5.  The applicant was born in 1983 and lives in Tianchang, the People’s Republic of China.
6.  At the time of the events the applicant was an undergraduate economics student at Kharkiv National University, Ukraine.
7.  On 1 May 2009 a group of about fifteen Chinese students, including the applicant, were having a picnic. When they were about to finish, four Ukrainian men (D., Sa., Su. and M.), who were picnicking nearby, approached them to get some beer. The Ukrainians were clearly drunk. D. took a knife from the Chinese students’ table and threw it in the river on the pretext that it was a weapon and there was no place for it there. M., who appeared less drunk than his friends, was friendlier and the applicant gave him a bottle of beer. All four drank the beer and returned for more. Apparently, they offered the Chinese students a small folding knife instead of the one that had been thrown away, but their offer was declined. D.’s behaviour was particularly insulting and indecent: he undid his trousers and showed his genitals to everyone around him, including girls. The applicant gave the Ukrainians another bottle of beer and the group of Chinese students started packing up. M. filmed the events on his smartphone. The last thing recorded was one of the Chinese students, subsequently identified as W., taking two metal skewers out of a plastic bag.
8.  At some point a fight started between the two groups. They later blamed each other for beginning it. In the course of the fight M. was stabbed in the back with a metal skewer.
9.  Sa. took hold of one of the Chinese students, Ch. When the police arrived, Sa. stated that he had seen Ch. stabbing M. in the back with a folding knife and confirmed his statement in writing the same day. According to the report of the police officer on duty, Su. and D. were so drunk that it was impossible to question them. As for the victim, he was unconscious.
10.  The applicant had been waiting for the police together with the four Ukrainians and some of his companions (several others had run away). None of the Ukrainians expressed any suspicions about the applicant and he eventually left with his friends.
11.  On 2 May 2009 M. was questioned in hospital. He submitted that he had been stabbed unexpectedly in the back and that he had not seen who had done it. When he had fallen down, he had seen three Chinese men stepping over him, including the applicant. M. remembered the applicant because he appeared bigger than the other Chinese men and had spoken some Russian. M. considered that, most probably, it had been the applicant who had injured him.
12.  On the same day Sa. changed his initial statement and submitted that he had seen “one of the Chinese [men], who [had] appeared bigger than the others and called himself Yura [the applicant], jump on [M.’s] back and stab him with a metal skewer”.
13.  On 4 May 2009 M. died of his injury in hospital.
14.  On the same day Su. told the police he had seen one of the Chinese men, who had appeared bigger than the others, stab M. with a metal skewer.
15.  During an identification parade conducted that day Sa. and Su. pointed at the applicant as the one who had injured M.
16.  The applicant was arrested that day on suspicion of M.’s murder.
17.  On 6 May 2009 one of the Chinese students, W., speaking in the presence of a lawyer and with the aid of an interpreter, made a statement of surrender to the police. He stated that he had accidentally injured one of the Ukrainians with a skewer and had run away because he had been scared. He was sorry for what had happened.
18.  On 8 May 2009 W. repeated his confession, adding that the applicant had done everything possible to prevent the conflict.
19.  On an unspecified later date W. retracted his confession and submitted that he had only slightly injured D. and Su. with a metal skewer, but not M.
20.  The investigation established that the Chinese students had initially had six metal skewers. Only four of them, packed in a plastic bag, were discovered. The two skewers taken by W. from the bag shortly before the fight were never found.
21.  In the course of the pre-trial investigation twelve Chinese citizens made witness statements describing the events prior to, during and after the fight. None of them had seen who had injured M. or how it had happened. Nor had anybody seen the applicant holding a metal skewer at any point. To the contrary, some witnesses among the Chinese students submitted that they had been next to the applicant during the fight and that he had not been the one who had injured M.
22.  Furthermore, several of the Chinese witnesses told the police that W. had been particularly nervous after the incident, had destroyed the clothes he had been wearing on 1 May 2009 and had asked his parents for a considerable amount of money.
23.  On an unspecified date the investigation was declared completed and the Kharkiv Kyivskyy District Court (“the Kyivskyy Court”) started the trial.
