The Court of Appeal Cannot Evaluate a Witness's Testimony Solely Based on the Lawyer's Recount – Supreme Court
The inability to re-examine a witness due to their death does not give the appellate court the right to evaluate their testimony solely based on the defense’s recount, especially when it is possible to verify the content of this testimony by playing the technical recording of the local court hearing. This was emphasized by the Supreme Court.
Case Details
The lower courts found the accused guilty and sentenced him under Part 4 of Article 185 of the Criminal Code.
In the cassation appeal, the defense lawyer focused on the witnesses' testimonies, which he claimed were key sources of evidence supporting the defense’s position, as they confirmed the absence of intent to steal and the absence of a secret method of taking the property. However, the courts did not properly evaluate these testimonies nor analyze their content.
The Criminal Cassation Court of the Supreme Court annulled the decision of the Court of Appeal and appointed a new hearing in the appellate court.
Position of the Supreme Court
The panel of judges of the Criminal Cassation Court indicated that, as seen from the verdict, the local court, having directly questioned the witnesses, did not set out the content of their testimonies in the decision nor gave them any evaluation.
The appellate court, having identified this deficiency, did not remedy it in the manner prescribed by criminal procedural law, did not examine the testimonies of the mentioned witnesses, but gave them its own evaluation based solely on the defense lawyer’s recount of their testimonies in the appeal.
Justifying this approach, the appellate court referred to the fact that the defense did not file a motion for re-examination of the witnesses, and therefore the court had no procedural grounds for re-examining their testimonies.
Thus, the appellate court, on the one hand, indicated the absence of procedural grounds for re-examining the witnesses' testimonies, but on the other hand, essentially evaluated them and concluded that they did not refute the conclusions of the local court, although the mere absence of a motion for re-examination did not authorize the court to evaluate such evidence based on the defense’s recount in the appeal instead of their direct examination in the manner prescribed by law.
The inability to re-examine a witness due to their death did not grant the appellate court the right to evaluate their testimony solely based on the defense’s recount, despite the possibility to verify the content of these testimonies by playing the technical recording of the local court hearing.
At the same time, the ruling did not mention circumstances that would make re-examination of another witness impossible. According to the defense’s arguments, the witnesses' testimonies concerned the circumstances of the bicycle’s taking, the accused’s subsequent behavior, and his intention to return the property to the owner. Therefore, this information was important for verifying the defense’s arguments regarding the accused’s intent, as a mandatory element of the subjective side of the criminal offense charged.
Therefore, the testimonies of these witnesses could not be dismissed without proper verification and reasoned evaluation together with other evidence. These issues concern the correct establishment of the factual circumstances of the criminal proceedings and require examination and analysis of the evidence in the case.
The decision of the panel of judges of the Third Judicial Chamber of the Criminal Cassation Court of the Supreme Court dated 17.06.2026 in case No. 474/1673/23 (proceeding No. 51-929km26).
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