Cabinet avocat Andreea Coman

ECHR. X v. THE NETHERLANDS. Violation of Art. 6 § 1 and Art. 6 § 3 (c)

admin — Thu, 28 Oct 2021 09:00:00 +0000

Art. 6 § 1 and Art. 6 § 3 (c) • Fair hearing • Insufficient interests cited by domestic court to outweigh applicant’s right to attend appeal hearing in person through a second adjournment • Relative brevity of pending proceedings and no need for requested adjournment to be of a long duration • Reasoning provided by applicant as to importance of her attendance, considering consequences of outcome for her employment and wish to explain causes and prevention of reoffending

The case concerns a complaint under Article 6 §§ 1 and 3 (c) of the Convention regarding the refusal of the appellate jurisdiction to adjourn the hearing of the applicant’s criminal case in order for her to attend the hearing in person.

The Court’s assessment

(…) 48. Turning to the present case, the Court notes at the outset that it is of no relevance whether or not documentary proof of the applicant’s projected absence on 20 July 2015 was submitted to the Court of Appeal, since the Court of Appeal did not reject the applicant’s counsel’s request for an adjournment of the hearing on the ground that such proof had not been submitted (see paragraph 16 above).

49. The Court further notes that the applicant neither waived her right to attend the hearing of the Court of Appeal, nor attempted to evade justice; (…). It is also the case that the applicant’s counsel, Mr S. at the time, made a professional mistake in agreeing to a hearing on a date on which the applicant would be unable to attend (see paragraph 14 above).

50. The Court of Appeal was called upon to consider, (…), whether the reason given by the applicant for her absence was sufficiently urgent and credible and whether her interest in the adjournment sought should take precedence over the interest of the proper administration of criminal justice. Apparently accepting as given the credibility of the reasons stated, the Court of Appeal weighed the applicant’s interest against “the interest of society in an effective and expeditious trial and the interest of a proper organisation of judicial proceedings”, finding it “significant” that the hearing had been adjourned once already for the same reasons (see paragraph 16 above).

51. The Court observes, however, that the Court of Appeal did not set out in its judgment for what reason(s) the interests to which it had regard outweighed the applicant’s interest in being able to exercise her right to attend the hearing of her appeal in person (compare, mutatis mutandis, Hokkeling, cited above, § 62). In this context the Court has taken note of the recent case-law of the Supreme Court according to which trial courts are to provide sufficient reasoning when they reject a request for an adjournment (see paragraphs 29-30 above).

52. Given the relative brevity of the length of time during which the appeal proceedings had been pending – the first-instance judgment had been pronounced on 30 January 2015, less than six months earlier (see paragraph 6 above) – and considering that there would have been no need for the requested adjournment to be of a long duration as it was known to the Court of Appeal that the applicant would be available to attend a hearing between 27 July and the end of August 2015 (see paragraph 12 above), it appears to the Court that the weight of the interests indicated by the Court of Appeal was relatively modest. By contrast, the applicant had reasoned her wish to attend the hearing by explaining why this was important to her, for which reason she had, moreover, declined to authorise her counsel to conduct the defence on her behalf (see paragraphs 13-14 above).

53. While it is true that in the present case it was not in doubt that the applicant had committed a criminal offence (see also paragraph 5 above), the Court observes that, in accordance with Article 350 of the CCP, which provision equally applied in the appeal proceedings, the Court of Appeal was also called upon to deliberate on the criminal liability of the applicant and on the imposition of the punishment (see paragraphs 24-26 above). It was thus for the appellate court to establish her guilt and to determine the sentence to be imposed, which it could reduce or increase and which sentence could involve imprisonment (see paragraphs 23 and 25 above), a type of penalty which carries a significant degree of stigma (see Talabér v. Hungary, no. 37376/05, § 27, 29 September 2009). The applicant was clearly worried about the consequences for her employment which the imposition of an unsuspended, or the execution of a previously suspended, prison sentence would entail (see paragraphs 14 in fine and 20 above) and the outcome of the proceedings before the Court of Appeal was therefore of crucial importance to her.

54. The Court further observes that in its determination of the sentence the Court of Appeal attached relevance to an advisory opinion according to which the applicant did not want to cooperate with treatment within the framework of probation and social rehabilitation, and the Advocate General had stated at the hearing that the applicant had a history of evading care (see paragraphs 18 and 15 above). As the Court of Appeal had been informed, the applicant wished to address that court in person in order to explain the causes of her reoffending and also her willingness to prevent further occurrences of shoplifting and to elaborate on the aspects that had helped her not to reoffend since her last arrest (see paragraph 13, 14 in fine and 39 above). In the light of the case‑law set out in paragraphs 43-46 above, the Court takes the view that she should have been enabled to do so.

55. While the interests cited by the Court of Appeal were undoubtedly relevant, the Court considers that in the circumstances of the present case they were not sufficient to outweigh the applicant’s right to attend the hearing of her appeal in person.

56. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. (…)

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Articolul ECHR. X v. THE NETHERLANDS. Violation of Art. 6 § 1 and Art. 6 § 3 (c) apare prima dată în Cabinet avocat Andreea Coman.

ECHR. VOLODINA v. RUSSIA. Violation of art. 8

admin — Thu, 21 Oct 2021 10:00:00 +0000

Art. 8 • Private life • Positive obligations • Authorities’ failure to protect victim of domestic violence from repeated acts of cyberviolence and to bring perpetrator to justice

The case concerns the State’s obligation to protect the applicant from acts of cyberviolence, including the publication of her intimate photographs without consent, stalking and impersonation, and to carry out an effective investigation into these acts.

(…)

61. The Court has found in the first Volodina case that the response of the Russian authorities to the known risk of recurrent violence on the part of the applicant’s former partner was manifestly inadequate and that, through their inaction and failure to take measures of deterrence, they allowed S. to continue threatening, harassing and assaulting the applicant without hindrance and with impunity (see Volodina, cited above, § 91). This finding is applicable in the circumstances of the present case in which the authorities did not consider at any point in time what could and should be done to protect the applicant from recurrent online violence.

62. Turning to the manner in which the Russian authorities conducted an investigation into the applicant’s reports, the Court reiterates that, to be effective, an investigation must be prompt and thorough. The authorities must take all reasonable steps to secure evidence concerning the incident, including forensic evidence. Special diligence is required in dealing with domestic-violence cases, and the specific nature of the domestic violence must be taken into account in the conduct of the domestic proceedings (see Volodina, cited above, § 92).

63. As regards the investigation into the fake social media profiles and the dissemination of the applicant’s intimate photos, a criminal case was opened only on 6 March 2018, almost two years after the applicant had first reported the fake profiles to the police on 22 June 2016 (see paragraphs 7 and 9 above). Before that, it would appear that the police sought to dispose hastily of the matter on formal grounds, citing lack of territorial jurisdiction or lack of an offence (see paragraphs 7 and 8 above), instead of making a serious and genuine attempt to establish the circumstances of the applicant’s malicious impersonation on social media. Since States are responsible for delays, whether attributable to the conduct of their judicial or other authorities or to structural deficiencies in its judicial system which cause delays (see Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, § 128, 7 July 2015), it is immaterial whether the initial two-year delay was caused by a lack of clear rules on jurisdiction for investigating online offences or by the reluctance of individual police officers to take up the case.

64. (…) In any event, whether or not S. was readily available for questioning, the police should have acted promptly and in good faith to secure forensic evidence of the alleged offences, including the identification of phone numbers and Internet addresses which had been used to create the fake profiles and upload the applicant’s photos. However, this was not done until the criminal case was opened in 2018, resulting in a loss of time and undermining the authorities’ ability to secure evidence relating to the acts of cyberviolence.

