FIRST SECTION
CASE OF VASARÁB AND PAULUS v. SLOVAKIA
(Applications nos. 28081/19 and 29664/19)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Examination of witnesses • Domestic courts’ refusal, without sufficient reasons, of applicants’ request to take and examine witness evidence on their behalf • Trial based essentially on evidence adduced by the prosecution without examination of any of the evidence adduced by the applicants • Overall fairness of proceedings undermined
 
STRASBOURG
15 December 2022
 
FINAL
 
15/03/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vasaráb and Paulus v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Lətif Hüseynov,
 Ivana Jelić,
 Gilberto Felici, judges,
and Renata Degener, Section Registrar,
Having regard to:
the applications (nos. 28081/19 and 29664/19) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovak nationals, Mr Ladislav Vasaráb (“the first applicant”) and Mr Roman Paulus (“the second applicant”), on 25 May and 29 May 2019, respectively;
the decision to give notice to the Government of the Slovak Republic (“the Government”) of the complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the domestic courts’ refusal to examine witness evidence adduced by the defence and to declare the remainder of the applications inadmissible;
the parties’ observations;
the Chamber’s decision to lift the anonymity previously granted to the first applicant (Rule 47 § 7 of the Rules of Court);
Having deliberated in private on 22 November 2022;
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the fairness of criminal proceedings against the applicants on a charge of murder, and in particular their being unable to obtain the attendance and examination of witnesses on their behalf, raising issues under Article 6 §§ 1 and 3 (d) of the Convention. 2. The fairness of the proceedings is to be assessed with reference to the role that the evidence in question would have played in them. To facilitate this, the applicant’s conviction and its evidentiary basis is described first, with the proceedings and the evidence adduced by them but not taken and examined (vykonanie dôkazu) by the courts described afterwards. 3. In addition to the murder of which the applicants were convicted, in the same set of proceedings the first applicant and another individual were charged with but acquitted of the murder of another person. As this is not directly related to the subject matter of the present case, proceedings in respect of the applicants are described below as concerning the former charge only. THE FACTS
4. The applicants were born in 1971 and 1977 and normally reside in Diakovce and Pata respectively. They were represented before the Court by Mr L. Štanglovič, and the first applicant also by Mr J. Baláž, lawyers practising in Šaľa and Bratislava respectively. 5. The Government were represented by their Agent, Ms M. Pirošíková, who was succeeded in that function by Ms M. Bálintová. 6. The facts of the case may be summarised as follows. THE APPLICANTS’ CONVICTION
7. On 23 February 2010 an individual, A., was shot dead while driving a car on a street in Šaľa by another individual who was being driven in another car. The identity of the driver of the other car has never been established. 8. In their findings of fact, which were disputed by the applicants at all stages of the proceedings, the courts established that the shooter was the second applicant and that the killing had been ordered by the first applicant. 9. The precise factual description of the criminal act or failure to act (skutková veta) in relation to which the applicants were convicted indicates that (i) the first applicant had contracted the second applicant for the killing in return for a payment of a sum of money, (ii) the first applicant had had “long-standing personal differences” with A., (iii) the first applicant had previously asked another person, B., to act as the driver for the second applicant, but B. had refused, and (iv) the second applicant had asked another person, C., to procure an automatic rifle for him, which C. had done. 10. It was accepted by the courts that the key evidence on which the conviction rested came from B., C. and another individual, D. In particular, the evidence was as follows. B. testified to having been approached by the first applicant and another person in 2009 with a request to act as a driver for the second applicant with a view to killing someone, which he had refused. He also stated that he had heard utterances by the second applicant which he had understood as implying that the latter had killed A. C. confirmed that he had been asked by the second applicant to procure an automatic rifle for him and that he had done so. Once he had obtained the rifle, and prior to handing it over to the second applicant, he had tried it out and this was why gunshot residue had been detected on one of his hands after he had been detained by the authorities on the day of the killing. Earlier on that day, he had handed the gun over to the second applicant. Some days later he had met with the second applicant, who paid him for the gun and said that he had “taken” A., adding that the first applicant had had problems with A., who had previously tried to kill him. D. stated that he had been told by the second applicant that the latter had killed A. at the first applicant’s request. 11. The applicants were found guilty of murder and the second applicant also of unlawful possession of firearms, in respect of which they were sentenced to twenty-two and twenty-five years’ imprisonment respectively. CRIMINAL PROCEEDINGS AGAINST THE APPLICANTS
12. The criminal proceedings in the case commenced on 23 February 2010 and on 18 August 2011 the applicants were charged. Throughout the proceedings they were assisted by defence counsel and pleaded not guilty. 13. On 2 April 2012, upon the completion of the investigation, the applicants were invited to inspect the case file and to identify any further evidence to be taken. They proposed nineteen points on which evidence should be taken. This included evidence from five witnesses to establish the relationship between the first applicant and A., as well as between A. and another person with whom A. had allegedly been in conflict, and from seven other persons to verify the reliability of the evidence given by C. as to his whereabouts on the day when A. was killed. 14. According to the record of the applicants’ inspection of the case file, referring to Article 208 § 1 of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended – “the CCP”), the investigator dismissed the applicants’ proposal because “[he did] not consider the taking of that evidence necessary”. 15. On 3 April 2012 the investigator requested the Public Prosecution Service (“the PPS”) to indict the applicants to stand trial on the above‑mentioned charges, explaining that their request for further evidence to be taken had been dismissed “because, on the basis of the evidence already taken, the evidentiary situation was such that the proposals [on the applicants’ behalf] would have no impact on it”. 16. On 19 April 2012 the bill of indictment was filed with the Specialised Criminal Court (“the SCC”), resting solely on evidence identified by the PPS. 17. On 30 April 2012 the applicants’ lawyer submitted a written request that the court take evidence on behalf of the defence on twenty points, which included those mentioned above. 18. On 28 May 2012 the SCC held a public session for a preliminary examination of the indictment. On the matter of his request that further evidence be taken, the applicants’ lawyer explained that he sought to verify the submissions of C. as to his whereabouts on the day of the killing (i.e. whether he could have passed the presumed murder weapon to the second applicant) and as to how he had allegedly procured the weapon. At the pre‑trial stage, those submissions had been accepted as fact without any verification at all. Moreover, the evidence proposed would show that the first applicant had had no differences with A. and accordingly no motive to have him killed, and that the differences in question had rather been between A. and the other person previously mentioned. 19. On 11 September 2012 the first applicant made a written submission to the SCC, denying having contracted the killing of A. and submitting that B., C. and D. were under suspicion of various organised criminal activities and arguing that they might have collaborated with the inquiry in return for immunity or in order to take revenge on the applicants. 20. At a hearing held on 19 September 2012 the applicants’ lawyer reiterated the request for further evidence to be taken. He pointed out that the evidence from C. was contradictory and not credible, in particular as to his coming and going from a certain restaurant at a time when he was supposedly testing the gun. The authorities had completely failed to enquire into his allegations as to how he had procured the gun and had accepted a single version of the first applicant’s motive to have A. killed. 21. In response, the PPS commented that some of the witnesses proposed by the defence had been heard before the bringing of charges against the applicants while several lines of enquiry were being considered. However, after the bringing of the charges, those lines of enquiry had no longer been pursued and it was unnecessary to hear evidence from those persons again. 22. By a procedural decision adopted in the course of the hearing, the SCC refused to take and examine the evidence identified by the defence. Whereas the applicants in their application denied that any reasons had in fact been given for that decision, the following was noted in the record of the hearing:
“Pursuant to Article 272 § 3 of the [CCP], the court refuses to take and examine the evidence adduced by [the applicants’ lawyer] ... in his submission of 30 April 2012 ..., [and] at the hearings on 28 June 2012, 12 September 2012 and others ... The presiding judge has provided reasoning for her decision and instructed the parties that no legal remedy against it was available.”
23. In a judgment of 25 September 2012, the SCC convicted the applicants as indicated above. It acknowledged that the key evidence linking the killing to the applicants was the evidence from B., C. and D. In its judgment it made no reference to the evidence that the applicants had proposed to be taken and examined on their behalf or to its decision not to accept their request. 24. As to the first applicant’s motive, and in particular the finding that he had had long-standing personal differences with A., the SCC noted that such differences had resulted in A.’s being charged in 2005 with having arranged for the murder of the first applicant. 25. The applicants appealed, principally arguing that the SCC had based its conclusions solely on evidence on behalf of the prosecution and that the veracity of the witness evidence on which the indictment rested had not been verified by any means. Specifically, they referred to the evidence they had previously sought to have taken on their behalf. In addition, as to his supposed motive, the first applicant explained that the 2005 incident had involved his being shadowed by unknown persons. It was true that charges had been brought against A. in that connection. Nevertheless, there had been no links between them at all and the conflict referred to by the authorities had in fact been between A. and another person. The witnesses he had sought to have heard would have demonstrated this, as they had done when questioned prior to the bringing of the charges against him. 26. On 3 April 2013 the Supreme Court dismissed the appeals. In so far as relevant, it held that the authorities had adequately established the facts to the extent necessary for their decision, and therefore it found that the taking and examination of further evidence had not been necessary. The Supreme Court concurred that the evidence from B., C. and D. had been central to the establishment of the facts. The ruling of the SCC as to the applicants’ guilt “was based on convincing evidence that beyond any doubt excluded any other alternative to the factual storyline established on the basis of that evidence”. The Supreme Court further held that the evidence had not been contested by anything but the applicants’ own submissions. 27. The applicants appealed on points of law (dovolanie). They argued, inter alia, that throughout the proceedings they had been denied the right, guaranteed by Article 6 § 3 (d) of the Convention, to obtain the attendance and examination of witnesses on their behalf, which in their view had amounted to a violation of their rights of defence, thus constituting a ground on which an appeal on points of law was admissible under Article 371 § 1 (c) of the CCP. 28. On 25 January 2018 the Supreme Court declared the appeal inadmissible. As to the applicants’ argument mentioned above, it held that a court’s decision to dismiss a request to take and examine evidence and the absence of reasoning for such a decision could not amount to a ground for the admissibility of an appeal on points of law under the CCP provision relied on. 29. The applicants further pursued their rights by lodging two constitutional complaints under Article 127 of the Constitution, advancing essentially the same arguments as indicated above and relying also on their right to an adversarial trial. 30. The Constitutional Court declared those complaints inadmissible on 4 December 2018 and 30 January 2019 respectively. In sum, it recognised that the courts’ findings of fact were “mainly based on incriminating evidence from three specific witnesses, to whom [the second applicant had] personally confessed ... and one of whom [had given] relevant evidence as to the manner in which the weapon used had been procured”. Under the subsidiarity principle, the Constitutional Court had no jurisdiction in relation to the SCC. As to the Supreme Court, it had adequately addressed all relevant aspects of the case. Parties to proceedings did not have a right to have all the evidence proposed by them taken and examined. The decision as to which piece of evidence to take and examine always rested with the court. Therefore, a court’s decision not to take and examine evidence proposed by a party, for example because it was immaterial or superfluous, could not be seen as preventing the party from acting before the court. APPLICATIONS FOR THE REOPENING OF THE TRIAL
