THIRD SECTION<\/p>\n
DECISION<\/p>\n
Application no.68328\/17
\nNicholas Otto VIDGEN
\nagainst the Netherlands<\/p>\n
The European Court of Human Rights (Third Section), sitting on 8\u00a0January 2019 as a Chamber composed of:<\/p>\n
Vincent A. De Gaetano, President,
\nBranko Lubarda,
\nHelen Keller,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nGeorgios A. Serghides,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, DeputySection Registrar,
\nHaving regard to the above application lodged on 11 September 2017,
\nHaving deliberated, decides as follows:<\/p>\n
THE FACTS<\/p>\n
1.\u00a0\u00a0The applicant, Mr Nicholas Otto Vidgen, is a British national, who was born in 1958 and lives in Sydney, New South Wales (Australia). He was represented before the Court by Mr G. Meijers, a lawyer practising in Amsterdam.<\/p>\n
A.\u00a0\u00a0Application no. 29353\/06<\/p>\n
1.\u00a0\u00a0Particular circumstances<\/p>\n
2.\u00a0\u00a0The applicant was charged with having been, in 2001, a co-perpetrator of the offence of transporting a shipment of tablets containing 3,4\u2011methylenedioxy-N-methylamphetamine (\u201cMDMA\u201d for short) from the Netherlands to Germany with the intention of ultimately shipping it to Australia. MDMA is a psychotropic substance the trade of which is illegal in all three countries: it is known in its street pill form as \u201cecstasy\u201d or \u201cXTC\u201d. The prosecution case was that the tablets were to be hidden in the cylinders and crankcases of motor car engines that would then be shipped to a business by the name of H. Autosport, located in Sydney, New South Wales, which business had been set up by the applicant ostensibly with a view to importing engine parts from Europe.<\/p>\n
3.\u00a0\u00a0The proceedings against the applicant were held separately from the proceedings against his co-accused, among them one M. The suspect M.\u00a0was in fact put on trial in Germany. He made a full confession and gave detailed statements, a fact that the German courts took into account in sentencing.<\/p>\n
4.\u00a0\u00a0M.\u2019s confession to the German police included the following:<\/p>\n
(a)\u00a0\u00a0 A statement to the effect that the applicant and his father attended a dinner in a restaurant during which arrangements were discussed for shipping XTC tablets to Australia in motor car engines. In the course of this dinner M. was given a note, suspected by M. to have been written by either the applicant\u2019s father or the applicant himself, bearing the name and address of H. Autosport.<\/p>\n
(b)\u00a0\u00a0 A statement to the effect that the applicant and his father were implicated in the crime together and that the applicant\u2019s father wanted the applicant to be paid for the XTC tablets as well as himself.<\/p>\n
5.\u00a0\u00a0At no point throughout the criminal proceedings against him did the applicant deny that he had been involved in shipping motor car engines to his business in Sydney. However, he denied all knowledge of the use of those engines to smuggle XTC and hence any criminal intent directed towards that end. His defence was focused on this point.<\/p>\n
6.\u00a0\u00a0On 5 September 2003 the Utrecht Regional Court (rechtbank) found the applicant guilty and sentenced him to five years\u2019 imprisonment.<\/p>\n
7.\u00a0\u00a0The applicant appealed to the Amsterdam Court of Appeal (gerechtshof). In the course of the ensuing proceedings, M. was subjected to cross-examination by the defence.<\/p>\n
8.\u00a0\u00a0M. admitted that he had been convicted of perjury some years earlier. He refused however to answer any substantive questions, invoking his right not to testify (verschoningsrecht) in connection with pending proceedings for his extradition to the Netherlands to stand trial on a charge of participation in a criminal organisation.<\/p>\n
9.\u00a0\u00a0On 13 December 2004 the Court of Appeal dismissed the applicant\u2019s appeal and again convicted him. The evidence relied on included M.\u2019s statements to the German police (see paragraph 4 above). The Court of Appeal considered that the mere fact of M.\u2019s refusal at the hearing to answer any substantive questions did not constitute a violation of the applicant\u2019s right to have witnesses against him examined. Considering M.\u2019s statement to be largely corroborated by other items of evidence relating to elements which were disputed by the applicant and in respect of which he had wanted to put questions to the witness M., the Court of Appeal admitted them as evidence. The applicant\u2019s sentence was reduced by three months, to four years and nine months\u2019 imprisonment.<\/p>\n
10.\u00a0\u00a0The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad).<\/p>\n
11.\u00a0\u00a0On 6 June 2006 the Supreme Court dismissed the applicant\u2019s appeal on points of law and confirmed the judgment of the Court of Appeal. Finding however that the length of the proceedings had been excessive, it reduced the applicant\u2019s sentence by a further six months, to four years and three months\u2019 imprisonment.<\/p>\n
