CASE OF HORNCASTLE AND OTHERS v. THE UNITED KINGDOM

No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

The applicants are currently in detention.

On 7 May 2005 the victim, P.R., a registered alcoholic, was attacked in his flat. He suffered extensive injuries and spent a month in hospital.

He made a statement to the police on 3 June 2005. The statement bore a statement of truth which read:

“This statement ... is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true.”

In his statement, he explained that on the day of the attack he had been at home in his flat and had drunk at least three litres of cider in the course of the day. At various times during the day he had been in the company of X., B. and M. At some point B. and M. had left his flat and had returned carrying a television and a hi-fi system, which they had placed in a bedroom. Later in the evening, X., B. and M. had left, although the victim explained, “I don’t know times and my memory is vague”. He then recalled answering a knock on the door, following which three men had entered the premises by force and attacked him. The victim said:

“The bigger male out of the three started punching me to the face, followed by a man who was on crutches. I was getting punched by all of them and I eventually fell to the floor. I was dragged and pulled into the bedroom where they saw the television and hi-fi system. I remember them going mad punching me more and more to my body and face. I don’t remember much else.”

He described the features of the “bigger male” and the “male on crutches”, who he knew lived in the same block of flats. He said that the third male was called “Horncastle” and also described him.

The victim died on 23 July 2006 from an alcohol-related illness.

Mr Horncastle and Mr Blackmore were subsequently charged, together with another man, D., with causing P.R. grievous bodily harm with intent.

The prosecution case was that B. and M. had burgled another flat in the victim’s block of flats, and had taken the stolen property to the victim’s flat. B. and M. had pleaded guilty to that burglary. The prosecution alleged that the attack on the victim had occurred when Mr Horncastle and Mr Blackmore had gone with D., the owner of stolen property, to recover it. They claimed that Mr Blackmore was the “bigger male” and D. was the “male on crutches”.

The defence case was that although Mr Horncastle and Mr Blackmore had gone to the victim’s flat to help recover D.’s property, neither had been involved in the attack.

In a statement to the police, Mr Horncastle said that the victim had been very drunk, and that he (Mr Horncastle) had collected the television and returned it to D.’s flat. He had not seen the attack on the victim.

In his statement to the police, Mr Blackmore said that he had been drinking with D. and Mr Horncastle. They had gone back to D.’s flat at about 9 p.m. and discovered that it had been burgled. D. had asked if they would go with him and recover what had been stolen, as he had been told where it was. They had gone to the victim’s flat at about 10 p.m. The door had been opened by a man whom the others had pushed out of the way. They had seen the stolen property. He had picked up a DVD player and walked out, stepping over P.R., the victim, lying on the floor. Mr Blackmore said that he had had some specks of blood on his shoes, jeans and T-shirt which had come from the wall or a splatter when the victim had been hit. He had been aware that the victim was getting punched and had not wanted to have anything to do with it. He did not know what happened after that. He had put the DVD player in the lift and returned to the flat. At that point the victim was still lying on the floor and there was blood everywhere. He had not hit the victim. He had not expected them to do what they had done.

Another resident of the block of flats, J., made a statement to the police suggesting that M. might have been involved in the assault on the victim. That statement was disclosed to the defence. The defence was ultimately based on the assertion that M. was the perpetrator.

The prosecution applied to read the victim’s statement at trial, under section 116(2)(a) of the Criminal Justice Act 2003 (“the 2003 Act” – see paragraphs 93-94 below). The application was opposed by the applicants under section 78 of the Police and Criminal Evidence Act 1984 (“PACE” – see paragraph 90 below) on the ground that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them, as there could be no opportunity to challenge it and it was inherently unreliable. The applicants relied on the admission by the victim that he had drunk a quantity of alcohol; on his statement that “I don’t know times and my memory is vague”; and on the fact that the description given of the first male did not fit Mr Blackmore.

The judge ruled on 24 January 2007 that the statement should be admitted. He found that the condition in section 116(2)(a) was satisfied (namely, that the witness was dead); and that the fact that the statement was the principal evidence against the defendants did not make its admission unfair. He relied in particular on the fact that the defendants had all admitted being present in the victim’s flat together to recover D.’s property; that the defendants were going to call J. to give evidence that M. had been responsible for the attack; and that the jury could be given directions as to any difficulties faced by the defence on account of P.R.’s statement being read.

In March 2007 the trial commenced before a judge and a jury. D. subsequently pleaded guilty. The jury in the trial were later discharged for unrelated reasons and a retrial was ordered. A second trial commenced in June 2007, but the jury were again discharged following an issue in relation to the forensic evidence. A third trial commenced in November 2007.

The prosecution relied on other evidence, besides the statement of the victim. X., who had spent the day drinking with the victim, gave evidence to the effect that P.R. had been tipsy but not drunk on the afternoon of the attack. He also testified that he had subsequently visited the victim in hospital, where the victim had indicated that he had been attacked by three people but that he could not really remember who had attacked him. Two witnesses gave evidence that the victim had told them that D. and his friends had attacked him. There was also scientific evidence that the blood on the television matched that of the victim. Forensic evidence suggested that the assault had commenced at the front door and the hallway and then moved to the entrance of the bedroom. There was pooling of blood at the entrance to the bedroom, as if the source of the blood had lain there for some time. Blood on D.’s crutches matched the victim’s DNA profile. Evidence was also led to show that P.R. had shown no fear of M. when meeting him after the attack.

Mr Horncastle gave evidence in his defence. He said that he had been drinking all day with D. and Mr Blackmore. In the evening they had returned to D.’s flat and realised that it had been burgled. They had gone downstairs to another flat and he had followed D. inside. He had seen a man staggering in the hallway. D. had then pointed out the items that had been stolen. Mr Horncastle had picked up the television and returned to D.’s flat. He had not seen an assault and had not seen any blood. He, Mr Blackmore and D. had returned to the pub.

Mr Blackmore did not give evidence at trial.

P.R.’s neighbour, J., was called to give evidence for the defence. He testified that he had heard some shouting and banging on the night of the attack and had seen M. banging on doors. Later he had seen M. holding P.R. in a headlock; another person had been with him. He had closed the door but had heard a lot of shouting and noise for the next twenty minutes. His answers in cross-examination were not consistent with his previous statement to the police.

The judge, on Mr Blackmore’s application, admitted evidence of M.’s previous convictions as evidence of a propensity for violence. The judge refused to admit evidence of the previous convictions of Mr Horncastle and Mr Blackmore.

The judge made clear the importance of P.R.’s witness statement at the outset of his review of the evidence in the summing up to the jury, noting:

“The prosecution case here depends, does it not, upon the evidence of [the victim].”

He explained to the jury that the victim’s evidence was not agreed, that the defence had not had the opportunity of testing it by crossexamination and that it would carry less weight than evidence from a witness who had come to court and had testified. He set out examples of areas in the victim’s statement which had not been cross-examined.

Just over an hour after the jury had retired, they asked to see the victim’s statement; the judge told them that they could not see it but reminded them of its contents by reading it to them.

The jury subsequently returned unanimous guilty verdicts in respect of both Mr Horncastle and Mr Blackmore.

On 1 November 2007 at around 7 p.m. the victim, H.M., was at home alone in the house she shared with her partner, G.P., preparing to take a bath. Six men entered the house and stole various items, including jewellery. After threatening the victim with a knife, they kidnapped her by taking her away in the car they had come in. A black BMW X5 car owned by her partner was also taken at the same time.