31. The applicants subsequently applied twice to have the trial reopened on the basis of new evidence. They pointed out that, in another trial on unrelated charges, B. and D. as the accused had submitted that they had been pressured by the police to collaborate with the investigation against the second applicant, leading to his conviction as outlined above. The first applicant also submitted that he had undergone a polygraph test, with the result attesting to his innocence. In addition, he argued that there was a new witness who could testify about the personality of C. and about the fact that the latter had confided in him what he had understood as an admission that the previous accusations against the applicants by C. had been false. 32. The applications were dismissed, with the final decisions being given by the Supreme Court on 20 February 2018 and 10 December 2019. The court stated that it was true that in the other trial B. and D. had submitted that they had been coerced into incriminating the second applicant. However, those submissions had been made by them as the accused, thus exempting them from liability for making false statements. When questioned as witnesses in the proceedings concerning the applicants’ application for the reopening of the trial, B. and D. had refused to testify. As the police had denied any wrongdoing, there was in fact no new evidence to support the reopening application. Polygraph testing was not considered to be evidence in court proceedings in Slovakia and the evidence from the new witness was untrustworthy. RELEVANT LEGAL FRAMEWORK
CODE OF CRIMINAL PROCEDURE
33. Article 2 of the Code defines the fundamental principles of criminal proceedings. Pursuant to paragraph 10, the prosecuting authorities are to proceed with a view to establishing the facts so that there can be no justified doubts (dôvodné pochybnosti) about them, and to the extent necessary for their decisions. Evidence is to be obtained as a matter of their official duty. The right to obtain evidence also appertains to the parties. The prosecuting authorities are to elucidate the circumstances weighing against the person facing charges (obvinený) and those in his or her favour with equal diligence, and to take evidence in both directions so as to enable the court to take a just decision. 34. Article 34 defines the rights and duties of the person facing charges. Under paragraph 1, these include the right to propose that a piece of evidence be taken and to submit such evidence. 35. Pursuant to Article 119, by means of criminal proceedings, it must be established, inter alia, whether the alleged act or omission (skutok) has taken place and whether it fulfils the elements of an offence (paragraph 1 (a)) and, if so, who carried out that act or omission and what the motive for it was (paragraph 1 (b)). 36. Pursuant to Article 168 § 1, a judgment must contain, among other things, reasoning as to why the court refused to take further evidence. 37. Once an investigation is completed, the officer in charge of it is to enable the defence and other persons to inspect the file and make proposals for the investigation to be supplemented. Such proposals may be dismissed if the officer does not consider them necessary (Article 208 § 1). 38. Pursuant to Article 272 § 2, once all the evidence has been taken, the presiding judge is to establish whether the parties have any proposals for further evidence to be taken. Pursuant to paragraph 3 of that Article, a court is to refuse the taking and examination of a piece of evidence if it concerns a circumstance that is immaterial for the decision or can be established by means of other evidence previously proposed. The decision to refuse to take and examine a piece of evidence must be notified to the person who proposed the taking and examination of that evidence. As a general rule, the notification is oral and given at the opening of a hearing. The decision is reversible if in the course of the subsequent proceedings it turns out to be necessary to take and examine the given piece of evidence. 39. The grounds on which an appeal on points of law may be lodged are listed in Article 371 § 1. Under letter (c), these include instances of a fundamental breach of the rights of the defence. THE LAW
JOINDER OF THE APPLICATIONS
40. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
41. The applicants complained that the proceedings against them had been unfair in that the authorities had arbitrarily refused to take and examine evidence proposed by them. This complaint is to be examined under Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
... 3. Everyone charged with a criminal offence has the following minimum rights:
... (d)  to 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;
...”