24.  On 15 January 2010 the Kyivskyy Court ordered an additional pre‑trial investigation. As stated in its ruling, several people had seen metal skewers in W.’s hands, but nobody had seen the applicant holding a skewer, let alone stabbing M. Sa. had eventually retracted his statement of 2 May 2009 about seeing the applicant stab M. and specified that in fact he had not seen the injury being inflicted on M. He explained that when pointing out the applicant he had been “driven by [his] emotions”. Furthermore, while D. and Su. considered the applicant guilty of injuring M., it was established in the court hearing that none of them had seen how that had actually happened. The trial court further found unconvincing the conclusion reached by the pre-trial investigation that W. had inflicted light injuries on D. and Su. with a metal skewer, but that it had been unlikely that he might have also injured M. Next, the court referred to the statement of the police officer who had been on duty on 1 May 2009, that the applicant had been there all the time after the arrival of the police and that he had been calm, clean and without any injuries. The officer further submitted that the Ukrainians had indicated that it was Ch. who had wounded M. and they had handed him over to the police. Ch. did not speak Russian well. After being provided with an interpreter, he had maintained his innocence. The investigator could not explain how suspicion had fallen on the applicant. He submitted that somebody from the criminal investigation department had told him that the applicant was the perpetrator, but he could not remember exactly who. Lastly, it was observed in the court ruling that although some of the Ukrainians’ witness statements had identified the applicant as appearing bigger than his companions, it was clear that there had been several other Chinese students who had appeared bigger and heavier than him. The investigation had failed to make any assessment of that point.
25.  On 25 March 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed the above-mentioned ruling, concluding that all the issues it raised could be clarified in the course of the trial and that an additional pre-trial investigation was not necessary.
26.  On 26 September 2011 the Kyivskyy Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. It relied on the statements of Sa. and Su., who claimed to have seen the applicant “hanging on [M.’s] back” shortly before the latter had shouted that he had been stabbed. The court also relied on the statements of D., who stated that he had seen the applicant running away from the victim with Ch. The court concluded that two metal skewers had been used in the fight. Given that W. had injured D. and Su. with one of them, he could not also have stabbed M. W. could not be examined in court as he had left Ukraine. The Chinese students gave their account of the fight. However, the court did not consider it credible and expressed the opinion that they had been trying to help the applicant.
27.  The applicant appealed, submitting, in particular, that his conviction lacked any evidential basis apart from the controversial and speculative statements of M.’s friends. The prosecutor also lodged an appeal, considering the sentence to be too lenient.
28.  On 26 March 2012 the Court of Appeal quashed the judgment and remitted the case for additional pre-trial investigation owing to numerous flaws and omissions. It observed in particular that no effort had been made to establish the motive for the murder. It was clear from the evidence in the case file that both the applicant and M. had been friendly and that both of them had tried to avoid the conflict. Furthermore, the appellate court pointed out that the statements of D., Sa. and Su., on which the first‑instance court had based the applicant’s conviction, had been contradictory, inconsistent and speculative. They could not therefore be interpreted as conclusive evidence of the applicant’s guilt. The appellate court also considered the accusation against the applicant to be too vague as it had never been established where exactly M. and the applicant were situated prior to the incident. Nor had the exact mechanism of M.’s injury been established.
29.  Following an additional round of pre-trial investigation measures, the case was sent to the Kyivskyy Court.
30.  On 2 July 2012 the Kyivskyy Court held that the deficiencies pointed out by the Court of Appeal in its ruling of 26 March 2012 had not been rectified and that the additional investigation, like the one carried out earlier, had been incomplete and superficial. The case was therefore remitted once again for further pre-trial investigation.
31.  On 20 September 2012 the Court of Appeal upheld the above‑mentioned ruling.
32.  On 19 November 2012 the new Code of Criminal Procedure (“the CCP 2012”) came into effect, introducing many major changes in criminal procedure (see paragraph 45 below).
33.  On 19 December 2012 the investigator announced to the applicant a “notice of suspicion”, that being the new procedure of opening criminal proceedings under the CCP 2012.
34.  On the same date the pre-trial investigation was declared completed, and on 24 December 2012 the case was referred to the Kyivskyy Court.
