Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
supposes that the prosecution in a criminal case seek to prove their case
against the accused without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the accused. In this sense the
right is closely linked to the presumption of innocence contained in Article
6 § 2 of the Convention. The right not to incriminate oneself is primarily
concerned, however, with respecting the will of an accused person to remain
silent. As commonly understood in the legal systems of the Contracting Parties
to the Convention and elsewhere, it does not extend to the use in criminal
proceedings of material which may be obtained from the accused through
the use of compulsory powers but which has an existence independent of
the will of the suspect such as, inter alia, documents acquired pursuant to a
warrant; breath, blood and urine samples; and bodily tissue for the purpose
of DNA testing”.
In the case of Ajdarić606, the Court found the Croatia in violation of the
principle in dubio pro reo because of the lack of court reasoning, which
constituted a violation of Article 6 paragraph 1 of the ECHR. In this case,
the applicant was convicted on three counts of murder perpetrated in
Kutina in 1998, and sentenced to 40 years in prison, solely on the basis
of hearsay evidence of a witness. The witness was a former police officer
and was himself convicted (judgement not final) to 7 years in prison; the
applicant met the witness in the prison hospital in 2005. The witness said
that he had overheard conversations between the applicant and a third
person while staying in the same hospital room with five other inmates,
in which they had discussed perpetrating the criminal offence together.
The ECtHR found that the national courts made no effort to verify
the statements made by this witness, but accepted them as truthful,
irrespective of the fact that medical documentation showed that he
suffered from mental disorders; also, the national courts did not take into
account contradictory statements made by other witnesses either. The
Court went far in exploring contradictions between different statements,
contradictions in statements themselves, and inconsistencies in some
issues, and has stated: “All these discrepancies called for an increasingly
careful assessment by the domestic courts. In this connection the Court points
out to the requirement that the parties in the proceedings have to be heard
and their objections properly addressed and notes that the applicant made
serious objections as to the reliability of evidence given by S.Š., pointing out
to various discrepancies and lack of logic in the statement of S.Š., as well as
to the lack of any connection between him and the criminal offences at issue.
The applicant referred to specific facts and documents which called into
question the statement given by S.Š. Thus, he pointed to the confused and
imprecise nature of the statements by S.Š. As to the allegation by S.Š. that
the applicant had opened a “business” in Banja Luka with the money taken
from the victims in 1998, the applicant presented documents showing that
606
130
Ajdarić v. Croatia, no. 20883/09, ECHR, 04.06.2012.
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