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Dolores Utrilla
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18th January 2022
Human Rights Justice & Litigation

ECtHR clarifies safeguards applicable to criminal convictions based on written statements of absent witnesses

The European Court of Human Rights (ECtHR) has given its judgment in Faysal Pamuk v Turkey (application no. 430/13), ruling that the way in which evidence of absent witnesses was used at a terrorism trial in Turkey was in breach of the European Convention on Human Rights (ECHR), namely of the right to a fair trial and the right to obtain attendance and examination of witnesses (Articles 6(1) and 6(3)(d) ECHR).

The case concerned the trial on terrorism-related charges of Mr Pamuk’s, a Turkish national, for his alleged involvement in activities aimed at bringing about the secession of part of the national territory, for which he was sentenced to life imprisonment in 2011. The complaint before the ECtHR concerned in particular the use of evidence that had been given in other jurisdictions in the absence of Mr Pamuk or his counsel. At trial, Mr Pamuk’s had asked to have examined those who had stated that he had taken part in the armed activities and for an in-person confrontation with them. The confrontation did not take place. The court sent letters of request to other jurisdictions to ascertain the witnesses’ whereabouts along with other steps, failing to secure the witnesses’ attendance. One witness was examined in another city without Mr Pamuk or his representatives present.

In its Chamber judgment on the case, the ECtHR concluded that letters of request and examining witnesses in other jurisdictions could not be considered an adequate method of ensuring a fair trial in the circumstances of the case at hand. The Strasbourg-based court noted that accepting such practice (i) would allow domestic courts to simply refrain from examining whether there were good reasons for the non-attendance of witnesses at trial, (ii) would place a disproportionate burden on the accused and/or their representatives (because they would have to travel to different places with a view to attending the hearings where witnesses would be giving evidence in order to benefit from the right to examine them), and (iii) was capable of jeopardising the principle of immediacy, as the trial court would not have the possibility to directly observe the demeanour and credibility of particular witnesses. Moreover, the ECtHR noted that the relevant domestic law appeared to exclude a detainee’s attendance at a hearing outside of the jurisdiction in which he or she was detained.

The ECtHR therefore concluded that the absence of the witnesses from the trial, the lack of a confrontation between them and the applicant, and the use by the court of their evidence as the cornerstone of his conviction and life sentence without the necessary procedural safeguards, had substantially hindered the defence in testing the reliability of their evidence and had, in the circumstances of the case at hand, tainted the overall fairness of the proceedings.

The judgment is available here.

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