158a CCP, in the presence of a judge of the Prague 7 District Court ... Examining the witness, who is supposed to serve a prison sentence in the Russian Federation, through mutual judicial assistance would significantly and entirely unreasonably prolong the criminal proceedings against the defendant, which is not desirable considering that he is in custody.”
An appeal by the applicant on points of law was dismissed by the Supreme Court on 27 November 2013.
On 16 July 2015 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal (ústavní stížnost) by the applicant. It held that his guilt had been properly established on the basis of the testimony of the absent witness and other evidence. The testimony had been assessed by the general courts in an objective manner since they had compared it with other evidence that had been adduced. The Constitutional Court also stated that the applicant had failed to specify how concretely he had planned effectively to counter the witness’s testimony.
4. Málek v. the Czech Republic, no. 32193/16 and Černín v. the Czech Republic, no. 32637/16
On 27 March 2011 R.G. reported that she had been raped. The police immediately arrested and questioned the applicants. They testified that they had invited R.G. to the first applicant’s apartment where she had voluntarily had sex with the second applicant and another person. They stated that she had been drunk but they denied the use of force.
R.G. was questioned as a victim on 28 March and 3 May 2011 respectively, in the presence of the applicants’ defence lawyer. She testified that she had been forced to have oral sex with the second applicant and intercourse with the other person and that the first applicant had watched. She admitted that she had been heavily drunk but stated that she remembered exactly what had happened.
At the main hearing before the Opava District Court (okresní soud) on 31 August 2011, R.G. refused to testify, asked the court to acquit the applicants and collapsed before the accused had entered the courtroom. The trial court summoned R.G. again on 5 October 2012 but she did not appear as she had had an accident and had been admitted to hospital.
On 13 May 2013 the District Court acquitted the applicants. It noted, inter alia, that the victim could not be examined in court despite repeated attempts and that there were relevant circumstances undermining the credibility of her testimony.
The prosecution appealed. On 25 September 2013 the Ostrava Regional Court (krajský soud) quashed the judgment and remitted the case to the first‑instance court. It found that the District Court had failed to question R.G. even though her statement had been crucial and she could have been heard in the absence of the applicants.
On 2 December 2013 the District Court examined R.G. in the presence of the applicants’ defence lawyer and two experts. The applicants were summoned to appear at a different time. At the main hearing R.G. expressed her wish not to discuss the incident, said that she was afraid and collapsed again. The trial court continued the hearing in the afternoon in her absence, when it informed the applicants of her previous testimony. They made no comment on it.
On 2 December 2013 the District Court found the first applicant guilty of a failure to prevent a crime and imposed a six-month prison sentence, suspended for one year. The second applicant was found guilty of rape and given a two-year prison sentence, suspended for two years. The trial court based its conclusion on the testimony given by R.G. at the pre-trial stage of the proceedings. No new evidence was presented during the retrial.
In their appeal, the applicants argued in particular that they had not been able to cross-examine the key witness in court. On 15 April 2014 the Regional Court dismissed their appeal. It found that R.G. had been afraid of testifying in court and that the trial court had correctly based its decision on her testimony of 28 March and 3 May 2011, considering in particular that the applicants’ defence lawyer had been present and had been able to ask her questions.
The applicants repeated their main arguments before the Supreme Court (Nejvyšší soud) in an appeal on points of law. The Prosecutor General also filed written observations and stated that the trial court had violated a fundamental provision of the CCP as it had failed to summon the applicants to the hearing where R.G. had given her evidence. On 26 August 2014 the Supreme Court dismissed the applicants’ appeal on points of law. It found that the trial court had not acted erroneously when organising the main hearing on 28 March 2014 in a way that had avoided contact between the applicants and the victim.
The applicants filed a constitutional appeal (ústavní stížnost), alleging that their conviction had been based on the testimony of a person whom they had never had a chance to cross-examine and that the trial court had made no effort to counterbalance the handicaps under which the defence had laboured.
On 8 December 2015 the Constitutional Court (Ústavní soud) dismissed the applicants’ appeal as manifestly ill-founded, considering that it could not be said that the criminal proceedings had been rendered unfair by the court’s reliance on testimony given by R.G. at the pre-trial stage.
B. Relevant domestic law
Under Article 55 § 2 of the Code of Criminal Procedure (hereinafter “CCP”), where the circumstances indicate that, in testifying, a witness or a person close to a witness runs an obvious risk of bodily harm or other serious danger of interference with their fundamental rights, and if it is not possible to ensure the effective protection of the witness in any other way, the criminal justice authority is required to take measures to prevent identification of that witness, including their visual identification; the witness’s name, surname, and other particulars are not to be recorded in the statement, but are to be kept separate from the criminal file and be known only to the criminal justice authorities acting in that particular case. The witness is to be informed of the right to have his or her identity concealed and to sign the statement using a fictitious forename and surname by which he or she can subsequently be identified. Where necessary, the criminal justice authority must take all the necessary measures to ensure the protection of those persons.