65. The investigation which was conducted from 2018 onwards cannot be said to have been expeditious or sufficiently thorough. It took the authorities nearly a year to obtain information about the Internet addresses of the fake accounts from the Russian company operating the social media platform VKontakte; the authorities did not send any requests to Instagram to identify the owner of the fake accounts. The questioning of the applicant and inspection of the fake pages on Instagram had taken place in May 2020, that is two years since her complaint in 2018. The authorities appear to have established both the person whose phone number and Internet address had been used to create the fake accounts in 2016, and the owner of the phone number in Azerbaijan which had been used to create two fake accounts in 2018. However, their communications and possible links with S. were not investigated; it was not established how the person in Azerbaijan could have come by the applicant’s intimate photos and personal data.

66. A “pre-investigation inquiry” into the other offences which the applicant had reported to the police did not lead to any criminal case being opened. In the matter of the tracking device found in the applicant’s bag, the procedural decision on her complaint was issued almost three years later after her report to the police (see paragraphs 13 and 17 above). The investigative authorities did not contact her about the complaint, did not ask S. any questions about the device, and did not deploy technical means to determine the number of the SIM card installed in the device using the service provider’s network infrastructure. The authorities also failed to investigate the death threats which the applicant had received online and reported to the police in August and September 2019 (see paragraph 11 above). Without undertaking any investigative steps, the police concluded that no offence had been committed. (…).

67. As a consequence of the slow-paced investigation into the fake social media profiles, the prosecution eventually became time-barred. The criminal case against S. was discontinued by application of the statute of limitations on his initiative, even though his involvement in the creation of the fake profiles appears to have been established (see paragraph 20 above). The Court has found violations of the obligation to conduct an effective investigation in cases where the proceedings had continued unduly or had ended by prescription allowing the perpetrators to escape accountability (see Opuz, cited above, § 151; P.M. v. Bulgaria, no. 49669/07, §§ 64-66, 24 January 2012, and, in a factually similar situation, Barsova v. Russia [Committee], no. 20289/10, §§ 35-40, 22 October 2019). The effectiveness principle means that the domestic authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in acts of violence (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII (extracts)). By failing to conduct the proceedings with the requisite diligence, the Russian authorities bear responsibility for their failure to ensure that the perpetrator of acts of cyberviolence be brought to justice. The impunity which ensued was enough to shed doubt on the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyberviolence.

68. In sum, the Court finds that, even though the existing framework equipped the authorities with legal tools to prosecute the acts of cyberviolence of which the applicant was a victim, the manner in which they actually handled the matter – notably a reluctance to open a criminal case and a slow pace of the investigation resulting in the perpetrator’s impunity – disclosed a failure to discharge their positive obligations under Article 8 of the Convention. There has accordingly been a violation of that provision.

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Articolul ECHR. VOLODINA v. RUSSIA. Violation of art. 8 apare prima dată în Cabinet avocat Andreea Coman.

ECHR. BANEV v. BULGARIA. Violation of art. 5 § 3 and art. 6 § 2

admin — Thu, 14 Oct 2021 08:47:00 +0000

#constitutionofanorganizedcriminalgroup; #moneylaundering; #taxavoidance

The art. 5 § 3 • lack of relevant and sufficient reasons to decide the continuation of detention; The art. 6 § 2 • violation of the presumption of innocence

In essence, the ECHR found the following:

Regarding the danger of committing new crimes: “(…) authorities strive to explain, considering the multiple accusations and the highly publicized nature of criminal proceedings (…), why was it imagined that the pleader will continue to operate the criminal scheme of which he was accused.” (para. 107)

Regarding the risk of influencing witnesses and altering evidence: “(…) since the evidence necessary to establish the facts has already been administered, given the procedural guarantees existing on domestic Law against the influence of witnesses, the conclusion of the courts regarding the risk of pressure on witnesses or alteration of evidence seems unfounded (…).” (paras. 108-110)

Regarding the risk of absconding: „(…) The claimant was arrested in France based on a European arrest warrant. However, according to the documents in the file, he was the one who informed the Bulgarian authorities about his location and that he would return to Bulgaria on 26 October 2018 by plane, when he knew he had to appear before the authorities in the context of a criminal investigation (…). Exactly on this date, and before boarding in Sofia, he was arrested by the French police at the Nice airport (paragraph 14 above). In those circumstances, the Court considers that this argument cannot in itself justify the finding of any existence for the risk of absconding”. (para. 112) However, “(…) personal and professional connections established with foreign countries, considerable financial resources and, above all, talks intercepted with his cell phone hidden in his cell. (…) “, ”could justify the danger of fleeing for a relatively long period and therefore maintaining the applicant’s detention”. (para. 113). Even in the presence of these concrete and serious elements, the Court held that “on December 2, 2020, it was found that the risk of fleeing had decreased given the time spent in detention and travel difficulties associated with the COVID-19 pandemic”, and in any case, ”the refusal to release the applicant relies on the risk of recidivism and the possibility to influence witnesses, which is why the court considered them irrelevant at this stage in this criminal procedure (…). ” (para. 114)
Prosecutors’ statements published on October 28, 2018, as well as the reasons for the decision, pronounced on 7 December 2018, violated the presumption of innocence. (para. 155)

Full text (FR)

Articolul ECHR. BANEV v. BULGARIA. Violation of art. 5 § 3 and art. 6 § 2 apare prima dată în Cabinet avocat Andreea Coman.

ECHR. Zamfirescu v. Romania. Infringement of art. 8

admin — Fri, 08 Oct 2021 10:59:30 +0000

Motivation of the Court

(…)

60. In the Court’s view, several elements call for a careful examination. The Court first observes that the decision authorizing the applicant to be heard did not specify the specific time intervals (see paragraph 8 above). It follows from those factors that the applicant was constantly monitored, including at night, which is not disputed by the Government. The Court also notes that the expert report in the present case, as well as the judgments of the domestic courts, show that the technical equipment installed in the applicant’s office could capture both sound and images (see paragraphs 22 to 23 above). By its nature, recording images is more important than recording sounds. The Court recalls that, with regard to video surveillance at work, the employee’s reasonable expectation of privacy remains high in closed workplaces, such as offices [see in this regard , Lopez Ribalda and Others v. Spain (MC), no. 1,874 / 13 and 8,567 / 13, point 125, 17 October 2019]. In addition, it notes that the Government did not dispel doubts as to the exact location of the surveillance equipment, while the applicant states that his camera was also filmed (see paragraphs 10 and 48 above). The Court also notes that the applicant’s supervision lasted for about 4 months. Finally, it notes that the implementation of this measure continued despite the fact that the exposure of some aspects of the applicant’s privacy was obvious to investigators from the early stages of the investigation, especially given the numerous interventions of prosecutor’s technicians traveling to spot. However, it does not appear that this factor was taken into account by the bodies which continued to capture the images and sounds produced in the applicant’s office and which subsequently carried out such an intrusive measure as the search of that office.

61. The Court also points out that the applicant was constantly monitored, with the aim of recording both the sounds and the images for a considerable period of time. He considers that, by their nature and duration, the measures to which the applicant was subjected were intrusive and that aspects of his private and sometimes very intimate life were exposed. The Court notes that the Government did not report any reasons to continue the surveillance, as the investigation revealed issues concerning the applicant’s privacy and the decision to proceed with such an intrusive measure as the search. (…)

Full text (RO)

Articolul ECHR. Zamfirescu v. Romania. Infringement of art. 8 apare prima dată în Cabinet avocat Andreea Coman.

ECHR. FİKRET KARAHAN v. TURKEY. Infringement of art. 6 §§ 1 and 3 (d)

admin — Thu, 20 May 2021 00:00:00 +0000

Art. 6 §§ 1 and 3 (d) • Trial leading to conviction for membership of illegal armed organisation unfair, due to applicant’s inability to confront witness against him, and despite his lawyer being able to cross-examine the witness • No good reason for failure to obtain statement from witness in applicant’s presence, which was essential to challenge reliability of allegations and to dissipate uncertainty surrounding applicant’s physical identification • Serious handicap faced by defence not sufficiently compensated by procedural safeguards in the circumstances.

