The European Court of Human Rights (ECHR) Thursday held that Slovakia is liable for violating the right to a fair trial and the right to obtain attendance and examination of witnesses in a Syrian national’s complaint that his trial and conviction on charges of migrant smuggling had been unfair.
In Al Alo v. Slovakia, Jamal Al Alo was serving a term of five years in prison for conspiring with others to smuggle migrants. During surveillance, Alo was seen with two suspected migrants entering a taxi that drove off toward Slovakia’s border with Austria. Police intercepted the car and detained the migrants. According to the migrants, Alo had arranged for their transfer to Germany as part of a deal arranged and paid for previously. Alo was not present during the interviews of the migrants and did not have a lawyer to present his case.
Alo appealed his conviction before the Bratislava Regional Court because his defense rights were not taken into consideration. The court dismissed the appeal. This decision was also upheld by the Supreme Court of Slovakia. Hence, Alo raised the appeal that Articles 6 §§ 1 and 3 (c) and (d) of the European Convention of Human Rights were violated. These articles provide the right to a fair trial, the right to legal assistance of own choosing, and the right to obtain attendance and examination of witnesses.
The ECHR referred to judicial precedent to understand whether there was a good reason for the non-attendance of the witness at trial, whether the evidence of the absent witness was “sole or decisive,” and whether there were sufficient “counterbalancing factors” permitting a fair and proper assessment of the reliability of the evidence in question.
The ECHR held that pre-trial statements given by the migrant witnesses shall not be used and should have secured their appearance via remote means under the Convention on Mutual Assistance in Criminal Matters between the member states of the EU. The court also held that a complete waiver of the right to examine or have examined the witnesses against Alo could not be accepted, as instructions regarding the migrants’ questioning had simply been given to him via the first pages of the pre-printed forms on which his pre-trial statements had been transcribed. Also, Alo had not received any individualized advice about the consequences of not exercising his rights by any lawyer.
Due to lack of procedural impropriety, migrants were not present to attend Alo’s trial and no minimum safeguards were provided in the present case. Therefore, the ECHR found violation of the above articles. The court ordered Slovakia to pay the applicant €5,200 for non-pecuniary damage and €1,038 for costs and expenses.