The victim subsequently made a formal statement to the police, containing a statement of truth in the terms outlined above (see paragraph 7), giving an account of events on 1 November 2007. She stated that, as she had been about to bathe, two masked men had entered her bedroom; one had a knife. She had been ordered downstairs where there were four other men. They had asked where the jewellery, money and car keys were and she had told them about her partner’s safe in his wardrobe. Four of the men had then taken her to the car they had come in and had driven off. She assumed that the other two men had taken G.P.’s car.

The men in her car had then asked for G.P.’s telephone number, which she gave them, and they had telephoned him. She described the telephone conversations that followed and explained that the men had told her that they wanted one hundred thousand pounds before they would let her go. She had also been told that she should not go to the police because she would know what would happen to her if she did. She had been warned not to look at her captors, and had taken the threats to mean that they would kill her if she saw their faces. She said that she had been punched twice in the back of the head, which she understood to have been intended to show her that her kidnappers were serious about hurting her. She had heard her captors say that if they did not get money they would cut off her fingers and toes. One of the men had said something about putting her in a vice. She was eventually put in the boot of the car for a while before being dropped off unharmed. After unsuccessful attempts to telephone G.P. from various locations, she had eventually spoken to her father who had picked her up. She had arrived home shortly after 9 p.m. and the police had arrived around ten minutes later. In her statement, she did not identify any person as having participated in her kidnapping.

On 1 November 2007 G.P. made a short statement setting out his account of the ransom demands and how the kidnappers had threatened to cut off the victim’s fingers if he did not pay the ransom.

On 2 November 2007 Mr Graham was arrested in G.P.’s stolen car after having been seen on CCTV. A knife was found in the car.

On 3 November 2007 H.M. made a further police statement. She was shown the knife which had been recovered from the car in which Mr Graham had been arrested and asked if she had seen it before. She confirmed that it was the knife used to threaten her.

On 4 November 2007 a police officer visited G.P. and the victim, in the presence of the latter’s father, and told them “in no uncertain terms” that the men the police were seeking were dangerous and that it was not beyond them to use guns. He gave as an illustration the use of guns against a couple who had fled and had been murdered in the village to which they had been relocated. He spoke to them about moving.

On 22 November 2007 the victim and G.P made police statements to the effect that they wished to retract their previous statements and did not want the police to pursue a prosecution, as they were scared for the safety of their families.

Mr Marquis and Mr Graham were charged with kidnapping. The prosecution relied on other evidence, apart from the victim’s statement.

First, Mr Graham was seen with other masked men on the CCTV cameras entering the victim’s house on the evening of 1 November 2007. That evidence was not disputed at trial although when initially questioned Mr Graham had not accepted that he had been to the house or that the person shown on the CCTV was him. It was also not disputed that G.P.’s car had been taken from outside the house shortly thereafter. The telephone records proving that G.P. had subsequently been contacted on his telephone from the victim’s telephone and that a number of calls were made from Mr Marquis’ telephone to G.P. were undisputed.

There was evidence that Mr Marquis had spent the night of 12 November 2007 at a hotel and that a woman of his acquaintance, K.H., had gone to the hotel to meet him that night. She gave evidence that she had been told to park her car between a red van and “my X5”. When she had gone to Mr Marquis’ room, she had been introduced to a man (whom Mr Marquis refused to identify). She had seen a pink telephone which was identical to the one owned by the victim. It was accepted that the telephone used to call G.P. that night was also used by Mr Marquis to contact K.H. between 31 October and 2 November 2007. A text to her from Mr Marquis at 1:35 a.m. on 2 November stated:

“Hey don’t let no-one know where I am, you know. Remember I know your address and that. You should have just said you were going. I ain’t bothered, but if I get arrested, I know it’s you”

CCTV evidence showed Mr Graham at the wheel of G.P.’s car twice on 2 November 2007; on the second occasion the car had false registration plates.

There was also evidence that a man describing himself as John Graham had rented a room at the hotel where Mr Marquis had stayed on 1 November 2007 and had described himself as the driver of a black BMW X5.

Mr Graham’s defence was that there had been no kidnapping. He claimed that the victim and her partner had been involved in an attempted insurance fraud. Mr Marquis denied any involvement in any kidnapping that there may have been.

The victim and G.P. did not attend court on 4 April 2008 in compliance with a witness summons that had been issued for the trial. The victim was arrested on 7 April 2008 and brought to court. On giving an explanation to the judge that, although she was frightened, she would have attended court but had been told not to attend by Witness Support, she was bailed to appear on 9 May 2008. She was warned that if she did not attend a warrant for her arrest would be issued and she could be imprisoned for up to two years. The trial was fixed for 12 May 2008. G.P. later surrendered into custody and was also bailed to appear.

The victim made a further statement on 9 April 2008 which was video recorded. In it she said that she had made the retraction statement of 22 November 2007 because she was scared. She thought that those who had kidnapped her were dangerous and she was very frightened. She said:

“Since I was kidnapped, I have found that the incident has altered my life. I am petrified. I find myself looking over my shoulder and wondering if the people responsible will come and get me. I feel like this because at the time they said to me, ‘You’d better not go to the police ‘cos you know what will happen if you do’.

I perceived this as a direct threat against me and I just don’t know what they are capable of, considering that they forced their way into my house and kidnapped me. I perceive them as very dangerous people.

As such I am terrified all of the time and find myself very tearful, and I am almost not sleeping at night.”

She added that the police had made her more frightened when they told her that she and G.P. had to move. She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case.

She confirmed that the police had explained the possibility of using special measures at trial. She said that her evidence would be “greatly enhanced” if she could speak from behind a screen in the court room. Finally, she said that she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her, but that she still felt scared.

G.P. made a statement on video on 16 April 2008. In his statement he referred to the police visit in November 2008 and the advice to “leave town”, which he said had “really frightened” them. He said that he had tried to get in touch, through a friend, with a certain “Bijer” because another friend had recognised the number which had called him on the night of the kidnapping as that of “Bijer”. “Bijer” had rung him, but it was clear that this was not the person who had rung him on the telephone on 1 November 2007. “Bijer” had explained to him that he had sold the telephone the week before. G.P said that he was not scared to give evidence but just did not want to, in case there were reprisal attacks.

Neither the victim nor G.P. attended court on 9 May 2008. The victim’s father’s evidence to the trial judge was that she had packed her bags and fled the day before.

On 12 May 2008, the prosecution applied to read the statements of H.M. and G.P. under section 116(2)(e) of the 2003 Act on the grounds that they would not give evidence through fear (see paragraphs 93-94 below). The applicants argued that the statements could not be admitted as the fear did not fall within the meaning of the 2003 Act as it had not been generated by any action of theirs or their associates, but by what the police officer had said on 4 November 2007 (see paragraph 35 above).

On 13 May 2008 the trial judge handed down his ruling on the admission of the statements. He noted, in respect of H.M.’s video statement of 9 April:

“I have seen a portion of that tape and it is perfectly clear to me the witness was petrified, genuinely really distressed, breaking down into tears.”

The judge heard evidence from the victim’s father and the police officer who had spoken to her on 4 November 2007. He observed that in her witness statement of 9 April, H.M. had explained that she was “more” scared as a consequence of the police advice, noting that this was “on top of her own fears”. He also observed that in her statement, H.M. had confirmed that the possibility of special measures at trial had been explained to her. He referred to the warning that he had given her as to the serious consequences if she failed to attend court (see paragraph 43 above). He concluded:

“Having heard all the evidence, the only sensible conclusion is that she was and is so terrified of coming to court to give evidence, she would rather face arrest and imprisonment. I have no doubt she’s in fear of giving evidence.”