The Court’s assessment

Relevant case-law

36. 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; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).

37. Article 6 § 3 (d) enshrines the principle that, 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 argument. Exceptions to this principle 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 proceedings (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

38. The Court refers in this connection to its case-law under paragraphs 1 and 3 (d) of Article 6 of the Convention, and notes in particular the principles summarised and refined in Al‑Khawaja and Tahery (cited above, §§ 119-47) and further clarified in Schatschaschwili (cited above, §§ 100-31), regarding the admission of untested incriminating witness evidence in criminal proceedings(for a recapitulation of those principles, see Boyets v. Ukraine, no. 20963/08, §§ 74-76, 30 January 2018). While originally developed for scenarios in which a prosecution witness does not appear at the trial, the Court has accepted that the Al‑Khawaja and Schatschaschwili principles can also be applicable where witnesses do appear before the trial court but neither the applicant nor his counsel is able to examine them (see, mutatis mutandis, Ürek and Ürek v. Turkey, no. 74845/12, § 49, 30 July 2019, and Chernika v. Ukraine, no. 53791/11, § 46, 12 March 2020).

39. The Court notes, however, that the case at issue presents a different type of problem in that while the applicant himself was not able to confront the prosecution witness against him, his counsel, unlike in the above-mentioned cases, had the opportunity to cross-examine that witness before the trial court (see paragraph 21 above). The Court has held in some similar cases that the defence counsel’s ability to hear the statements of the witness and to put questions to them was sufficient to safeguard the interests of the defence on the facts (see Šmajgl v. Slovenia, no. 29187/10, § 64, 4 October 2016, and the cases cited therein). The significance attached by the Court to the presence of a lawyer in such situations is also apparent from its finding in a number of cases that while in exceptional circumstances there may be reasons for hearing evidence from a witness in the absence of the person against whom the statement is to be made, that would be acceptable only on the condition that his lawyer was present (see, for instance, Hilden v. Finland (dec.), no. 32523/96, 14 September 1999, and Šmajgl, cited above, § 63 in fine; see also X. v. Denmark, no. 8395/78, Commission decision of 16 December 1981, Decisions and Reports (DR) 27, p. 55).

40. Having said that, the Court has also acknowledged that there may nevertheless be circumstances where the defence counsel’s involvement alone may not suffice to uphold the rights of the defence and the absence of a direct confrontation between a witness and the accused might entail a real handicap for the latter (see Šmajgl, cited above, § 65). Accordingly, it now falls on the Court to determine whether the present case involved such circumstances that called for the applicant’s direct confrontation with the witness against him. In making this assessment, it will borrow, as relevant, the approach and principles developed in respect of absent witnesses, and will ask (i) whether there was a good reason to hear evidence from the witness E.A. in the absence of the applicant; (ii) whether the evidence given by that witness was the sole or the decisive basis for the applicant’s conviction or carried significant weight; and (iii) whether there were sufficient counterbalancing factors in place to compensate for the difficulties encountered by the defence as a result of the absence of the applicant’s direct confrontation with E.A., focusing in particular on the question whether those difficulties were of a nature that could be effectively offset by the applicant’s lawyer’s presence at the hearing where E.A. was heard. When responding to these questions, the Court will ultimately seek to establish whether the object and purpose of the protection under Article 6 § 3(d), which is to give an accused an adequate opportunity to challenge and question a witness against him, could be achieved in the present circumstances without ensuring the direct confrontation of the applicant with the witness E.A.

41. Before embarking on the application of these principles to the present case, the Court considers it important to stress that its primary concern under Article 6 § 1 is to evaluate the overall fairness of criminal proceedings (see Schatschaschwili, cited above, § 101). That is the ultimate goal of various tests developed to examine different matters relating to specific rights guaranteed by Article 6 § 3 (see, for instance, Chernika, cited above, §§ 51 and 52, and the cases cited therein). Compliance with the requirements of a fair trial must therefore be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016).

Application of the above principles to the present case

Whether there was a good reason for not obtaining E.A.’s statements in the presence of the applicant

42. The Court reiterates at the outset that the lack of a good reason for a prosecution witness’s absence is a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (see Schatschaschwili, cited above, § 113). The Court considers that the same applies when the witness was not “absent” per se, but the accused was denied the opportunity to confront the witness (see Ürek and Ürek, cited above, § 66).

43. Turning to the facts before it, the Court notes that the applicant, who was serving a prison sentence at the material time in connection with a previous conviction, was brought to all the hearings held before the Istanbul Assize Court, except for the one where E.A. was heard. No explanation was provided by the trial court during the proceedings, or subsequently by the Government before the Court, as to why the applicant’s presence could not be secured at that hearing despite his being under the exclusive control of the State. In fact, the trial court does not seem to have given any consideration to the implications of the applicant’s absence in terms of the rights of the defence. The Court further notes that, contrary to the Government’s allegations, the applicant had requested to be confronted with E.A. from the very beginning of the proceedings (see paragraphs 19 and 20 above) and that he had complained about the absence of any such confrontation both in his defence statements before the trial court, and subsequently to the Court of Cassation (see paragraphs 24 and 28 above).

44. In these circumstances, the Court cannot find that there was a good reason for the failure to obtain a statement from E.A. in the applicant’s presence, or that the authorities displayed appropriate diligence to ensure the applicant’s presence.

Whether the evidence given by E.A. was the sole or decisive basis for the applicant’s conviction or whether it carried significant weight

45. The Court observes that the charges brought against the applicant were initially based on two pieces of evidence, the first being the allegations made by the applicant’s brother G.K. when interviewed at the Istanbul Security Directorate, and the second being E.A.’s statements during the questioning and photo identification procedure conducted at the Istanbul Security Directorate (see paragraph 17 above). The Court further observes that during the ensuing trial stage, both G.K. and E.A. were heard by the Istanbul Assize Court as witnesses. However, when delivering its judgment against the applicant, the first-instance court appears to have cited expressly only the evidence provided by E.A. in concluding that the applicant had been active at the PKK’s Kelereş camp in Iran and had therefore been a member of that organisation as accused. The Court notes that the first-instance court did not refer in any way to G.K.’s statements, or to any other direct or circumstantial evidence, in establishing the applicant’s guilt (see paragraph 25 above).

46. The Court therefore considers, in the light of the domestic court’s assessment in its reasoned judgment, that the statements made by E.A. at the Istanbul Security Directorate constituted the decisive, if not the sole, basis for the applicant’s conviction, although E.A. expressed doubts regarding the accuracy of those statements when he was later heard by that court (see paragraphs 52 and 53 below for further discussion on this).

Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

47. The Court considers, in the light of the foregoing, that the denial of the applicant’s right to confront the witness E.A., for no good reason, had put the defence at a serious disadvantage, having particular regard to the critical role that his statement played in the applicant’s conviction. It now remains to be determined whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured, including measures that permitted a fair and proper assessment of the reliability of the evidence in issue.

48. In this context the Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence in question. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Schatschaschwili, cited above, § 116). Given the centrality of E.A.’s evidence, the Court considers that weighty counterbalancing factors were required to ensure the fairness of proceedings (see Chernika, cited above, § 66). The Court has considered the following elements to be relevant in this context: the trial court’s approach to the evidence in question; the availability and strength of further incriminating evidence; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, § 145, and Ürek and Ürek, § 60, both cited above).

