Using the testimony of a witness that can’t be cross-examine infringe the fairness of the trial

In its judgment of 7 January 2013, which is not final, in the case of Prăjină v. Romania, the European Court of Human Rights held that there had been a violation of Article 6 (Right to a fair trial) of the Convention.

The case concerned the complaint of a Romanian citizen regarding the violation of his right to a fair trial, in that he did not have the time and facilities necessary to prepare his defense and that his conviction was based solely on the statement of a witness made during the preliminary investigation, witness who never appeared to testify before a court in the presence of the applicant, in a contradictory manner.

The facts

Laurenţiu Prăjină was committed for trail on charge of hitting or injury causing death. During the hearing of the witness ME by the prosecutor, without the presence of neither the applicant nor his lawyer, ME said that there have been ancient misunderstandings between the applicant and the victim. These circumstances couldn’t be confirmed by the rest of the witnesses heard. Although summoned by the court several times, the witness ME failed to appear for the hearing before the court. Therefore, the court found impossible to take ME’s statement and decided to use the testimony made during the preliminary investigation. The applicant was sentenced to five years of imprisonment, his guilt being established based on the ME’s statement and the victim’s autopsy report. Against this judgment the applicant lodged an appeal, but without success.


The law

Citing Article 6 §§ 1 and 3 lit. b) – d) of the Convention, the applicant complained that his trial had been unfair in that he had been unable to cross-examine the witness whose statement has served as the main basis for his conviction. He further complained that he did not have the time and facilities necessary to prepare his defense.


Court’s decision

The Court considered that a conviction based on a solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6. The impossibility to cross-examine an absent witness may, in certain circumstances, be a justification for admitting the testimony made during the criminal proceedings as evidence in the trial. The procedure, taken as a whole, may be considered fair as far as the applicant has adequate and proper opportunities in order to counterbalance the difficulties encountered.

Thus, the admission of testimony as evidence must be counterbalanced by other solid and sufficiently procedural safeguards to ensure fairness of the trial.

Given that the witness statement on ancient misunderstandings between the applicant and the victim could not be confirmed by the rest of the witnesses heard, and the autopsy report does not explain how the victim’s death occurred, the Court observed that the domestic courts convicted the applicant solely on the statement made by ME before the prosecutor. Despite the applicant’s objections, he was convicted without having the court answered his arguments and without corroborating ME’s testimony with another witness statement which infirmed the applicant’s violent behavior.

In the absence of other evidences susceptible to be corroborated with the testimony of the witness ME made in the criminal proceedings, the national courts did not appreciate fairly the reliability of that evidence. The Court considered that the applicant’s defense rights were restricted to an extent that is incompatible with the guarantees provided by Article 6. Accordingly, the Court held that there has been a violation of those provisions.