31 Aug Violation of the right to a fair trial for not allowing an applicant who does not dispute his guilt to examine a witness

In the case of Dodoja v. Croatia (application no. 53587/17, 24.06.2021) the European Court of Human Rights held that there has been violation of Article 6 §§ 1 and 3 (d) of the European Convention on Human Rights.

The case concerned the applicant’s conviction, without allowing him to examine the witness S.B. in the proceedings against him. In 2004 and 2005 the police conducted a criminal investigation involving several persons on suspicion of engaging in the purchase and sale of heroin. After the police arrested a certain S.B., one of the accomplices, in 2005 he admitted his participation in the organization of drug sales. S.B. after making a statement to the police, became inaccessible to the prosecuting authorities and was tried in absentia.

The applicant complained that he had not had a fair trial in that he had not been given the opportunity to examine S.B. at any stage of the proceeding, who was also one of the accused in the proceeding and on whose earlier statement, given to the police, the applicant’s conviction was based.

Unlike many previous cases of absent witnesses, in the present case the applicant did not contest his criminal liability as such, but instead complains that he had been charged and sentenced more severely on account of S.B.’s untested police statement. In other words, he does not contest his involvement in illegal drug trafficking, but he disagrees with the scope of the criminal activities that he had been convicted of and, consequently, the severity of the punishment imposed on him. The Court therefore had to examine whether the principles established in its case-law concerning the admission of untested incriminating witness evidence in criminal equally apply in the circumstances of the present case, where the outcome of the proceedings complained of does not comprise guilt or innocence, but focuses on the factual circumstances relevant for the ultimate severity of sentence.

The Court observed that the domestic courts held that there had been a number of other incriminating evidence against the applicant. In particular, the trial court relied on a telecommunications expert opinion which established that, between 14 September and 6 October 2005, there had been numerous phone calls between S.B. and the applicant. It also relied on transcripts of recorded phone conversations between S.B. and V.N. from which it transpired that those two accused had had more than one transaction. In the Court’s view, the foregoing evidence was rather circumstantial and indirect, as none of it actually proved that the applicant had been in contact with S.B. for an entire year, as claimed by the latter.

Consequently, although S.B.’s statement might not have been the sole or decisive evidence for the applicant’s conviction of the impugned offence, the Court considers that it carried significant weight and that its admission may have handicapped the defence to an important degree.

The Court stressed out the Government’s argument that the applicant would have been found guilty on the basis of his confession alone is irrelevant given that what is at stake in the present case is the scope of the applicant’s established criminal guilt and the severity of the penalty for the offence of which he was ultimately convicted of.

In the light of the foregoing, and examining the fairness of the proceedings as a whole, the Court noted that, in convicting the applicant the trial court relied heavily on a police statement of a co-defendant who had been absent from the trial, who himself would appear to have sought to recant that police statement and whom the applicant was never able to confront or question, despite the fact that it was the decisive evidence against him. As a consequence, he was convicted of a more serious form of the criminal offence and sentenced to a more severe penalty on the basis of evidence in respect of which his defence rights had been appreciably restricted.

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