Approach of the trial court to the witness evidence and the availability of further incriminating evidence

49. The Court has already established above that the evidence provided by E.A. during his police questioning was, to all intents and purposes, the sole evidence used to convict the applicant. There was certainly no other evidence in the case file submitted to the Court regarding the applicant’s alleged presence at the Kelereş camp in Iran. Moreover, while the applicant’s brother G.K. had made certain allegations at the time of his police questioning that suggested the applicant’s continued involvement with the “organisation” in Romania following his release from prison, he later retracted those statements, which he claimed had been made under duress and in the absence of a lawyer. The Court notes that the trial court’s judgment did not contain any discussion of the admissibility or the probative value of G.K.’s statement, nor did it refer in any way to those statements in determining the applicant’s guilt. In those circumstances, the Court cannot but hold that there was no other evidence that directly or indirectly corroborated E.A.’s witness statement.

50. As for the trial court’s approach to E.A.’s witness statement, the Court considers at the outset that there were a couple of factors that undermined the reliability of that statement. It notes firstly that E.A. had made the relevant statement against the applicant following his surrender to the police under the Reintegration of Offenders into Society Act, in order to benefit from certain advantages in exchange for information on the PKK (see paragraphs 9 and 31 above). In his statement – which had been taken in the absence of a lawyer – at the Anti-Terrorist Branch of the Istanbul Security Directorate, he had accordingly provided information regarding some thirty alleged members of the PKK, and had identified some of those individuals, including the applicant, on the basis of photographs.

51. The Court reiterates, however, that the use of statements given by witnesses in return for immunity or other advantages may cast doubt on the fairness of the proceedings against the accused and can raise difficult issues, to the extent that, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange, or for personal revenge. The risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see, mutatis mutandis, Habran and Dalem v. Belgium, nos. 43000/11 and 49380/11, § 100, 17 January 2017, and the cases cited therein, and Adamčo v. Slovakia, no. 45084/14, § 59, 12 November 2019).

52. In the Court’s opinion, the reliability of E.A.’s statement was further weakened when he stated before the trial court, while under oath, that he was not certain that the person in the photograph shown to him was “Mahir” from the Kelereş camp. The Court observes that the trial court chose to attach more weight to E.A.’s earlier statement to the police in view of its temporal proximity to the alleged events. The trial court’s choice is not problematic in itself, given that assessment of evidence is primarily a matter for the jurisdiction of the domestic courts, and that there is no hard and fast rule that requires domestic courts to give precedence under all circumstances to testimony given at the trial hearing (see, for instance, Makeyan and Others v. Armenia, no. 46435/09, §§ 40 and 47, 5 December 2019).

53. That said, the particular context in which E.A. had made his initial police statement, coupled with the uncertainty that he displayed at the hearing regarding the accuracy of that prior statement, should have prompted the trial court to treat the evidence given by E.A. with caution, noting in particular the weight of that evidence and the seriousness of the offence with which the applicant was charged. There is, however, no indication in the record of the hearing or the reasoned judgment itself to suggest that the trial court showed the caution called for in the circumstances by engaging in a meaningful assessment of the witness’s credibility in the light of the foregoing factors.

Procedural safeguards in place to remedy the applicant’s inability to examine E.A. in person before the trial court

54. Pursuant to Article 210 § 1 of the Code of Criminal Procedure, where the evidence against an accused consisted solely of the statements of a witness, that witness had to be heard in court. The Court notes that in accordance with that provision, E.A. was heard by the trial court, which therefore had the opportunity to make observations on his demeanour and credibility as a witness. Furthermore, and as mentioned above (see paragraph 21), although the applicant was absent, his lawyer was present at the hearing when E.A. was heard and was able to put questions directly to him to challenge his credibility, which, in certain circumstances, may be sufficient to uphold the rights of the defence (see, for instance, Šmajgl, cited above, § 63, and the cases cited therein). It is, moreover, not disputed that the applicant had acquainted himself with the contents of the statements given by E.A. both to the police and subsequently at the trial, and that he therefore had the opportunity to challenge their veracity and reliability before the trial court, and to give his version of events.

55. The Court therefore acknowledges that the defence was able to benefit from some important procedural safeguards that were intended to enable a fair and proper assessment of the reliability of E.A.’s statements. That said, having regard to the sheer weight of E.A.’s statements and the special context in which they were obtained, coupled with the seriousness of the punishment which the applicant faced, the Court does not consider that those safeguards may be taken to have sufficiently compensated for the handicap faced by the defence in the present case. This is particularly so given the absence of a good reason to justify the applicant’s inability to examine E.A. in person (see paragraphs 42-44 above). In the Court’s view, a confrontation between the applicant and E.A. was essential not only to allow the applicant to challenge the reliability of the latter’s allegations regarding him – which he could have admittedly done through his lawyer, at least to a certain extent – but above all to dissipate the uncertainty surrounding the physical identification that was at the heart of the case brought against the applicant, which could not sufficiently have been achieved through the lawyer’s questioning of the witness. The Court reiterates in this connection that it is normally desirable that witnesses should identify in person someone suspected of serious crimes if there is any doubt about the person’s identity (see, mutatis mutandis, Doorson v. the Netherlands, 26 March 1996, § 75, Reports of Judgments and Decisions 1996‑II). (…)

57. There has, accordingly, been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case.

Full text

Articolul ECHR. FİKRET KARAHAN v. TURKEY. Infringement of art. 6 §§ 1 and 3 (d) apare prima dată în Cabinet avocat Andreea Coman.

ECHR. LOIZOU v. GREECE. Infringement of art. 5 §§ 1, 4 of the Convention

admin — Mon, 10 May 2021 13:31:57 +0000

Art. 5 §§ 1 and 1 c) • Illegality of continuous pre-trial detention, interrupted to serve a prison sentence for other offenses, in the absence of a clear legal basis in national law • No prompt notification of the judgment providing for the conversion of the prison sentence into a pecuniary punishment and the interruption of the pre-trial detention • Applicant not being able to rapidly declare his intention to redeem the prison sentence and to pay the amount so as not to interrupt his detention • Uncertainties as to the legal basis and the reasons for his detention • Insufficient protection of the national authorities against arbitrariness.

a) Assessment of the Court

Application of the principles in this case

39. In order to rule on whether, in this case, the applicant’s continuous detention between 30 March 2015 (date of the end of the initial six-month period provided for in Article 287 § 1 of the Code of Criminal Procedure) and 16 September, 2015 (date of the Indictment Division’s decision ordering continuous detention), was carried out “according to legal means” and was not arbitrary, the Court considers it appropriate to briefly recall the facts of the case.

40. Thus, the Court notes that the applicant was arrested and placed in custody on 30 September, 2014 (pursuant to a warrant dated 6 October, 2014). On 12 December, 2014, the pre-trial detention was interrupted so that the applicant could serve a prison sentence imposed for other offenses on 10 March 2011. Sentenced on the latter date in absentia, the applicant was aware of the judgment of conviction only on December 3, 2014 and against which he appealed on December 4, 2014. The applicant’s appeal having been upheld, the applicant was released on May 5, 2015 but only fictitiously because he was kept in detention under of the detention warrant of 6 October, 2014, the execution of which had been suspended on December 12, 2016. On 16 September, 2015, the Indictment Division rejected the applicant’s objections to the legality of his detention and ordered the continuation in prison. The applicant was kept in detention under the aforementioned warrant until 8 January 2016.

41. The Court notes, moreover, that according to the relevant domestic law, in the event of a coincidence between the period of pre-trial detention and that of the execution of a prison sentence imposed for an offense other than that for which there is remand in custody, the period of execution of the prison sentence does not count as a period of pre-trial detention. The only exception to this principle is the case provided for in Article 3 § 10 of Law No. 2408/1996. In this case, when it is a question of simultaneous execution of a prison sentence converted into a pecuniary penalty and of pre-trial detention, the prosecutor in charge of this execution must ask the detainee for a written declaration as to his intention to pay the sum resulting from the conversion of the prison sentence. This declaration must be made when the prisoner is notified of the decision to convert the sentence. If the latter declares that he will not pay the amount of the pecuniary punishment, the pre-trial detention is interrupted and the detainee is considered to be serving the prison sentence. On the other hand, pre-trial detention is not interrupted if the detainee declares that he wishes to pay and actually pays the required amount.