35.  On 24 July 2013 the Kyivskyy Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. It relied in particular on the statements made by Sa., Su. and D. at the court hearing, which were identical to those summarised in the judgment of 26 September 2011 (see paragraph 26 above). The court observed that it was impossible to establish with precision the mechanism of the fatal injury to M. on the basis of the evidence of those witnesses. It held, however, that their statements had not been refuted by any forensic medical findings. The court also relied on M.’s testimony during the pre-trial investigation (see paragraph 11 above). At the same time, in spite of requests by the applicant, it refused to admit in evidence any of the statements of the other Chinese students, who had meanwhile left Ukraine and could therefore not be questioned in court. Only one Chinese student had not left the country and was questioned. However, his statement was of little evidential value, given that he had left the scene prior to the beginning of the fight and had not seen any of it. The Kyivskyy Court held as follows:
“... [Pursuant to Articles 85 and 86] and Article 95 § 4 of the CCP [2012], the court may only base its conclusions on statements received directly at the court hearing or in accordance with the procedure [established by] Article 225 of this Code, and is not entitled to base judicial decisions on statements made to the investigator or prosecutor, or to refer to such statements. The court therefore holds that the reference by the applicant and his lawyer to the witness statements documented in the investigation’s reports and made either to the investigator or to the prosecutor outside of court hearings and not in accordance with the procedure [established by] Article 225 of the CCP [2012], cannot be regarded as proper and admissible defence evidence.”
36.  The trial court further held:
“..The court has no doubts regarding the circumstances of the case which it considers established ... The statements of the witnesses [Sa., Su. and D.] are consistent and corroborated by other evidence in these criminal proceedings.”
37.  The applicant appealed. He submitted that the only evidence leading to his conviction had been the victim’s friends’ inconsistent and contradictory statements, which they had drastically changed on at least three occasions. The applicant emphasised that the trial court had not analysed either any of those contradictions or the reasons why the witnesses had changed their statements. Likewise, he complained, no assessment had been given to the contradictions between the above-mentioned witness evidence and the version of events given by the victim himself shortly before his death (see paragraph 11 above). He observed in particular that M. had been clear in his statement that the stabbing in his back had been a complete surprise for him and that he had never submitted that somebody had been “hanging on [his] back” as alleged by the witnesses.
38.  The applicant also complained that the statements of twelve other Chinese people during the pre-trial investigation had been disregarded. He observed that, under Article 5 § 2 of the CCP 2012, the admissibility of evidence was to be assessed in the light of the CCP provisions in force at the time when that evidence was obtained. Furthermore, the applicant referred to Article 8 of Chapter 11 of the Transitional Provisions of the CCP 2012, which stipulated that the issue of the admissibility of evidence obtained prior to the entry into force of the new CCP was to be decided in accordance with the procedure applicable prior to its entry into force (see paragraph 45 below). In his case, he emphasised, all the evidence had been obtained while the old CCP 1960 had still been in force. Accordingly, he considered that the trial court should have been guided by provisions of the CCP 1960 when deciding on the admissibility of the evidence including the witness statements given by the Chinese students. Given that under the CCP 1960 evidence obtained in the course of a pre-trial investigation was admissible in criminal proceedings (see paragraph 44 below), the applicant complained that it had been unlawful and unfair to exclude the witness evidence for the defence and that by doing so the trial court had substantially aggravated his situation and had deprived him of the opportunity to defend himself.
39.  On 27 November 2013 the Court of Appeal upheld the findings and the reasoning of the Kyivskyy Court’s judgment. It held in particular as follows:
“The [first-instance] court’s findings regarding [the applicant’s guilt] are concordant with the factual circumstances of the case. [They] are based on the evidence, which was explored in the court hearing and which is set forth in detail in the judgment. The trial court thoroughly verified [that evidence] and assessed it in an objective manner.”
40.  The Court of Appeal did not comment on the applicant’s argument about the applicability of the CCP 1960 on the assessment of the admissibility of evidence.
41.  The applicant reiterated his arguments in an appeal on points of law.
42.  On 22 July 2014 the Higher Specialised Court for Civil and Criminal Matters found against him and upheld the lower courts’ decisions. It found no reasons to consider the investigation at the trial superficial or otherwise flawed. The Higher Specialised Court was silent on the applicant’s argument on the admissibility of the defence evidence in the light of the CCP 1960.
43.  According to the information provided by the applicant, on 31 March 2016 he was released and he returned to China. The case file before the Court does not contain any further details in that regard.