Admissibility
42. The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions

43. The applicants argued that the proceedings against them had been unfair in that their conviction had been based solely on evidence adduced by the PPS, while they had been denied the right to obtain the attendance and examination of any witnesses on their behalf. Throughout the proceedings at all stages they had requested that evidence from twelve witnesses be obtained and examined. They had specified in detail and repeatedly that this evidence concerned the lack of any motive on the part of the first applicant to have A. killed and the credibility of witness C. and of the evidence he had given. The importance of the motive was emphasised by the fact that it was one of the key elements to be established in criminal proceedings and that, on the specific facts of the present case, the authorities themselves had specifically recognised the importance of the motive by including it in the precise factual description of the criminal acts attributed to the first applicant. The authorities had completely ignored all the evidence proposed by the applicants and had denied them any opportunity to examine the above-mentioned witnesses, even though their identity had been known to them. Any explanation in that regard had been given superficially and indiscriminately by way of citing the respective legal provisions but had contained no element of actual individual reasoning. The explanation had accordingly been given merely for the sake of appearances. In a situation where all the proposals submitted by the prosecution for the taking and examination of evidence had been accepted, there had been an obvious inequality of arms. Rather than ensuring observance of this principle, the domestic courts had acted as a proxy of the prosecuting authorities. The absence of reasoning for the refusal to take and examine evidence on the applicants’ behalf had, moreover, been unlawful under domestic law, in particular in so far as it specifically required such reasoning to be included in judgments entailing a conviction. 44. As to the Government’s arguments in reply (see the subsequent paragraphs), the applicants considered them to be an attempt at trivialising the problem. Their subsequent applications for the reopening of the proceedings and the dismissal of those applications had had no bearing on the present case, as they had not involved any consideration of the issues to which it related. Furthermore, the statement of the presiding judge of the SCC chamber sitting in their case (see paragraph 47 below) attested to no more than the fact that the reasons why they had sought the examination of the evidence in issue had been perfectly clear. Lastly, in so far as any of the witnesses proposed by them had been interviewed prior to the bringing of the charges against the applicants, such interviews had taken place without the applicants being present and accordingly had not afforded them an opportunity to exercise their rights of defence. 45. The Government pointed out that issues of admissibility of evidence were primarily matters for the domestic law and the domestic courts, the Court’s role being limited to the assessment of the fairness of the proceedings as a whole. The present case fell to be examined under the criteria reflected in Murtazaliyeva v. Russia ([GC], no. 36658/05, 18 December 2018). The core of the instant case had been the witness evidence proposed by the defence to undermine the credibility of C. and to establish the relationships of A. that were relevant to the motive to have him killed. However, in addition to the evidence from C., the applicants’ conviction had also rested on evidence from other witnesses, including B. and D. The proposals by the defence had been examined and dismissed by the investigator, the PPS, the courts at three levels and ultimately the Constitutional Court. In particular, the SCC had examined the proposal at a hearing, following comments by the PPS, and the record of the hearing indicated that the reasoning for that decision had been given. Moreover, further evidentiary matters had been examined in the context of the applicants’ applications for the reopening of the trial. 46. The Government argued that the domestic courts had adequately examined the relevance of the evidence proposed by the applicants and that, even though the decision to refuse to take and examine it had given no specific reasons, it was obvious that the reason had been that the other evidence already taken had unequivocally provided a complete picture, in view of which the taking of further evidence had been unnecessary, as recognised by the Supreme Court, sitting as the court of appeal. 47. The Government submitted a statement issued on 15 November 2019 for the purposes of the proceedings before the Court by the presiding judge of the chamber of the SCC sitting in the applicants’ case. She acknowledged that the defence had requested the taking and examination of the evidence in issue in writing as well as orally and she summarised the specific witnesses the applicants had sought to have heard and the specific purposes of their examination. Stating that the applicants’ conviction had rested on ample evidence and mentioning the evidence from witnesses B., C. and D. individually, the presiding judge added:
“... On the basis of the assessment of the admissibility and relevance of [the other] evidence, the court concluded that it was sufficient for a decision on guilt [and] punishment, [whereas] the proposal of evidence on behalf of the defence did not provide a sufficient explanation of its significance for the establishment of the true factual picture.”
48. Lastly, the Government submitted that some of the witnesses proposed by the applicants had been heard prior to the bringing of charges against the applicants. As they had submitted nothing that had been seen as relevant, it had not been necessary to hear those witnesses again. As the applicants had at all times been represented by lawyers and had had unrestricted opportunities to exercise their rights of defence, the proceedings as a whole had been fair.

Outcome for Article 41: violation