42. It is therefore evident that taking into account the execution of a prison sentence in the calculation of the length of pre-trial detention may have an influence on a possible release of the detainee. This would have been the case with the applicant, who would have been released on 5 May 2015 instead of 8 January 2016. The Court must therefore examine whether the procedure provided for by domestic law was observed in this case.

43. However, the Court noted that the conviction judgment of March 10, 2011, which provided for the conversion of the prison sentence into a pecuniary punishment, was only brought to the attention of the applicant on December 3, 2014 when he was in detention. at the General Police Directorate of Thessaloniki. In addition, it does not emerge from the file, and the Government do not maintain it either, that the applicant was informed, formally and within a reasonable time, by the authorities that the period of his pre-trial detention had been interrupted for let the execution of the prison sentence begin. According to the applicant, he did not learn of this until 4 February 2015, when he requested a certificate of detention from Diavata prison.

44. Even assuming that the applicant could have known on the dates on which he learned of the conviction or appealed, that is to say on 3 or 4 December 2014 respectively, that he had to declare his intention to redeem or not the sentence of imprisonment as provided for in Article 3 § 10 of Law no.2408/1996, it does not emerge from the file, and the Government did not allege either, that the prosecutor had invited him to do so, either orally or in writing.

45. As for the Government’s argument that the redemption of the sentence must take place immediately and in a single payment, the Court noted that the time limit available to the applicant was very short because on 12 December 2014 the pre-trial detention had already been interrupted.

46. In this regard, the Court considers that what must determine the detainee’s willingness to fulfil the obligation to redeem his prison sentence must depend on the three criteria which the courts must take into account, explicitly: prompt notification of the judgment providing for the conversion of a prison sentence into a pecuniary punishment; the express declaration of the detainee, and at the express invitation of the authorities, that he intends to pay the required amount so as not to interrupt the execution of the pre-trial detention; the payment of the sum within a reasonable time and according to the terms laid down in advance.

47. The Court reiterates that the principle of legal certainty in matters of pre-trial detention risks being compromised if the domestic courts apply domestic law in such a way as to unreasonably postpone the release of the person concerned (see, mutatis mutandis, Tsitsiriggos v. Greece, no.29747 / 09, § 55, 17 January 2012).

48. Furthermore, the Court recalls its case-law according to which a detention undergone by virtue of a judgment of conviction rendered in a given procedure is deducted from the period of pre-trial detention ordered in another procedure, only when there is a causal link. between the deprivation of liberty following the applicant’s conviction and that imposed for pre-trial detention (Dervishi v. Croatia, no. 67341/10, § 125, 23 September 2012, and Selahattin Demirtaş v. Turkey (no. 2) [GC ], no.14305 / 17, § 296, 22 December 2020). However, in this case, such a causal link does not exist, the prison sentence handed down on 10 March 2011 having been imposed on the applicant for offenses (see paragraphs 6 and 40 above) than those for which he was placed in custody (see paragraph 5 above).

49. Taking into account the aforementioned considerations and in the specific circumstances of the case, the Court considers that between March 30, 2015 (date of the expiry of the six-month period provided for by Article 287 of the Code of Criminal Procedure) and 16 September 2015, the applicant’s detention did not have a clear legal basis in national law for it to be considered in conformity with Article 5 § 1 (c) of the Convention. This situation left the applicant in a state of uncertainty as to the legal basis and the grounds for his detention. In these circumstances, the Court considers that the judicial authorities did not offer the applicant sufficient protection against arbitrariness, which constitutes an essential element of the legality of the detention within the meaning of Article 5 § 1 (c) ( Tsitsiriggos, cited above, § 58).

50. There has therefore been a violation of Article 5 § 1 of the Convention. (…)

b) Assessment of the Court

Application of the principles in this case

56. In this case, the Court notes that the applicant drafted his objections on May 8, 2015. Diavata prison transmitted these objections to the prosecutor at the Thessaloniki Court of Appeal on May 11, 2015. The prosecutor’s proposal on these objections for the attention of the Indictment Division of the court of appeal was sent to it on September 4, 2015. The deliberation before it took place on 16 September, 2015 and the decision was taken on the same day. The Court therefore notes that the proceedings lasted four months and eight days.

57. It does not appear that the applicant contributed to the length of the proceedings before that court. The Court further noted that the proceedings were not complex from a legal or factual point of view: they raised only one question, that of whether or not the applicant’s pre-trial detention was interrupted. The Court therefore considers that the present case must be distinguished from the above-mentioned Ilnseher case.

58. The Court then concludes that the proceedings before the Indictment Division of the Court of Appeal did not meet the requirement of speed in the circumstances of the case.

59. Accordingly, there has been a violation of Article 5 § 4 of the Convention in this regard. (…)

Full text (FR)

Articolul ECHR. LOIZOU v. GREECE. Infringement of art. 5 §§ 1, 4 of the Convention apare prima dată în Cabinet avocat Andreea Coman.

ECHR. AZIZOV AND NOVRUZLU v. AZERBAIJAN. Infringement of art. 18 and art. 5 § 3

admin — Tue, 13 Apr 2021 12:20:54 +0000

Art. 5 § 3 • Reasonableness of pre-trial detention • Domestic courts’ failure to provide “relevant” and “sufficient” reasons justifying extension of applicants’ pre-trial detention; Art. 18 (+ Art. 5 § 3) • Restrictions for unauthorised purposes • Pre-trial detention of opposition activists with the ulterior and predominant purpose of punishing and silencing them for their active involvement in anti-government demonstrations.

1. The Court’s assessment

(…) 56. The Court refers to the general principles established in its case-law and set out in the judgment Buzadji v. the Republic of Moldova [GC] (no. 23755/07, §§ 84-91, 5 July 2016), which are equally pertinent to the present case.

57. As regards the period to be taken into consideration for the purposes of Article 5 § 3, the Court notes that this period commenced on 7 March 2013, when the applicants were arrested, and ended on 6 May 2014, when the Baku Court of Serious Crimes convicted them. Thus, the applicants were both held in pre-trial detention for one year, one month and twenty nine days in total.

58. The Court notes that the applicants’ pre-trial detention was extended by a number of decisions delivered by the Nasimi District Court and the Baku Court of Appeal, which also dismissed the applicants’ requests to be placed under house arrest rather than in pre-trial detention (see paragraphs 17-24 and 26-35 above). In that connection, the Court observes that both the first-instance court and the appellate court used a standard template. In particular, the domestic courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the applicants’ cases. They also failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 191‑94, 9 November 2010; Muradverdiyev v. Azerbaijan, no. 16966/06, §§ 87-91, 9 December 2010; and Zayidov v. Azerbaijan, no. 11948/08, §§ 64-68, 20 February 2014). The Court also finds it striking that the domestic courts relied on the first applicant’s way of life and links with foreign States as grounds for his continued detention, without providing any explanation or information in support of their reasoning (see paragraphs 20 and 22 above).

59. The Court notes that the domestic courts also cited irrelevant grounds when they extended the applicants’ pre-trial detention. In particular, they stated that more time was needed to complete the investigation (see paragraphs 20, 23, 26 and 33 above). However, the Court reiterates that, under Article 5 § 3, grounds such as the need to implement further investigative measures, or the fact that proceedings have not yet been completed, do not correspond to any of the acceptable reasons for detaining a person pending trial (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 60, 6 March 2014, and Mammadov and Others v. Azerbaijan, no. 35432/07, § 99, 21 February 2019).

