14.03.2019 | Автор: Зеров Костянтин
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«Гриб проти України»: Невжиття обвинуваченим усіх можливих заходів для захисту його права на допит свідка у майбутньому може стати перешкодою для визнання показань такого свідка недопустимим доказом (ст. 6 Конвенції, заява № 65078/10, від 14.12.2017 р.)

Фабула судового акта: Заявник, громадянин України О.С. Гриб, звернувся до ЄСПЛ із заявою, стверджуючи, що його право на справедливий суд було порушено у зв`язку з тим, що його не викликали на засідання суду касаційної інстанції, в якому був присутнім прокурор, не забезпечили можливості допитати певних свідків та ін.

Заявника, який обіймав посаду судді районного суду, було визнано винним у зловживанні службовим становищем через неодноразове залучення І., на якого було накладено адміністративне стягнення і який перебував в ізоляторі тимчасового утримання, в якості робітника для здійснення ремонту будинку батька Заявника. Ш, підрядник, який працював на будівництві, за вказівкою Заявника приводив І. на будівництво та керував його роботою. Під час судового повадження забезпечити явку І. та Ш. в засідання не вдалося, з огляду на що було зачитано їхні показання та переглянуто відео із записами допитів.

Суд визнав Заявника винним у зловживанні службовим становищем та призначив покарання у вигляді позбавлення волі на строк п’ять років зі звільненням від відбування покарання з іспитовим строком на три роки. Під час ухвалення вироку суд керувався показаннями І., Ш. та інших свідків, висновками експертиз тощо. Заявник оскаржив рішення до Верховного Суду України, зокрема з тих підстав, що Ш. не був допитаний в суді і не підписав показання, а показання І. були недостовірними і непослідовними. Верховний Суд України роглянув касаційну скаргу у судовому засіданні, в якому був присутній лише представник сторони обвинувачення (прокурор) та виключив із вироку посилання на показання Ш. як на докази – у іншій частині вирок було залишено без змін.

ЄСПЛ, посилаючись на рішення «Жук проти України» та «Пальчик проти України» наголосив, що присутність прокурора у засіданнях Верховного Суду України за відсутності сторони захисту надавала прокурору можливість зробити усні зауваження, що могли вплинути на рішення суду по справі. Таким чином, з огляду на вимоги процесуальної справедливості, стороні захисту також повинна була бути надана можливість зробити усні зауваження у відповідь. З огляду на те, що остаточне рішення у справі Заявника було прийняте лише у присутності сторони обвинувачення, ЄСПЛ констатував, що у справі Заявника не було дотримано принципу процесуальної рівності сторін під час провадження у Верховному Суді України та встановив порушення пункту 1 статті 6 Конвенції.

ЄСПЛ наголосив, що право на виклик свідка не є абсолютним і може бути обмеженим з метою належного здійснення правосуддя. Підпункт «d» пункту 3 статті 6 Конвенції не вимагає допиту та участі у процесі кожного свідка, метою вказаного положення є забезпечення процесуальної рівності сторін. ЄСПЛ підкреслив, що вирішення питання, чи ґрунтувалося обвинувачення заявника на показаннях свідка, який був відсутнім у судовому засіданні, цілком покладається на національні суди. Оскільки Верховний Суд України у вироку не посилався на показання Ш., ЄСПЛ дійшов висновку, що показання Ш. не мали значення для засудження Заявника. ЄСПЛ також наголосив, що відсутність у Заявника можливості допитати Ш. не була наслідком бездіяльності національних судів, оскільки вони намагалися встановити місцезнаходження свідка та допитати його. З огляду на зазначене, ЄСПЛ вирішив, що не було порушено пункт 1 статті 6 та підпункт «d» пункту 3 статті 6 Конвенції у зв’язку з використанням показань Ш. для засудження Заявника та його неявкою у судове засідання.

