Delta v France EUROPEAN COURT OF HUMAN RIGHTS (1993) 16 EHRR 574, 19 DECEMBER 1990

PANEL: The President, Judge Ryssdal; Judges Cremona, Thor Vilhjalmsson, Golcuklu, Pettiti, Sir

Examination of witnesses

FACTS
The applicant, a French citizen, was convicted of robbery based largely on the written testimony of two individuals. The applicant was not present when the testimony was taken. In addition, the two witnesses did not testify either at the trial level or during the appeal. On the contrary, Court of Cassation refused to call the witnesses and confirmed the conviction of the applicant. The applicant files this suit alleging that he did not have a fair trial and that he was deprived of the right to examine witnesses and obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him within the meaning of Article 6(1) and (3)(d) of the European Convention on Human Rights.

1. Criminal Proceedings: fair trial; examination of witnesses. (Arts 6(1) and 6(3)(d)).

Admissibility and assessment of evidence are primarily matters left for the national courts. The task of this Court is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair. The general rule is that evidence should be submitted in the presence of the accused during a public hearing with a view to adversarial argument. The accused must be given the opportunity to examine themselves and protect their own interests either at the time of the statement of in a latter hearing.

The following cases were referred to in the judgment:

1. WINDISCH v AUSTRIA (A/186): 1991 13 EHRR 281.
2. KOSTOVSKI v NETHERLANDS (A/166): (1990) 12 EHRR 434.
3. BEZICHERI v ITALY (A/164): (1990) 12 EHRR 210.
4. GODDI v ITALY (A/76): (1984) 6 EHRR 457.
5. COLOZZA v ITALY (A/89): (1985) 7 EHRR 516.
6. LUEDICKE, BELKACEM AND KOC v GERMANY (No 2) (A/29): (1979-80) 2 EHRR 433.
7. ARTICO v ITALY (A/37): (1981) 3 ERRR 1.
8. Cour d'Appel, 30 October 1890, Bull 212.
9. Cour d'Appel, 13 December 1890, Bull 253.
10. Cour d'Appel, 20 October 1892, [1894] I DP 140.
11. Cour d'Appel, 13 January 1916, [1921] I DP 63.
12. Cour d'Appel, 20 December 1955, [1956] Dalloz 29.
13. Cour d'Appel, 20 October 1892, Bull 212.
14. Cour d'Appel, 9 February 1924, Bull 70.
15. Cour d'Appel, 5 November 1975, Bull 237.
16. RANDHAWA, Cassation, 12 January 1989, [1989] Bull 13, p 37.
17. X, Cour d'Appel, 22 March 1989, [1989] Bull 144, p 369.

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