Two Irishmen were denied a fair trial when a Dutch appeal court convicted them of the manslaughter of a Dublin drug dealer whose dismembered body was found in an Amsterdam canal, the European Court of Human Rights (ECHR) has ruled.
The appropriate remedy for Dubliners Kenneth Brunell, from Palmerstown, and Barry McArdle, from Drimnagh, who are serving 13-year prison terms in the Netherlands, is to have their cases reopened because the appeal court failed to hear evidence in person from a key witness, the ECHR held on Tuesday.
It found the men’s fair trial rights under Article 6 of the European Convention on Human Rights were breached by the Amsterdam court of appeal in its May 2018 decision overturning their earlier acquittals on charges of killing Keith Ennis (29).
Both were extradited from Ireland in 2014 to stand trial after a suitcase and several bin bags containing the dismembered remains of Ennis were found in an Amsterdam canal in February 2009.
Ennis was believed to have fled Ireland while facing gun and drug charges and Dutch investigators concluded he had been stabbed in a Rotterdam apartment a week earlier.
Another Irishman, identified only as witness X, who had been staying in the apartment, accused Brunell and McArdle of killing Ennis, cutting up the body and helping to dump the remains. They strongly disputed those claims.
In 2017, the Amsterdam regional court found X’s evidence was not sufficiently reliable to support a verdict of manslaughter. It noted X had only incriminated the two accused after he had seen the case file and realised phone tracking data placed him at the scene.
While phone records placed the men in the apartment, and DNA linked McArdle to the chainsaw used to dismember Ennis, the regional court said the only evidence about the men’s alleged roles in the actual killing was from X and it was not sufficiently reliable.
It acquitted Brunell and McArdle of murder and manslaughter but convicted them of unlawfully disposing of the body and sentenced both to two years.
A year later, the Amsterdam court of appeal allowed an appeal by the public prosecutor over the regional court’s verdict. On foot of X’s written statements, it convicted both men of manslaughter and increased their sentences to 13 years.
Both men appealed on points of law to the Dutch supreme court, which upheld the appeal court’s decision. The ECHR later agreed to hear a further appeal.
The European court on Tuesday found the court of appeal had reassessed the facts and the applicants’ guilt while relying on decisive testimony from a key witness whose credibility was central to the case without hearing him in person, despite that credibility having been seriously called into question.
This meant the appeal court had no opportunity to directly assess his reliability, which was “incompatible” with the principle of immediacy, requiring courts to use original, primary evidence. That undermined the fairness of the proceedings as a whole, it held.
The court noted, in the absence of any conclusive forensic evidence, the appeal court had found important aspects of X’s statement were corroborated by objective material and could therefore be admitted in evidence.
The appeal court had referred to mobile telephone tracking data and information concerning travel movements corresponded to X’s description of events and also relied on the fact DNA belonging to McArdle and Ennis had been found on the chainsaw used to dismember the victim’s body.
This material, the ECHR said, could only place Brunell and McArdle inside the apartment. It did not provide direct insight into what had occurred there and could not reconstruct the sequence of events leading to Ennis’ death or clarify the individual roles or responsibilities of those involved.
The appeal court’s assessment of guilt had hinged on the credibility and reliability of X’s version of events, it said. In these circumstances, the statements of X, and the weight attached to them, had been “decisive”.