ЄСПЛ також дійшов висновку, що не було порушено пункт 1 та підпункт «d» пункту 3 статті 6 Конвенції у зв’язку з визнанням допустимим доказом наданих під час досудового слідства показань І. ЄСПЛ підкреслив, що у випадку наявності вагомих причин для неявки свідка у судове засідання (зокрема, у випадку його недосяжності), визнання судом першої інстанції допустимим доказом неперевірених показань свідка, який не з’явився, може бути обґрунтованим. ЄСПЛ підкреслив, що суд здійснив численні заходи для встановлення місцезнаходження І.,проте Заявник, який контактував з І. і володів інформацією про місцезнаходження І., не надав її суду. ЄСПЛ констатував, що Заявник не вжив усі доступні йому заходи для захисту його права на допит I., таким чином, неявка І. в судове зсідання частково була наcлідком бездіяльності самого Заявника. Враховуючи вказане, а також існування урівноважуючих факторів, які компенсували перешкоди, з якими зіткнулася сторона захисту, ЄСПЛ дійшов висновку, що справедливість провадження порушено не було.

Інші скарги Заявника було відхилено як явно необґрунтовані.

Аналізуйте судовий акт: «Жук проти України» (Zhuk v. Ukraine), заява № 45783/05

«Аль-Хавайя та Тахірі проти Сполученого Королівства» (Al-Khawaja and Tahery v. the United Kingdom [ВП]), заяви № 26766/05 та № 22228/06

«Шачашвілі проти Німеччини» [ВП] (Schatschaschwili v. Germany [GC]), заява № 9154/10

«Пайч проти Хорватії» (Paić v. Croatia), заява № 47082/12

«Капустяк проти України» (Kapustyak v. Ukraine), заява №  26230/11

Із перекладом тексту рішення на українську мову можна ознайомитися на офіційному веб-сайті Міністерства юстиції України за посиланням: https://minjust.gov.ua/files/general/2019/03/06/20190306161241-55.docx

 

FIFTH SECTION

CASE OF GRYB v. UKRAINE

(Application no. 65078/10)

JUDGMENT

STRASBOURG

14 December 2017

This judgment is final but it may be subject to editorial revision.

In the case of Gryb v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Erik Møse, President,
Yonko Grozev,
Gabriele Kucsko-Stadlmayer, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 21 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 65078/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksiy Sergiyovych Gryb (“the applicant”), on 22 October 2010.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3. The applicant alleged, in particular, that he had not been summoned to a hearing of the Supreme Court at which the prosecutor had been present and that his right to examine certain witnesses had been breached.

4. On 6 February 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Korostyshiv.

A. Background of the case

6. The applicant, at the relevant time a judge of the Radomyshl District Court (“the District Court”), was convicted of abuse of office for having exploited a certain Mr I. as a worker on the renovation of his father’s house under the following circumstances. In April 2007 the applicant, having sentenced I. to fifteen days’ imprisonment for disorderly conduct, had the site manager for the house renovation, Mr Sh., check I. out of the police detention facility (“the facility”) where the latter was serving his sentence and take him to the construction site where he was to work under Sh.’s direction. Then, in November 2007, a police officer, G., conspired with the applicant in drawing up a report falsely accusing I. of another episode of disorderly conduct. G. fabricated written statements by false witnesses, P.S. and I.A., incriminating I., and submitted the file to the applicant. Knowing that I. was innocent and the report was false, the applicant convicted I. and sentenced him to another fifteen days’ detention. The same scheme was used to exploit I. on the construction site.

7. On 21 November 2007 officers of the Security Service discovered I. on the construction site in Sh.’s company.

B. Witness statements made in the course of the pre-trial investigation

8. According to the transcript of his statement dated 23 January 2008, which was also video-recorded, Sh. stated that the applicant had employed him to work on his father’s house, that in April 2007 I. had worked on the site on terms he had negotiated with the applicant and that in November I. had worked while serving his fifteen-day sentence. The applicant had instructed Sh. to collect I. from the detention facility, so he had done so. The statement was signed by Sh. on the first and second pages, where his rights as a witness were explained. The statement consists of three more type-written pages containing the transcript of the interview but is not signed by Sh. at the end. It contains a note by the investigator to the effect that Sh. did not sign because he failed to appear when summoned by the investigator. The file contains a report of the same date, signed by Sh., to the effect that he had watched the video recording of his interview and had no comment to make.

9. On 23 January 2008 I. was interviewed by the investigator. He stated that around May (sic) 2007 he had been sentenced to fifteen days’ imprisonment for disobeying the orders of a police officer. While serving his sentence he had worked on the construction of a house belonging to the applicant, under the direction of Sh. After his release, he had agreed to work for the applicant in return for payment and had carried out construction work for him in June and October 2007. He had then stopped working for the applicant. On 8 November 2007 he had been taken from his home by police officers, who had told him that the applicant had accused him of stealing some cables from the building site. He had been taken to the office of the applicant, who had told him that since he refused to work for money, he would have to work for free. As he had refused to work for free, the applicant had responded that then he would rot in a cell, and had given him a fifteen-day sentence. While he had been serving his sentence, Sh. had taken him out of the detention facility several times and he had worked on the applicant’s construction site: he had refused to build a fence and had done some other work on the site. He had not been remunerated. The applicant had visited the site once and had seen him working but they had not spoken.

10. On 12 September 2008 I. made a notarised statement to the effect that his statement incriminating the applicant had been given “under the influence of psychological violence and trickery” (з застосуванням щодо мене психологічного насильства та обману) and that in fact he had worked willingly and for remuneration.

11. On 30 September 2008 I. was again interviewed by the investigator. The interview was video-recorded. He largely confirmed the tenor of his statement of 23 January 2008 and denied knowingly signing the notarised statement repudiating it. In addition to repeating various elements of his statement of 23 January 2008, he said that although the house where he had worked formally belonged to the applicant’s father, it was the applicant himself who had organised the work. He stressed that he had not been remunerated for his work in April and November 2007 and had not worked voluntarily. In September 2008 the applicant had made him visit a notarial office to formalise some papers, the nature of which he was not clear about.

C. Trial

12. The applicant and his co-defendant, former police officer G., stood trial before the Vinnytsya Regional Court of Appeal, which was acting as the trial court.

13. The applicant testified that he had had no connection to his father’s house or work on it. He had not requested that I. be sent there. When convicting I., he had not been aware that the charges against him had been false. I. had worked voluntarily and for remuneration. The applicant did not deny that Sh. had been the construction site manager on the renovation of his father’s house but argued that it had been his father who had been concerned by those works and that the applicant himself had had minimal contact with Sh. The phone number which the prosecution argued he had used to contact Sh. in fact belonged not to him but to his father.

14. G. admitted that he had forged the administrative arrest report in respect of I. but stated that he had done it at the request of officers B. and S. (see paragraphs 15 and 16 below). He said that the applicant had not been involved and had been unaware of the forgery when convicting I.

15. B., the head of the detention facility, testified that in late October or early November 2007 the applicant had told him that I. had stolen some things from his construction site and had asked B. to bring I. to him. On 8 November 2007 he had taken I. from his home to the police station. He denied having instructed G. to forge documents in I.’s case. On 12 November 2007 B. was informed by another officer that a stranger claiming to be a court officer showed up at the station and was asking for prisoners to perform works at the court. This was refused. Sometime afterwards the applicant called the station to discuss the release of prisoners and spoke to the commanding officer of the station who gave permission for release of prisoners.

16. S., an officer on duty at the police station, testified that I. had on several occasions been handed over to a person introduced as an employee of the District Court, supposedly for work at the court. On 21 November 2007 the applicant had called personally and asked that I. be handed over for such work. The applicant contested the way S.’s testimony was recorded in the domestic court’s judgment and asserted that S. had not identified him by name. It appears that S. also denied having given any unlawful instructions to G. concerning I.’s case.

17. Other police officers testified that Sh. had checked I. out of the facility on several occasions.

18. P., a District Court officer, stated that he was in charge of taking prisoners from the police detention facility to the District Court to carry out work, and that he knew I. well. However, in November 2007 the latter had not worked at the court.

19. The applicant’s father confirmed that he had bought the house and had had Sh. perform renovation works on it. He denied knowing I.

20. On 3 July 2009 the trial court, noting that I. had failed to appear despite the fact that summonses had been duly sent to him, ordered the police to escort I. to the next court hearing on 10 July 2009.