60. The Court also cannot overlook the fact that the domestic courts completely disregarded the second applicant’s age in their decisions extending his pre-trial detention. In that connection, the Court notes that the second applicant’s pre-trial detention as a minor should have been considered as a measure of last resort and for the shortest appropriate period of time in accordance with Azerbaijan’s international obligations (see paragraphs 48-50 above) and Article 434.2 of the CCrP (see paragraph 45 above). However, the domestic courts did not even try to elaborate in their decisions on why this exceptional measure should have been taken in respect of the second applicant (compare Nart v. Turkey, no. 20817/04, § 33, 6 May 2008; Korneykova v. Ukraine, no. 39884/05, § 46, 19 January 2012; and Mahmut Öz v. Turkey, no. 6840/08, § 36, 3 July 2012).

61. In view of the foregoing considerations, the Court concludes that, by using a standard formula merely listing the grounds for detention without addressing the specific facts of the applicants’ cases, and by citing irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the extension of the applicants’ pre-trial detention.

62. Accordingly, there has been a violation of Article 5 § 3 of the Convention. (…)

2. The Court’s assessment

67. The Court will examine the applicants’ complaint in the light of the relevant general principles set out by the Grand Chamber in its judgments in Merabishvili v. Georgia ([GC], no. 72508/13, §§ 287-317, 28 November 2017) and Navalnyy v. Russia ([GC], nos. 29580/12 and 4 Others, §§ 164‑165, 15 November 2018), as well as in the light of the Grand Chamber’s findings in its judgment in Selahattin Demirtaş v. Turkey (no. 2) ([GC], no. 14305/17, §§ 425, 429 and 436, 22 December 2020).

68. The Court considers at the outset that in the present application the complaint under Article 18 constitutes a fundamental aspect of the case that has not been addressed above in relation to Article 5 § 3 and merits a separate examination.

69. The Court furthermore observes that the circumstances of the present case and the complaint raised under Article 18 of the Convention by the applicants are similar to those already examined by the Court in the case of Rashad Hasanov and Others (in which the Court found a violation of Article 18 of the Convention, taken in conjunction with Article 5). In particular, the applicants in the present case and the four applicants in the case of Rashad Hasanov and Others were arrested and detained mainly on the basis of the same criminal charges and were subsequently prosecuted and convicted within the framework of the same criminal proceedings (see Rashad Hasanov and Others, cited above, §§ 5-12 and §§ 65-66).

70. However, unlike in the case of Rashad Hasanov and Others, in the present case the Court was not called upon to examine whether the applicants were deprived of their liberty in the absence of a “reasonable suspicion” of their having committed a criminal offence, as the applicants did not appeal the original decisions depriving them of their liberty (see paragraphs 9 and 13 above) and did not raise this complaint in their appeals against the extension of their pre-trial detention, and thus did not exhaust domestic remedies in this regard. The present case should therefore be distinguished from cases in which an applicant’s right or freedom was restricted for a purpose that was not prescribed by the Convention; in those cases no issue arose in respect of a potential plurality of purposes (compare, for example, Rashad Hasanov and Others, cited above, § 119; Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 206, 20 September 2018; and Navalnyy, cited above, § 166). In the present case the Court must deal with the issue of plurality of purposes in the examination of the applicants’ complaint under Article 18 of the Convention. The Court will thus examine whether the domestic authorities’ decisions to keep the applicants in pre-trial detention also pursued an ulterior purpose, and, if that is the case, whether that ulterior purpose was the predominant purpose of the restriction of the applicants’ right to liberty (compare Merabishvili, cited above, §§ 318‑54).

71. As regards the question of whether the applicants’ continued pre-trial detention pursued an ulterior purpose, the Court has already found in the case of Rashad Hasanov and Others (cited above, §§ 122‑24) that the joint public statement of 8 March 2013 issued by the Prosecutor General’s Office and the MNS clearly targeted NIDA and its members, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces”. It is also clear from the above-mentioned statement that from the very beginning of the criminal proceedings, within the framework of which the applicants were kept in pre‑trial detention, the law-enforcement authorities tried to link the applicants’ alleged possession of narcotic substances and Molotov cocktails to their membership in NIDA by stating, without any reservation, that “since mid-2012 all three individuals, being addicted to narcotic substances and having become members of NIDA through the Internet, had actively participated in a number of the organisation’s illegal activities” (see paragraph 14 above) (see Rashad Hasanov and Others, cited above, § 122).

72. The Court furthermore held that the prosecution authorities intended to demonstrate that NIDA and its members were “destructive forces” and an organisation carrying out “a number of illegal activities”, solely relying on the fact that narcotic substances and Molotov cocktails had allegedly been found in the flats of NIDA members (ibid., § 123).

73. The Court also considers that the institution of criminal proceedings against the applicants by the prosecuting authorities and their subsequent pre-trial detention were used by the domestic authorities to prevent the organisation of further protests against the government. In that connection, the Court attaches weight to the timing of the institution of criminal proceedings against the applicants on the eve of the demonstration scheduled for 10 March 2013, following a series of demonstrations against the government in which the applicants and other members of NIDA had actively participated (compare Mammadli v. Azerbaijan, no. 47145/14, § 102, 19 April 2018, and Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and 5 others, § 153, 13 February 2020). The Court also does not lose sight of the fact that the prosecuting authorities in their statement of 8 March 2013 tried to portray twenty-eight leaflets worded “democracy urgently needed, tel: + 994, address: Azerbaijan” (təcili demokratiya tələb olunur, tel : + 994, ünvan: Azərbaycan), found in the first applicant’s flat, as illegal material proving the applicants’ intention to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013 (see paragraph 14 above).

74. The Court considers that the above‑mentioned elements are sufficient to enable it to conclude that there was an ulterior purpose in the applicants’ pre-trial detention; namely, it was aiming at punishing and silencing NIDA members for their active involvement in the demonstrations held against the government regarding the deaths of soldiers serving in the army.

75. The Court must now determine whether the ulterior purpose in question was the predominant purpose of the restriction of the applicants’ right to liberty. It reiterates that precisely which purpose is predominant in a given case depends on all the relevant circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and will bear in mind the fact that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Merabishvili, cited above, § 307).

76. In that regard, the applicants’ case should be viewed against the backdrop of the arbitrary arrest and detention of government critics, civil society activists and human‑rights defenders in the country. The Court points out that in the case of Aliyev (cited above, § 223) it found that its judgments in a series of similar cases reflected a pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law in breach of Article 18. The Court reaffirmed this finding in its recent judgments relating to the arrest and detention of civil society activists, including members of NIDA (see Natig Jafarov v. Azerbaijan, no. 64581/16, §§ 64-70, 7 November 2019; Ibrahimov and Mammadov, cited above, §§ 151-58; and Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, §§ 113-20, 27 February 2020) and considers that the applicants’ situation in the present case reflects this pattern.

77. The Court further notes that the authorities apparently attached utmost importance to their actions targeting NIDA as an organisation and its administration. It therefore appears that the institution of criminal proceedings against the applicants and their subsequent pre-trial detention were used by the domestic authorities to prevent the organisation of further protests against the government regarding deaths of soldiers serving in the army (see paragraph 73 above) and, also, to paralyse NIDA’s activities through the subsequent arrest and detention of four board members of NIDA in March and April 2013. The Court has already found that their arrest and detention had been in breach of Article 5 § 1 of the Convention and Article 18 of the Convention in conjunction with Article 5 (see Rashad Hasanov and Others, cited above, §§ 108 and 127). All of the above points to a predominance of the ulterior purpose pursued by the authorities in the applicants’ case.

78. This is also seen in the way that the domestic courts handled the extension of the applicants’ pre-trial detention. In particular, the domestic courts did not solely fail to give “relevant” and “sufficient” reasons to justify the need for the extension of the applicants’ pre-trial detention, but also completely ignored the second applicant’s age – a major element which, if it had been taken into account, would probably have resulted in his rapid release from pre‑trial detention (see paragraph 60 above).

