FIFTH SECTIONCASE OF KARTASHOV v. UKRAINE(Application no. 66362/11)      JUDGMENT STRASBOURG17 December 2020 This judgment is final but it may be subject to editorial revision.In the case of Kartashov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Arnfinn Bårdsen, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 66362/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Andrey Vasilyevich Kartashov (“the applicant”), on 14 October 2011;the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 6 §§ 1 and 3 (d) of the Convention concerning the applicant’s inability to examine at his retrial the victims of the offence of which he was convicted and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 26 November 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTION1.  The applicant alleged that, while the victims of the crime of which he had been convicted had been examined in the course of his original trial, following the quashing of his conviction on appeal he had not been allowed to examine those victims again in the course of the retrial conducted before a different trial judge, who eventually convicted him.THE FACTS2.  The applicant was born in 1968 and lives in Odessa.3.  The Government were represented by their Agent, Mr I. Lishchyna.4.  The facts of the case, as submitted by the parties, may be summarised as follows.5.  The applicant has legal education. Prior to the events which triggered legal proceedings against him he had provided legal services to a businessman, Mr Sh., who had run a market in Mariupol. In January 2006 Sh. was arrested for allegedly soliciting a bribe for allocation of a pitch in the market to a third party.6.  According to the charges against the applicant on which he was eventually convicted, he offered to act as an intermediary for Sh. and his life partner Ms M. in giving 10,000 United States dollars (USD) in bribes to the investigator and the judge in charge of Sh.’s case to make sure that Sh. received a light, non-custodial sentence. Sh. and M. complained to the authorities. The latter provided them with the banknotes, the serial numbers of which were recorded, and a video camera to record their interactions with the applicant. Undercover video-recording was authorised by a judge of the Donetsk Regional Court of Appeal (“the Court of Appeal”).7.  M. gave money to the applicant at the office of the applicant’s wife, a notary. Immediately following that the applicant was arrested and the money was seized from him.8.  Throughout the proceedings the applicant insisted that the money he had sought and received had not been for a bribe but to pay for the services of an out-of-town lawyer (from Donetsk or Kyiv) who was to defend Sh.9.  The applicant was charged with attempted fraud, as the authorities did not find any evidence that the applicant had actually offered money to any official or actually intended to do so, and incitement to bribery.10.  In the course of the pre-trial investigation the investigator formally recognised Sh. and M. as victims, a procedural status distinct under domestic law from that of witnesses (see paragraphs 24 and 25 below). They gave statements setting out the above-mentioned account of events on which charges against the applicant were based (see paragraph 6 above). Confrontations were conducted between them and the applicant.11.  The applicant stood trial before the Mariupol Zhovtnevy District Court. His position was that the money he had received had been to hire a lawyer for Sh. He argued that, after his arrest, the criminal case for bribery against Sh. had not progressed, indicating that Sh. and M. had used allegations against the applicant as a way of getting Sh. himself out of legal trouble in connection with the bribery charges. The video of his interactions with M. presented to the court was a montage of different conversations manipulated to imply that the applicant was asking for bribe money and to edit out his statements to the effect that the money had been needed to retain a lawyer.12.  Sh. and M. were examined and, according to the trial court’s records, reaffirmed their pre-trial statements. The applicant submitted, without elaboration, that in fact those witnesses’ testimonies had contradicted their pre-trial statements.13.  On 31 December 2009 the trial court convicted the applicant of attempted fraud and incitement to bribery and sentenced him to four years’ imprisonment. The court relied in particular on the victims’ statements, police reports documenting the handover of banknotes to M. and their seizure from the applicant and the video-recording of the interactions between M. and the applicant.14.  On 12 March 2010 the Court of Appeal quashed the trial court’s judgment and remitted the case for retrial before a different trial judge. The reason was a number of irregularities in the documentation of the video‑recording: in particular the trial court had failed to obtain a copy of the Court of Appeal’s order authorising the undercover recording (see paragraph 6 above) and the brand of the video tape provided by the police to M. did not match the brand of the tape on which the recording had actually been conducted.15.  In the course of the retrial the trial court examined the video‑recording of the interactions between the applicant and M. and conducted a detailed examination of the circumstances under which it had been made, of the chain of custody and verified the applicant’s allegation that the recording had been manipulated to imply his guilt. It pointed to an expert opinion to the effect that it could not be ruled out that the video‑recording was a copy which might have been edited. It also noted that the Court of Appeal’s order authorising the recording remained classified and so could not be examined by the trial court. On these grounds the trial court decided to rule the video-recording inadmissible and remove it from the evidence.16.  The court also examined the following witnesses:(i)  S., a lawyer, who stated that the applicant had discussed Sh.’s case with him but that there had been no discussion of any plans to hire an out‑of-town lawyer;(ii)  four police and prosecution service officers who had been involved in criminal proceedings against Sh. They testified that the applicant had advised Sh. in connection with that matter, had been in contact with them on various technical issues but that they had never been offered any bribes;(iii)  K., the applicant’s acquaintance, who testified that the applicant had asked him to lend USD 10,000 to Sh. and M., because they were in need of money to “settle the question of liability for bribery” (на урегулирование вопроса привлечения к ответственности за взяточничество). The witness had initially considered lending the money and taking Sh. and M.’s shares in the company as security. However, he had eventually concluded that such collateral would not be sufficient and refused to lend;(iv)  the applicant’s wife in whose notary office the applicant had been arrested, and her employee. They stated that M. had visited the office and had spoken to the applicant.17.  