21. On 8 July 2009 the police reported that I. could not be found at his last known address in Radomyshl and that his whereabouts were unknown. His mother, niece and another neighbour had informed the police that I. had not been living at his usual address in Radomyshl for some time, having left to work in Kyiv. Although he visited briefly from time to time, they had no way of contacting him.

22. On 24 July 2009 the trial court asked the Zhytomyr regional prosecutor to establish the whereabouts of I. and Sh., and to escort them to the hearing scheduled for 17 September 2009. The prosecutor in turn asked the Security Service for assistance in establishing the whereabouts of those two individuals. On 4 September 2009 the Security Service reported essentially the same information as gathered by the police on 8 July 2009. They also stated that Sh. was not living at his address and his whereabouts were unknown.

23. On 17 September 2009 the trial court again ordered that the police bring I. to the next court hearing on 29 September 2009. The police could not locate I. at his last known address. His mother gave the same explanation for his absence.

24. On 29 September 2009 the trial court decided that as the presence of I. and Sh. could not be ensured, their statements should be read out and video recordings of their interviews shown.

25. According to the applicant, he met with I. several times and attempted to persuade him to testify, but I. refused, stating that officers of the Security Service had threatened him with imprisonment if he did.

D. Conviction and appeal

26. On 5 November 2009 the trial court convicted the applicant and G. of abuse of office under the circumstances described in paragraph 6 above and sentenced each of them to five years’ imprisonment, suspended for three years. In convicting the applicant, the court relied on:

(a) I.’s statements, including the one video-recorded, and Sh.’s statement;

(b) evidence presented by the co-defendant G. and witnesses B., S. and P. (see paragraphs 14 to 18 above);

(c) evidence that the applicant had had regular telephone contacts with Sh. at the relevant time;

(d) expert evidence to the effect that it had been Sh. who had signed for I. in the register of prisoners taken out of the detention facility in April and November 2007 and evidence of police officers that Sh. had taken I. from the detention facility;

(e) the statements of witnesses P.S. and I.A., who had been identified in the forged police report as witnesses to I.’s alleged disorderly conduct (see paragraph 6 above), to the effect that their statements had been forged. They stated that they did not know I., had not observed him committing the offence, and had not made any statements about it to the police. P.S. testified at the trial. I.A. gave video-recorded evidence in the course of the pre-trial investigation but did not testify at the trial;

(f) expert evidence showing that the signatures attributed to P.S. and I.A. on the statements incriminating I. had in fact been made by certain police officers; and

(g) the statements of other witnesses, primarily police officers, concerning the circumstances of I.’s arrest.

27. The applicant appealed in cassation to the Supreme Court. He argued that Sh.’s statement should not have been relied upon because Sh. had not signed it and had not been examined at the trial. The applicant also stated that the trial court had misstated I.’s evidence, in particular by ascribing to I. statements which were not in his video-recorded interview shown in the course of the trial. In that interview I. had also made other statements indicating that he had worked voluntarily. The applicant questioned the trial court’s decision to trust the statements given by I., a drunk who had a prior conviction for murder and who had failed to remember the content of the notarised statement he had signed just weeks before, which showed that he was susceptible to signing anything presented to him by the investigator.

28. On 22 April 2010 the Supreme Court held a hearing to examine the appeal. No representative for the defence was present. A prosecutor was present and made oral submissions in opposition to the appeal. At the close of the hearing the court ordered that references to Sh.’s statement be struck from the judgment, since he had not signed his pre-trial statement and thus his statement was inadmissible. The court listed the remaining evidence supporting the applicant’s conviction and considered that, other than Sh.’s statement, the evidence was admissible and sufficiently supported the verdict. The court upheld the remainder of the judgment.

II. RELEVANT DOMESTIC LAW

29. At the material time Article 364 of the Criminal Code of 2001 read as follows:

Article 364. Abuse of power or office

“1. Abuse of authority or office, namely the intentional use of authority or official position contrary to the official interests [of the State] by an official for financial gain or other personal benefit or the benefit of any third parties, where it causes substantial damage to legally protected rights, freedoms and interests of individual citizens, or to State and public interests, or the interests of legal persons...

2. The same act, if it causes any grave consequences ...”

30. At the material time Article 394 of the Code of Criminal Procedure of 1960 read as follows:

Article 394. Examination of a case by a court of cassation

“Cassation appeals and petitions against court decisions... shall be examined and notice of that examination served on the prosecutor and [the other parties to the proceedings].

...

A case assigned for examination, with notice served on the prosecutor and the [other parties to the proceedings], shall be examined by the court of cassation, which shall be composed of three judges with the participation of a prosecutor, in accordance with [rules governing procedure on appeal].

...”

The provisions of the Code which at the material time governed the summoning of witnesses can be found in Karpyuk and Others v. Ukraine (nos. 30582/04 and 32152/04, §§ 77-80, 6 October 2015) respectively.

THE LAW

I. SCOPE OF THE CASE

31. In his reply to the Government’s observations, the applicant submitted a new complaint, alleging that he and his lawyer had not had sufficient time to study the case file following completion of the pre-trial investigation. The Court considers that this complaint cannot be considered as an elaboration of the applicant’s original complaints, on which the Government have already commented. Accordingly, therefore, it is not appropriate at this time to take up these matters in the context of the present case (see, for example, Zakshevskiy v. Ukraine, no. 7193/04, §§ 53-54, 17 March 2016, and Artur Parkhomenko v. Ukraine, no. 40464/05, § 55, 16 February 2017).

II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

32. The applicant complained of a number of violations of Article 6 of the Convention, which reads, in so far as relevant, as follows:

“1. In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

A. Alleged violation of Article 6 § 1 of the Convention in the proceedings before the Supreme Court

1. The parties’ submissions

33. The applicant submitted that there had been a violation of Article 6 § 3 (c) of the Convention in that the Supreme Court had examined his appeal on points of law in his and his lawyer’s absence, whereas the prosecutor had been present at the hearing. He referred to the Court’s judgment in Zhuk v. Ukraine (no. 45783/05, §§ 29-35, 21 October 2010).

34. The Government submitted that the prosecutor’s presence at the hearing had been required by domestic law. However, it had been purely formal: the prosecutor had submitted neither new documents nor new arguments. The Supreme Court had not referred in its ruling to any of the prosecutor’s arguments and had thoroughly examined all the parties’ arguments. Accordingly, the Government maintained that there had been no violation of Article 6 § 3 (c) of the Convention.

2. The Court’s assessment

35. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that this complaint falls to be examined under Article 6 § 1 of the Convention.

(a) Admissibility

36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

37. The Court has previously found violations in similar cases against Ukraine (see Zhuk, cited above, §§ 29-35, and, for a recent example, Palchik v. Ukraine, no. 16980/06, §§ 31-33, 2 March 2017). It considered that the prosecutor in those cases had had the advantage of being present at the hearings before the Supreme Court and, unlike the defendant, had been able to make oral submissions, which were intended to influence the court’s opinion. The Court concluded that procedural fairness required that the applicants should also have been given an opportunity to make oral submissions in reply.

38. Having regard to the circumstances of the present case, the Court sees no reason to reach a different conclusion and finds that the principle of equality of arms has not been respected in the present case.

39. Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine.

B. Alleged violation of Article 6 § 3 (d) of the Convention

1. The parties’ submissions

(a) The applicant

40. The applicant submitted that there had been a violation of Article 6 § 3 (d) of the Convention, in that Sh. and I. had not been examined as witnesses at the trial.

41. As far as Sh.’s statement was concerned, even though the Supreme Court had decided to strike references to it from the judgment, this had not been done in acknowledgement of a violation of the applicant’s rights under Article 6 § 3 (d), but for formal reasons, namely because the transcript of Sh.’s statement had not been signed by him. Moreover, the applicant had wished to examine Sh. to obtain various pieces of information that were crucial for his defence.

42. As far as I. was concerned, the applicant did not consider that the authorities had done all in their power to ensure his presence. The search for him had been conducted by the police in Radomyshl. The head of that police force was implicated in the case and thus had an interest in ensuring that I. did not appear. The applicant had met with I. several times and attempted to persuade him to testify, but the latter had refused, stating that officers of the Security Service had threatened him with imprisonment if he did.

