FOURTH SECTION        CASE OF TIKHAK v. UKRAINE (Application no. 59937/08)         JUDGMENT  STRASBOURG 18 December 2018     This judgment is final but it may be subject to editorial revision. In the case of Tikhak v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President, Egidijus Kūris, Iulia Antoanella Motoc, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 27 November 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 59937/08) 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 Roman Petrovych Tikhak (“the applicant”), on 28 November 2008.2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their then Agent, most recently Mr I. Lishchyna.3. On 22 June 2011 notice of the application was given to the respondent Government.4. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government’s objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018, and Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018).THE FACTSA. Background of the case5. The applicant was born in 1962. Before his arrest he lived in Berezna, a village in Chernigiv Region. Mr. Y. (hereinafter also referred to as the “victim”) lived in the same town, a short distance from the applicant’s house.6. In the evening of 27 February 2007 Y., who was drunk, was involved in a fight with Do. Ty., O. and Sh. were present. After the fight, at about 9.25 p.m., Y. went to a local café where he saw K., the café’s employee.7. At about 11 p.m. the applicant walked into the café, saw Y., bought chocolates and left.8. At about 1 a.m. on 28 February 2007 Y. left the café. He was walking home along a dark street when suddenly a man approached him and shot him in the abdomen. Y. went home and told his girlfriend that he had been shot by a tall man. He then went to a hospital where doctors established that he was heavily drunk and had eight gunshot wounds in the abdomen. Y. was operated on, but the projectiles were not found (see the surgeon’s evidence at paragraph 23 below).B. Criminal proceedings against the applicant9. On 1 March 2007 the police arrested the applicant on suspicion of having shot Y. On the same date they searched the applicant and found on him a black revolver with a white stripe on its grip. A subsequent expert examination revealed that that was a flare gun and that it would be impossible to injure someone by firing it.10. On 3 March 2007 the police searched the applicant’s flat in the presence of the applicant and attesting witnesses. During the search the police found another gun, a gas pistol modified so as to be able to fire live ammunition, bullets and explosive material.11. On 6 March 2007 the police questioned Y., who was undergoing treatment in hospital. He stated that he had met Do., Sh., Ty. and O. between 9 p.m. and 10 p.m. on 27 February 2007. After that he had gone to a café where he had seen a small man about forty years of age wearing a light-coloured leather coat. Y. had seen the man several times before, because he lived near Y.’s house. Y. left the café at about 1 a.m. on 28 February 2007 and was heading home when that man shot him with a small revolver with a white stripe. Y. stated that he would be able to recognise the person who had shot him.12. On the same day the investigator carried out an identification parade. The applicant, who was forty-five years old and wearing a light-coloured leather coat, was invited to sit next to T., who was fifty-nine years old and wearing a dark-coloured leather coat, and G., thirty years old and wearing a black coat. The applicant sat between T. and G., and the investigator invited Y. into the room. The latter immediately approached the applicant and asked him “Why did you shoot me?” This was recorded in a police report, which the applicant signed without raising any objections.13. On 13 March 2007 the police carried out a face-to-face confrontation between Y. and the applicant. The victim confirmed that the applicant had shot him. The parties have not submitted to the Court the record of that confrontation. In his subsequent appeal (see paragraph 28 below) the applicant’s lawyer alleged that there was a discrepancy between the victim’s original statement and his statements at the confrontation in that at the confrontation the victim claimed that he had seen the applicant only once before the attack.14. On 5 May 2007 Y. committed suicide for unknown reasons.15. On 1 June 2007 the applicant asked the investigator to question Sh. (see paragraph 6 above), to extract the bullets from Y.’s body and to establish whether they had been fired from the pistol found in his flat (see paragraph 10 above).16. The investigator refused the applicant’s request, stating that the police had made an attempt to question Sh., but he had refused to give evidence, relying on his privilege against self-incrimination, and that it was impossible to extract the bullets from the victim’s body because the victim’s mother had not permitted the exhumation of his body.17. The applicant’s case was submitted to the Mena Court (“the trial court”) for trial. The indictment stated that the applicant had shot Y. with the pistol which had been found in his flat.18. At the first hearing the trial court granted the applicant’s request to summon and question Sh. The court also decided of its own motion to summon and question O. (see paragraph 6 above).19. At the same hearing the court questioned Ty. (see paragraph 6 above) in the presence of the applicant and his lawyer. Ty. stated that in the evening of 27 February 2007 he had been with O., Sh. and Do. Y. had turned up and had had a fight with Do. After the fight O. had been covered with blood and had repeated, “I’ll do it to him”. At around 9.25 p.m. Y. had left. The applicant and his lawyer did not challenge the accuracy of Ty.’s statements and did not ask him any questions.20. The applicant’s lawyer subsequently lodged further requests, insisting on the questioning of O. and Sh. On 15 October 2007 the court ordered the police to bring those individuals to the next hearing. However, O. and Sh. did not appear, for unknown reasons.21. On an unspecified date the trial court questioned K., the café employee (see paragraph 6 above). She stated that at around midnight on 27 February 2007 she saw the applicant standing near the café and observing the victim.22. The forensic expert, Z., stated that the revolver found on the applicant (see paragraph 9 above) was a flare gun and that it was impossible to injure someone by firing it. The bullets found in the applicant’s flat fitted into the pistol found in the same flat (see paragraph 10 above). The possibility that the gun and the bullets had been used to injure Y. could not be excluded. The revolver and the gun were of approximately the same size and colour; the revolver had a white stripe on the grip, whereas the pistol did not. Whether a person would be able to distinguish between them depended on the person’s perceptiveness. The trial court also examined both weapons: it noted that both weapons were small, fully fitting into the hand, were the same colour (black) and that the only difference between them was that the revolver had a revolving cylinder while the pistol had a magazine.23. Dr N., the surgeon who had operated on the victim, stated that he had discovered no projectiles in the body in the course of the surgery, even though X-rays had shown small foreign objects in the victim’s tissues.24. The investigator who had organised the identification parade, and T., who had been in the identification line-up with the applicant (see paragraph 12 above) stated that during the identification parade they had seen Y. confidently identify the applicant as the perpetrator, approach the applicant and ask “Why did you shoot me?”.25. Y.’s mother stated that her son had told her that he had been shot by a man in a brown coat and a hat. His girlfriend reported Y.’s words after he had been shot (see paragraph 8 above).26. Before the trial court the applicant and his lawyer argued that the gun had been planted in the applicant’s flat by the police. They said that Y.’s statements concerning the gunman’s appearance and crime weapon were inconsistent. As the victim had been heavily drunk at the time, he could not have seen the gunman clearly enough to identify him later. The applicant admitted that in the evening on 27 February 2007 he had visited the café. He had been wearing a leather coat and a hat. The applicant and his lawyer requested the court to order a psychiatric examination to assess whether Y.’s state of mind would have allowed him to see and identify the person who had shot him. The court refused their request as irrelevant for the consideration of the case.27. On 16 November 2007 the trial court convicted the applicant of grievous bodily harm and sentenced him to five years’ imprisonment. The conviction was based, in particular, on:(i)  the victim’s statements given during the pre-trial investigation, including in the course of the face-to-face confrontation with the applicant (see paragraph 13 above);(ii   the results of the identification parade (see paragraph 12 above);(iii)  the results of the examination and forensic expert analysis of the pistol and the revolver (see paragraph 22 above);(iv)  the statements of Ty., K. (the café employee), of the participants in the identification parade, and the victim’s girlfriend and mother (see paragraphs 19, 21, 24 and 25 above).The court held that the inconsistencies in the victim’s statements could be explained by the fact that he had been drunk at the time, had been suffering from serious injuries, and by the fact that the shooting had taken place at night on a dark street.28. The applicant’s lawyer appealed. He stated that Y. had been heavily drunk, so he could not have seen the gunman; the pistol and the bullets found in the applicant’s flat did not belong to him and had been planted by the police; the trial court had not given due consideration to the statements of Ty.; during the identification parade the applicant, T. and G. had been seated, therefore Y. had been unable to assess their height; during the same parade only the applicant had worn a light-coloured leather coat and had been in his forties, exactly like the gunman Y. had described. The applicant’s lawyer also pointed out an inconsistency between the victim’s original statement and his statement in the course of the confrontation with the applicant in respect of whether the victim had known the applicant before the attack (see paragraphs 11 and 13 above).29. In a judgment of 17 January 2008 the Chernigiv Regional Court of Appeal found that the applicant’s guilt had been sufficiently established on the basis of the victim’s statements and the forensic examinations. Just before the search, the applicant had opened the flat with his own keys and the search had been conducted in the presence of attesting witnesses, so the gun and the bullets could not have been planted. Before the trial court T. had confirmed that during the identification parade Y. had recognised the applicant as the gunman. The Court of Appeal pointed out that there were no reasons to doubt the truthfulness and reliability of the statements which Y. had given during the pre-trial investigation.30. The applicant and his lawyer appealed in cassation, raising the same arguments as those raised before the Court of Appeal (see paragraph 28 above). They also complained that neither Y. nor the witnesses proposed by the applicant (see paragraph 20 above) had been called and questioned by the trial court.31. On 4 June 2008 the Supreme Court dismissed the appeals in cassation.C. Facts concerning the State’s alleged non-compliance with Article 34 of the Convention32. In February 2009 the applicant’s sister, who was representing the applicant before the Court at that time, asked the trial court to give her the police records of the questioning of Y. and his girlfriend, documents concerning the applicant’s search after his arrest, the minutes of the court hearings, and the police report concerning the identification parade. On 6 March 2009 the trial court replied that it was not legally empowered to give copies of documents after the termination of criminal proceedings.33. On 13 May 2009 the Court asked the applicant’s sister to provide copies of the applicant’s appeals, stamped by the Court of Appeal and the Supreme Court, to prove that they had been received by both courts.34. On 16 June 2009 the applicant’s sister requested the Mena Court, the Chernigiv Regional Court of Appeal and the Supreme Court to send her those documents.35. On 24 June 2009 the Supreme Court replied that it was not empowered to give copies of documents.36. The Chernigiv Regional Court of Appeal suggested that the applicant’s sister address the trial court with her request for the documents.37. The trial court replied that the applicant’s sister had already received a copy of the appeal lodged with the Court of Appeal and the trial court was not empowered to send her another copy. The trial court did not give her any information about the cassation appeals lodged with the Supreme Court.38. On 22 February 2012 the applicant was taken to the trial court and allowed to study the case file. For unknown reasons, it did not contain the appeals in cassation lodged by the applicant and his lawyer or the decision of the Supreme Court (see paragraphs 30 and 31 above).39. On 28 February 2012 Mr Tarakhkalo, the applicant’s new representative (see paragraph 2 above) asked the Supreme Court for a copy of the appeals in cassation lodged by the applicant and his lawyer. He received those copies and submitted them to the Court on 27 March 2012.THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION40. The applicant complained that the examination of his case by the courts had not been objective and fair in that they had not properly assessed the facts of the case or his arguments. He also complained that the trial court had relied on the pre-trial statement of the victim without ensuring that sufficient safeguards were in place to protect the rights of the defence. It had also failed to examine certain other witnesses.The applicant relied on Article 6 §§ 1 and 3 (d) 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: (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. Exhaustion of domestic remedies and compliance with the six‑month rule41. The Government submitted that the applicant had not appealed in cassation. If he believed that no effective remedy existed for him against the Court of Appeal’s decision he should have lodged his application with the Court within six months of the adoption of that decision (by 17 January 2008). However, the application was not lodged until 28 November 2008.42. The Court notes that the applicant and his lawyer appealed in cassation, stating, inter alia, that the witnesses proposed by the applicant had not been called and questioned (see paragraph 30 above). The Supreme Court examined the appeals, and dismissed them on 4 June 2008 (see paragraph 31 above). The Government’s argument concerning non-exhaustion and non-compliance with the six-month rule must therefore be rejected.B. Admission into evidence of the victim’s pre-trial statements43. The applicant stated that, in violation of Article 6 § 3 (d) of the Convention, there had been insufficient safeguards capable of remedying the handicap under which the defence had laboured due to the admission of the victim’s pre-trial statements in evidence against him. He submitted, in particular, that the domestic courts had failed to approach the victim’s statements with sufficient caution and to order a posthumous examination of the victim’s mental state to show whether he had been able to correctly remember and report the relevant events.44. The Court formulated the general principles to be applied in cases where a prosecution witness had not attended trial and statements previously made by him or her had been admitted in evidence in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011), and Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015). A restatement of those principles can be found in 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).1. The reason for the victim’s absence and the role of his statements in the conviction45. Turning to the present case, the Court first observes that there was a good reason for the victim’s absence and, therefore, the admission of his statements in evidence, namely his death (see, mutatis mutandis, Al‑Khawaja and Tahery, cited above, § 153). There can be little doubt that the victim’s pre-trial statements constituted a decisive basis for the applicant’s conviction. It remains to be ascertained whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of untested witness evidence at the trial.2. Potential counterbalancing factors46. The Court perceives three potential counterbalancing factors in the proceedings (see Schatschaschwili, cited above, §§ 126-31, for a general 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 victim and point out any defect in the latter’s statements;(ii)  the availability of further corroborative evidence;(iii)  the fact that the applicant had participated in a confrontation with the victim in the course of the pre-trial investigation.(a)  Opportunity to cast doubt on the credibility of the victim’s statements47. The applicant had plentiful opportunity to cast doubt on the credibility of the victim’s statements and to present his own version of the events. He complained that the domestic courts had not been receptive to his arguments. However, that does not mean that he faced any restrictions in presenting his arguments or that the courts had not seriously examined them.48. Contrary to the applicant’s submissions, the decisions of the domestic courts indicate that they examined the victim’s statements critically and were responsive to the applicant’s attempts to point to inconsistencies in them: in particular, questions were put to the forensic expert concerning the physical difference between the pistol and the revolver and the possibility that a person would confuse them. The trial court also examined and compared both weapons. It noted that visual differences between the weapons were minimal (see paragraph 22 above). This allowed the courts to dismiss the discrepancies in the victim’s statements concerning the weapon as minor; the courts also held that other inconsistencies could be explained by the fact that Y. had been drunk at the time, had been suffering from serious injuries, and by the fact that the shooting had taken place at night on a dark street (see paragraph 27 above).(b)  Corroborative evidence49. The victim’s statements were not the sole evidence against the applicant. The domestic courts also had before them the record of the identification parade (see paragraph 12 above). Despite the applicant’s efforts to cast doubt on the credibility of that procedure, the trial court found its results credible in the light of the other evidence it had examined, notably the testimony of its other participants (see paragraph 24 above). There was plentiful evidence placing the applicant in proximity to the scene of the crime at around the time it had been committed. Lastly, the domestic courts relied on forensic evidence showing that the weapon discovered at the applicant’s home could have been used to inflict the injuries the victim had suffered (see paragraph 27 above).(c)  Pre-trial confrontation50. The applicant participated in a confrontation with the victim during the pre-trial investigation (see paragraph 13 above). The Court has repeatedly held that the ability to confront a witness for the prosecution at the investigation stage is an important procedural safeguard which can compensate for handicaps faced by the defence on account of the absence of such a witness from the trial (see Schatschaschwili, cited above, § 130, and Palchik v. Ukraine, no. 16980/06, § 50, 2 March 2017, with further references).51. The applicant did not allege that, in the course of the confrontation, he did not have an opportunity to put questions to the victim or that his rights had been restricted in other ways (see ibid. and contrast, for example, Nechto v. Russia, no. 24893/05, § 123, 24 January 2012). On the contrary, he relied on the results of that confrontation to cast doubt on the victim’s credibility and, in doing so, did not complain that the confrontation procedure was inadequate in any way (see paragraph 28 above).3. Conclusion52. The Court concludes that there were adequate counterbalancing factors which compensated for the handicap under which the defence laboured on account of the admission of the deceased victim’s statements in evidence against the applicant. The Court finds that no arguable case has been made for the assertion that the fairness of the proceedings was undermined on account of the admission of that evidence.53. In the light of the above considerations, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.C. Alleged failure to question certain other witnesses54. In his initial submissions the applicant alleged that the domestic authorities had failed to call and examine witnesses O., Sh. and Ty. The applicant did not formulate this as a separate complaint in his observations after the respondent Government had been notified of the case. However, he mentioned, in the context of his observations concerning admission of the victim’s evidence, that some other witnesses, notably O., had not been questioned. The Court does not consider it necessary to ascertain whether this can be interpreted as the applicant manifesting his wish to pursue his original complaint. Indeed, even assuming so (contrast, for example, Visloguzov v. Ukraine, no. 32362/02, §§ 98-100, 20 May 2010, and Lazarenko and Others v. Ukraine, nos. 70329/12 and 5 others, §§ 22-26, 27 June 2017), that complaint is in any event inadmissible for the following reasons.55. 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 (see Vidal v. Belgium, 25 March 1992, § 33, Series A no. 235-B). Only exceptional circumstances can lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (see Dorokhov v. Russia, no. 66802/01, § 65, 14 February 2008).56. As far as Ty. is concerned, this complaint is clearly ill-founded as Ty. was in fact examined at the trial (see paragraph 19 above).57. The Court observes that during the pre-trial investigation the authorities made an attempt to question Sh. He refused to give evidence, invoking his right not to incriminate himself (see paragraph 16 above). However, Ty. was questioned by the trial court and stated that on 27 February 2007 he, Sh. and O. had witnessed the fight between Y. and Do. The applicant and his lawyer were present during Ty.’s questioning and did not challenge the accuracy of his statement (see paragraph 19 above).58. The Court notes that Sh. and O. witnessed the fight together with Ty. (see paragraph 6 above). Therefore, it is unclear why the applicant believed that they could add anything new to the latter’s statements. In any event, the authorities made certain efforts to bring Sh. and O. to the court hearings following the applicant’s request and there is no indication that those witnesses’ failure to appear was attributable to the authorities in any way (see paragraphs 18 to 20 above) or that it has affected the overall fairness of the proceedings.59.

Outcome for Article 34: violation