2.\u00a0\u00a0The Court\u2019s judgment of 12 July 2012<\/p>\n
12.\u00a0\u00a0On 17 July 2006 the applicant lodged an application (no. 29353\/06) against the Kingdom of the Netherlands complaining that his criminal conviction was based solely or to a decisive extent on the statements of a witness whom he had not been able to examine.<\/p>\n
13.\u00a0\u00a0On 12 July 2012 the Court gave judgment finding that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention. Its reasoning included the following:<\/p>\n
\u201c45.\u00a0\u00a0The items of evidence on which the Court of Appeal relied to ground the applicant\u2019s conviction are set out in paragraph 20 above. Only four of these … mention the applicant. Of these, the first two \u2013 the statements made by M. to a German police officer \u2013 connect the applicant to the attempt to smuggle the XTC. The other two are a statement taken from a witness in Australia describing the applicant\u2019s business activities there and the applicant\u2019s own statement in open court, from which it appears only that the applicant has met A. The remaining seventeen items implicate a variety of individuals, including A., M. and the applicant\u2019s father K. Vidgen, in the use of the motor car engines for the purpose of smuggling XTC to Australia but not the applicant.<\/p>\n
46.\u00a0\u00a0The Court thus concludes that M.\u2019s statements to the German police officer were the \u2018sole\u2019 evidence of the applicant\u2019s criminal intent and thus \u2018decisive\u2019 for the applicant\u2019s conviction. The present case is therefore to be likened to Luc\u00e0 and to Tahery\u2019s case in Al-Khawaja and Tahery. The earlier admissibility decision in the case of Peltonen, prayed in aid by the Government, does not alter this finding. It is important to note that in the latter case, the domestic court relied on corroborating evidence in the form of statements of other witnesses, telephone traffic records and the presence of a sum of money in cash that could only be accounted for as the proceeds of crime.<\/p>\n
47.\u00a0\u00a0Although it must be accepted that, as the Government state, reasonable attempts were made to allow the applicant to obtain answers from M., his persistence to remain silent made such questioning futile. The handicaps under which the defence laboured were therefore not offset by effective counterbalancing procedural measures.\u201d<\/p>\n
3.\u00a0\u00a0Proceedings before the Committee of Ministers of the Council of Europe<\/p>\n
14.\u00a0\u00a0In their Action Reports to the Committee of Ministers (nos. DH\u2011DD(2013)757, DH-DD(2016)1245 and DH-DD(2015)1217), submitted in pursuance of Article 46 \u00a7 2 of the Convention, the Government provided information on the revision proceedings brought under Article 457 \u00a7 1 (b) of the Code of Criminal Procedure (Wetboek van Strafvordering).<\/p>\n
B.\u00a0\u00a0Particular circumstances of the present case<\/p>\n
15.\u00a0\u00a0The facts of the present case, as submitted by the applicant and as apparent from public documents, may be summarised as follows.<\/p>\n
1.\u00a0\u00a0The revision request<\/p>\n
16.\u00a0\u00a0On 8 November 2012 the applicant lodged a request for revision of the Court of Appeal\u2019s judgment of 13 December 2004 (see paragraph 9 above), which had become final after the dismissal of his appeal on points of law (see paragraph 11 above), with the Supreme Court. He cited the Court\u2019s judgment of 12 July 2012 aforementioned (see paragraph 13 above). He requested the Supreme Court to acquit him of the original charges against him, or in the alternative, to remit the case to a court of appeal for rehearing.<\/p>\n
17.\u00a0\u00a0In an advisory opinion (conclusie) of 19 March 2013 the Advocate General (advocaat-generaal) recommended that the request for revision be granted and the case be remitted to a court of appeal other than that of Amsterdam for re-hearing.<\/p>\n
18.\u00a0\u00a0On 4 June 2013 the Supreme Court gave judgment granting the request for revision and remitting the case to the \u2018s-Hertogenbosch Court of Appeal.<\/p>\n
2.\u00a0\u00a0Proceedings in the Court of Appeal<\/p>\n
19.\u00a0\u00a0The re-hearing in the \u2018s-Hertogenbosch Court of Appeal opened on 17 September 2014. The applicant was absent, having by this time settled in Australia and being unable to travel to the Netherlands. The defence was conducted in his absence by counsel.<\/p>\n
20.\u00a0\u00a0The Court of Appeal took the decision to re-hear two of the witnesses heard in the original criminal proceedings against the applicant, including the witness M., and to have the applicant re-heard by an investigating judge.<\/p>\n
