European Court of Human Rights
22 April 1992

Facts

The applicant, Mr. Vidal, was prison warder. He was accused of aiding a prisoner, Mr. Bosch Hernandez, in attempted escape. The Court of First instance heard the testimony of Mr. Bosch Hernandez and other prison warders and acquitted Mr. Vidal. The Liège Court of Appeal found the applicant guilty sentencing him to three years imprisonment with suspended sentence. The Court of Cassation remitted the case to Brussels Court of Appeal which refused to hear any witnesses called by the defence and convicted the applicant to four years of imprisonment.

Complaint

Mr. Vidal claimed that by failing to call the four defence witnesses the Court of Appeal had deprived him of his only means of establishing his innocence.

Court’s ruling

The Court noted that Article 6(3)(d) does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as is indicated by the words "under the same conditions", is a full "equality of arms" in the matter.  However, the right to call and examine witnesses is only one aspect of the wider concept of “equality of arms”, therefore the Court had to examine whether the proceedings as a whole were fair.

In the particular case the Court noted that the applicant had originally been acquitted after several witnesses had been heard. No prosecution or defence witnesses were heard by the Brussels Court of Appeal. Taking into account that the appeal judgment was based only on the evidence already in the case file with no fresh evidence, the judgment did not contain reasons for rejection of the applicant’s request to call several defence witnesses. As a result the Court found that the rights of the defence were restricted to such an extent that Mr. Vidal did not have a fair trial.

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