(b) The Government

43. The Government submitted that the applicant’s complaint concerning Sh.’s statement was inadmissible since the Supreme Court had struck all references to it from the judgment.

44. As far as I.’s testimony was concerned, the Government submitted that the trial court had taken all reasonable steps to summon I. and could not be faulted for lack of diligence. Moreover, I.’s pre-trial statements had been corroborated by a range of other evidence. The only thing the applicant intended to prove by cross-examining I. was that the latter had worked for him voluntarily. However, even assuming that I. would have testified in a way favourable to the applicant, this would not have changed the legal classification of the applicant’s actions, since the situation itself suggested that only a person taking advantage of his official connections with the police could have exploited such a detainee.

2. The Court’s assessment

(a) Admissibility

45. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

46. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).

(i) General principles

47. The Court formulated the general principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence in Al-Khawaja and Tahery ([GC], nos. 26766/05 and 22228/06, ECHR 2011), andSchatschaschwili (cited above), and applied them recently in Paić v. Croatia (no. 47082/12, §§ 27-31, 29 March 2016).

48. As far as the right to call defence witnesses is concerned, the Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf; its essential aim, as indicated by the words “under the same conditions”, is full equality of arms in the matter. The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair (see, for example,Kapustyak v. Ukraine, no. 26230/11, § 89, 3 March 2016).

(ii) Application of the above principles to the present case

(α) Sh.’s statement

49. The Court reiterates that, as it is not its role to act as a court of fourth instance, its starting point for deciding whether an applicant’s conviction was based solely or to a decisive extent on the depositions of an absent witness is the judgments of the domestic courts (seeSchatschaschwili, cited above, § 124). In the present case the Supreme Court struck references to Sh.’s statement from the judgment and considered that the remaining evidence was sufficient to support the verdict. The Court finds nothing unacceptable or arbitrary in that assessment (ibid.). Therefore, there is no indication that evidence given by Sh. played any role in the applicant’s conviction.

50. To the extent that the applicant’s submissions can be understood as a complaint that he had been denied an opportunity to examine Sh. as a defence witness, that is to say to obtain from him potentially exculpatory information (see paragraph 41 above), the Court notes that not only did the domestic courts not refuse to summon that witness, but they attempted to locate and examine him (see paragraph 22 above). Therefore, there is no indication that the applicant’s inability to examine Sh. was due to any omission attributable to the authorities.

51. The Court finds, therefore, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the use made of Sh.’s statement and his non-appearance at the trial.

(β) I.’s statements

Whether there was a good reason for the non-attendance of the witness at the trial

52. The Court reiterates that good reason for the absence of a witness must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence. There are a number of reasons why a witness may not attend trial, including the witness’s unreachability (seeSchatschaschwili, cited above, § 119).

53. In the present case the trial court took numerous steps to locate I., to no avail, including seeking the assistance of the law-enforcement authorities (ibid., § 120). The applicant has not identified any other steps which could have been taken by the court under the circumstances.

54. It appears that the applicant, unlike the authorities, was able to locate I. and contact him. Allegedly, the latter was unwilling to testify, according to the applicant, owing to pressure from the law-enforcement authorities. However, nothing in the documents submitted to the Court suggests that the applicant brought the information he had about I.’s whereabouts to the attention of the trial court so that it could take steps to compel I. to attend and be cross-examined. It appears that he did not do so. Moreover, he did not refer to those alleged facts in his appeal to the Supreme Court.

55. Accordingly, there was a good reason, from the trial court’s perspective, for the non-attendance of I. as a witness at the trial and, as a result, for admitting the statements he had made at the pre-trial stage as evidence.

Whether the statements of the absent witness constituted the sole or decisive basis for the applicant’s conviction

56. The Court has previously held that where the domestic courts have not assessed the contested witness statements as “decisive” evidence, namely being of such significance as to be likely to be determinative of the outcome of the case, it will proceed with its own assessment of the weight of the witness evidence in the light of the domestic courts’ findings, having regard to the strength of the additional incriminating evidence available (see Schatschaschwili, cited above, § 123). In the present case I. was the victim of the offence for which the applicant was convicted; his statement directly accused the applicant of knowingly using his judicial authority for personal benefit. It is true that, as the Government submit, there was other evidence before the domestic courts showing that the applicant did use his official position in order to have I. work on his father’s property during I.’s administrative detention. The domestic courts relied in that respect on the testimony of police officers, indicating that the applicant had called to release I. to Sh. and both witness testimony and documentary evidence that it had been Sh. who had taken I. during his administrative detention to work on the applicant’s father’s property. While I.’s testimony seems to be the only source of evidence on the fact that his work was not remunerated, the domestic courts did not single out this element as being decisive for his conviction. Similarly, while I.’s evidence appears to have been important in establishing the fact that the applicant actually conspired with the police to fabricate a case against him, this was not the only evidence. This fact was also established by way of documentary evidence and police officer B.’s testimony, to the effect that the applicant initiated the false proceedings against I. In view of the above, the Court, therefore, does not find it necessary to make a definitive finding as to whether the evidence provided by I. was “decisive” as in any case it is satisfied that his statements carried significant weight and their admission as evidence may have handicapped the applicant’s defence.

Whether there were sufficient counterbalancing factors to compensate for the handicap under which the defence laboured

57. The Court perceives three potential counterbalancing factors in the proceedings (see Schatschaschwili, cited above, §§ 126-30, for a discussion of possible counterbalancing factors):

(i) the opportunity which the applicant enjoyed in the course of the domestic proceedings to give his own version of the events and to cast doubt on the credibility of the absent witness and point out any incoherence in his statements;

(ii) the availability of further corroborative evidence; and

(iii) the fact that a video recording of I.’s questioning at the investigation stage was shown at the trial, allowing the court and the parties to observe the witness’s demeanor under questioning and to form their own impression of his or her reliability.

58. The Court observes that various pieces of evidence other than I.’s statements clearly supported the finding that the applicant had convicted I. of an offence he had not committed on the basis of forged documents, conspired to have him delivered from his place of detention in order to work on his father’s property, and that I. had carried out construction work for the benefit of the applicant or, at the very least, his close family member (see paragraph 26 above). That evidence corroborated I.’s statements.

59. Moreover, a video recording of the most recent interview of I. was shown in the course of the trial. Its use allowed the applicant to point out what he believed to be inconsistencies in the trial court’s interpretation of I.’s statements. On that basis, the applicant was also able to challenge the witness’s credibility (see paragraph 27 above).

Overall fairness assessment

60. In assessing the overall fairness of proceedings, the Court finds it relevant that the applicant failed to use all the measures available to him to protect his own right to examine I. (see paragraph 54 above). Consequently, I.’s absence could conceivably be the result, at least in part, of the applicant’s own omission. In view in particular of this fact, and considering the presence of the above-mentioned counterbalancing factors to compensate for the handicap under which the defence laboured, the Court finds that the fairness of the proceedings was not undermined.

61. The Court finds, therefore, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of I.’s pre-trial statements into evidence against the applicant.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

62. Lastly, the applicant complained under Article 7 of the Convention that the domestic courts erroneously classified his actions as abuse of office and that there had been no corpus delicti in his actions.

63. Moreover, without referring to any provisions of the Convention, the applicant stated that the unfavourable decision of the Supreme Court in his case was caused by one of the judges of the Supreme Court who supposedly had friendly relations with the president of the District Court who, in turn, had been prejudiced against the applicant.

64. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

66. The applicant claimed 150,000 euros (EUR) in respect of non‑pecuniary damage.

67. The Government considered the claim excessive.

68. The Court, ruling on an equitable basis, awards the applicant EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

69. The applicant also claimed EUR 105 for the costs and expenses incurred before the Court.

70. The Government left the matter of costs to the Court’s discretion.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 105 for the proceedings before the Court.

C. Default interest

72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 6 § 1 concerning the observance of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine admissible and under Article 6 §§ 1 and 3 (d) concerning the non-appearance of witnesses Sh. and I. at the trial and the use made of their statements admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine;

3. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the use made of Sh.’s statement and his non-appearance at the trial;

4. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of I.’s pre-trial statements into evidence against the applicant;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 105 (one hundred and five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin                       Erik Møse
Acting Deputy Registrar                President

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