Euroopa Inimõiguste Kohus
04.12.2008

Facts

The applicant, Mr. Trafimov, was tried for drug trafficking. He wanted a particular witness – Mr. S. – to be called to the court, but the court refused to do so. Instead a written statement of Mr.S. was read.

Complaint

Mr. Trafimov alleged that the domestic courts had made an incorrect assessment of the evidence and had failed to secure the attendance of Mr. S. in violation of his right to fair trial.

Court’s ruling

The Court pointed that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There might be exceptions to this rule, however it must always be ensured that the defendant is given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage. Therefore the state must actively try to secure a witness’ attendance in trial. Nevertheless, if there has been no negligence on the part of the authorities, the fact that it is impossible to secure a witness’ presence at the trial does not in itself make it necessary to stop the prosecution.  

The rights of the defence would be restricted to an extent that is incompatible with the requirements of Article 6 if the conviction were based solely, or to a decisive extent, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. The Court in the particular case found that pre-trial statement of Mr. S. played a decisive role in the Mr. Trafimov’s conviction, but the authorities did not give Mr. Trafimov an opportunity to confront Mr. S. at any stage of the proceedings. This failure was the result of manifest negligence of the authorities. Thus the Court ruled that the right to fair trial of Mr. Trafimov had been violated.