ECHR ruling of November 13, 2018 in the case of Chang (Zhang) v. Ukraine (application N 6970/15).
In 2015, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Ukraine.
The case was successfully considered the application of the applicant to his conviction for murder, based on inconsistent testimony of witnesses for the prosecution in a process during which all defense witnesses were withdrawn. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, a student from China who studied economics, was on a picnic with a group of about 15 other Chinese students when a fight began with a group of four Ukrainian citizens. One of the Ukrainians received a stab in the back with a metal skewer and died in a hospital a few days later. The applicant was convicted of his murder.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 6 of the Convention. The key evidence on which the applicant was convicted was inconsistent testimony from the friends of the deceased. During the whole trial, the defense in its objections pointed to the inconsistency and inconsistency of their testimony. Moreover, the courts of Ukraine themselves acknowledged the seriousness of these shortcomings in the repeated orders to refer the case for additional pre-trial investigation. However, in the end, no measures were taken to resolve these issues. Thus, in the sentence by which the applicant was convicted of murder, the court simply indicated that he had no doubts about the actual circumstances of the case and that he considered the testimony of the witnesses “consistent and confirmed by other evidence”. Higher Courts agreed with this approach without any further clarification. In other words, although not disputed testimonial deficiencies demanded an ever more thorough assessment by the respondent State’s courts, the latter preferred, without providing any explanation, not to doubt the veracity of this evidence, not to mention the interpretation of the doubts in favor of the accused.
Apart from inconsistent testimony by the prosecution, there was no evidence against the applicant. Moreover, during the preliminary investigation, the defense received numerous explanations from Chinese students, one of whom even admitted at some point that he accidentally injured one of the Ukrainians. While the preliminary investigation continued, all students from China left the territory of Ukraine. Questions about the establishment of their location in order to either call them to Ukraine, or remote interrogation, were not raised.
In 2012, the new Criminal Procedure Code of Ukraine came into force (hereinafter - the Code of Criminal Procedure of Ukraine). By that time, the criminal proceedings against the applicant had lasted for three and a half years, and a preliminary investigation was carried out several times in order to correct numerous shortcomings and omissions. The new Criminal Procedure Code of Ukraine provided that the courts of the respondent state could refer only to testimony obtained directly in the courtroom, but not to those that had been made earlier to the investigator or prosecutor. This story was aimed at putting an end to the widespread abuse in Ukraine by police officers in order to extract confessions. This practice has often been criticized by the European Court of Justice in connection with its usual use in criminal cases at early stages of the proceedings. At the same time, the new Criminal Procedure Code of Ukraine clarified that the issue of the admissibility of evidence was subject to resolution on the basis of the Criminal Procedure Code, in force at the time of receipt of evidence. In the applicant's case, the parties did not dispute that all evidence was obtained when the Criminal Procedure Code of the Ukrainian Soviet Socialist Republic of 1960 was in force.
Although the new provisions of the procedural law were aimed at protecting the rights of the accused, in the applicant's case the courts of Ukraine interpreted them as grounds for excluding all testimony from the defense, since they were not obtained during the court hearings. As a result, all the testimony remained at the disposal of the prosecution, while the applicant remained unable to refer to the testimony of any witnesses.
Therefore, the applicant's situation was significantly more disadvantageous than the position of the prosecution.
Under the circumstances, regardless of whether the Criminal Procedure Code of the Ukrainian Soviet Socialist Republic of 1960 was to be applied in the applicant's case, or the Criminal Procedure Code of the Ukrainian Soviet Socialist Republic of 1960, the courts of the respondent state interpreted and applied their provisions on evaluating evidence in a manner that was incompatible with the obligations of the state, under the Convention.
Finally, the courts of Ukraine of all three levels of jurisdiction did not give any assessment of the applicant’s specific and important arguments about serious flaws in the testimony of witnesses for the prosecution and on the alleged illegality and arbitrariness of excluding from the case all the evidence of the defense witnesses.
The case was a violation of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 7,500 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.