I incorrectly predicted that there's no violation of human rights in KARTSIVADZE v. GEORGIA.

Judgment

FIFTH SECTION
CASE OF KARTSIVADZE v. GEORGIA
(Application no. 30680/09)

JUDGMENT
STRASBOURG
12 December 2019

This judgment is final but it may be subject to editorial revision. In the case of Kartsivadze v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,Yonko Grozev,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 19 November 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 30680/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Tamaz Kartsivadze (“the applicant”), on 3 March 2009. 2. The applicant was represented by Ms T. Nakashidze, Mr Z. Khatiashvili and Mr G. Gagoshidze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agents, most recently Mr B. Dzamashvili of the Ministry of Justice. 3. On 6 July 2016 notice of the complaint under Article 6 §§ 1 and 3 (d) of the Convention concerning the applicant’s inability to have a witness against him examined was given to the Government. The remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
4. The applicant was born in 1963. When lodging his application he was detained in Tbilisi. 5. On the late evening of 12 September 1992 there was a scuffle between the applicant and D.M. in the latter’s flat in Batumi. During the incident a gun was fired several times, following which the two left the flat, together with D.M.’s father, G.M. 6. Shortly after midnight, on 13 September 1992, G.M. was shot dead and his son D.M. sustained severe multiple gunshot wounds near Batumi. 7. On 13 September 1992 the Khelvachauri district prosecutor’s office opened a criminal investigation into the incidents. On the same date two spent cartridge cases and a bullet were recovered from D.M.’s flat and one spent cartridge case, from the murder scene. The deceased’s body was returned to the family for burial; no post-mortem examination was carried out, in accordance with the family’s wishes. 8. On 25 September 1992 the Khelvachauri district prosecutor’s office pressed initial charges against the applicant. He was accused of the offences of murder, attempted murder, violation of public order and the unlawful acquisition, possession and carrying of firearms. The applicant went on the run, remaining at large until he was arrested in Russia in May 2006 with a view to his extradition to Georgia. 9. On 30 September 1992 a ballistic expert issued an opinion regarding the cartridge cases and the bullet recovered from D.M.’s flat and the murder scene. According to the expert report, the cartridge cases recovered from the two separate crime scenes were of the same calibre and “might have been discharged/it may not be ruled out [that the cases] were discharged from the same firearm.”
10. On 15 September 1992 the investigator granted D.M. the procedural status of victim and summoned him for questioning on 15 and 22 September and 2 November 1992. D.M. refused to give any statement to the police on any of those occasions. 11. After the applicant’s arrest, on 11 March and 12 May 2006, also on 22 April 2007, a police investigator interviewed D.M. The applicant’s defence was not notified of these interviews or given an opportunity to participate. Each of D.M.’s depositions concerned the incidents of 12‐13 September 1992 and each new statement added further details regarding the incidents. In sum, D.M. stated as follows during his interviews with police:
On the late evening of 12 September 1992 the applicant visited D.M. in his flat. Upon the applicant’s arrival an argument erupted between D.M. and the applicant, during which the latter fired two shots. Then the applicant took D.M. and G.M. to a nearby village to see a mutual friend. The latter, they hoped, would help them to resolve the conflict. While the applicant was driving, the tension escalated. Then the applicant suddenly stopped the car and fired at D.M. and at G.M. The latter passed out soon after the shooting and regained consciousness when he was in hospital. 12. On 2 April 2008 the investigation was completed and the applicant was indicted for trial before the Khelvachauri District Court on charges of (i) unlawful acquisition, possession and carrying of firearms, (ii) violation of public order, (iii) murder, and (iv) attempted aggravated murder. The first two charges concerned the incident that had occurred in D.M.’s flat on 12 September 1992 (see paragraph 5 above), and the other two charges concerned the alleged murder and attempted murder that had occurred near Batumi shortly after midnight on 13 September 1992 (see paragraph 6 above). 13. The applicant pleaded guilty to the charge of violation of public order and not guilty to the remaining charges. He testified that D.M. had extorted money from one of his friends and that he had visited him in order to tell him to stop extorting money. As he had entered D.M.’s flat the latter had taken a gun and fired several shots. Then D.M. had punched him. After D.M.’s father, G.M., had come home, D.M., G.M. and the applicant had agreed to resolve their dispute with the help of A.Ch., according to the applicant, a local organised‐crime leader. The applicant had picked G.M. and D.M. up from their home in his car so they could all go and see A.Ch. Then they had been joined by A.Ch. in the applicant’s car; A.Ch. had then had an argument with D.M., during which he had shot D.M. in the legs. The applicant had removed D.M. from the car. Then he had heard another shot being fired in the car. He did not remember exactly if G.M. had stepped out of the car or had fallen out. A.Ch. had told the applicant not to drive the car for three days and that he would during that time “settle the incident.”
