European Court of Human Rights - case of Balsytė-Lideikienė v. Lithuania (2008) (excerpts)

European Court of Human Rights - case of Balsytė-Lideikienė v. Lithuania (2008) (excerpts)

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62. The Court recalls that the requirements of paragraph 3 of Article 6 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996 II, § 66). In this respect the Court has previously held that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument (Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997 III, § 51). However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see, among many authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A
no. 194-A, p. 12, § 34, and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 47). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the pre-trial stage or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see the following judgments: Unterpertinger v. Austria, 24 November 1986, Series A no. 110, §§ 31-33, and Saïdi v. France, 20 September 1993, Series A no. 261-C, §§ 43-44). With respect to statements of witnesses who proved to be unavailable for questioning in the presence of the defendant, the Court recalls that paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII).

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64. In the circumstances of the case in issue the Court disagrees with the Government's claim about the lack of significance of the experts' conclusions vis-à-vis the other pieces of evidence. The Court takes into consideration the fact that the first-instance court appointed experts to produce political science, bibliographical, psychological and historical reports with the aim of establishing whether “Lithuanian calendar 2000” posed a danger to society, which was the precondition of an administrative law offence. The Court draws particular attention to the fact that when finding the applicant guilty, the national courts of both instances extensively quoted the experts' conclusions. In particular, the Vilnius City Second District Court quoted the conclusions of the political science experts' report that a biased and one-sided portrayal of relations between the nations obstructed the consolidation of civil society and propagated national hatred. The first-instance court also directly relied on the bibliographical experts' report that “Lithuanian calendar 2000” did not meet the generally applied bibliographical standards as to the sources and literature quoted. In determining guilt and coming to the conclusion that the administrative offence had been committed due to the applicant's negligence,
the first-instance court relied on the conclusion of psychological experts. From all the foregoing, the Court concludes that in the instant case the conclusions provided by the experts during the pre-trial stage had a key place in the proceedings against the applicant. It is therefore necessary to determine whether the applicant expressed a wish to have the experts examined in open court and, if so, whether she had such an opportunity.


65. Relying on the documents at its disposition the Court draws attention to the applicant's written request of 12 March 2001, received by the Vilnius City Second District Court the following day, by which the applicant asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row (see § 26 above). The applicant also asked the court to determine the reasons behind the experts' absence and to sanction them. Furthermore, in her appeal the applicant referred to her request to have the experts present at the hearing at the first-instance court and the refusal of that court to summon them. However, the Supreme Administrative Court rejected the applicant's request, noting that under the circumstances of the case her inability to question the experts did not violate any of the procedural legal norms.


66. Having analysed all the material submitted to it, the Court considers that neither at the pre-trial stage nor during the trial was the applicant given the opportunity to question the experts, whose opinions contained certain discrepancies, in order to subject their credibility to scrutiny or cast any doubt on their conclusions. Relying on its case-law on the subject, the Court concludes that in the instant case the refusal to entertain the applicant's request to have the experts examined in open court failed to meet the requirements of Article 6 § 1 of the Convention. Taking into consideration the above conclusion, the Court finds it unnecessary to separately examine the question of the absence of a public hearing before the Supreme Administrative Court.