79. Bearing in mind all the circumstances of the case, the Court is satisfied that the ulterior purpose of the restriction of the applicants’ liberty resulting in their continued pre-trial detention constituted the predominant purpose, which was to punish and silence NIDA members for their active involvement in the demonstrations held against the government regarding deaths of soldiers serving in the army.

80. There has accordingly been a violation of Article 18 of the Convention, taken in conjunction with Article 5 § 3.

Full text

Articolul ECHR. AZIZOV AND NOVRUZLU v. AZERBAIJAN. Infringement of art. 18 and art. 5 § 3 apare prima dată în Cabinet avocat Andreea Coman.

ECHR. CASE OF KOLESNIKOVA v. RUSSIA. Infringement of art. 6 § 1 of the Convention

admin — Thu, 08 Apr 2021 14:20:00 +0000

Art 6 § 1 • Impartial tribunal • Rejection of a non-abusive recusal request of all the judges of a tribunal who decided themselves on the recusal against them • The Court of Cassation did not remedy the litigation deficiencies.

Assessment of the Court

49. The Court noted that, suspected of having committed negligence, an offense punishable by Article 293 § 1 of the CC, the applicant was the subject of a preliminary verification performed on the basis of Article 144 of the CCP and has been called upon to testify on the merits in this regard (see paragraph 9 from above). The Court considers that the applicant was therefore “a suspected individual, questioned about his involvement in acts constituting a criminal offense” within the meaning of Article 6 of the Convention (see, for the applicable principles, Simeonovi v. Bulgaria [ GC], no.21980 / 04, §§ 110-111, 12^th May, 2017). It notes that there was indeed, within the meaning of the Convention, a “criminal charge” directed against the applicant, notwithstanding the fact that there was no criminal investigation or conviction within the meaning of the CCP in force at the time of the deeds (see, to the same effect, Stirmanov v. Russia, no.31816 / 08, § 39, 29^th January 2019).

50. The Court notes at the same time that the decision from 5^th May 2012 by which this accusation was terminated was subject to appeal by means of legal challenge and that the applicant used this method in order to criticize the merits of the litigation decision, in particular as regards the conclusions of the investigator with regard to the commission, by her, of an offense referred to in article 293 § 1 of the CC (see paragraphs 13-15 above). Consequently, the Court considers that the jurisdictions seized within this recusal, including the district court, had to present guarantees of independence and impartiality within the meaning of Article 6 § 1 of the Convention.

51. The Court reiterates that impartiality is usually defined by the absence of prejudice or bias and can be assessed in various ways. According to its settled jurisprudence, for the purposes of Article 6 § 1 of the Convention, impartiality must be assessed according to a subjective approach, taking into account the personal beliefs and the conduct of the judge, i.e. whether or not the latter has proved a personal prejudice or bias on a given occasion, and also according to an objective approach consisting in determining whether the tribunal offered, in particular through its panel, sufficient guarantees to exclude any legitimate doubt as to its impartiality (Morice v. France [GC], no.29369 / 10, § 73, ECHR 2015).

52. As regards the objective assessment, it consists in asking whether, irrespective of the judge’s personal conduct, certain verifiable facts give grounds for suspecting the latter’s impartiality (see, for example, Ramljak v. Croatia, no.5856 / 13, §§ 27 42, 27^th June 2017, and Mitrov v. the former Yugoslav Republic of Macedonia, no. 45959/09, §§ 49 52, 2^nd June 2016).

53. The Court, in addition, reiterates that Article 6 § 1 of the Convention implies, for any national court, the obligation to verify whether, through its panel, it constitutes “an impartial tribunal” within the meaning of that provision when a dispute arises on this point, which does not immediately appear manifestly devoid of seriousness (Farhi v. France, no 17070/05, § 25, 16 January 2007). It also reiterates that the existence of national procedures intended to guarantee impartiality, namely rules on the removal of judges, represents a relevant factor. Such rules express the concern of the national legislator as to remove any reasonable doubt regarding the impartiality of the judge or jurisdiction concerned and constitute an attempt to ensure impartiality by eliminating the cause of the concerns in the matter. In addition to ensuring the absence of real bias, they aim to eliminate any appearance of partiality and thus reinforce the confidence which the courts of a democratic society must inspire to the public (Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009).

54. The Court also estimated that an applicant’s fear as to the impartiality of the judges examining his/her case were objectively justified having regard to the procedure which those judges had followed to reject her request for removal made against them, while at the same time finding that the circumstances invoked by the applicant in support of her claim were not in themselves sufficient to call into question the impartiality of the tribunal from an objective point of view (AK v. Liechtenstein, no 38191/12, §§ 76 84, 9^th July 2015, and AK v. Liechtenstein (no 2), no 10722/13, § 66, 18^th February 2016). In determining whether the followed procedure tainted the impartiality of the judge, the Court takes into account the grounds invoked in the request for recusal. In the event of a request based on general and abstract grounds, or of an abusive request, the fact that the judge himself examines such a request does not call into question its impartiality (Debled v. Belgium, 22^nd September, 1994, Series A no. 292 B, § 37, and AK v. Liechtenstein, cited above, § 78).

55. Shifting interest towards the facts of the case, the Court notes that the applicant requested the recusal of all the judges of the district court, based on several grounds (see paragraph 17 above). It considers that the circumstances put forward by the applicant in support of her recusal could give rise to concerns on the part of the applicant as to the objective impartiality of the panel of judges of the district court. It notes that the grounds relied on by the applicant were sufficiently detailed and contained concrete elements and that, therefore, the request for the recusal of the judges was not abusive (Pastörs v. Germany, no. 55225/14, § 63, 3^rd October, 2019). The Court further notes that the district court also did not consider the said request to be abusive and that it examined it on the merits (see paragraph 18 above). This request could not paralyze the entire judicial system either, since the authority seized was not a final instance or a small court before which the excessively strict standards relating to the recusal of judges could have paralyze the administration of justice (AK v. Liechtenstein, cited above, §§ 82 83). The Court noted that Article 35 § 1 of the CCP included a mechanism capable of allowing, if necessary, the transfer of the examination of the applicant’s appeal to a court of a different territorial jurisdiction (paragraph 27 above).

56. The Court then notes that, in accordance with Article 65 § 3 of the CCP (see paragraph 32 above), the request for recusal lodged by the applicant was examined by all the members of the panel of judges of the district court to which the The complainant’s appeal had been allocated for consideration. Insofar as the request for recusal lodged by the applicant concerned all the judges of the district court, in particular as regards their relations with the president of that court, the Court considers that judges G., Ka., And S. have themselves examined the request for recusal concerning them. It then notes that, in their decision of 18 April 2013, the judges rejected the applicant’s arguments as a whole and without examining them individually, limiting themselves to indicating that none of the reasons given by the applicant in her request could not constitute a ground for recusal within the meaning of Article 61 of the CCP (see paragraph 18 above).

57. Consequently, the Court considers that the examination procedure of the request for recusal brought by the applicant was not reconcilable with the principle nemo judex in causa sua (no one can be both judge and party) and could not, therefore, dispel the applicant’s reasonable and objective doubts as to the impartiality of the panel of judges of the district court (see, by way of comparison, AK v. Liechtenstein, cited above, §§ 81 85, AK v. Liechtenstein (no.2), cited above, §§ 66 67, and, mutatis mutandis, Revtyuk v. Russia, no 31796/10, § 26, 9 January 2018).

58. Consequently, the Court considers that the examination procedure of the request for recusal brought by the applicant was not reconcilable with the principle nemo judex in causa sua (no one can be both judge and party) and could not, therefore, dispel the applicant’s reasonable and objective doubts as to the impartiality of the panel of judges of the district court (see, by way of comparison, AK v. Liechtenstein, cited above, §§ 81 85, AK v. Liechtenstein (no.2), cited above, §§ 66 67, and, mutatis mutandis, Revtyuk v. Russia, no 31796/10, § 26, 9 January 2018).