21.\u00a0\u00a0The witness M. was re-heard on 23 April 2015 by an investigating judge, in the presence of, and cross-examined by, the applicant\u2019s counsel. It is stated in the official record of the interview that M.\u2019s conviction of crimes related to the charges against the applicant has become final, from which it follows that M. can no longer incriminate himself by making a statement in the case against the applicant and accordingly can no longer refuse to give evidence. It is further stated in this record that M., in reply to questions of the investigating judge, stated that he was willing to testify, that he had not spoken to anyone about the case before this hearing and that he had not read any documents concerning the case, as he had never received documents. Questioned in detail by the applicant\u2019s counsel and confronted with his earlier statements, M. replied to many questions that he could no longer remember, citing the lapse of time since the relevant events as the reason; he stated however that he had never been threatened in connection with the case. M. did not retract his statements made to the German police (see paragraph 4 above).<\/p>\n
22.\u00a0\u00a0The applicant was re-heard by the investigating judge, who had travelled to Australia to do so. His counsel was present. Asked whether he wished to react to the evidence given by M., the applicant suggested that M. had incriminated him in the earlier proceedings in Germany with a view to receiving a reduction of his own sentence.<\/p>\n
23.\u00a0\u00a0The hearing reopened on 16 September 2015. The applicant\u2019s counsel submitted that the opportunity to cross-examine M. had not been effective, since M. had stated nothing of substance. He argued that M\u2019s statements to the German police could for that reason not be used in evidence, which meant that the applicant should be acquitted; in the alternative, compensatory measures were in order, and in particular the hearing of the German police officer who had conducted M.\u2019s interrogation in 2002 and the Netherlands police officers and the interpreter who had been in attendance. At all events, M.\u2019s statement was, according to the applicant\u2019s counsel, suspect: he could well have cast blame on the applicant in the hope of receiving a lighter sentence, which in the event, he had.<\/p>\n
24.\u00a0\u00a0The Court of Appeal gave judgment on 28 October 2015. It convicted the applicant of having, with others, deliberately exported a quantity of XTC tablets and sentenced him to four years\u2019 and three months\u2019 imprisonment \u2013 corresponding to the sentence imposed by the Supreme Court at the end of the first round of proceedings (see paragraph 11 above).<\/p>\n
25.\u00a0\u00a0The evidence relied on by the Court of Appeal included, among 19 other items, M.\u2019s statements to the German police (see paragraph 4 above).<\/p>\n
26.\u00a0\u00a0The Court of Appeal\u2019s reasoning included the following:<\/p>\n
\u201cM. made a confession to the police in 2002, on which occasion he also made a statement about the involvement and the participation of his fellow suspects. Later, when interrogated within the framework of letters of rogatory and at the hearing of the Court of Appeal of Amsterdam, sitting in Arnhem, of 6 August 2004 M. relied on his right not to testify.<\/p>\n
Following remittal of the case after revision by the Supreme Court the witness M. was heard by the investigating judge on 23 April 2015 in the presence of defence counsel. The witness could no longer invoke his right not to testify in this interview and the defence has had the opportunity at that time to question the witness and observe him under questioning. The circumstance that M. replied to many of the questions that he could no longer remember anything about the case does not, in itself, constitute a violation of the right of the defence to question him. Neither does the circumstance that this witness could only be questioned by the defence after fifteen years. It is inherent in witness evidence that memories fade as time passes, but the mere passage of time does not imply that no substantive answers to questions could have been given. It does not appear to the Court of Appeal that the witness has refused to answer any questions and the defence has had the opportunity to confront the witness with his own statements made previously within the framework of these criminal proceedings. The witness has not retracted those statements. Such being the situation, the Court of Appeal accordingly considers M.\u2019s statement, as made to the police, usable as evidence and rejects the defence [sc. that the right to cross-examine M. was not effective]. In case the Court of Appeal should take the view that M.\u2019s incriminating statement might be relied on, counsel requested, in the alternative, compensation in the form of the hearing of witnesses. Since the Court has taken the view that the defence has been in a position to make use of its right of cross-examination, within the meaning of Article 6 \u00a7 3 (d) of the Convention, the question of hearing witnesses such as the police officers who carried out the interrogation does not arise.\u201d<\/p>\n
