Identifying the person who committed the crime - the ECtHR's legal position

The reliance on the results of the procedure of identification of the applicant by the victim, which was carried out with procedural violations, as the sole evidence of her guilt constitutes a violation of the right to a fair trial within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

This conclusion was reached by the European Court of Human Rights in the case of KOLOMPAR v. Serbia (no. 34167/15).

In the circumstances of the case, the applicant was sentenced to one year's imprisonment for theft on the basis of the testimony of the victim, who, having seen the applicant in the photographs submitted and subsequently in court, identified her as the person who had been in her garden on the day of the theft.

In its assessment of the relevant circumstances, the ECtHR noted, inter alia, that, at the time of the events, the criminal procedural law of the respondent State provided for a procedure to be applied, if necessary, to establish whether the witness could identify a particular person whom he had already described. This procedure provided for a number of safeguards to ensure that the truth was established and that the rights of all parties to the criminal proceedings were respected. In particular, the person had to be shown to the witness together with other unknown persons; the identification had to be carried out in such a way that the person to be identified could not see the witness and the witness could not see the person in person before the official procedure; the identification had to be carried out within a short period of time after the criminal offence was committed, etc. In this case, no such procedure was carried out and the relevant safeguards were not applied.

In addition, the domestic courts did not examine any forensic or other material evidence relating to the crime, and the case file consisted only of police reports.

All of this, according to the ECtHR, rendered the victim's testimony suspect, and even the adversarial nature of the subsequent proceedings could not remedy the procedural deficiencies.

The ECtHR also recognised that in this case the discrepancies in the testimony of the witnesses and the victim had not been sufficiently taken into account and analysed by the national courts in their reasoning.

The national courts thus failed to comply with two fundamental requirements of criminal procedure: (i) the guilt of the accused must be proved beyond reasonable doubt; (ii) any doubts as to the reliability of the evidence must be resolved in favour of the accused and not of the prosecution (the in dubio pro reo principle).

In the light of the above, the ECtHR concluded that the criminal proceedings against the applicant did not meet the requirements of a fair trial, in violation of the requirements of Article 6(1) of the Convention.

A more detailed description of this judgment will be available in the next ECtHR case law review, while the previous review is available at https://is.gd/lXvEuk. The official text of the KOLOMPAR v. Serbia judgment is available on the ECHR website at https://hudoc.echr.coe.int/eng?i=001-227630.