01 Mar Violation of the right to a fair trial due to the impossibility of examining witnesses whose statements had significant weight in the conviction

In the case of Al Alo v. Slovakia (application no. 32084/19, 10.02.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 §§ 1 and 3 (d) (right to a fair trial/right to obtain attendance and examination of witnesses) of the European Convention on Human Rights.

The case concerned a Syrian national’s complaint that his trial and conviction on charges of migrant smuggling had been unfair. On 28 January 2017 the applicant was charged with colluding with others to smuggle migrants. Two police officers, who had had the applicant under surveillance in Bratislava, had seen him with two suspected migrants entering a taxi that drove off towards Slovakia’s border with Austria. The officers intercepted the car and detained the migrants. Both the applicant and the migrants were questioned. The applicant submitted that he had considered them acquaintances of his father and had merely provided them with accommodation. and transportation. The migrants maintained, however, that the applicant had arranged for their transfer to Germany as part of a deal arranged and paid for previously. The applicant, who was not represented by a lawyer at this stage, did not attend the interviews of the migrants. Nor did anyone on his behalf. The applicant was found guilty as charged on 11 May 2017 and sentenced to five years’ imprisonment. An important part of the evidence against him had come from the migrants he had aided, who had been questioned only at the pre-trial stage of the proceedings. These witnesses had later been expelled from Slovakia and thus absent from the applicant’s trial. At the time the applicant had been without legal counsel and had not attended their pre-trial questioning.

The Court found that the applicant had been deprived of the possibility to examine or have examined witnesses whose evidence had carried significant weight in his conviction, without sufficient justification. In particular, although the migrants’ absence from the country had in principle been valid grounds for admitting in trial evidence of their pre-trial testimony, on the facts there had not been good enough reasons for their non-attendance at the applicant’s trial as the authorities had been provided with their addresses and identity documents and they had failed to make use of means of securing the witnesses’ appearance remotely. Nor had there been sufficient factors to counterbalance such a disadvantage to the defence. 

The fact that the applicant had chosen not to attend the migrants’ pre-trial questioning could by no means be accepted as implicitly constituting a complete waiver of his right to examine or have examined the witnesses against him. The authorities should have made sure that the applicant, who had made it clear from the outset that he had difficulties understanding legal matters, had been aware of the consequences of not exercising his rights. Accordingly, the proceedings against him as a whole had not been fair.

References from the official website of the European Court of Human Rights