készíti: Gellért Ádám
email/elérhetőség: gadam107@yahoo.com

“The only necessary for "evil" to triumph is for a few good men to do nothing”

2011. december 23., péntek

Strasbourg (EJEB): a közvetlenség elve a büntetőeljárásban (a megfélemlített , vagy elhunyt tanú vallomása és a "sole or decisive" szabály)

December 15-én az EJEB Nagytanácsa egy korábban itt a blogon kétszer is tárgyalt témában hozott döntést (Al-Khawaja and Tahery v. The UK, Applications nos. 26766/05 and 22228/06):

„147. The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.

159. The Court considers that appropriate enquiries were made to determine whether there were objective grounds for T’s fear. The trial judge heard evidence from both T and a police officer as to that fear. The trial judge was also satisfied that special measures, such as testifying behind a screen, would not allay T’s fears. Even though T’s identity as the maker of the incriminating statement was publicly disclosed, the conclusion of the trial judge that T had a genuine fear of giving oral evidence and was not prepared to do so even if special measures were introduced in the trial proceedings, provides a sufficient justification for admitting T’s statement.

165. The Court therefore considers that the decisive nature of T’s statement in the absence of any strong corroborative evidence in the case meant the jury in this case were unable to conduct a fair and proper assessment of the reliability of T’s evidence. Examining the fairness of the proceedings as a whole, the Court concludes that there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement. It therefore finds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention in respect of Mr Tahery.”

Nincsenek megjegyzések: