FIFTH SECTIONCASE OF CHERNIKA v. UKRAINE(Application no. 53791/11)  JUDGMENTArt 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Conviction on retrial before new judge based decisively on testimony by absent witnesses, whom the applicant confronted before trial and one of whom was cross-examined at first trial • Absence of good reasons for non-attendance of one of the three key witnesses at retrial • Absence of particularly strong safeguards to ensure proper understanding of the absent witnesses’ evidence by the new judge • Overall fairness impaired STRASBOURG12 March 2020 FINAL 12/07/2020 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Chernika v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Gabriele Kucsko-Stadlmayer, Ganna Yudkivska, André Potocki, Mārtiņš Mits, Lado Chanturia, Anja Seibert-Fohr, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 11 February 2020,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 53791/11) 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 Mykhaylo Mykhaylovych Chernika (“the applicant”), on 17 August 2011.2. The applicant was represented by Mr Oleh Leontyev, a lawyer practising in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna.3. The applicant alleged, in particular, relying on Article 6 §§ 1 and 3 (d) of the Convention, that the criminal proceedings against him had been unfair in that the domestic courts had admitted in evidence against him the statements of three witnesses, despite the fact that (i) the first of those witnesses had only been examined in the course of the original trial but not in the course of the subsequent retrial before a different trial judge and (ii) the second and third witnesses had never appeared before the trial court.4. On 10 October 2017 the Government were given notice of the above complaint and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1974 and lives in Lutsk.6. The applicant is a former police investigator. According to the charges against him, on which he was eventually convicted, he stole opium – which had been seized as evidence in a case he had been investigating – by siphoning it off from the jar in which it was stored; he then diluted the remaining liquid. The applicant then allegedly transferred the stolen opium to his friend, Ms N.Sh., soliciting her help in selling the opium on the black market. With her help he transferred the opium to Mr V.G. and Mr I.S., who had come from the Crimea to Lutsk, charging them with the task of taking the opium back to the Crimea for subsequent sale there.7. In the course of the pre-trial investigation those three witnesses made the following statements:(i)  N.Sh. stated that she and the applicant were friends. In the summer of 2005 he had asked for her help in selling opium seized in a criminal case that he had been investigating. She had agreed and had offered to sell the drugs through V.G. and I.S., whom she had recommended to the applicant as reliable. V.G. had refused the offer, but I.S. had agreed to take the drugs to the Crimea for subsequent sale. After V.G. and I.S. had left with the drugs she had been visited by people sent by the applicant who had demanded from her payment for the drugs. She had gone to the Crimea and had unsuccessfully tried to collect the debt;(ii)  V.G. stated that N.Sh. had offered him the opportunity to sell the applicant’s drugs in the Crimea or at least take them there for later sale. V.G. had refused but the applicant had nevertheless taken the jar containing the opium to N.Sh.’s flat. On the way back to the Crimea, V.G. had discovered that I.S. had the opium with him. He and I.S. had then thrown the drugs away. Later, a man claiming to be acting on the applicant’s behalf had visited V.G. in the Crimea, had threatened him and had demanded that he pay the applicant the price of the drugs from the proceeds gained from selling them on;(iii)  I.S. stated that he had come from the Crimea to Lutsk in 2005 with V.G. and had overheard the conversation in which the applicant and N.Sh. had offered to sell V.G. the drugs. Then they had discussed this with I.S. When time had come for V.G. and I.S. to go back to the Crimea and they were loading the car, N.Sh. brought out the bottle containing the opium and hid it in the trunk while I.S. looked on. On the way to the Crimea, V.G. had told I.S. that he had thought they were being followed, that he found the whole situation suspicious and that they risked long prison sentences. V.G., accordingly, had thrown the drugs away.8. In the course of the pre-trial investigation confrontations were held between the above-mentioned witnesses and the applicant. The applicant submitted and the Government did not contest that at that stage the applicant and his lawyers did not have access to the investigation file (see the relevant provision of the domestic law in paragraph 33 below).9. The applicant was tried before the Lutsk Court (Луцький міськрайонний суд), composed of Judge V.D., sitting in single-judge formation.10. In the course of the trial N.Sh. affirmed her pre-trial statement.11. Z. and Y.G., who knew the applicant and N.Sh. and either lived at or regularly visited N.Sh.’s flat and engaged in prostitution there, were questioned. They testified that V.G. and I.S. had visited N.Sh. from the Crimea and had bought some drugs from the applicant.12. The trial court repeatedly summoned V.G. and I.S. but they failed to appear. It asked the Security Service of Ukraine (Служба безпеки України) to locate those witnesses and escort them to court. On 12 August 2008 the Security Service informed the court that it was unable to locate them. The court again asked the Security Service to bring those witnesses to the hearing on 18 August 2008. The witnesses failed to appear but the court was not informed of the reasons for V.G.’s absence. It proceeded to read out V.G.’s and I.S.’s pre-trial statements. There is no information in the case file regarding whether the applicant contested this reliance on the pre-trial statements.13. On 26 August 2008 the Lutsk Court convicted the applicant of theft and illegal possession of a large quantity of drugs with intent to sell them and sentenced him to eight years’ imprisonment, with confiscation of his property.14. Following an appeal by the applicant, on 10 March 2009 the Volyn Regional Court of Appeal quashed the trial court’s judgment on the grounds that the trial court had read out V.G.’s statement despite having no information as to the reasons for his latest failure to appear before the trial court (see paragraph 12 above). The case was remitted for retrial before a different trial judge.15. The retrial was held before the Lutsk Court composed of a different judge, Judge V.B., sitting in a single-judge formation.16. In the course of the retrial N.Sh., V.G. and I.S. were repeatedly summoned but failed to appear.17. The failure of those witnesses to appear (for reasons that were unclear), despite their being repeatedly summoned, was discussed at the hearings of 30 June 2009 and 10 July 2009.18. On the latter date the trial court ordered the Security Service to find the witnesses and asked the prosecutor’s office to ensure that the order was carried out.19. On 9 September 2009 the Security Service provided the trial court with medical documentation showing that V.G. and I.S. were seriously ill: V.G. had been hospitalised and I.S. was suffering from tuberculosis and was infectious. According to the medical documentation, as summarised in the documents before the Court, the witnesses’ health did not allow them to travel from the Crimea to Lutsk (a distance of at least a thousand kilometres).20. No information has been provided to the Court concerning the reasons for N.Sh.’s absence. She could not be found throughout the retrial.21. On 23 September 2009 the court, at the opening of that day’s hearing, announced that N.Sh., V.G. and I.S., among other witnesses, had for unknown reasons not appeared, despite having being summoned.22. On 28 September 2009 O.G., a police officer and a former colleague of the applicant, was examined as a witness. He testified that the applicant and N.Sh. had been friends. The prosecutor asked him, among other things, where N.Sh. worked. O.G. responded that N.Sh. was currently working as a prostitute and named the street in which she worked.23. Two witnesses who had visited and worked at N.Sh.’s flat and who had testified at the first trial (see paragraph 11 above) also testified at the retrial, giving the following evidence.(i)  Y.G. testified, in particular, that she had come to know the applicant, who had been N.Sh.’s friend at the time, well and that all three of them had spent a lot of time together in N.Sh.’s flat. There the witness had overheard conversations between the applicant and N.Sh. and between N.Sh. and V.G. and I.S. concerning drugs;(ii)  Z. stated, in particular, that she had lived at N.Sh.’s flat, which the applicant had visited regularly. Z. had once overheard the applicant tell N.Sh. that he was in a position to sell some drugs seized in a criminal case he was investigating. N.Sh. had responded that she had friends in the Crimea who would be able to sell the drugs on. V.G. and I.S. had been mentioned in that context. They had come from the Crimea and had visited N.Sh.’s flat several times.24. O.O., who had also been living in N.Sh.’s flat at the relevant time, testified that the applicant had been friends with N.Sh. and had visited her flat and that V.G. and I.S. had also visited her flat at about the same time.25. On 11 December 2009 the Lutsk Court convicted the applicant again and sentenced him to eight years’ imprisonment. The court cited essentially the same evidence as had been cited in the first trial judgment:(i)  N.Sh.’s, V.G.’s and I.S.’s statements. The court stated that N.Sh.’s, V.G.’s and I.S.’s pre-trial statements had been fully confirmed in the course of their pre-trial confrontations with the applicant (see paragraphs 7 and 8 above), who had been able to examine them and put any questions to them – an opportunity he had fully used. Accordingly, the court did not consider that the applicant’s defence rights or the “principle of immediacy” in respect of the examination of evidence (принцип безпосередності дослідження доказів) had been breached. The court considered the evidence of the absent witnesses to be reliable as their statements accorded with each other. It also stated that those statements had been corroborated by the statements of N.Sh.’s friends and colleagues (Y.G., Z. and O.O. – see paragraphs 23 and 24 above);It is not clear from the court’s judgment whether, in citing N.Sh.’s evidence, it relied on her pre-trial statements or also on her evidence given in the course of the first trial. By law (see paragraph 31 above) this witness’s evidence given in the course of the first trial had to be recorded in the trial transcript, kept in the case file and available to the new trial judge. The applicant did not argue and nothing in the file indicates that domestic law was not followed in that respect;(ii)  the statements of N.Sh.’s friends and colleagues (Y.G., Z., O.O. – see paragraphs 23 and 24 above);(iii)  the statement of officer O.G. to the effect that the applicant and N.Sh. had been friends (see paragraph 22 above);(iv)  documentary evidence that the applicant had had possession of the jar containing opium that had been seized as evidence, and expert evidence showing that between December 2004 (when the applicant had taken custody of the jar) and May 2006 (when its contents had been re-examined by an expert) the amount of active drugs in the jar had fallen by 1.2 kilogram;(v)  the testimony of several police officers and forensic experts to the effect that the applicant had had possession of the jar containing drugs and that there had been no evidence of the jar having been tampered with after the applicant had handed it over to other officers. The court had examined that evidence in order to address the defence argument that the jar may have been tampered with after the applicant had handed it over to another investigator who had taken over the case, as the jar had not been sealed throughout the relevant time.26. The applicant appealed, submitting in particular that N.Sh., V.G. and I.S. had not been examined in the course of the retrial, that they had not been credible as witnesses and that their statements had been contradictory. He pointed out, in particular, that the witnesses had not been prosecuted for drug dealing even though, according to their statements, they had bought drugs from him. The details of their accounts had changed over time, rendering them not credible.27. On 2 March 2010 the Volyn Regional Court of Appeal upheld the trial court’s judgment. The court considered the statements of the three witnesses to be concordant with each other and with the results of the confrontations with the applicant. The trial court had taken all possible steps to find the above-mentioned witnesses and examine them.28. On 15 March 2011 the Supreme Court rejected an appeal on points of law lodged by the applicant and upheld the lower courts’ decisions.RELEVANT DOMESTIC LAW29. The provisions of the 1963 Code of Criminal Procedure (“the CPC”), 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 to 80, 6 October 2015).30. Article 85‑2 of the CPC provided that investigative steps, including confrontations, could be video recorded and set forth the procedure in respect of such recordings.31. Article 87 of the CPC required that a transcript of a trial be kept in the case file and that that transcript contain, in particular, a detailed record of all witness testimony given in the course of the trial.32. Article 374 of the CPC provided that, if a judgment was quashed on appeal and remitted for retrial on account of an error committed by the trial court, the case was to be tried by a different judge. That judge had full powers, identical to those of the trial judge, to conduct a retrial according to the rules governing trials, including reexamination of all the evidence, summoning and examination of witnesses (see the relevant provisions of the CPC to which reference is made in paragraph 29 above).Article 375 of the CPC provided that retrials, including examination of the evidence, were governed by the same rules as those applicable to trials. Among those rules applicable equally to both trials and retrials was Article 299 of the CPC which provided that it was the trial judge who determined the scope of evidence which was to be examined in the course of the trial (and, accordingly, retrial). There was, however, no provision in domestic law explicitly requiring the retrial judge to reexamine all the evidence examined by the trial judge.33. Article 218 of the Code required that the defendant be given access to the full case file upon the completion of the pre-trial investigation, prior to the case’s transfer (upon the lodging of a bill of indictment) to the trial court. The text of that provision is set out in Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005‑II (extracts)).34. The 2012 Code of Criminal Procedure, which is in force at present, entitles a convicted person to request the reopening of criminal proceedings that ended in a final conviction where the Court has found that a violation of the Convention occurred in the course of those proceedings. The relevant provisions of domestic law are set out in Rostovtsev v. Ukraine (no. 2728/16, §§ 16, 19-22, 25 July 2017).THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION35. The applicant complained that the proceedings against him had been unfair in that the domestic courts had admitted in evidence against him the statements of three witnesses, despite the fact that (i) the first of those witnesses (N.Sh.) had only been examined in the course of the original trial but not in the course of the subsequent retrial before a different trial judge and (ii) the second and third witnesses (V.G. and I.S.) had never appeared before the trial court. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which read:“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:...(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;...”Admissibility36. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions37. The applicant pointed out that, other than N.Sh., V.G. and I.S., the other witnesses had been either police officers (whose evidence had therefore not been impartial) or witnesses who had testified merely that the applicant had known N.Sh. but had said nothing about the actual circumstances of the alleged crime. The pre-trial confrontations had not been equivalent to cross-examining the witnesses at the trial because when those confrontations had been conducted the applicant had not had access to the investigation file. It had only been after the opening of access to the case-file material at the end of the investigation (see paragraph 33 above) that the applicant had been in a position to fully take advantage of his defence rights. The domestic authorities had been in a position to ensure the appearance of N.Sh., V.G. and I.S. but had failed to do so.38. The Government submitted that the applicant’s conviction had been based on a wide range of evidence, including the evidence of numerous witnesses other than N.Sh., V.G. and I.S. Moreover, the applicant had been able to confront those three witnesses in the course of the pre-trial investigation.The Court’s assessment(a)   Relevant case-law39. The Court, in its case-law, has developed two main sets of potentially relevant principles:(i)  case-law concerning the admission of evidence of witnesses absent from a trial and(ii)  case-law concerning the principle of immediacy.(i)  Admission of evidence of witnesses absent from a trial40. The Court has formulated the general principles to be applied in cases where a prosecution witness did not attend a trial but statements previously made by him or her were admitted in evidence; those general principles have been set out in the cases of Al‑Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-131, ECHR 2015). A restatement of those principles can be found in, for example, Seton v. the United Kingdom (no. 55287/10, §§ 57-59, 31 March 2016), and Boyets v. Ukraine (no. 20963/08, §§ 74-76, 30 January 2018).41. To summarise, the application of the Al-Khawaja and Schatschaschwili principles involves, generally speaking, the examination of three questions:(i)  whether there was a good reason for the non-attendance of the witness and for the admission of the absent witness’s statement as evidence (see Schatschaschwili, cited above, §§ 119-125);(ii)  whether the evidence of the absent witness was the sole or decisive basis for the conviction or carried such significant weight that its admission may have handicapped the defence (ibid., §§ 116, 119 and 126-147); and(iii)  whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147).42. Such counterbalancing factors must permit a fair and proper assessment of the reliability of that evidence (ibid., § 125). The ability to confront a witness for the prosecution at the investigation stage but who is subsequently absent at the trial is an important safeguard (ibid., § 130).

Outcome for Article 41: violation