The judge noted that there was no qualification in section 116(2)(e) of the 2003 Act on how the fear had to have been generated. He accepted that H.M. qualified under the Act to have her statement read as a witness in fear, and stressed that there had been no bad faith by the police in respect of the advice that they had given. The judge found that it would not be unfair or unjust to admit the statement.

In the same ruling the judge declined to admit the evidence of G.P. as he was not satisfied that his non-attendance was due to fear.

On 15 May 2008 an application was made to the judge to admit G.P.’s statement made on 16 April 2008 in the interests of justice under section 114(1)(d) of the 2003 Act (see paragraph 92 below) so that it could be advanced as part of the defence case of Mr Marquis. It was submitted that Mr Marquis was put at a great disadvantage because the defence could not cross-examine G.P. in relation to the voice heard over the telephone on 1 November 2007. The judge refused the application on the basis that G.P. was not in fear and he was not prepared to go behind his ruling of 13 April 2008; and the evidence covered many matters which implicated the applicants and not just that part of it relating to the recognition of the voice over the telephone.

Mr Marquis and Mr Graham were tried at the Crown Court before a judge and a jury.

Oral evidence was heard from S., a friend of G.P., which the judge directed the jury to treat with caution. S. said he had been with G.P. on the night of the kidnapping when G.P. had received a telephone call. He had answered it and had looked distressed. S. had been able to hear some of the conversation, including a demand for money and a girl crying in the background. G.P. had told him that someone had taken his girlfriend and was demanding money. There had then been a couple more calls. G.P. had asked him to telephone the police which he had done. The tape of that call recorded the person calling the police as giving an account that three black males were demanding money while holding his girlfriend in the bathroom at her house. S. gave evidence that G.P. had also received further calls from another telephone. S. had recognised the telephone number and when he had put it into his own mobile telephone it had registered as belonging to Bijah (the abbreviation used by Mr Marquis for his first name). When S. denied that Bijah was the same person as Mr Marquis, the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew Mr Marquis.

A police officer gave evidence that he had called S.’s mobile telephone and had spoken to a man who had given his name as G.P. He had sounded agitated and was shouting that they had kidnapped her. He had then heard a mobile telephone ringing and had been told by G.P. that it was his girlfriend’s number. G.P. had asked him to listen. He had been able to hear some of the demands for money when the two telephones were held against one another. The telephone had rung again and he could hear a girl’s voice screaming that they had taken her. When the telephone had gone dead, G.P. had confirmed that it was his girlfriend and that he did not know where she was. He did not say where he was but said that he would be returning to their home shortly. Another call had then taken place during which money was demanded.

The victim’s father gave evidence that he had received a telephone call between 8.30 p.m. and 8.45 p.m. on 1 November 2007 from his daughter. She had told him that she had been kidnapped and needed to be picked up. She had sounded distressed. He had collected her and she had given him an account of what she said had happened. She had tried to contact her partner on the telephone, but had not answered. They had gone to her home to see if he was there. When they had arrived at the house, two of her friends were there and asked what had happened. She had given an account, tearful and shaken. The victim’s father had then searched the house but G.P. was not there. He had found lukewarm water in the bath and had telephoned the police. Before they came, the victim had given an account of what had happened which was consistent with the statement she subsequently gave to them.

Mr Marquis gave evidence at trial, denying any role in the kidnapping. He stated that his telephone had been used by him between 31 October and 2 November 2007 to contact K.H., but that he had lost it when he got into a car owned by some men on the afternoon of 1 November 2007 and did not get it back from them until he was at the hotel. The telephone had therefore not been in his possession when the calls had been made to G.P. He would not identify the men. When he had gone to the room at the hotel, the pink telephone was already there, but he had no idea how it had got there.

Mr Graham did not give evidence. He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud. It was nonetheless advanced as part of the defence case to the jury.

In his summing up, the trial judge directed the jury in relation to the way that they should treat H.M.’s statement and the disadvantages to the applicants of being unable to cross-examine her.

On 12 May 2008 Mr Marquis and Mr Graham were convicted of kidnapping.

Mr Horncastle and Mr Blackmore appealed against their convictions on the ground that the victim’s statement should not have been admitted as evidence. They submitted that the statement was the sole or decisive evidence against them.

Mr Marquis and Mr Graham appealed against their convictions on the grounds, inter alia, that the victim’s statement should not have been admitted because there was no evidence that the fear had been caused by the applicants, and the police had contributed hugely to the fear. It was also contended that her evidence was decisive in the case, as it was the only evidence that there had been a kidnapping.

On 22 May 2009, the Court of Appeal unanimously dismissed the appeals.

The court found that Article 6 § 3 (d) did not create any absolute right to have every witness examined and that the balance struck by the 2003 Act was legitimate and wholly consistent with the Convention. It noted, however, that there could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling. Having regard to the safeguards contained in the 2003 Act, which were rigorously applied, it was of the view that there would be no violation of Article 6 if a conviction were based solely or to a decisive degree on hearsay evidence. Where the hearsay evidence was demonstrably reliable, or its reliability could properly be tested and assessed, the rights of the defence would be respected, there would be sufficient counterbalancing measures and the trial would be fair. The court considered that it was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive.

In terms of counterbalancing measures, the Court of Appeal considered that the power of a trial judge under section 125 of the 2003 Act to stop the case if the absent-witness evidence was unconvincing (see paragraph 98 below) provided for a “proportionate assessment of the reliability” of such evidence; and that it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the evidence were the sole or decisive evidence. Sole or decisive absent-witness evidence could be wholly convincing and, equally, evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe. Where there was a legitimate argument that the absent witness evidence was unconvincing and important to the case, the trial judge was required to make up his own mind as to whether a conviction would be safe. Tts when absent-witness evidence was admitted were well understood by the courts.

The Court of Appeal gave guidance as to when it would be appropriate to allow absent-witness evidence to be introduced because a witness was in fear. There was, in the case-law of this Court, no requirement that the fear had to be attributable to the defendant; the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed. The Court of Appeal added:

“87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the [2003 Act]. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the [2003 Act] based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.

... In the case before us of Marquis and Graham ... the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the [2003 Act] requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.”

Having considered the general principles, the court turned to examine the specific facts of the applicants’ cases.

The Court of Appeal reviewed the victim’s statement and the evidence presented to the trial court. It found that there was substantial evidence independent of the statement to prove that Mr Blackmore and Mr Horncastle had gone to the victim’s flat, that they had been present when the attack had taken place and that both had taken away items from the flat. It noted:

“108. i) Blackmore and Horncastle both admitted they accompanied [D.] to flat 9 and were present when the door was opened.

ii) Horncastle removed the TV on his own admission. The TV had [the victim’s] blood on it. It is an inescapable inference that Horncastle must have been present after sufficient violence had been inflicted on [the victim] for blood to have got onto the TV. His account that he saw no violence must have been untruthful.

iii) Blackmore admitted taking the DVD and stepping over the prostrate body of [the victim]. He must have been present when the violence began and he returned to the flat to help with removing the TV, despite knowing that [the victim] had been attacked.

iv) Neither appellant contended there was anyone else other than [D.] present at that time they first went to the flat or when the DVD or TV were removed.

v) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance. The attack must therefore have been visible to anyone who remained at the entrance.

vi) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants.

vii) There was no evidence of motive for [M.] to have attacked [the victim]. On the contrary he was a friend of [the victim’s] and [the victim] had shown no fear when he saw him ... after he had been attacked.”

Despite the substantial amount of independent evidence, the Court of Appeal accepted that it was clear from the judge’s ruling on admissibility, from the way in which the case was summed up and from the question from the jury that the victim’s statement was to a decisive degree the basis on which the applicants were convicted.

However, it considered that the decisive nature of the evidence was only one of the factors which the court had to put into the balance in the various stages that it had to go through in applying the legislation. It observed that the judge’s decision on the admissibility of the evidence carefully applied the statutory tests under the 2003 Act; that the applicants had been provided with ample material to attack the victim’s credibility, including the notes of his treatment in hospital; that no application had been made under section 125 of the 2003 Act to stop the case; that the judge’s direction to the jury was very full and that he had drawn attention to the particular matters that put the defence at a disadvantage, in particular the inability to cross-examine the victim as to his memory, his alcoholism, his description of Mr Blackmore and other matters; and that there was no suggested reason why the victim should have provided an untruthful statement.

The Court of Appeal was satisfied that the jury had been able to make a proper assessment of the reliability of the victim’s evidence contained in the statement. It further considered that the jury was right in placing reliance on the statement, as its convincing nature and reliability in important respects could be tested against other evidence, including the applicants’ own admissions; the visit of three persons to the victim’s flat and taking items away; the evidence of blood on the television removed by Mr Horncastle; Mr Blackmore’s evidence in relation to observing the victim on the floor and the blood in the flat; and the other independent evidence to which it had already referred .

The Court of Appeal accordingly concluded that the applicants were provided with sufficient counterbalancing measures to ensure respect for their fair trial rights. They had received considerable information about the victim and his time in hospital; they were able to draw to the jury’s attention all the arguments for treating the statement as unreliable; and they were able to put forward an alternative case that the assault was carried out by M. by calling independent evidence in support.

The Court of Appeal reviewed the evidence at trial and the judge’s decision to admit the victim’s statement. It also examined the directions given to the jury in relation to the way in which they should treat the statement and the disadvantages to the applicants in not being able to crossexamine the victim, which it considered to be appropriate.

It found, having regard to its observations on the ambit of “fear” under the 2003 Act (see paragraph 68 above), that the judge was correct in his ruling as to the victim’s fear.

The court also took the view that there was sufficient material before the jury to enable them properly to assess the reliability of the victim’s statement. It explained:

“140. ... We also consider that its convincing nature and reliability in important respects could be tested against other evidence including:

i) that when the police visited the house, the bath had lukewarm water in it.

ii) that a knife was recovered from the BMW in which Graham was arrested; she identified it as the one used on her.

iii) that [G.P.] was phoned using her phone and an identical phone was seen in the bedroom at the Castle Marina Holiday Inn used by Marquis.

In considering the overall fairness of the decision to admit the evidence of [the victim] and in looking at the safety of the conviction, we have taken into account the criticism of the judge’s refusal to admit the statement of [G.P.]. Marquis sought to admit only part of his evidence contained in the statements. The judge had concluded that [G.P.] was not in fear and could have attended. To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence.”

The Court of Appeal considered it clear that the convictions did not rest on the evidence of the victim to a decisive extent. It noted:

“142. ... i) The main evidence against Graham was that there was clear CCTV evidence that Graham had been at the house at the time [the victim] said she was kidnapped; he admitted that, though in his interview he had not accepted that. He was arrested in [G.P.’s] stolen BMW X5. [The victim’s] statement did not identify him.

ii) The main evidence against Marquis was that his phone was used to make the ransom demands heard by [S.] and [the police officer]. It was not disputed that a phone identical to one owned by [the victim] was seen by [K.H.] when she went to Marquis’ bedroom at the Marina Castle Holiday Inn. [The victim’s] statement did not identify him.

iii) The only matter proved by [the victim’s] statement was that she had been kidnapped. There was, however, sufficient evidence of that from the other witnesses in the case, particularly her father.

iv) There was no evidence to support the case advanced by Graham that the kidnapping was an attempted insurance fraud.

v) Counsel for the Crown had submitted in his application to the judge to admit the statements of both [G.P.] and [the victim] that they were central to the case. However, the fact that this submission was made is an illustration of the difficulty ... of determining in advance whether the evidence is decisive. Self evidently the evidence of [G.P.] made no difference, as it was not admitted and in the result, for the reasons we have given, the evidence of [the victim] was not, in the event, decisive.

vi) Thus, if contrary to the view we have expressed, a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction, then as the conviction rests on other evidence, then that ground of appeal fails for that additional reason.”

The court concluded that the applicants’ defence rights were respected, the trial was fair and the convictions were safe.

The applicants appealed to the Supreme Court arguing that the decisions to admit the statements in their cases rendered their convictions unfair. They relied heavily on the judgment of the Fourth Section of this Court in Al‑Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009.

On 9 December 2009 the Supreme Court dismissed the applicants’ appeals. Lord Phillips gave the judgment of the court, with which the other justices agreed. He identified the principal issue raised by the appeals as being whether a conviction based “solely or to a decisive extent” on the statement of a witness whom the defendant had had no chance of crossexamining necessarily infringed his right to a fair trial under Article 6 §§ 1 and 3 (d).

Lord Phillips began with an analysis of the common law approach to a fair trial and the provisions of the 2003 Act. He set out the legal framework under section 116 of the 2003 allowing, exceptionally, the admission of hearsay evidence at criminal trials (see paragraphs 93-96 below), explaining

“36. ... [T]he [Criminal Justice Act] 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be.”

He went on to detail the “special stipulations” set out in sections 124-126 of the 2003 Act which were applicable to all hearsay evidence and designed to ensure the fairness of the proceedings (see paragraphs 97-99 below).

He summarised the safeguards present at trial to protect against any potential for unfairness arising from the admission of hearsay evidence as follows:

“38. ... i) The trial judge acts as gatekeeper and has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received.

ii) Hearsay evidence is only admissible in strictly defined circumstances. In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness.

iii) Once the prosecution case is closed, the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance, the defendant’s conviction would be unsafe.

iv) The judge has to direct the jury on the dangers of relying on hearsay evidence.

v) The jury has to be satisfied of the defendant’s guilt beyond reasonable doubt.

vi) The defendant can apply for permission to appeal against his conviction, which will be granted where reasonable grounds for appeal are demonstrated. A failure to comply with the safeguards outlined above, and in particular the admission of hearsay evidence contrary to the rules on its admissibility, will constitute such grounds. Where the Court of Appeal finds that there has been such a failure, the appeal will be allowed unless the court is satisfied that, despite the shortcoming, the conviction is ‘safe’.”

Lord Phillips considered the approach to absent-witness evidence in other common law jurisdictions. He then examined criminal procedure in civil law jurisdictions and the case-law of this Court prior to the Chamber judgment in Al‑Khawaja and Tahery. He reviewed in some detail the origins and development of the “sole or decisive rule” in the Court’s caselaw.

He then turned to consider the Chamber’s judgment in Al‑Khawaja and Tahery, citing an extract of the judgment which explained that in the absence of special circumstances arising where the absent witness failed to give oral evidence as a result of fear induced by the defendant, it was doubtful whether any counterbalancing measures would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for conviction. He observed:

“103. There are two points to be made about this passage. The first is that the Court appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant. The second is that the Court did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances. The Court made it quite plain, however, that compliance with the statutory regime under which the statements in the two appeals had been admitted carried ‘limited weight’...”

However, having regard to the judgment of the Court of Appeal and to the development of the “sole or decisive rule” in cases largely relating to civil law jurisdictions, Lord Phillips concluded that the 2003 Act made the “sole or decisive” rule unnecessary in English criminal procedure. He considered that the safeguards it contained meant that if the 2003 Act were observed, there would be no breach of Article 6 § 3 (d) even if a conviction were based solely or to a decisive extent on absent witness-evidence. He therefore held:

“108. In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.”

As to the applicants’ alternative arguments that, regardless of the application of the sole or decisive rule, the statements should not have been admitted, Lord Phillips relied on the findings of the Court of Appeal, which he said had given the arguments “careful consideration”.

In a separate concurring opinion, Lord Brown observed:

“115. ... Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court be to ensure that it can be fairly adduced and is likely to be reliable. In this connection there can be no harm in using the concept of ‘sole or decisive’ so long as it is used broadly ... Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application.

The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom ...”


Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The applicant, Ms Larisa Dmitiryevna Balanina, is a Russian national, who was born in 1963 and lives in the village of Rassvet in the Krasnodar Region. She was represented before the Court by Mr A. Ivanov, a lawyer practising in Krasnodar.

The applicant is the mother of Ms Sofia Zubkova.

Ms Zubkova was detained in remand prison no. IZ-1 in the Krasnodar Region from 6 December 2013. On 24 December 2014 she was transferred to the Krasnodar City Clinical Emergency Hospital (hereinafter “the Krasnodar Hospital”) on account of a suspected acute drug poisoning. On the next day she died. The death certificate of 29 December 2014 listed double pneumonia as the cause of death.

Investigating authorities examined ex officio the circumstances of the death and on 24 January 2015 refused to open a criminal investigation.

On 15 October 2015 the applicant asked the Krasnodar Hospital to provide her with her daughter’s medical files and to answer the following questions:

“Did Ms Svetlana Zubkova contract any illness during her stay in [the remand prison] or did her existing diseases exacerbate?

What medical institutions ... was Ms Zubkova transferred to for the examination and treatment?

Was Ms Zubkova diagnosed with HIV, tuberculosis or any other contagious disease? If so, which institution and when?”

On 30 October 2015 the applicant’s request was dismissed. The Krasnodar Hospital replied that her daughter’s medical information remained confidential even after her death. In the absence of her daughter’s prior authorisation the applicant only had a right to receive the death certificate. According to relevant domestic law provisions access to information requested by the applicant could be provided under limited conditions to investigators, courts or public prosecutors.

The applicant challenged that decision in court under the Code of Administrative Procedure.

On 25 January 2016 the Pervomayskiy District Court of Krasnodar upheld the decision of the Krasnodar Hospital and endorsed its reasoning.

On 12 May 2016 the Krasnodar Regional Court dismissed the applicant appeal. On 6 July 2016 the applicant lodged her application with the Court. Only subsequent to that, on 21 July 2016, she filed a first tier cassation appeal, which was dismissed by the Krasnodar Regional Court on 28 July 2016.

On 11 April 2017 the applicant’s lawyer, at the request of the Registry, informed the Court that he had decided not to submit a cassation appeal to the Supreme Court for “it was not an effective remedy”.

Relevant domestic law provisions have been summarised by the Court in the case of Chigirinova v. Russia (dec.), no. 28448/16, §§ 8-26, 13 December 2016.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant, a practising defence lawyer, represented ‒ initially before the Ljubljana District Court and subsequently before the appellate courts ‒ a defendant, I.P., who had been charged with three murders committed on 15 August 2002. The offence carried a thirty-year prison sentence. During the first-instance criminal proceedings, three certified sworn-in experts were appointed. A psychologist, J.R., and a psychiatrist, V.R., were asked to assess the accountability of the defendant and the probability that he had committed the criminal offences of which he had been accused. An expert in forensic medicine, J.B., was asked to prepare a report and testify, among other things, about the time of death of the victims, which was an important element in the accusation against the applicant’s client. In his written and oral submissions the applicant continuously protested his client’s innocence, pointing to what in his view was unreliable expert evidence, and requesting the exclusion of all evidence obtained by alleged violations of his client’s human rights. It would also appear that at some point in the proceedings the applicant asked to be given the results of a lie-detector test performed during the police investigation, but his request was refused.

At the final hearing held on 12 March 2004 V.R. replied to questions put by the applicant and the public prosecutor. Subsequently, the applicant requested that a new expert psychiatrist be appointed and that he should be assisted by a psychologist specialising in psychodiagnosis. Under the rules of the Criminal Procedure Act, a new expert witness should not be appointed unless there are contradictions or deficiencies in the available expert opinion or if reasonable doubt arises with regard to its correctness – the applicant therefore pointed out what he considered to be such deficiencies with respect to V.R. and J.R. In his oral submissions, the applicant argued that J.R. was known to be inclined towards psychodynamics which, in the applicant’s opinion, meant that “he was not familiar with top-level means of diagnosis, which were to be used in the process of psychosocial diagnosis”. He also stated that the psychodynamic psychotherapy used by the expert was not a scientific method and did not produce reliable data. The applicant further maintained in his speech that the results of the test used on his client were wholly contradictory and as such invalid. He gave examples from the expert opinion, such as its finding that the accused had little sense of reality but, at the same time, good general knowledge, and that while he was mentally rigid he was of above-average intelligence. The applicant continued by saying:

“That this was just senseless extensive talking without any meaning, full of contradictions, is supported by the fact that the expert did not link his mental constructs with any concrete mental disorder, not least with the personality disorder in which he had proclaimed himself to be the expert.”

The applicant then went on to say that none of the tests could lead to a finding of the narcissist characteristics mentioned by expert J.R. and that, in any case, narcissism was not part of the valid method of diagnosis. He then stated:

“The opinions of both the psychiatrist and psychologist indicate the sad truth that in their professional weakness, both experts resorted to methods that did not form part of their professional practice. The psychiatrist used psychological methods which he absolutely did not understand and applied them only mechanically; the psychologist applied outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts and thereby failed to obtain any useful results, therefore he resorted to the field of medicine ...”

The applicant concluded by saying that the proposed new expert opinions would have proven that his client could not have committed the crimes with which he had been charged.

The court rejected the applicant’s proposal to appoint new experts and concluded the evidence-taking procedure.

On 16 March 2004 the applicant’s client, I.P., was convicted of three counts of murder and sentenced to thirty years’ imprisonment. On 22 June 2004 the applicant lodged an appeal with the Ljubljana Higher Court. He supplemented it with further written submissions and on 16 December 2004 attended a session and a hearing before the court. The applicant argued, inter alia, that the date of the murder could not have been 15 August 2002 as established by expert, J.B. (see paragraph 6 above), which meant that his client could have not committed it; that the public prosecutor had not submitted the results of the lie-detector test which would have allegedly exculpated his client and the court had refused to obtain them from the Croatian authorities; and that his client had not been psychologically capable of committing the alleged crime. In his written and oral submissions before the Ljubljana Higher Court, the applicant strongly criticised the work of the experts, public prosecutor and the court and used a number of expressions which the Higher Court found amounted to contempt of court (see paragraph 19 below).

On 19 March 2004 the Ljubljana District Court issued a decision, fining the applicant 150,000 Slovenian tolars (SIT – approximately 625 euros (EUR)) for contempt of court for his statements given at the hearing of 12 March 2004 regarding the expert witnesses, namely for making the following remarks, the translation of which has not been disputed by the parties: “senseless talking” (neosmišljeno nakladanje), “mental constructs” (umotvori), “professional weakness” (strokovna šibkost) of the experts and saying that “the psychiatrist used psychological methods which he absolutely did not understand” (psihiater si je pomagal s psihološkimi metodami, ki jih absolutno ne razume) and that “the psychologist [applied] outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts” (psiholog z zastarelimi psihološkimi metodami iz kamene psihološke dobe ter neznanstvenim psihodinamskim konceptom) (see paragraphs 7 to 9 above). The court took the view that the applicant had expressed insulting value judgments with regard to the expert witnesses’ professional qualifications. Moreover, it considered that the professional competence of certified experts approved by the Ministry of Justice was not open to doubt. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements and the fact that he was a lawyer with many years’ experience of representation in court proceedings.

The applicant appealed on 8 July 2004. He argued that he had not intended to insult anyone, and had only wanted to draw attention to the unacceptable way by which the opinions that could result in a potential thirty-year prison sentence had been prepared. He maintained that the impugned allegations were substantiated by the criticism expressed in the appeal. He pointed out that he did not have the required knowledge to substantiate the criticism but had been warned about the serious errors committed by the two experts by those from the “psychiatric and psychological profession”. According to the applicant, the courts had to reflect on their practice of punishing lawyers, which was used by some judges to “cover up” their own unprofessional and incompetent work. He alleged that the punishment of defence counsels often had a chilling effect and thereby interfered with freedom of expression.

On 3 February 2005 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded, finding that his remarks “constituted insulting value judgments which were damaging to the honour and reputation of both experts, since they expressed contempt and disrespect for the human dignity of other people and were as such unworthy of the profession practised by a lawyer”. The court considered that it was obliged to protect its authority and the personal dignity of other participants in the criminal proceedings and pointed out that the applicant could have expressed his criticism in a number of legally acceptable ways. It also held that punishing a defence counsel did not constitute a serious interference with the constitutional right of freedom of expression, nor did it limit the constitutional right of defence. The court concluded that the lower court’s decision was correct and did not restrict the rights of the defence “as alleged by the appellant who obviously, lacking any self-criticism, still maintains that the allegations laid against the experts were justified”.

On 31 March 2005 the applicant lodged a constitutional appeal, in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on the case of Nikula v. Finland (no. 31611/96, ECHR 2002-II), he argued that the critical comments had been directed solely at the unprofessional and inadequate work of the experts and had not insulted the court in any way. His criticism of the two experts “was fully justified and based on scientific fact”. Furthermore, alternative less severe measures were available, such as a private prosecution for slander.

On 15 May 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The most relevant parts of its decision are as follows (as translated in the English version provided on the Constitutional Court’s website):

“9. ... Certainly it has to be taken into account that the freedom of expression of a lawyer in his capacity as defence counsel in criminal proceedings serves the purpose of the defendant’s right to a defence ... The circumstance that a defence counsel in judicial proceedings exercises his right to freedom of expression because and only because he represents a client is of primary importance for the review of the admissibility of the interference with the right of a defence counsel determined in the first paragraph of Article 39 of the Constitution [freedom of expression], but this cannot entail that because of this circumstance the Constitutional Court would not review whether the courts’ decisions on punishing the defence counsel violated his right to freedom of expression.

In accordance with the first paragraph of Article 39 of the Constitution, freedom of ... expression [is] guaranteed. The ECHR protects the freedom of expression in the first paragraph of Article 10...

The duty of the courts in general and the court deciding on the merits of the case is to direct proceedings in such a manner so as to ensure the proper conduct of the parties and above all the fairness of the trial – rather than to examine in a subsequent trial the appropriateness of the party’s statements in the courtroom However, this does not entail that the defence counsel’s freedom of expression in criminal proceedings should be unlimited. Due to the fact that a defence counsel takes part in judicial proceedings and that his right to freedom of expression is intended for the protection of the rights of others, it is limited to a greater extent than the right to freedom of expression of any other individual in a public space may be limited. A defence counsel is namely limited by the fact that he participates in proceedings that are [formalised] and as such conducted in a rational manner, as well as by his professional ethics. A defence counsel may express strong and sharp criticism, however his argumentation in protecting the interests of his clients must remain within the range of reasonable argumentation, and there is no room for insults charged with emotion. It is understandable that in cases of defending a defendant charged with a grave criminal offence for which a severe penalty is prescribed, the tolerance threshold which may be allowed by the courts may be higher than in other cases, however, the defence counsel may not cross the outer boundaries of this tolerance. If he does cross them, it is proper that the court protects other values, i.e. confidence in the judiciary and the good reputation and authority of the judiciary, which ensures that the public respects the courts and has confidence that the courts are able to perform the role they have in a state governed by the rule of law. Protecting the authority of the judiciary includes the notion that the courts are the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence regarding a criminal charge, whereby it is important that the public at large have respect for and confidence in the courts’ capacity to fulfil that function. The above-mentioned is a constitutionally admissible reason to limit the defence counsel’s right to freedom of expression. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that the institution of a punishment for insulting submissions is not the primary way to ensure the good reputation and authority of the judiciary, it is, however, an additional (and subordinate) tool which ensures the protection of the good reputation of the courts in situations in which confidence in the work of the judiciary is undermined by degrading criticism and [generalised], and from the viewpoint of the protection of rights in an individual case, unnecessary attacks on the work of the courts.

The complainant used the expressions mentioned in the first paragraph of the reasoning of this decision while defending a defendant who was charged with murder, for which the prescribed sentence is thirty years of imprisonment. The expressions entailed criticism of the expert witnesses who provided expert opinions in the criminal proceedings as permanently sworn-in experts. On the basis of [section] 248 of the Criminal Procedure Act, expert witnesses are engaged when the determination or assessment of a material fact call for the findings and opinion of a specialist possessing the necessary expertise for the task. The Constitutional Court in Decision No. U-I-132/95, dated 8 January 1998 (Official Gazette RS, No. 11/98 and OdlUS VII,1), [emphasised] that expert testimony is not only evidence, that is, a source for learning of relevant facts, but that an expert witness is an assistant to the court in exercising its function. The requirement that expert witnesses must be impartial follows from this, as otherwise parties to criminal proceedings would not be in an equal position. In view of the position that expert witnesses have as assistants to the courts in exercising their function, their authority must be protected in the same manner as the authority of the judiciary. This is a constitutionally admissible aim for which it was admissible to limit the complainant’s right to freedom of expression. Therefore, the Constitutional Court cannot accept the complainant’s view that a situation in which he directs insulting expressions towards the court is different than a situation in which such expressions are directed towards expert witness.

The courts’ assessment that the complainant expressed contemptuous criticism towards the expert witnesses is supported by reasons and is not unsound. The complainant did not merely express sharp criticism of the expert opinions, but his insulting remarks entailed personal disparagement of the expert witnesses as experts. The expressed contemptuous criticism is beyond the reasonable argumentation by which the defence counsel could justify his motion that new expert witnesses be called. Therefore, it cannot be accepted that such criticism could be justified for the purpose of exercising the defendant’s right to a defence as determined in Article 29 of the Constitution. Contemptuous criticism of an expert witness as a person who has been called to provide an expert opinion could even threaten a fair trial in criminal proceedings. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that it is of exceptional importance that parties to proceedings [realise] that insulting sharp speech before the court does not prove that the defence counsel has provided quality representation. The quality defence provided by a defence counsel can also not be based on expressing contemptuous criticism which shows contempt for expert witnesses, instead, the defence must be directed towards a criticism of their opinions provided in the individual proceedings, and supported by arguments and reason. Therefore, it cannot be expected from the courts that they should, within the boundaries of tolerance, also allow insults for which the courts reasonably assessed that they showed contempt for the expert witnesses in their capacity as expert assistants to the court. Therefore, the interference with the complainant’s right to freedom of expression which the court made by punishing the defence counsel for the expressed insults with a fine, is not disproportional.