Under Article 158a of the CCP, where it is deemed necessary to question a witness as an urgent or non-repeatable measure during an investigation at a time before anybody has been charged, the interview must be requested by a prosecutor and must be conducted in the presence of a judge; the judge is to be responsible for the legality of such questioning and for that purpose may intervene in it. However, the judge is not authorised to review the prosecutor’s decision that an urgent and non-repeatable measure is required.
Under Article 209 § 1 of the CCP, the presiding judge must ensure that a witness who has not yet been questioned is not present during the questioning of the defendant and other witnesses. If there is a concern that a witness might not testify truthfully in the presence of the defendant, or if a witness or a person close to him or her is in danger of bodily harm, death or other serious threat, the presiding judge has to take appropriate measures to secure the safety and anonymity of that witness, or expel the defendant from the courtroom during the interrogation of such a witness. However, upon his return to the courtroom, the defendant must be informed about the content of the witness’s testimony, may make comments on it, and may ask the witness questions via the presiding judge without having met the witness. In the case of a witness whose identity is to be kept secret (Article 55 § 2), the presiding judge must take measures to make it impossible to determine the true identity of the witness.
Article 209 § 2 of the CCP provides that when a witness whose identity has been concealed (Article 55 § 2) is questioned during the trial, the court must take all the necessary steps to verify his or her credibility, even in the absence of a request to that effect.
Under Article 211 § 2 of the CCP a witness statement given during pre-trial proceedings must be read out at trial if the witness has died, gone missing or lives abroad and is therefore unreachable, or has become ill and is not, therefore, in a position to be questioned, or his or her witness statement has been carried out as an urgent or non-repeatable measure under Article 158a.
COMPLAINTS
1. Schäfer v. the Czech Republic, no. 43861/13 and Todorovič v. the Czech Republic, no. 43883/13
The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that there were no good reasons for concealing the witness’s identity, that they could not examine the reliability of what he said, even though his testimony was decisive, and that the courts failed to explain why other measures were not taken to ensure the safety of the anonymous witness.
2. Lázók v. the Czech Republic, no. 43676/15
Relying on Article 6 § 3 (d) of the Convention, the applicant objects to the fact that the trial court did not make a sufficient effort to ensure the presence of three key witnesses at the hearing and that neither the judge nor he himself was able to question them, even though their testimony was decisive. Further, he complains that the eyewitnesses could have been examined by an alternative means, for example via a video-conference from Ukraine, and that his lawyer was not duly informed about the questioning.
3. Barsegian v. the Czech Republic, no. 6261/16
The applicant complains that the admission of the pre-trial statement of the key witness, whom he had no opportunity to examine, even though it was decisive for establishing his guilt, amounted to a violation of his right to a fair trial, as provided in Article 6 § 3 (d) of the Convention.
4. Málek v. the Czech Republic, no. 32193/16 and Černín v. the Czech Republic, no. 32637/16
The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention of the overall fairness of the criminal proceedings in their case, notably about their conviction being based on the pre-trial testimony of a person whom they never had the chance to cross-examine in court.
QUESTIONS TO THE PARTIES
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 (d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015)? In particular:
(a) Were the applicants able to examine witnesses against them at any stage of the proceedings? In this connection, what steps did the domestic authorities take to secure the attendance of those witnesses?
(b) Did the statements of those witnesses serve as the sole or decisive evidence for the applicants’ conviction?
(c) What safeguards did the domestic courts put in place to counterbalance the applicants’ alleged inability to cross-examine those witnesses?
(d) Were the domestic courts’ decisions adequately reasoned?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
43861/13
04/07/2013
Milan SCHÄFER
10/08/1976
Pardubice
Czech
Jan VARGA
43883/13
04/07/2013
Viktor TODOROVIČ
12/07/1971
Přerov
Czech
Jan VARGA
43676/15
18/11/2015
Dušan LAZÓK
29/03/1960
Brno
Czech
Veronika
MALENOVSKA
6261/16
22/01/2016
Artavazd Vladimirovič BARSEGIAN
19/06/1980
Prague
Russian
Tomas GRIVNA
32193/16
01/06/2016
René MÁLEK
09/02/1968
Opava
Czech
David KROFTA
32637/16
06/06/2016
Lukáš ČERNÍN
23/11/1975
Opava
Czech
David KROFTA
Full & Egal Universal Law Academy