58. The Court reiterates that a higher court may, in certain cases, erase the defect in the proceedings before the court of first instance (Kyprianou v. Cyprus [GC], no 73797/01, § 134, ECHR 2005 XIII). In the present case, the Court notes that the applicant raised the complaint mentioning the alleged lack of impartiality of the district court in her cassation appeal before the Supreme Court (see paragraph 22 above). However, the cassation court did not carry out its own analysis of the applicant’s arguments, but endorsed the conclusions of the district court judges which they had reached by deciding themselves on the challenge against them. It therefore did not remedy the deficiencies in issue by referring, if necessary, the examination of the case to a court in a different territorial jurisdiction (Boyan Gospodinov v. Bulgaria, no 28417/07, §§ 57-58, April 5, 2018).

59. Taking into account these elements, the Court considers that the domestic authorities have not allayed the applicant’s reasonable doubts as to the impartiality of the district court. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

Full text (FR)

Articolul ECHR. CASE OF KOLESNIKOVA v. RUSSIA. Infringement of art. 6 § 1 of the Convention apare prima dată în Cabinet avocat Andreea Coman.

ECHR. Lascau v. Romania. Breach of art. 6 § 1 of the Convention

admin — Mon, 04 Jan 2021 10:33:00 +0000

Motivation of the Court

The Court refers to the general principles governing the application method of art. 6 of the Convention on appeal proceedings, which it recalled in the case of Găitănaru versus Romania (paragraphs 26-28, 26^th June 2012; see also Flueraș versus Romania, no. 17.520 / 04, points 53-55, 9^th April 2013, and Moinescu versus Romania, No. 16.903 / 12, points 33-35, 15^th September, 2015).

In this case, it observes that the Government did not dispute that the High Court based its judgment on the evidence from the statements of P.J. and of other witnesses questioned by the Prosecutor’s Office and by the court of first instance. The Government disputed only the probative value of those testimonies and argued that the documents were the basis for the conviction of the judges of the High Court (see paragraph 31 above).

The Court cannot express its opinion on the hierarchy of evidence or its probative value. It recalls that, in principle, it is for the national courts to assess the evidence submitted by them (García Ruiz versus Spain (MC), no. 30.544 / 96, § 28, ECHR 1999-I].

In this case, it is enough to note that the High Court availed itself of the possibility afforded by the domestic law to re-examine the evidence in order to rule on the guilt of the interested party (see paragraph 15 above). It is thus clear from the statement of reasons for the decision of 13^th February 2013 that those testimonies, in particular those of P.J., P.D.R. and L.D., contributed significantly to shaping the conviction of the High Court judges. However, it was precisely those testimonies which led the judges of the first instance to doubt the merits of the accusation, so that they decided to acquit the person concerned of the charge of bribery (see paragraphs 16 and 17 above).

The Court, therefore, considers that the High Court should have taken into account the need for a new hearing of those witnesses, all the more so as it ruled on the credibility of the testimonies. Indeed, the court gave priority to the statements given by witnesses before the prosecutor, considering them more credible than those they gave before the first instance (supra, para. 17), although the witnesses had made known the pressures exerted by the prosecutor’s office on them in order to make them testify against the plaintiff (see point 8 above).

The Court recalls, in this context, that those responsible for deciding on the guilt or innocence of a defendant must, in principle, be able to hear witnesses personally and to assess their credibility. Assessing the credibility of a witness is a complex task which, in general, cannot be completed by simply reading the written statements (Dan versus Moldova, no. 8.999 / 07, § 33, 5^th July 2011). Of course, there are cases where it is impossible for the court to hear the witness, for example, if the person in question has died or when it comes to respecting his right not to incriminate himself [Craxi versus Italy (no. 1), no. 34.896 / 97, § 86, 5^th December 2002, and Dan, cited above, § 33]. However, that was not the case here.

In the light of those factors, the Court considers that in this case the High Court’s failure to hear witnesses before declaring the plaintiff guilty of bribery significantly restricted his rights of defense (Destrehem versus France, No 56.651 / 00, paragraph 45, 18^th May, 2004, Dan, previously cited, points 31-35, and Lazu versus Republic of Moldova, No. 46.182 / 08, points 36-44, 5^th July, 2016).

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Articolul ECHR. Lascau v. Romania. Breach of art. 6 § 1 of the Convention apare prima dată în Cabinet avocat Andreea Coman.

ECHR. SÜLEYMAN v. TURKEY. Infringement of art. 6 § 1 and § 3 (d) of the Convention

admin — Tue, 24 Nov 2020 09:22:55 +0000

The applicant complained that the fairness of the criminal proceedings against him had been tainted owing to his alleged inability to confront and question the only eyewitness to the shooting of M.Ü., namely witness X, in person.

Application of the principles

The Court will address the following issues respectively: (i) whether there was a good reason justifying the concealment of the anonymous witness’s identity; (ii) whether there was a good reason for his absence; (iii) whether the evidence given by him was the sole or decisive basis for the applicant’s conviction or it was of significant weight for it; and (iv) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‑à‑vis the evidence given by witness X.

i. Whether there was a good reason to keep secret the identity of the witness

At this juncture, the Court notes that it has already held in cases against Turkey, albeit in the context of complaints related to Article 5 of the Convention, that the mere reproduction of the wording contained in the statutory provisions cannot be considered as sufficient reasoning to implement a protective measure which clearly lacked an individualised assessment taking account of the particular circumstances of a given case (see Şık v. Turkey, no. 53413/11, § 62, 8 July 2014). These considerations also hold true in the instant case in the light of the trial court’s failure to explain the existence of the prerequisite element enabling it to keep secret the identity of witness X under Article 58 § 2 of the Code of Criminal Procedure.

ii. Whether there was a good reason for the non-attendance of witness X at the trial

The Court concludes that the Government have failed to show that the national courts set out the factual or legal basis of any good reason for the absence of witness X. Nonetheless and despite being imperative, the absence of a good reason for the non-attendance of a witness is not of itself dispositive of the wider consideration of whether the trial was fair as a whole.

In short, the Court concludes that, even if it was not the sole reason, the evidence given by witness X was decisive for the applicant’s conviction for the murder of M.Ü. (see Schatschaschwili, cited above, § 144).

iii. Whether the evidence of the absent witness was the sole or decisive basis for the applicant’s conviction

In any event, considering that the applicant had suffered a particularly serious restriction in terms of his ability to properly and fairly test the reliability of the evidence given by witness X as a result his being both “absent” and “anonymous” within the meaning of its case-law under Article 6 § 3 (d) of the Convention, and bearing in mind the national courts’ indifferent stance vis-à-vis that evidence; the absence of any good reason for his non-attendance at the trial, and what was at stake for the applicant, namely life imprisonment, the Court cannot conclude that the mere existence of a video recording of the statements of witness X was such that it was sufficient to cure the restrictions imposed on the defence in its ability to effectively challenge that evidence, which was at the heart of the applicant’s conviction, all the more so given the Court of Cassation’s failure to address and remedy the above-mentioned shortcomings (see Rozumecki v. Poland (dec.), no. 32605/11, § 63 in fine, 1 September 2015).

Accordingly, the foregoing considerations allow the Court to conclude that the applicant was not afforded proper safeguards commensurate with the nature of his complaints and the importance of what was at stake for him, namely life imprisonment, enabling him to sufficiently test the reliability and truthfulness of evidence given by witness X in line with the guarantees of a fair trial under Article 6 of the Convention (see Hulki Güneş v. Turkey, no. 28490/95, § 96, ECHR 2003‑VII (extracts)).

Full text

Articolul ECHR. SÜLEYMAN v. TURKEY. Infringement of art. 6 § 1 and § 3 (d) of the Convention apare prima dată în Cabinet avocat Andreea Coman.