Presenting evidence and witnesses (Article 6, paragraph 3(d) of the ECHR)

Article 6, paragraph 3(d) of the ECHR contains, in principle, two rights: the right of the accused to examine prosecution witnesses and the right for the attendance and the hearing of defence witnesses to be granted under the conditions applicable to the prosecution witnesses. These two rights are independent of each other. Article 6, paragraph 3(d) of the ECHR; however, does not contain the right to present other evidence, for instance, to present evidence by way of “reconstructing an event”. The lawfulness of rejecting or refusing certain evidence can only be discussed within the scope of Article 6, paragraph 1 of the ECHR.¹⁴²⁷

In principle, the task of the ordinary courts is to assess the available evidentiary material and the relevance of the evidence which the accused has requested to be presented.¹⁴²⁸ Therefore, pursuant to Article 6, paragraph 3(d) of the ECHR, it is up to the domestic courts to assess whether it is necessary to hear certain witnesses or to present expert analysis; the BiH Constitutional Court, the Human Rights Chamber for BiH or the Human Rights Commission within the BiH Constitutional Court are tasked only with establishing whether the proceedings as a whole, including the evidentiary proceedings, have been fair and just.¹⁴²⁹ Within the scope of the principle of “equality of arms” the defence has the right to summon witnesses and to cross-examine them; it is important as a rule that the defence has the right to attend the hearing of witnesses in the proceedings conducted against the accused.¹⁴³⁰ Nevertheless, the court is not obliged to summon and hear all witnesses who have been proposed, and there is no obligation for all the witnesses to be cross-examined. There is an exception concerning the so-called protected witnesses.¹⁴³¹ Also, it is lawful and allowed for the minutes of the statements of witnesses, who cannot be heard in persona before the court for objective reasons, to be read at the main hearing provided that the defence may, thereafter, give its opinion in relation to the statements.¹⁴³² However, in such case a judgment cannot be exclusively based on such statements.¹⁴³³

As the very wording of Article 6, paragraph 3(d) of the ECHR “under the conditions applicable to the prosecution witness” requires, it is crucial for the prosecution and defence to comply with the principle of “equality of arms”.¹⁴³⁴ An apparent imbalance between the number of witnesses for the prosecution and for the defence may violate the right to a fair proceeding, as may the refusal of the court to hear certain witnesses if it is expected that hearing such witnesses can generate relevant statements in favour of the accused.¹⁴³⁵ The accused must, however, provide reasons and convince the court that such witnesses may offer particularly important statements in favour of the defence.¹⁴³⁶ If the court rejected or refused to hear a certain witness, although the accused had requested for the witness to be heard, the court must provide the reasoning for such a decision.¹⁴³⁷ One cannot object if the court does not summon a certain witness whose name the defence had refused to disclose.¹⁴³⁸ Similarly, Article 6 of the ECHR would not be violated if the court, with the consent of the defence, read the minutes on the hearing of witnesses, as the defence waived the right to cross-examine witnesses.¹⁴³⁹ False statements of witnesses per se do not bring into question the fairness of the proceedings; however, should a competent authority influence a witness, which would result in giving a false statement, the fairness of the proceedings could be brought into question.¹⁴⁴⁰ Presenting evidence by way of reconstructing events, should the accused be forced to do so – whereby witnesses were being shown photos during the hearing which appeared to have shown the applicant reconstructing the crime – although the trial minutes did not mention that any such photos had been shown, might not be in compliance with the right to a fair trial.¹⁴⁴¹

Usability, relevance and authenticity of unlawfully obtained evidence shall be assessed on a case-by-case basis, which is the responsibility, first and foremost, of the ordinary courts. Use of unlawfully obtained evidence is not per se prohibited within the meaning of Article 6 of the ECHR. The purpose of the fairness of proceedings is of crucial importance, and it relates to whether the rights of the defence have been sufficiently protected throughout the entire proceedings, and whether sufficient counter-measures have been taken in order to redress any unlawfulness occurring during the proceedings. To this end, it is necessary to take into account the answers to questions regarding how the evidence has been obtained, what is the extent of the violations of the Convention, what is the effect of disputable evidence on the final outcome of the proceedings and whether a decision on guilt relies on other evidence as well. In certain cases, a piece of evidence obtained in a way contrary to the standards laid down in the Convention may be used if a conviction for a criminal act is based exclusively on it, if obtained in accordance with the standards of domestic positive legal norms and if constituting firm evidence. Evidence of entering a guilty plea must be interpreted on the basis of more severe criteria, particularly if it is found that it was obtained under duress. Finally, it is relevant whether the defence has had a chance to challenge the usability of certain evidence and whether the issue of relevance and authenticity of a certain piece of evidence has been discussed in the presence of the defence.¹⁴⁴²

Errors in relation to evidence at an earlier stage of the criminal proceedings can be corrected at a later stage of the criminal proceedings. Thus, the right to a fair trial shall not be violated if the court fails to inform the accused of the hearing of a protected witness at the stage of preparing the main hearing. However, the respective error must be corrected during the main hearing.¹⁴⁴³