...The Constitutional Court did not have to address the question whether by using the above-mentioned expressions the complainant had fulfilled all the statutorily determined elements of the criminal offence determined in Article 169 of the Penal Code, as this was not the subject of the challenged judicial decisions. ... In Decision No. 145/03, the Constitutional Court already [emphasised] that the possibility of independent criminal protection is not an appropriate substitute and cannot serve the purpose for which the legislature enacted the possibility that insulting submissions be punished. The Constitutional Court reiterates that the protection which the legislature defined in the first paragraph of [section] 78 of the Criminal Procedure Act is not intended to protect individual expert witnesses but to protect the good reputation and authority of the judiciary as a whole. The reasons why also the good reputation and authority of expert witnesses as impartial assistants to courts is a part of the protected value has been outlined in paragraph 13 of the reasoning of this decision.

...Therefore, the constitutional complaint is not substantiated and the Constitutional Court had to dismiss it.”

The Constitutional Court reached the above decision by six votes to one. Judge J.Z. wrote a separate concurring opinion. Judge C.R., who voted against, wrote an extensive dissenting opinion. He argued that the applicant’s conduct had been judged too harshly by the majority, who had not approached the case correctly. In particular, the Constitutional Court had supported the finding of no violation by the fact that the impugned statements had been given during court proceedings, although ‒ in his view ‒ this should have weighed in favour of the applicant. Furthermore, proper attention had not been given in the reasoning to the nature of the proceedings, which had been criminal not civil, the target, which had been the experts and not the court, and the seriousness of the criminal offence the client had been risking – an offence carrying a potential thirty-year prison sentence. In this connection, the dissenting judge argued that the Constitutional Court should have taken account of the principles arising in Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-XIII), especially those relating to the role of defence lawyers in criminal trials. He pointed out that a public prosecutor could not be fined for contempt of court and that less invasive measures were available to the court which were applicable to both defence lawyers and public prosecutors. In his opinion, such measures might constitute interruption of the speech in question, a formal warning, and the informing of the appropriate professional association or body. Lastly, he pointed to the danger that the decision in the present case might have a discouraging effect on other defence lawyers, particularly given that the penalising of expressions such as “professional weakness” had been considered justified by the Constitutional Court.

According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, the applicant paid the first fine (see paragraph 12 above) on 1 April 2005.

On 3 February 2005 the Ljubljana Higher Court issued a decision fining the applicant SIT 400,000 (approximately EUR 1,670) for contempt of court for his statements in the appeal proceedings regarding the expert witnesses, the State Prosecutor and the first-instance court (see paragraph 11 above). The court found that the following remarks of the applicant, the translation of which has not been disputed by the parties, amounted to contempt of court (taken from the decision):

“As regards the State Prosecutor:

‘... it can be concluded that someone – a person who was aware of the exculpatory nature of this documentation for the defendant – hid this documentation ...’

‘... it is permissible for a prosecutor to hide crucial evidence which could release the defendant from his liability ...

As regards the expert psychologist ... [J.R.] ... :

‘... he had intentionally overlooked any information pointing to another possibility...’

‘... on the other hand, I, as a layman, consider this to be a reflection of possible narcissism on the part of the expert himself ...’

As regards the forensic expert psychiatrist ... [V.R] ... :

‘... from the perspective of forensic ethics, by which the forensic expert is bound, such a way of working represents an intentional violation of those ethics, giving statements without any scientifically based value ...’

‘... could be seen from the qualified (ab)use ((zlo)rabe) of the experiments, which the expert ...’

‘... as he cannot have the slightest idea (ne more imeti najmanjšega pojma) as to how far normality extends and when pathology starts ...’

‘... commenting on or describing handwriting analysis amounts to quackery (je na nivoju šarlatanstva) ...’

‘... the psychiatrist either does not know all this or he is narcissistically ignoring it ...’

‘... in this case we can talk of a typical abuse of a test, most likely a pirate version. In view of the fact that this abuse of the test took place in proceedings before a court – a judicial institution – this is almost grotesque ...’

‘... the conclusion is almost dilettantish ...’

‘... The expert did not show the slightest scientific doubt (niti trohe prisotnosti znanstvenega dvoma), but instead focused all his energy on defending his own infallibility, which is extremely inappropriate for any expert, and for one who is “accepting” the expert skills (“sprejemnika”izvedenske veščine) it is dangerous ...’

As regards the forensic expert ... [J.B.], the head of the forensic medicine institute:

‘... and when such negligence (malomarnost) by experts in preparing their opinions, resulting in a [thirty]-year prison sentence, justifiably upsets me ...’

‘... that the negligence (šlamparija) of this expert is immense ...’

As regards the court:

‘... the judicial farce referred to is of course not over ...’”

Of the above, the second of the statements referring to the public prosecutor and the statements referring to expert J.B. were expressed orally at the Ljubljana Higher Court’s session; the remainder were given in writing.

In providing its reasoning for the decision, the Ljubljana Higher Court found that the applicant had expressed insulting value judgments which had shown contempt for the participants in the proceedings and the court and had had nothing to do with freedom of expression. The court also noted that the applicant had previously been offensive within the same set of proceedings and that therefore, even from a subjective perspective, the offensive statements had to have been made intentionally. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements, the fact that he was a lawyer with many years’ experience of representation in court proceedings and the fact that he had previously made similar offensive statements during the first-instance proceedings. Lastly, the court decided to inform the Bar Association of the outcome of the proceedings.

The applicant appealed against this decision on 17 March 2005. He argued that his statements had not been offensive, given their context. As regards the criticism expressed against the public prosecutor and the court, he referred to the arguments of the defence concerning the undisclosed results of the lie-detector test. Among other things, he stated that “such a way of evidence taking [was] mystic and [had] no connection with the modern trial”. As regards expert J.R., the applicant stated that he had “directed all his intellectual abilities at defending his unprofessional opinion”. The applicant further referred to the objections made by the defence, which had allegedly been ignored by J.R., and stated that he, “as a layman, [could not] consider such conduct to be anything else than a reflection of possible narcissism on the part of the expert himself”. Regarding the criticism of expert V.R., the applicant referred to the examination of this expert during the trial, to the statements he had given and which, in the applicant’s view, showed that V.R. had been using methods which had not been within his competence, and had claimed to have been using a particular test “without ever seeing the original ... in his life”. The applicant also argued that V.R. had not shown “the slightest scientific doubt but had focused all his energy on defending his own infallibility”. As to expert J.B., the applicant stressed that his comments had related to J.B.’s assessment of the time of death – the air temperature at the time of the victims’ death had been an important, but disregarded, factor. In the applicant’s opinion, the assessment of the time of death had been done carelessly by J.B., who had kept changing his mind on the issue. The applicant pointed out that the time of death had been a crucial element in the trial and could have led to an acquittal if assessed properly. He concluded that “such expert opinions [were] a catastrophe for the Slovenian judiciary and very dangerous for its citizens”.

