ECHR decision of March 12, 2020 in the case "Chernika V. Ukraine" (aplication N 53971/11 and other aplications).
In 2011, the applicant was assisted in preparing aplications. Subsequently, the aplications were combined and communicated to Ukraine.
The case successfully considered an aplications about the circumstances of the non-participation of witnesses who gave evidence against the applicant in the trial, which ended with the applicant's guilty plea. The case violated the requirements of article 6, paragraph 3 (d), of the Convention for the protection of human rights and fundamental freedoms.
The applicant was accused of stealing drugs that he had access to as a police officer and selling them to his friend N. sh.and her friends, V. G. and I. G. All of these persons testified against the applicant during the preliminary investigation. During this period, confrontations were held between them and the applicant. Only witness N. sh. was questioned at the court session, but after the verdict was overturned by the court of second instance, N. sh. did not appear again in court. The other two witnesses never testified in court.
POINT OF LAW
Regarding compliance with article 6, paragraph 3, paragraph 1 and subparagraph (d) of the Convention. The European Court applied a combination of two sets of principles developed in the case-law of the European Court of justice regarding the admissibility of testimony of witnesses who are absent from court, and the principle of urgency.
The first important factor in relation to each of these groups of principles was the question of what significance these statements had in the applicant's conviction. The three witnesses in the present case were the only direct participants in the illegal activities of which the applicant was accused. All other evidence against the applicant simply demonstrated that he was able to commit the crime because of his access to drugs and that he was in contact with the three named witnesses. Consequently, the witness statements were "decisive" in the sense that they were probably crucial to the outcome of the case against the applicant.
The second question was how the composition of the court that passed sentence in the applicant's case had changed. The composition of the court was completely changed, and the new judges did not question any of the three witnesses.
The court considered whether there were good reasons for the absence of witnesses at the retrial, which resulted in the applicant's conviction, and whether appropriate safeguards were applied to ensure that, despite the absence of witnesses, the court nevertheless had sufficient knowledge of the statements of the absent witnesses in order to ensure the fairness of the trial as a whole.
The Ukrainian authorities did not prove that the relevant state authorities had been diligent in their efforts to ensure the appearance of witnesses in court. As for N. S., the authorities were unable to determine her whereabouts. Despite the fact that during the retrial, one of the witnesses said that he knew where N. sh.worked, there is no evidence that the authorities used this information or tried to find N. sh. Consequently, the Ukrainian authorities did not demonstrate that there were valid reasons for N. sh. ' s non-appearance at the court session. As for V. G. and I. S., there was no reason to doubt that their state of health really prevented them from traveling a considerable distance to the venue of the second trial. However, no reason was given for their failure to appear during the first trial.
The European Court considered it particularly important that the Ukrainian authorities did not prove that there were valid reasons for the non-appearance of witness N. sh.at the second trial. Since the testimony of the other two witnesses was closely linked to that of N. S. and given the basic nature of the testimony of all three witnesses, the Ukrainian authorities had to prove that sufficient safeguards were applied to ensure that the new three judges properly understood the testimony of these witnesses, as well as the fairness of the trial as a whole.
In the course of the trial identified three potential alternative vzaimootnosheniyah factors:
(i) possibility, which was the applicant in the course of the proceedings by the Ukrainian authorities, to state its version of events and cast doubt on the credibility of no-shows of witnesses and point out any inconsistencies in their words: the applicant was a possibility, but this fact in itself could not be considered a sufficient countervailing factor that compensated for the deteriorating owing to the absence of witnesses the position of the defense.
(ii) Availability of additional supporting evidence: although it existed, it had little evidentiary value in the absence of the testimony of the three witnesses in question.
(iii) the Applicant participated in cross-examination of all three witnesses during the preliminary investigation and could have questioned N. S. in court during the first trial.
In contrast to The Famulyak V. Ukraine cases (Decision of the European Court of justice of 26 March 2019, complaint N 30180/11) and Palchik V. Ukraine (Judgment of the European Court of justice in the case of 2 March 2017, complaint N 16980/06), the applicant claimed that at the stage of the preliminary investigation, the defense party did not have access to evidence in the case file. This argument was important for assessing the fairness of the process, but it could not be decisive in itself, because if the confrontation took place before the conclusion of the preliminary investigation, in many cases the process of collecting evidence could by its nature be incomplete. This violation was not so serious as to make confrontations with witnesses completely inadequate due process guarantees.
However, the judge who reviewed the applicant's case and issued the guilty verdict was not able to personally question any of the three key prosecution witnesses. He also did not have a video recording of their testimony, although Ukrainian legislation provided for such a possibility, and this recording could be an important additional guarantee. Consequently, the violation of limited access to the case file during the confrontation, which the applicant encountered during the preliminary investigation, was complicated by the applicant's inability to question witnesses in the presence of the judge who examined the applicant's case.
Thus, the Ukrainian authorities did not demonstrate that there were any particularly serious guarantees, other than the fact that the records of the interviews of witnesses during the preliminary investigation and trial (N. S.) were available to the new judge who considered the case. The Ukrainian authorities did not prove that, in the circumstances of the applicant's case, this single guarantee would have been sufficient to ensure that the applicant's rights were respected. This combination of circumstances could have had a negative impact on the fairness of the criminal case against the applicant as a whole.
In this respect, the applicant's case should be distinguished from the above-mentioned decision of the European Court of justice In Famulyak V. Ukraine, in which The European Court found the relevant complaint manifestly unfounded, although the composition of the court was completely changed. The case in question was characterized by special circumstances, such as the fact that the judge who reviewed the case had the opportunity to question a witness whose testimony was key to making a decision on the case, even though the applicant himself did not have the opportunity to question the said witness in the presence of the said judge.
The case violated the requirements of article 6, paragraph 3 (d), of the Convention (adopted unanimously). &
In the application of article 41 of the Convention. The European Court of justice held that the finding of a violation of the Convention would in itself constitute sufficient just compensation for non-pecuniary damage.