CEDH · CASELAW;CLIN;ENG — 17 novembre 2005

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Germany (dec.) - 73047/01 Decision 17.11.2005 [Section III] Article 6 Criminal proceedings Article 6-3-d Examination of witnesses Conviction based in part on hearsay evidence and in part on other items of evidence: inadmissible   A court of appeal convicted the applicant of having aided and abetted an attack on air traffic, the taking of hostages, extortionate kidnapping and attempted murder on two counts in connection with the Landshut hijacking in 1977. She was sentenced to five years’ imprisonment. Having heard various witnesses, the court based its findings as to the applicant’s participation in the offences essentially on the evidence given by Said   S., at the time serving a prison sentence in Lebanon. The Lebanese authorities had refused to transfer him to Germany for the purposes of the proceedings. The court of appeal therefore relied on the depositions of witnesses W. and S., officers of the Federal Office of Criminal Investigations who had been present with an interpreter when Said   S. had been questioned by the Lebanese police in the course of German preliminary investigations against himself and the applicant’s husband. The court of appeal also relied on statements of anonymous informers, as reported by witnesses   G. and   P., high-ranking officials of the German Intelligence Service and the Federal Office for Criminal Investigations respectively, as well as on various other items of evidence. The Federal Court of Justice dismissed the applicant’s appeal on points of law, noting that the statements obtained from Said   S. with regard to the applicant’s participation in the hijacking and related crimes had been confirmed by numerous other items of evidence. The court of appeal had correctly taken a cautious approach in assessing the evidence emanating from anonymous informers and had merely considered it as corroborating the statements of witness Said   S. and other items of evidence. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint, noting that the trial court’s assessment and evaluation of evidence had not been confined to the depositions of police officers W. and S. concerning the highly incriminating statements made by the accomplice Said S. and to information obtained from police and intelligence service informers operating abroad, as presented by the witnesses P. and G. The testimony of witness B. had also constituted important circumstantial evidence. Before the European Court the applicant complained that the criminal proceedings against her had been unfair because of the way in which evidence had been taken and assessed. Her conviction had been based essentially on hearsay evidence. The defence had not been able to question the key witnesses for the prosecution and to call witnesses for her defence. The European Court noted that the German courts had used the means at their disposal under domestic law to secure the presence of the witness concerned and could not be accused of a lack of diligence engaging Convention responsibility. It would clearly have been preferable for Said   S. to have been heard in person, but his unavailability could not as such block the prosecution. The domestic courts had been aware that they merely disposed of hearsay evidence of Said   S.’s questioning as an accused, as reported by the officers of the Federal Office of Criminal Investigations, W. and S. The courts had assessed Said   S.’s statements cautiously, taking thoroughly into consideration the circumstances of his questioning. With respect to his hearing under letters rogatory, the courts, having regard to the restrictions on the rights of the defence, had decided not to consider these statements as evidence which could stand on its own. Consequently, the courts had treated the evidence in question with the extreme care required. While the courts had based the applicant’s conviction to an appreciable extent on Said   S.’s statements when questioned as an accused, these had by far not been the only evidence relied on. The courts had had regard to several further items of evidence and also had considered Said   S.’s statements to be corroborated by evidence obtained from several anonymous informers, who had identified the applicant as the person who had transported the weapons for the Landshut hijacking. The domestic courts had tried on several occasions to obtain disclosure of the identity of these informers. This had been refused by the competent German authorities on the ground that it was still necessary to protect the informers, who were operating outside Germany. The applicant had been charged with having aided and abetted very serious offences, which had been committed by two terrorist organisations operating together. Moreover, the applicant had kept in contact with her husband, who was still considered capable of organising acts of revenge. Given that the informers in question, who were not police officers, remained abroad, where German authorities could protect them only to a very limited extent, the domestic authorities had adduced relevant and sufficient reasons to keep secret the witnesses’ identities. The defence had been offered the opportunity to question witnesses   G. and P. in court. Due to the non-disclosure of the informers’ identities the defence had lacked information permitting it to test their reliability or cast doubts on their credibility. Furthermore, the Court of Appeal itself had been precluded from forming their own impression on the informers’ reliability. However, given that the evidence obtained from anonymous informers had not been decisive for the applicant’s conviction and had been corroborated by the various other items of evidence (other than Said   S.’s statements), the rights of the defence had been sufficiently respected. Having regard to the proceedings as a whole, and considering the alleged shortcomings together, the Court noted the accumulation of hearsay evidence. Various witnesses had introduced into the main hearing statements of witnesses whom the applicant, for different reasons, had had no opportunity to examine or have examined. However, the domestic courts had made considerable efforts to obtain oral testimony notably from Said   S. and had assessed his depositions, as well as those obtained from the anonymous informers and B., very carefully. Given that the applicant’s conviction had also been based on several further items of evidence, the rights of the defence had not been restricted to an extent incompatible with the guarantees of Article   6 §§   1 and 3(d). Manifestly ill‑founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes