Last Updated on July 13, 2019 by LawEuro
Information Note on the Court’s case-law 219
June 2018
Dimitrov and Momin v. Bulgaria – 35132/08
Judgment 7.6.2018 [Section V]
Article 6
Article 6-3-d
Examination of witnesses
Conviction principally based on statements by a deceased victim who had not been questioned by the defendants: no violation
Facts – In 1998 a woman lodged a complaint with the police stating that she had been abducted, held captive and raped by the two applicants the previous day. She then on several occasions retracted her statement and sought to have it withdrawn and to have the proceedings terminated.
In December 2000, during questioning by a judge, she reiterated her original version of the events.
In April 2001 both applicants were charged. In May of that year their lawyer requested separate confrontations between the applicants and the victim. The public prosecutor refused the request in July 2001. The victim, who had been suffering from cancer, died of the disease in June 2001.
In 2007 the two applicants were found guilty of abducting the victim, holding her captive, threatening to kill her and raping her.
In the Convention proceedings, they complained of being convicted on the basis of the statement taken from the victim during the preliminary investigation and of having no opportunity at any stage to question her as a witness.
Law – Article 6 §§ 1 and 3 (d)
(a) Whether there were “strong reasons” for not arranging a confrontation between the applicants and the witness in question – The victim’s death constituted a “strong reason” for not hearing witness evidence from her during the trial and for admitting in evidence the statement she had made before her death.
The first applicant had not been present when the victim was questioned by a judge in December 2000, despite having been informed of the date. However, his absence did not amount to a waiver of his right to question the witness at a later stage in the proceedings, as he did not have a lawyer who could explain the importance of the questioning for the subsequent course of the proceedings. As to the second applicant, although he could be regarded as having been “charged with a criminal offence” within the autonomous meaning of Article 6 of the Convention, there had been no requirement for him to be given notice of the questioning, given that he had not been placed under formal investigation at that juncture. Hence, the fact that the two applicants had not been present during the questioning did not of itself amount to a violation of Article 6 §§ 1 and 3 (d).
The applicants’ lawyer had subsequently requested a confrontation between his clients and the victim. The request had been refused by the prosecutor on the grounds that it was a non-compulsory investigative measure that was not necessary for the establishment of the facts. Furthermore, while the investigating authorities had been aware since April 2000 that the victim was ill and was undergoing chemotherapy, she had stated during questioning in December 2000 that she was feeling well. Unlike in the case of Schatschaschwili v. Germany [GC] (9154/10, 15 December 2015, Information Note 191), there was nothing in the present case to indicate that the investigator or the prosecutor had known that the victim might be unable to attend the trial.
In the context of criminal proceedings for rape, the investigating authorities had to be particularly attentive to victims who were in a fragile psychological state, especially when it came to taking their statements and arranging a confrontation with their alleged attackers. In the present case the victim had also been seriously ill and had come under pressure during the investigation to withdraw her complaint and alter her statement. In view of these very specific circumstances, the investigating authorities could not be criticised for not arranging a confrontation between the victim and the two applicants at the preliminary investigation stage.
(b) Whether the applicants’ conviction had been based solely or to a decisive extent on the statement of the witness in question – The victim’s statement had been the decisive evidence in securing the applicants’ conviction. However, it had not been the only evidence against them, as the Regional Court had available to it the statements of the police officers who had registered the victim’s complaint, the results of the medical examinations and expert opinions and the report on the inspection carried out at the scene. The applicants’ conviction had therefore been based on a body of evidence within which the statement in question had not been an isolated element.
(c) Whether there had been sufficient counterbalancing factors in place to ensure that the criminal proceedings as a whole were fair – The Regional Court had devoted a significant part of the reasoning in its judgment to the victim’s statement, and had ascertained that she could not have had any motive for making unfounded accusations against the two applicants. It had then compared her statement with the other evidence and found it to be corroborated by that evidence and therefore reliable.
The Regional Court had established that the fact that the victim’s testimony had been given two years after the events had in no way prevented her statement from being very detailed. The fact that she had altered her version of events during the investigation had been due to the pressure to which she had been subjected by the applicants and persons close to them.
The Regional Court had addressed and rejected the arguments which the applicants and persons close to them had put forward during questioning in an attempt to discredit the victim.
Consequently, the Regional Court’s examination of the victim’s statement had been careful, objective and comprehensive. The court had thus given detailed reasons for its finding that the statement as a whole was credible and for its subsequent decision to admit the statement as the main evidence against the applicants.
Lastly, the applicants’ conviction had been based on a body of evidence within which the statement in question had not been an isolated element. The applicants had played an active part in the proceedings against them, with the help of their lawyer. The Regional Court and the Supreme Court of Cassation had addressed and rejected their arguments in decisions that had contained detailed reasoning and had not been arbitrary.
Conclusion: no violation (unanimously).
(See also Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147; Dvorski v. Croatia [GC], 25703/11, 20 October 2015, Information Note 189; Przydział v. Poland, 15487/08, 24 May 2016; and Simeonovi v. Bulgaria [GC], 21980/04, 12 May 2017, Information Note 207)
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