Information Note on the Court’s case-law No. 162
April 2013
Erkapić v. Croatia - 51198/08
Judgment 25.4.2013 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Conviction based on key pre-trial witness statements retracted before trial court: violation

Facts – In the course of a police investigation into drug-trafficking three witnesses gave statements that they purchased heroin from the applicant. During the applicant’s trial all three retracted their statements claiming that they had been made under duress from the police. The applicant’s lawyer applied for an order excluding the statements from the case file as having been obtained unlawfully. However, the trial court dismissed that request and convicted the applicant on the basis of that evidence. He appealed without success.
Law – Article 6 § 1: The Court had previously held that unless there were important reasons to find otherwise the notion of a fair trial required that greater weight be attached to statements given in court than to records of a witnesses’ pre-trial questioning because the latter was primarily a process by which the prosecution gathered information in support of their case. In the applicant’s case, the three witnesses had given statements incriminating the applicant to the police which they had retracted at the trial on the grounds that that they had been pressured into making the accusations. Following their testimony at the trial, the applicant had sought to have their statements to the police excluded as having been unlawfully obtained. His request had, however, been dismissed without the trial court taking any action to examine the allegations of unlawfulness, thus denying the applicant an effective opportunity to challenge the authenticity of the evidence given by those witnesses to the police. It was undisputed that the three witnesses were heroin addicts at the time of the police questioning and that one of them also suffered from a personality disorder. The witnesses had further alleged that their lawyers, who had been imposed on them by the police, had not been present during the questioning and had only attended later to sign the pre-prepared statements. However, the trial court had confined itself to finding that the relevant records did not contain any indication of unlawfulness and had not sought to ascertain the manner and circumstances in which the impugned statements were obtained. There were thus serious doubts about the reliability and accuracy of those witness statements, which if not the sole were at least decisive evidence against the applicant, without which his conviction might not have been possible.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage.

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This summary by the Registry does not bind the Court.
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