Last Updated on May 16, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Wanner v. Germany (dec.) – 26892/12
Decision 23.10.2018 [Section V]
Article 6
Article 6-2
Presumption of innocence
Conviction for false testimony on account of refusal of convicted offender to name his accomplices: inadmissible
Article 10
Article 10-1
Freedom of expression
Conviction for false testimony on account of refusal of convicted offender to name his accomplices:
inadmissible
Facts – The applicant was convicted of an assault committed with three unknown accomplices. After his conviction had become final, he was examined as a witness by the investigating judge in proceedings against his accomplices for the purpose of establishing their identity. He denied his participation in the offence, as he had done throughout the criminal proceedings against him, and stated that he could thus not say anything about those who had taken part in the assault. He was subsequently convicted of giving false testimony.
Law
Article 6 § 2: The applicant had claimed, firstly, that his truthful answers to the questions could potentially have led to his further criminal prosecution for offences of which he had not yet been convicted. Secondly, he had alleged that the authorities had indirectly intended to compel him to make a retroactive confession following the termination of the (initial) criminal proceedings against him, despite the fact that he had denied participating in the offence in question throughout those proceedings.
(i) Further criminal prosecution – The applicant had not been told that he had a right to remain silent. However, the facts of the case did not support his allegation that he had risked prosecution regarding further offences. Furthermore, his examination as a witness in the proceedings against his three unknown accomplices in the assault, for which he had already been convicted, had served the sole purpose of identifying those accomplices. There was no indication that the accomplices were members of a criminal gang and that they might have incriminated him with involvement in further offences. The domestic authorities had had no plausible reasons for suspecting his involvement in a (further) criminal offence or intention to bring criminal proceedings against him in respect of such an offence. The applicant had thus not been “substantially affected” by being compelled to fulfil his civic obligation as a witness and to testify truthfully. Consequently, he could not have been considered to have been “charged” with a criminal offence within the meaning of Article 6 § 1 in respect of potential further offences, when he had been examined as a witness by the investigating judge. Consequently the criminal limb of Article 6 of the Convention was not applicable for this part of the complaint.
(ii) Participation in the assault – There had been no legal possibility of him being prosecuted again for his participation in that assault, thus he had not, legally, been “substantially affected” by the obligation to answer truthfully, as a witness, the questions that had been put to him by the investigating judge in the proceedings against his three unknown accomplices in that assault. He had not been “charged” with a criminal offence within the meaning of Article 6 § 1 in respect of his participation in that offence.
Moreover, given his final conviction, the applicant could also no longer have relied on the presumption of innocence, as the protection afforded by that presumption ceased once an accused had properly been proved guilty of the charge in question as also evidenced by the wording of Article 6 § 2. In the specific circumstances of the present case, where there obviously had been no risk of further prosecution for the person examined as a witness, the rationale behind the right not to incriminate oneself did not require a right for that witness to refuse testimony. Even if that witness had made self-incriminatory statements, it could – in the light of the ne bis in idem principle – not have resulted in an active contribution to his or her conviction against his or her will, which lay at the heart of the said Article 6 safeguards. Rather, the effective administration of justice required such a witness – like any witness who did not have a right to refuse testimony – to comply with the civic duty of giving truthful testimony in accordance with the relevant criminal procedural law. Article 6 of the Convention did therefore not offer any privileges to a former defendant whose conviction had become final as regards giving testimony about the crime of which he had been convicted. Article 6 of the Convention was therefore not applicable for this part of the applicant’s complaint.
Conclusion: inadmissible (incompatible ratione materiae).
Article 10: The interference, in the form of the applicant’s criminal conviction, had been prescribed by law and pursued the legitimate aims of “maintaining the authority of the judiciary”, as well as of “the prevention of crime”, the latter concept encompassing the securing of evidence for the purpose of detecting and prosecuting crime.
The duty to give evidence in criminal proceedings was ordinarily a normal civic duty in a democratic society governed by the rule of law and all the applicant had been asked to do was to testify regarding the names of his accomplices of that offence. There was no indication that this could have led to the revelation of any further offences involving him. In those circumstances, the domestic courts’ decision not to exempt him from the statutory obligation of any witness to give evidence in the context of criminal investigations and, eventually, at trial against third parties could not be regarded as disproportionate to the aims of the prevention of crime and of maintaining the authority of the judiciary. Even assuming that Article 10 was applicable, the interference had thus been “necessary in a democratic society”.
Conclusion: inadmissible (manifestly ill-founded).
(See also Weh v. Austria, 38544/97, 8 April 2004, Information Note 63; and Phillips v. the United Kingdom, 41087/98, 12 December 2001)
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