14. The next day A.Ch.’s brother had told the applicant that D.M. was in hospital and that G.M. had died and that he (the applicant) had to confess to having committed the crime, as A.Ch. was ill and could not take responsibility for the crime. He had learned from A.Ch. that G.M. had been killed with his own gun and that D.M. had been wounded with A.Ch.’s gun. 15. In response to a summons that he received to the start of the first trial hearing (which was scheduled for 6 July 2007), on 2 July 2007 D.M. submitted a written statement to the court requesting that the trial be conducted in his absence, as he intended to leave the country for medical treatment on 4 July 2007. At the hearing of 6 July 2007 the court, having taken note of D.M.’s statement, ordered that measures be taken to secure his presence at the next hearing. 16. At the hearing of 17 July 2007, D.M.’s representative presented a letter from the National Border Agency stating that D.M. had left Georgia for Turkey on 15 July 2007. D.M.’s mother, M.Ts., clarified to the court that D.M. had left the country to undergo medical treatment in Turkey, where he would stay for two or three months. 17. The defence lodged an application with the court, requesting it to adjourn the hearing and order that D.M. be compelled to appear before the court, pursuant to Article 176 of the Criminal Code of Procedure (“CCP”). The applicant argued that admitting as evidence D.M.’s pre-trial statements without giving him (that is to say the applicant) the opportunity to examine the witness would compromise his defence rights. He added that D.M.’s evidence was crucial for the prosecution case, given the fact that he was the only direct witness to the alleged murder and attempted murder. The court dismissed the defence’s application and ordered that the records of D.M.’s interviews by the police be read out. The trial records do not contain the reasons for that decision. 18. D.M.’s mother and his wife testified that late on the evening of 12 September 1992 the applicant had visited their family. Upon arrival he had demanded to see D.M. After the latter had come out of his room an argument had erupted between the two during which the applicant had punched D.M. Then the applicant had fired several shots with his pistol. Soon thereafter G.M. had arrived; then G.M., D.M. and the applicant had left. Both witnesses stated that they had been notified after midnight on 13 September 1992 of the killing of G.M. and the wounding of D.M. D.M.’s sister, who was also interviewed in-court, confirmed seeing the applicant armed. She also confirmed that the applicant forced her father and brother to leave the apartment together with him. 19. Two neighbours of D.M. testified that they had heard shooting and noise from D.M.’s flat during the late evening of 12 September 1992. Soon thereafter they had seen G.M., D.M. and a person unknown to them leaving the flat. 20. Three other witnesses stated that D.M. had been extorting money from them and that they had asked the applicant to help them. They affirmed that this was the reason for the conflict between the applicant and D.M. 21. E.K., the applicant’s father, stated that on 13 September 1992 he had been told that his son had accidentally killed G.M. When he had met his son after that, the latter had stated that there had been a scuffle and a gun was accidentally shot. E.K. mentioned nothing in his testimony about the applicant having attempted to murder D.M. According to the relevant part of the hearing transcript, while E.K. was testifying, the applicant intervened. The court recorded the following exchange between the two:
The applicant: “Did I say that I had killed him or did I say that I was trying to make him drop the gun?”
E.K. : “You said that the killing had happened accidentally during the scuffle.”
22. The prosecution also presented (i) crime scene examination records that documented the recovery of the spent cartridge cases and the bullet from D.M.’s flat and the murder scene, respectively (see paragraph 7 above) and (ii) the report on the ballistic examination of the spent cartridge cases and the bullet found at the two crime scenes (see paragraph 9 above). The prosecution asserted that those items constituted circumstantial evidence suggesting that it was the applicant who had discharged the firearm at the two different crime scenes, as according to the forensic evidence the cartridge cases found at the two different crime scenes “might have been discharged from the same firearm”. 23. The prosecution also submitted another forensic report, confirming that the injuries sustained by D.M. during the incident had been life‐threatening. 24. On 25 July 2007 the Khelvachauri District Court (“the trial court”) convicted the applicant as charged and sentenced him to fifteen years in prison. The court held that the incriminating evidence presented by the prosecution and examined by the trial court was consistent and sufficiently proved the applicant’s guilt. The court held that the crime scene examination records and the report on the subsequent ballistic examination of the recovered items confirmed that the cartridge cases and bullet found at D.M.’s flat and the bullets taken out of G.M.’s body had been discharged from the same firearm (see paragraph 22 above). As multiple witnesses had confirmed that it was the applicant who had discharged a firearm in D.M.’s flat (see paragraphs 18 and 19 above), the court reached the assumption that the murder and the attempted murder had been also committed by the applicant. In reaching this conclusion it also relied on the pre-trial statements of D.M. The court also inferred from the above-mentioned intervention by the applicant in E.K.’s examination by the trial court that the applicant had admitted killing G.M. accidentally (see paragraph 21 above). 25. The applicant appealed against his conviction to the Kutaisi Court of Appeal. He reiterated the pleadings that he had made before the first‐instance court and requested that D.M. be questioned in court. He claimed that the only direct witness to the murder and attempted murder was D.M, who had given several contradictory statements during the pre-trial phase of the investigation; hence, the applicant should have been allowed to cross-examine him in court. 26. The appeal court summoned D.M. to three consecutive hearings, held on 17 and 31 October and 14 November 2007. D.M. failed to respond to any of the summonses. At the hearing of 17 October 2007 the prosecution stated that according to the information that they had received, D.M. was abroad again. They submitted no new evidence in support of that statement. The applicant insisted on taking measures to bring the witness before the court. At the hearing of 14 November 2007, he submitted that the witness had been seen in his home town of Batumi days before the hearing and that the prosecution was simply pretending that he was abroad. 27. On 14 November 2007 the appeal court dismissed an application lodged by the defence for an adjournment of the hearing and the taking of additional measures to bring the absent witness to court. The court held that the National Border Agency’s records of 17 July 2007 (see paragraph 16 above), as presented to the trial court, gave sufficient grounds to conclude that D.M. was abroad; hence, it was not in a position to take any further measures aimed at securing the witness’s attendance. 28. On 28 November 2007 the Kutaisi Court of Appeal upheld the applicant’s conviction. In its judgment the court held that it substantially subscribed to the findings of the trial court but had reservations as to the accuracy of the ballistics expert’s opinion that had been cited by the trial court (see paragraphs 9 and 22 above). According to the appeal court, the expert had in fact submitted that “he did not rule out” the possibility that the cartridge cases had been discharged from the same firearm; however, he had not made a definitive finding in that respect. The appeal court furthermore noted that the cartridge cases had not been taken from the deceased’s body (as had been stated in the first-instance judgment) but from the murder scene. The court further held that the statements given by D.M. were credible and consistent with other evidence. The appeal court made no observation regarding any possible effects on the course of the trial of the applicant’s inability to cross-examine D.M. Nor did the appeal court mention the trial court’s inference that the applicant had admitted during E.K.’s examination to having accidentally killed G.M. and the fact that the trial court had adduced that admission as incriminating evidence. The appeal court relied on E.K.’s testimony to the extent that it refuted the applicant’s account of events. 29. The applicant lodged an appeal on points of law with the Supreme Court. He argued, inter alia, that the admission of untested witness statements made by D.M. as evidence had rendered his trial unfair. 30. By a judgment of 30 September 2008 the Supreme Court fully upheld the applicant’s conviction. The court, holding that the applicant’s trial had overall been fair, gave no separate ruling as to the issue raised by the absence of D.M. from the trial and appeal proceedings. 31. The following provisions of the Code of Criminal Procedure of 1998 (“the CCP”), as in force at the material time, are relevant. 32. Article 44 § 57 of the CCP provided that a victim or witness wishing to excuse himself from court on medical grounds was required to present to that court a medical certificate specifically stating that the state of his or her health prevented him from appearing before the court. 33. Under Article 173 of the CCP, a victim was obliged to appear before the court dealing with the case in question upon being summoned by that court. A victim or witness could be compelled to appear before such a court if he or she had failed – without acceptable justification – to comply with an earlier summons. 34. Under Article 176 of the CCP, a court order concerning the compulsory appearance of a victim was to be enforced by the police. 35. Under Article 207 § 2 of the CCP, a victim of (or any other participant in) proceedings was to be fined by the court in question if he failed – without any acceptable justification – to appear before it upon being summoned. Imposing a fine did not absolve the victim or witness from the obligation to appear in the event that he or she was summoned again. 36. Article 469 § 1 of the CCP provided that if a victim or witness who had been summoned failed to appear, the court in question, having heard the opinions of the parties, should decide whether to continue or adjourn the trial proceedings. The proceedings could be continued if that person’s failure to appear did not prejudice the thorough, complete and objective examination of the circumstances of the case. 37. Under Article 481 § 1 of the CCP, it was permissible to read out during a trial victim or witness statements given during the relevant pre-trial investigation if the victim or witness in question had died, was abroad or was absent from the court hearing for reasons that ruled out the possibility of his appearing in court. Such a statement could also be admitted as evidence if the victim or witnesses requested that the court do so. However, the statement of an absent witness could not constitute the sole evidence cited in respect of a conviction. 38. Under Article 247 § 1 (a) of the CCP, a court was empowered to request international legal assistance, including in respect of the hearing of witnesses. 39. Under Article 305 § 6 of the CCP, upon the request of a party or parties to the proceedings in question, a court was empowered to hear a witness via audio/video link from another court. 40. Mutual assistance in criminal matters between Georgia and Turkey was governed at the material time (and is still governed) by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (“the 1959 Convention”). Under Article 1 § 1 of the 1959 Convention, the Contracting Parties undertake to afford each other “the widest measure of mutual assistance” in criminal matters. 41. Under Article 3 §§ 1 and 2 of the 1959 Convention, one Member State can request the judicial authorities of another Member State to take evidence from witnesses on their behalf. 42. Under Article 7 § 1 of the 1959 Convention, the serving of summonses may also be requested as a form of assistance. THE LAW
43. The applicant complained that he had not had an opportunity to examine D.M. – the victim of, and the only direct witness to the offences of murder and attempted murder, and that insufficient efforts had been made to summon him or to obtain his testimony via other means. He alleged a breach of his right to a fair trial, particularly his right to examine witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
44. The Government contested that argument. 45. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 46. The applicant maintained that the domestic courts had failed to make reasonable efforts, if any, to secure the attendance of the absent witness, D.M. He furthermore argued that the trial and appeal courts had accepted the reason given by D.M. for his non-attendance – that is to say he had left the country in order to undergo medical treatment – without demanding any proper proof thereof. He also emphasised the importance for his conviction of D.M.’s evidence, given that D.M. had been the sole direct witness to the murder and attempted murder. 47. The Government argued that, given the circumstances, there had been a good reason for admitting the evidence of an absent witness and that the trial as a whole had been fair and had complied with the requirements of Article 6 §§ 1 and 3 (d) of the Convention. They claimed that it had not been reasonably practicable for the domestic courts to secure the attendance of D.M., as he had been abroad for medical reasons at the material time. In any event, the disputed evidence, according to the Government, did not constitute the sole evidence, and neither was it decisive for the applicant’s conviction given that corroborating evidence was adduced. They also argued that the admission as evidence of D.M.’s pre-trial statements was counterbalanced by a number of factors. Specifically, the Government asserted that the domestic courts had treated the untested witness evidence with due caution, as they had noted in their respective judgments that this piece of evidence was consistent with the corroborative evidence. They furthermore maintained that the applicant’s ability to challenge the admissibility of the absent witness’s depositions as evidence should also be considered as constituting an additional counterbalancing factor. The Government also argued that a strong public interest in convicting the applicant outweighed the alleged prejudicial effects that the admission of the untested evidence might have had on his defence rights. (a) General principles
48. The relevant general principles have been set out in the Court’s judgments in the cases of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-151, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131; ECHR 2015). (b) Application of the general principles to the present case
49. The Court notes that the applicant’s conviction was based on, inter alia, D.M.’s evidence taken during the investigation and that the applicant had not had an opportunity to examine D.M. at any stage of the proceedings (see paragraphs 11, 17 and 27 above). Thus, in line with the principles set out in the Court’s well-established case-law, the Court’s task in the instant case is to examine (i) whether there was a good reason for the non‐attendance of the witness D.M. at the trial, (ii) whether his evidence constituted the sole basis or a decisive factor in the applicant’s conviction or whether it merely carried significant weight in that regard, and (iii) whether there were sufficient counterbalancing factors that compensated for the handicaps under which the defence may have laboured. (i) Whether there was good reason for the non-attendance of D.M. 50. The Court observes that the domestic courts seem to have accepted two reasons for D.M.’s non-attendance: the necessity of medical treatment (see paragraphs 15 and 16 above) and the witness’s unreachability owing to his having gone abroad (see paragraphs 16 and 27 above). 51. Despite the fact that the trial court readily accepted D.M.’s absence on medical grounds, it appears from the trial records that the witness did not submit a single item of documentary evidence in support of that justification (compare Bobeş v. Romania, no. 29752/05, §§ 39-40, 9 July 2013, and Vronchenko v. Estonia, no. 59632/09, § 58, 18 July 2013). It is of note in this connection that the domestic law in force at the material time required a witness to provide a court with proper proof of any medical condition preventing him or her from appearing before that court (see paragraph 32 above). Moreover, although the witness informed the court that he would be leaving for Turkey on 4 July 2007 (on 6 July 2007 the first trial hearing was scheduled), he in fact left the country on the tenth day after the start of that hearing (see paragraphs 15 and 16 above). 52. As regards the unreachability of a witness owing to his or her departure abroad or for any other reason, the Court would firstly note that this fact does not in itself constitute sufficient reason to justify the relevant witness’s absence from the trial (see Seton v. the United Kingdom, no. 55287/10, § 61, 31 March 2016, and Gabrielyan v. Armenia, no. 8088/05, § 78, 10 April 2012). Rather, the domestic courts are required to actively search for such a witness with the help of the domestic authorities, including the police, and must, as a rule, ask for international legal assistance in the event that such a witness is abroad and such mechanisms are available (see Schatschaschwili, cited above, §§ 120-22, with further references therein). 53. The Court observes that in the present case the domestic courts stopped making efforts to ensure the witness’s attendance at the trial proceedings after they were informed that the witness had left the country. The Court notes in this regard that under the relevant domestic and international law in force at the material time, the domestic courts had at their disposal several instruments for searching for and compelling reluctant witnesses to appear before them or for seeking foreign assistance in enforcing such measures (see paragraphs 33-36 and 38-42 above). None of the courts dealing with the applicant’s case considered using any of those tools. 54. Furthermore, the Court is not convinced by the appellate court’s conclusion as to whether D.M. was actually absent from the country at the time in question (see paragraphs 26-27 above). It notes that the defence stated during the appeal proceedings that the witness had returned to the country, as he had been seen in his home town days before the start of those proceedings, and he was simply reluctant to respond to the court summons. The appeal court readily accepted the four-month-old border records attesting to D.M.’s departure, even though the latter had informed the trial court at the time of that departure that he intended to stay abroad for only two or three months. 55. The Court concludes that there was no good reason justifying D.M.’s non-attendance at the trial and that the domestic courts failed to take adequate measures to secure his attendance. (ii) Whether D.M.’s untested evidence was the sole or decisive evidence in the applicant’s conviction or whether it carried significant weight in that regard
56. According to the Court’s well-established case-law, whether the untested witness evidence was the sole basis for or a decisive factor in the applicant’s conviction depends on the availability and strength of the corroborative evidence (see Al-Khawaja and Tahery, cited above, § 131, and Schatschaschwili, cited above, § 123). 57. The Court considers that neither the trial court nor the appeal court made an evaluation of the relative value of the absent witness’s statements vis-à-vis the rest of the incriminating evidence. Accordingly, the Court must make its own assessment in that regard (see İshak Sağlam v. Turkey, no. 22963/08, § 48, 10 July 2018, with further references therein). In view of the different factual and evidentiary bases for the two respective incidents, (i) the incident at D.M.’s flat and (ii) the incident involving the alleged murder and attempted murder, the Court finds it appropriate to address this aspect of the trial separately, within the context of two distinct groups of relevant criminal charges (see Tuskia and Others v. Georgia, no. 14237/07, § 106, 11 October 2018). 58. As regards the charges of the violation of public order and the unlawful acquisition, possession and carrying of firearms, the Court observes that in addition to the evidence of the absent witness, D.M., the domestic courts relied on an abundance of other direct and circumstantial evidence, which was examined in court with the participation of the defence, including the statements of some five witnesses (see paragraphs 18 and 19 above; see also N.K. v. Germany, no. 59549/12, § 58, 26 July 2018; Fąfrowicz v. Poland, no. 43609/07, §§ 58-60, 17 April 2012; and Tuskia and Others, cited above, § 107). Moreover, the applicant pleaded guilty to the offence of violation of public order. For those reasons, the Court is satisfied to conclude that the evidence of the absent witness, D.M. constituted neither the sole basis nor the decisive factor in securing the applicant’s conviction on the charges in question, and nor could it have carried significant weight in that regard. 59. Turning to the charges regarding the murder of G.M. and the attempted murder of D.M., the Court observes that the body of evidence linking the applicant’s conduct to those incidents consisted of – in addition to the pre-trial statements of D.M. – the following items: the spent cartridge cases recovered from D.M.’s flat and the murder scene; the subsequent forensic-examination report in respect of those cartridge cases; and the witness evidence that confirmed that the applicant had fired a gun in D.M.’s flat. All of the items in question collectively constituted circumstantial evidence. The applicant’s conviction for G.M.’s murder was further corroborated, according to the domestic courts, by the testimony of the applicant’s father, E.K. 60. The Court observes that the circumstantial evidence, from the domestic courts’ perspective, appears to have led to the assumption that the applicant had killed G.M. and had attempted to kill D.M. That assumption itself was based on two premises: (i) the spent cartridge cases found at D.M.’s flat and at the murder scene, respectively, “might have been discharged from the same firearm” or “it may not be ruled out” that this was so, as concluded by the forensic expert (see paragraph 9 above), and (ii) it was the applicant who had discharged that firearm at D.M.’s flat hours before the murder incident, as confirmed by a number of direct witnesses at the trial. 61. The Court observes in this connection that the fact that the findings of the forensic expert were not definitive did not go unnoticed by the appeal court when it corrected the more definitive representation of the evidence by the trial court (see paragraph 28 above). Hence, the probative value of the forensic evidence concerned seems to have been low; accordingly, the assumption resting thereon must have been weak as well. 62. As regards E.K.’s statement affirming that the applicant had confessed to him that he had accidentally killed G.M., the Court reiterates in this connection that statements made at a trial by persons to whom a direct witness reported the events in question immediately after their occurrence can constitute weighty corroborative evidence (see, mutatis mutandis, Al‐Khawaja and Tahery, cited above, § 156, and McGlynn v. the United Kingdom (dec.), § 24, no. 40612/11, 16 October 2012). However, the Court notes that E.K.’s statement lacked detail and does not seem to have been consistent with the account that had been submitted by the absent witness. In particular, while E.K. seems to have alleged that G.M. had been killed as a result of the applicant having accidentally fired a shot, D.M. stated that the applicant had fired at him and his father deliberately (see paragraphs 11 and 21 above). 63. To sum up, having regard to the fact that D.M.’s statements served as the sole direct evidence in respect of the charges of murder and attempted murder coupled with the rather low probative value of the corroborative evidence, it follows that the evidence of the absent witness, D.M., was decisive in respect of the applicant’s conviction on the charges in question (compare Paić v. Croatia, no. 47082/12, § 41, 29 March 2016). Accordingly, the admission of D.M.’s statements as evidence may have handicapped the applicant’s defence in respect of his trial on these charges (see Schatschaschwili, cited above, § 116). (iii) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured
64. The Court must now determine, in a third step, whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of the decisive evidence of the absent witness, D.M. The following elements were identified by the Grand Chamber in the case of Schatschaschwili as being relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine witnesses at the trial (see Schatschaschwili, cited above, § 145). 65. In this connection the Court firstly notes that there is nothing in the domestic courts’ judgments to indicate that they approached the untested witness evidence with any specific caution; nor did they seem to attach less weight to those statements (compare Al-Khawaja and Tahery, cited above, § 157; Dadayan v. Armenia, no. 14078/12, § 54, 6 September 2018; and Paić, cited above, § 43). On the contrary, the national courts, citing the statements given by D.M, asserted that those statements were credible and consistent with the other evidence, without providing detailed reasons for that view (contrast Brzuszczyński v. Poland, no. 23789/09, §§ 85-86 and 89, 17 September 2013; see also Prăjină v. Romania, no. 5592/05, § 59, 7 January 2014; and Nikolitsas v. Greece, no. 63117/09, § 37, 3 July 2014). 66. Secondly, as far as the availability and strength of further incriminating evidence is concerned, the Court, as already noted above, considers that in so far as it concerns the charges of murder and attempted murder, the absent witness statements do not seem to have been corroborated by sufficiently strong and consistent incriminating evidence (see paragraphs 59-63 above; contrast N.K., cited above, § 59; Bátěk and Others v. the Czech Republic, no. 54146/09, 12 January 2017, § 54; and Štulíř v. the Czech Republic, no. 36705/12, § 70, 12 January 2017). 67. Lastly, as regards the counterbalancing procedural measures, while noting that the applicant did have the opportunity to offer his own version of the events in question and thus to cast doubt on D.M.’s credibility as a witness (see paragraphs 13, 14, 17 and 27 above) the Court does not find this fact sufficient to counterbalance the handicaps of the defence (contrast Garbuz v. Ukraine, no. 72681/10, § 46, 19 February 2019, where the applicant did not specifically challenge the absent witness’s credibility or the veracity of her statements; also contrast Kikalishvili v. Georgia, no. 51772/08, § 52, 20 December 2018, where the victim, the only witness of the alleged offence, although absent from the appeal proceedings, was examined with the participation of the applicant in the first-instance court; see also Dadayan, cited above, § 54, and Paić, cited above, §§ 46-48). Thus, the applicant did not have the possibility of putting questions to D.M. for instance in writing. Moreover, neither the applicant himself nor his lawyer was given the opportunity at the investigation stage to question D.M. (iv) Assessment of the trial’s overall fairness
68. In assessing the overall fairness of the trial, the Court will have regard to the available counterbalancing factors, viewed in their entirety in the light of its findings to the effect that the evidence given by D.M. was “decisive” for the applicant’s conviction for murder and attempted murder. 69. The Court notes that the domestic courts had before them certain additional incriminating evidence regarding the murder and attempted murder incident that in itself does not seem to have been sufficiently strong and consistent. The Court moreover notes that hardly any efforts were made to secure D.M.’s attendance at the trial and no procedural measures were taken to compensate for the applicant’s lack of opportunity to directly cross‐examine the only direct witness in court. Furthermore, it seems that none of the domestic courts approached the untested witness evidence with sufficient degree of cautiousness. Given the circumstances, the Court considers that the absence of any opportunity for the applicant to examine D.M. as a witness at any stage of the proceedings rendered the trial as a whole unfair in so far as the charges of murder and attempted murder are concerned. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case. 70. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
71. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 12 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško Gabriele Kucsko-StadlmayerDeputy RegistrarPresident