and<\/p>\n
\u201cCounsel\u2019s defence that M.\u2019s incriminating statement is insufficiently corroborated is, in the Court of Appeal\u2019s considered view, [discredited] by the items of evidence from which, if they are considered in their interrelation and their interconnection (in time), the conviction follows. The case has not been made out, in the considered view of the Court of Appeal, that M.\u2019s statement is unreliable because he had a clear motive to incriminate the suspect in connection with a reduction of sentence which he enjoyed in Germany. Neither has the witness, heard on oath by the investigating judge, stated that on that previous occasion \u2013 with a view to receiving a lighter sentence in his own criminal case \u2013 he made incorrect statements to the police. Contrary to counsel\u2019s position, M. has not retracted the substance of his earlier incriminating statement. Moreover, the circumstance that M. has a previous conviction of perjury does not by definition imply that the reliability of M.\u2019s statement to the police is in doubt.<\/p>\n
As regards his motives to make a statement about his own involvement and that of fellow suspects, M. has stated the following when questioned on 20 February 2002 (…):<\/p>\n
\u2018Question: Why are you telling us all this?<\/p>\n
Answer: As I indicated earlier, I told A. some eight or nine months ago that I wanted out. However, it is not so simple to give it up, because of course one knows too much. So in one way I am glad that things went as they did and I can draw a line under this thing that in fact destroyed my life (…). The important thing, to clear up the misunderstanding that I am here (…) to wriggle out of it, is that I want to take responsibility for what I have done (…). On the other hand, it is also very clear to me that it is very dangerous for me to tell all these things here (…). Of course I do not want to endanger the lives of my family and my girlfriend. I know for a fact that that can happen, even though others may not take that so seriously. I have been together with A. for long enough to know how explosive he can be.\u2019<\/p>\n
This statement by M., which to the Court of Appeal gives the impression of authenticity, does not indicate that M. made false statements about fellow suspects to make things better for himself.<\/p>\n
The Court of Appeal further considers that M.\u2019s (confessing) statements are strongly corroborated by other items of evidence, such as the recorded confidential communication, telephone interceptions and direct observations, the note found in M.\u2019s home bearing the address in Australia to which the XTC tablets were to be sent and the statement of the witness S. who, differing on this point from the statement made by [the applicant] himself, confirms that a shipment of engine parts was to be transported to the warehouse in Australia rented by [the applicant] from S., initially in November 2001, but after deferral, later, in December 2001.<\/p>\n
The Court of Appeal therefore has no reason to find the statements made by M. unreliable\u201d<\/p>\n
3.\u00a0\u00a0Proceedings in the Supreme Court<\/p>\n
27.\u00a0\u00a0The applicant lodged an appeal on points of law with the Supreme Court. As relevant to the case before the Court, he complained that the defence had not had the opportunity to cross-examine M. in a way that could be described as adequate and effective; that his conviction was based to a decisive extent on M.\u2019s incriminating statements; and that adequate compensation for the handicaps suffered by the defence had not been offered. He also complained of the overall length of the proceedings.<\/p>\n
28.\u00a0\u00a0The Advocate General, in her advisory opinion, expressed the view that the applicant\u2019s appeal should be accepted on the ground that the cross-examination of M. had not been effective, that M.\u2019s statements constituted \u201csole evidence\u201d of the applicant\u2019s criminal knowledge and intent, and that compensatory measures had been absent.<\/p>\n
29.\u00a0\u00a0The Supreme Court gave judgment on 6 June 2017. It dismissed the applicant\u2019s complaint that he had not had the opportunity to cross-examine M. in a way that could be described as adequate and effective. Its reasoning included the following (references to domestic case-law omitted):<\/p>\n
\u201c3.4.2.\u00a0\u00a0It does not follow from the mere circumstance that a witness does not give (complete) answers to questions put to him because \u2013 whether or not as a result of the lapse of time \u2013 he has insufficient specific recollection of what he has observed or experienced concerning the facts with which the suspect is charged that there has been no effective and proper opportunity for cross-examination (…). That circumstance can however be relevant in the selection and weighing of the evidence and the defences directed against these, in particular as regards statements made earlier during the pre-trial investigation.<\/p>\n