On 19 January 2006 the Supreme Court ‒ sitting as a panel of five judges, one of whom was B.Z. ‒ dismissed the applicant’s appeal. The Supreme Court noted that the courts were under obligation to protect their authority and the dignity of the participants in the proceedings. While section 78 of the Criminal Procedure Act provided for disciplinary sanctions, it could not be interpreted as allowing sanctioning of every inappropriate expression. Instead, the courts were called to take into account all the circumstances and decide whether, on balance, the insult had been such as to require a disciplinary sanction. The Supreme Court stressed that the courts had to show particular restraint and caution in deciding on a disciplinary sanction against a defence counsel, because in such cases not only was his or her right to freedom of expression at stake but also his or her role in defending the accused person in criminal proceedings. It noted that a defence counsel might, therefore, be critical of the State prosecutor and other participants in the proceedings, including the court, but even this rule did not apply in absolute terms. If a defence counsel conducted his defence in criminal proceedings by insulting or humiliating other participants, by accusing them of personal dishonesty or bias or of lacking the essential professional capacities, personal qualities or similar, or if he or she was also insulting to the court, his or her conduct was deemed unacceptable and therefore had to be subject to a sanction by a fine pursuant to section 78 of the Criminal Procedure Act. The Supreme Court concurred with the Higher Court that the case at hand involved insulting value judgments and expressions of contempt and disrespect for other participants in the proceedings and the court. The Supreme Court referred to the applicant’s statements and examined their semantic meanings and upheld the view that he “had expressed contempt for the court experts, not only regarding their professional abilities but also by attributing to them negative personal characteristics, thereby expressing insulting value judgments”. The Supreme Court also pointed out that the applicant had had the right to challenge the correctness of the court’s procedural decisions, but should have done so in a legally acceptable manner. The Supreme Court also found that the Higher Court had provided reasonable grounds for the amount of the fine imposed.

On 16 March 2006 the applicant lodged a constitutional appeal in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that his criticism had been essentially directed against the experts and the public prosecutor and not against the court. Although the participants in question might have preferred not to hear his opinion, he had had to express it for the benefit of the defendant. In the applicant’s view, the court had to take into account the importance of freedom of expression in the process of a criminal trial, which was one of the most important mechanisms of State repression. He also argued that he had expressed acceptable criticism which, though presented in a slightly illustrative manner, had not been insulting to the experts but instead had challenged the credibility of their opinions. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on Nikula (cited above), he argued that the critical comments had been directed solely at the unprofessional and inappropriate work of the experts and had not insulted the court in any way.

On 31 March 2008, at an administrative session, the Constitutional Court decided that Judge J.Z. (who was not present) would not sit it the cases concerning the Supreme Court’s decisions in which he had taken part, or those in which his wife, Judge B.Z., had taken part.

On 2 April 2008 an order was issued by the secretary general of the Constitutional Court for Judge J.Z.’s removal from the “consideration and decision-making” in the applicant’s case.

On 3 December 2008 a panel of three judges of the Constitutional Court issued a decision refusing to accept the applicant’s constitutional complaint for consideration on the merits as, in its view, it did not meet the criteria set out in paragraph 2 of section 55b of the Constitutional Court Act. Two judges, Judge E.P. and Judge J.P., voted in favour of the dismissal while Judge C.R. voted against it. It was also noted that as the panel had not been unanimous, the decision had been submitted to the remaining Constitutional Court judges pursuant to section 55c of the Constitutional Court Act. However, as the three votes in favour of examination had nevertheless not been obtained, the constitutional complaint was rejected.

On 5 December 2016 the Constitutional Court sent to the applicant a corrigendum of its decision of 3 December 2008, noting that Judge J.Z. had not been submitted a decision as he had withdrawn from the case. The explanation to the corrigendum noted that after being requested by the State Attorney to send information for the purposes of the proceedings before this Court, the Constitutional Court upon looking into the file had discovered a clerical error, namely the omission to indicate in the decision sent to the applicant that Judge J.Z. had not taken part in the proceedings in question.

According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, there was no record of the applicant having paid the second fine of SIT 400,000 (equal to approximately EUR 1,670 – see paragraph 19 above).


Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1985 and lives in the Tula Region.

In the late evening of 28 October 2005 the applicant paid a visit to his friend Ch. who worked as a guard at a parking lot. On 29 October 2005 at 3 a.m. Ch., while making a round of the parking lot, discovered N. who was severely beaten up and was lying on the ground. Ch. called the police and the ambulance. The ambulance doctor K., when arrived, pronounced N. dead.

On 2 November 2005 the prosecutor’s office opened an investigation into N.’s death. On several occasions it was suspended due to the investigator’s failure to identify the perpetrator. Both the applicant and Ch. were questioned as witnesses.

On 29 June 2006 the investigator questioned Kuv. who submitted that in December 2005 Ch. had told him about the events of 28-29 October 2006 implicating the applicant in N.’s death. According to Kuv., the applicant’s family had put pressure on him in order to make him recant. He was then granted anonymity and referred to in the case-files materials as S.N.

On 25 July 2006 the prosecutor questioned Ch. granting him anonymity. According to Ch., on 29 October 2005 N. showed up at the guard’s shack. He wanted to take a shortcut through the parking lot. Ch. refused to open the gate. The applicant swore at N. saying that he would show N. the way out and would beat him up. The applicant left together with N. Then he returned and told Ch. that he had beaten N. on the stairs and that N. had fallen down. According to the applicant, he had overdone with the beatings. Ch. went to look at N. who was still alive. It took Ch. some time to call the ambulance. The applicant asked him to keep the incident secret.

On the same day the applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation. On an unspecified date he was charged with murder

On 31 August 2006 the Proletarskiy District Court of Tula opened the trial. The applicant pleaded not guilty. The trial judge questioned the applicant’s mother S. who submitted that Ch. had told her that policemen had threatened him to make him testify against the applicant. Ch.’s anonymity was lifted and he also testified in court. He confirmed that he had falsely accused the applicant due to the pressure put on him by policemen.

On 11 September 2006 the prosecutor asked the court to question S.N. in the conditions excluding visual observation of the witness to the parties to the proceedings. He further explained that the decision to grant anonymity to the said witness had been taken in the course of the preliminary investigation of the case in order to ensure his safety and security of person. The trial judge left the courtroom and questioned S.N. in the presence of the trial secretary in a separate room. S.N. reiterated his earlier statement made to the police which was similar with Ch.’s testimony. Then the judge and the secretary returned to the courtroom where the judge read out S.N.’s testimony. The prosecutor, the applicant and his lawyer were allowed to put questions to the witness through the trial secretary. In response to the questions put by the applicant’s lawyer, S.N. explained he had fear of the applicant’s relatives who put pressure on him.

On 29 September 2006 the court heard I., a friend of the applicant and Ch. She submitted that she had been in the guard’s shack with Ch. on 28 October 2005. When N. had showed up, the applicant had not been there yet.

The trial judge also heard, upon the applicant’s request, L. and Naz., the applicant’s relatives, and D., Ch.’s mother, who claimed that Ch. had told them about the police putting pressure on him.

The other witnesses who testified during the trial were (1) R., Sv. and Z., who had seen N. on 28 October 2005 and confirmed that he had been in an inebriated state on that day, (2) K., the ambulance doctor who had pronounced N. dead and (3) police officer Yu., who had questioned Ch. in the course of investigation. The court also reviewed the crime scene investigation report and the forensic medical report which indicated that N.’s death resulted from a cranio-cerebral injury.

On 31 January 2007 the District Court found the applicant guilty of manslaughter and sentenced him to six years’ imprisonment. The court based its findings on Ch.’s testimony given by him as an anonymous witness in the course of the investigation. As regards Ch.’s testimony during the trial, the court considered it unreliable, in view of Ch.’s friendship with the applicant. The court took also into account the fact that the inquiry conducted by the prosecutor’s office in this connection found no case to answer against the policemen who had allegedly put pressure on Ch. It further relied on N.S.’s testimony. The court did not consider D., I., L., Naz. and S. as credible witnesses due to them being the applicant’s relatives or friends.

On 30 May 2007 the Tula Regional Court upheld the applicant’s conviction on appeal.