CYIL vol. 9 (2018)

VÍT ALEXANDER SCHORM CYIL 9 ȍ2018Ȏ The Court conceded, though, that this fact cannot in itself be decisive for finding a breach of the Convention and went on to examine whether the disputed witness statements had constituted the sole or a decisive basis for the applicants’ conviction. In the Court’s opinion, in both cases, the depositions in question were important for the national courts’ conclusion about the applicants’ guilt, but at the same time they had not played the role of either exclusive or decisive pieces of evidence. In any event, since its admission may have handicapped the defence, the Court assessed the presence of sufficient counterbalancing factors at the trial. The legality of the course of action of the prosecuting authorities at the pre-trial stage, supervised by a judge present at the deposition, was singled out as one of the applicable procedural guarantees. In Štulíř , the Court was satisfied with the very cautious approach of the courts vis-à-vis the witness statement, including her credibility and the reliability of her testimony as well as the fact that the applicant knew his former partner. In Bátěk and others , the Court highlighted in substance that the defence had remained quite passive in disputing the credibility of all the witnesses concerned in spite of the fact that the applicants also knew both the Romanian drivers and the undercover agent. In sum, the majority of the Court did not find a violation of the fair trial guarantees, but the two dissenting judges criticised the laxed approach to the application of the criteria established in the Court’s case law on account of both the reasons to justify the absence of a witness and the presence of counterbalancing factors. Cases of this kind always make a judge face a dilemma whether judicial review in a relatively clear-cut criminal case should strictly stick to the established rigorous criteria, with the consequence of severely prolonging the trial (the applicants would be entitled to request re-opening of the preceding national proceedings, that request would probably be granted 8 and the trial repeated from the first instance level), or rather take a practical approach and avoid unnecessarily complicating the story. Of course, the latter is slippery in legal terms, but it cannot be said that the Court was unaware of that risk. On one hand, if we look at the outcome of the Schatschaschwili case which is the current authority in this area, where the Grand Chamber of the Court established a violation in spite of many efforts deployed by German authorities, we would not hesitate to predict a violation here too, as the judges from the minority would have decided after all. On the other hand, in particular if we admit that restrictive conditions of access to the Grand Chamber are not infrequently disregarded by those who ask for referral, the applicants have even refrained from making an attempt to overrule the European “full stop” marked to their respective criminal cases by the five judges of the Court who constituted the majority. 8 The requests for re-opening concern the proceedings on constitutional appeals lodged prior to filing an application to the Court. The Constitutional Court has only refused to re-open in cases where the “hard” statutory conditions were not met, such as the request was presented by an unauthorised person who had not been a successful applicant in Strasbourg, the redress in terms of individual measures of execution of the judgment of the Court had been ensured otherwise, or the proceedings on just satisfaction were still pending in Strasbourg. At the same time, the Constitutional Court even allowed re-opening after a decision of the Court that had accepted a unilateral declaration of the Government, i.e. in the absence of a judgment in which the Court would formally find a violation of the Convention. It is true nonetheless that the re-opening may also have resulted in a further inadmissibility decision of the Constitutional Court.

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