3.4.3.\u00a0\u00a0In the situation where the witness makes use of his right not to testify or not to answer particular questions, as the case may be, and the witness consequently refuses to answer questions put to him by or at the request of the defence \u2013 which should be distinguished from the case referred to in paragraph 3.4.2 \u2013 a proper and effective opportunity for cross-examination is lacking.<\/p>\n
3.5.\u00a0\u00a0The Court of Appeal has held that the circumstance that M. \u2018replied to many of the questions that he could no longer remember anything about the case\u2019 does not alter the fact that M. was heard as a witness on oath in the presence of the defence and that the defence was given a proper and effective opportunity to put questions, and that \u2018the circumstance that this witness could only be questioned by the defence after fifteen years\u2019 does not constitute a violation of the defence\u2019s right of cross-examination either. That finding does not reflect an incorrect understanding of the law and is not incomprehensible, not even in the light of the circumstance, relied on in the ground of appeal (middel), that the course of the proceedings [beginning with the judgment of the Amsterdam Court of Appeal of 13 December 2004, including an appeal on points of law to the Supreme Court and an application to this Court and followed by a revision request and remittal to the \u2018s-Hertogenbosch Court of Appeal on 4 June 2013] influenced the moment on which the witness M. could be questioned by the defence.<\/p>\n
3.6.\u00a0\u00a0In the argument (toelichting) attached to the ground of appeal complaints are proffered about, in brief, the Court of Appeal\u2019s sole or decisive reliance on M.\u2019s statement to ground the conviction as well as on the lack of compensating factors for the handicaps experienced by the defence in questioning this witness. These complaints do not need to be discussed, since they are based on the premise that \u2013 contrary to the finding reached in paragraph 3.5 above \u2013 the suspect in the present case had no proper and effective opportunity to put questions.\u201d<\/p>\n
However, the Supreme Court accepted the complaint about the excessive length of the proceedings and reduced the applicant\u2019s sentence by a further six months to three years and nine months on that ground.<\/p>\n
C.\u00a0\u00a0Relevant domestic law<\/p>\n
1.\u00a0\u00a0The Code of Criminal Procedure<\/p>\n
30.\u00a0\u00a0Article 457 \u00a7 1 (b) of the Code of Criminal Procedure provides for the possibility of revision by the Supreme Court of a conviction where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of its Protocols, as the case may be, in proceedings that have led to the conviction, or a conviction of the same crime, if revision is necessary with a view to reparation within the meaning of Article 41 of the Convention.<\/p>\n
2.\u00a0\u00a0Domestic case-law development<\/p>\n
31.\u00a0\u00a0In its judgment of 29 January 2013, ECLI:NL:HR:2013:BX5539, the Supreme Court reversed its earlier case-law as reflected in its judgment of 6\u00a0June 2006 (see paragraph 11 above), holding that in view of the Court\u2019s judgment of 12 July 2012 (see paragraph 13 above) it could no longer be accepted that a defendant had had sufficient opportunity to cross-examine or have cross-examined a witness summoned at the request of the defence if that witness refused to give evidence under cross-examination.<\/p>\n
COMPLAINTS<\/p>\n
32.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention that his conviction after retrial had been based to a decisive extent on the statements made by M. to the German police in 2002, even though M.\u2019s insistence that he no longer remembered any relevant events meant that the applicant still had had no adequate and effective opportunity to cross-examine him.<\/p>\n
33.\u00a0\u00a0The applicant also complained, under the same provisions, of the absence of any compensatory measures, and in particular of the refusal to hear the police officers who had undertaken or attended M.\u2019s questioning.<\/p>\n
THE LAW<\/p>\n
Complaint under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention<\/p>\n
34.\u00a0\u00a0The applicant complained that the criminal proceedings against him had been unfair in that he had been convicted on the basis of statements made by M. without having had an adequate and effective opportunity to examine him, and without compensatory measures having been put in place. The applicant relied on Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, the relevant parts of which read as follows:<\/p>\n
\u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing …<\/p>\n
…<\/p>\n
3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n
…<\/p>\n
(d)\u00a0\u00a0to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …\u201d<\/p>\n
35.\u00a0\u00a0The applicant pointed to the fact that although no longer in a position to refuse to testify, M. had stated, under cross-examination, that he no longer remembered anything of relevance to the applicant\u2019s case. This, in his submission, meant that cross-examination could be neither adequate nor effective. M.\u2019s statements made to the German police in the original criminal investigation (see paragraph 4 above) nonetheless remained the decisive evidence on which his renewed conviction was grounded, or at least had carried significant weight.<\/p>\n
36.\u00a0\u00a0Given the importance of the evidence in issue, which thus remained untested, compensatory measures ought, in the applicant\u2019s submission, to have been offered. In particular, the request made by the defence to hear the police officers and the interpreter who had attended the questioning of M.\u00a0(see paragraph 23 above) ought not to have been refused.<\/p>\n
37.\u00a0\u00a0The Court has on various occasions set out the principles applicable to reliance on the evidence or statements of witnesses who cannot be cross-examined by reason of their absence or death or because they have reason to fear reprisals (see, inter alia, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766\/05 and 22228\/06, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154\/10, ECHR 2015; and, as a recent authoritative statement, Seton v. the United Kingdom, no. 55287\/10, \u00a7\u00a057-59, 31 March 2016, with further references). In its judgment of 12\u00a0July\u00a02012 in the applicant\u2019s case, the Court held these principles also to apply when a witness refuses to testify based on his or her right to silence as a criminal defendant in his or her own right (loc. cit., \u00a7\u00a042).<\/p>\n
38.\u00a0\u00a0The present case differs from the above mentioned cases in that the defence has had an opportunity to put questions to the witness concerned. Further, the witness had not refused to testify, but had claimed to have no longer any recollection of facts on which he was cross-examined. The question before the Court is whether in this situation the same principles apply.<\/p>\n
39.\u00a0\u00a0The Court considers that they do not. In its view the present case is of a different nature. Its nature is similar to that of a case in which a witness has made a statement incriminating the suspect in the course of the pre-trial investigation but retracts it when heard in open court. The Court has on a previous occasion refused to hold in the abstract that evidence given by a witness in open court and on oath should always be relied on in preference to other statements made by the same witness in the course of criminal proceedings, not even when the two are in conflict (see Doorson v. the Netherlands, 26 March 1996, \u00a7 78, Reports of Judgments and Decisions 1996\u2011II).<\/p>\n
40.\u00a0\u00a0It remains for the Court to reiterate that both the admissibility of evidence and its assessment are primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them. The Court\u2019s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, its function is not to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Lhermitte v. Belgium [GC], no. 34238\/09, \u00a7 83, ECHR 2016, and Moreira Ferreira v.\u00a0Portugal (no. 2) [GC], no. 19867\/12, \u00a7 83, ECHR 2017 (extracts)).<\/p>\n
41.\u00a0\u00a0It does not follow from the sole fact that a witness replies to questions that he cannot remember or alters or retracts his or her statement, when cross-examined, that the opportunity for cross-examination is inadequate or ineffective. Consequently a change of attitude on the part of a witness does not of itself give rise to a need for compensatory measures.<\/p>\n
42.\u00a0\u00a0In the circumstances of the present case, which are further characterised by the fact that M. in his original statement incriminated himself and by the availability of other, corroborating, evidence in the form of intercepted private communication and telephone conversations, records of direct observation, an incriminating document found in M.\u2019s home and a witness statement (see paragraph 26 above), the decision of the Court of Appeal to rely on the statements made by M. to the German police to ground the applicant\u2019s renewed conviction \u2013 which statements were neither confirmed nor retracted by M. when cross-examined \u2013 did not affect the fairness of the proceedings.<\/p>\n
43.\u00a0\u00a0Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
For these reasons, the Court, by a majority,<\/p>\n
Declares the application inadmissible.<\/p>\n
Done in English and notified in writing on 31 January 2019.<\/p>\n
Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Vincent A. De Gaetano
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n