Το δικαίωμα του κατηγορουμένου να εξετάζει μάρτυρες κατηγορίας και υπεράσπισης κατά το άρθρο 6 παρ. 3 εδ. δ' της ΕΣΔΑ
Λέκκα, Ευαγγελία-Μαρία Β.
Ευρωπαϊκή Σύμβαση για την Προστασία των Ανθρωπίνων Δικαιωμάτων και των Θεμελιωδών Ελευθεριών (1950) Υπεράσπιση (Ποινική δικονομία) Μάρτυρες (Δίκαιο) Convention for the Protection of Human Rights and Fundamental Freedoms -- 1950 Defense (Criminal procedure) Witnesses (Greek law)
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
Article 6 paragraph 3 sub. d of the ECHR establishes two basic rights of the accused: a. His right to examine the witnesses against him, or to ask that they be examined. This right consists of two separate rights: the right to impugn their statements through declarations or remarks and the right to directly question the witnesses, and b. His right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.The aforementioned defense rights of the accused constitute aspects of the right to a fair trial. For this reason, the Court delivers a judgment on the applications filed before it, based on the combination of paragraphs 1 and 3 of article 6, in order to determine whether the procedure, on the whole, was fair in the sense of art. 6 para. 1 and 3 of the ECHR.In order to determine whether the accused person’s right to question witnesses against him has been breached, the ECHR has formed three criteria: To begin with, it examines if the public authorities acted duly, so as to ensure that the accused had a chance to examine the witness. Secondly, it examines whether, in spite of the fact that the witness did not appear in court, the accused was given an adequate and proper opportunity to impugn their statements through declarations or remarks at any stage of the procedure. If this first right of the defendant was not complied with, the statement given by the witness prior to the trial, without the defendant or his attorney being present, cannot be introduced to the trial as proof. If the right in question is satisfied, thenthe introduction of these statements to the trial and their usage as proof leading to the conviction of the defendant depend on the satisfaction of his second right. If the defendant was not given the opportunity to question the witnesses directly, the Court, adopting an overall approach of the trial, in a third stage, examines whether the conviction was based solely or to a significant degree on the witness’s statement, which was given prior to the trial. Only if the latter is true does the Court rule that there has been a breach of art. 6 para. 3 sub. d ECHR.The following can be concluded by the ECHR case-law regarding special categories of witnesses: As far as witnesses who exercise their right to refuse to make a deposition are concerned, the Court holds that the right in question is breached only when the defendant’s conviction has been based solely or to a significant degree, on the statement given by the witness (who during the trial refuses to testify) prior to the trial. The Court reaches the same conclusion concerning hearsay witnesses. With respect to co-defendants, the ECHR has ruled that their statement, although it does constitute admissible evidence, cannot be the only or significant evidence on which the sentence is based, unless the defendant’s right to examine them has been sufficiently counterbalanced. Last but not least, as far as anonymous witnesses are concerned, the Court demands that the reasons why it was deemed necessary that they retain their anonymity be explained, and that this measure be essential for the witness’s protection. This measure, which restricts the defendant’s rights, must be counterbalanced. Even then though, the Court explicitly states that the defendant’s conviction cannot be based solely or to a decisive extent on the anonymous statement.With reference to the defendant’s right to examine witnesses on his behalf, the ECHR holds that it is up to the national courts to decide whether the examination of a witness is opportune. The decision thatoverrules the defendant’s request because the witness will not help prove the defendant’s case or will not assist in establishing the truth, must be justified. Likewise, the defendant, when asking for a witness on his behalf to be examined, must, at the same time, show how the witness’s statement will contribute to the procedure and in what way it will help the Court in its search for the truth.