In the course of the retrial the trial court repeatedly summoned the victims and ordered the police to escort them to the court hearings but they failed to appear for unknown reasons. At the hearing held at 10.50 a.m. on 11 October 2010 the court noted that its order to the police to bring Sh. and M. to the court had not been executed for unknown reasons. The court adjourned the hearing until 3.45 p.m. Resuming the hearing at that time, the court noted that Sh. and M. had submitted a letter asking the court to examine the case in their absence.18.  The court solicited the parties’ opinions as to whether they considered it possible to read out the victims’ previous statements. The applicant’s lawyer responded that, by law, the victims were entitled to refuse to testify (see paragraph 25 below) and, therefore, he considered it possible to read out their previous statements. The lawyer, however, insisted that investigator B., who was in charge of the pre-trial investigation in the case, be called.19.  The court proceeded to read out the victims’ and B.’s statements.20.  When commenting on them the applicant stated that there were discrepancies in B.’s statements. He and his lawyer insisted that B. be ordered to appear and make his case in court, in particular to explain why he had decided to recognise Sh. and M. as victims. The applicant also stated that it was puzzling that the victims, absent in the morning, had managed to submit by 3.30 p.m. a letter asking that the case be examined without them. It was possible that the victims had been pressured to sign that letter. He insisted that they be examined in court. The court rejected that application, stating that the proceedings had already lasted for a long time and all the relevant circumstances had been exhaustively examined and established. The court considered the examination of the evidence complete and invited the parties to proceed with closing arguments.21.  On 21 October 2010 the trial court again convicted the applicant of the same charges and imposed the same sentence. The court referred in particular to:(i)  the victims’ pre-trial statements, as reaffirmed in the course of pre‑trial confrontations with the applicant and in the course of the first trial (see paragraphs 10 and 12 above);(ii)  police reports documenting the handover of banknotes to M. and their seizure from the applicant;(iii)  the witness evidence set out in paragraph 16 (i) to (iii) above. In light of that evidence the court concluded, in particular, that there was no evidence for the applicant’s explanation that he had received money to hire a lawyer for Sh.22.  In his appeals to the Court of Appeal and the High Specialised Court for Civil and Criminal Matters (see next paragraph) the applicant argued, in particular, that the trial judge had unjustifiably rejected the applicant’s application for the victims to be examined to clear up contradictions in their statements and had unjustifiably relied on the statements of victims even though she herself had not heard them.23.  On 24 December 2010 the Court of Appeal and on 16 June 2011 the High Specialised Court for Civil and Criminal Matters upheld the trial court’s judgment. The courts held that the applicant’s guilt was sufficiently proven, pointing to the evidence cited in the trial court’s judgment (see paragraph 21 above).RELEVANT LEGAL FRAMEWORK24.  Article 49 of the 1960 Code of Criminal Procedure (“the CPC”), which governed the criminal proceedings against the applicant, provides:“A person who has suffered non-pecuniary, physical or property damage from a crime may be recognised as a victim [потерпілий] ...A citizen who has been recognised as a victim shall be entitled to give evidence in the case ...”25.  Domestic law (Articles 49 and 70 of the CPC and Articles 384 and 385 of the Criminal Code) distinguished the status of victims and other witnesses in that other witnesses had to testify when summoned and were criminally liable for refusal to testify while the victims had the right to testify but could refuse to do so and were not criminally liable for such a refusal. However, if a victim chose to testify, he or she was liable for perjury, like any other witness.26.  Article 87 of the CPC required that transcript of the trial be kept in the case file and that the transcript contain, in particular, a detailed record of all witness testimony given in the course of the trial.27.  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.THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION28.  The applicant complained that his conviction had been based in part on the statements of victims who had not been examined before the judge who had eventually convicted him. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads 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;...”Admissibility29.  The Court notes that 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.MeritsThe parties’ submissions30.  The applicant submitted that, because other evidence against him had been found inadmissible (see paragraph 15 above), he had been convicted solely on the strength of Sh.’s and M.’s statements even though the judge who had conducted the retrial had not actually examined them. The applicant had not waived the right to examine those witnesses.31.  The Government submitted that the applicant’s conviction had been based on a wide range of evidence, including the pre-trial statements of the victims and the results of confrontations between them and the applicant, statements of various witnesses and documentary evidence (see paragraph 21 above). The applicant had been able to cross-examine the victims in the course of the first trial. The applicant’s lawyer had agreed to the reading out of the victims’ statements in the course of the retrial (see paragraph 18 above). Thus the applicant can be regarded as having waived his right to examine those witnesses in the course of the retrial. Admissibility and assessment of evidence were primarily matters for regulation by domestic law and domestic courts. There was no evidence that the applicant had been entrapped into committing the offence (citing Gorgievski v. the former Yugoslav Republic of Macedonia, no. 18002/02, § 53, 16 July 2009).The Court’s assessment(a)   Concerning a waiver32.  The Court notes the Government’s submissions to the effect that the applicant had waived his right to cross-examine the victims since his lawyer had agreed to their statements being read out (see paragraphs 18 and 31 above). The Court has already been confronted with a similar situation in Palchik v. Ukraine (no. 16980/06, §§ 14, 15, 17, 36 and 39, 2 March 2017). In that case the defence initially had not objected to some witness statements being read out but then, once they had been read out, insisted that the witnesses in question be called because they believed that, following the reading-out of those statements and examination of other evidence, inconsistencies in the statements had been revealed. The witnesses were not called. The Court found that there had been no waiver in respect of those witnesses. The situation is entirely similar in the present case (see paragraphs 18 and 20 above) and the Court, likewise, does not consider that the applicant waived his right to examine the victims (contrast Murtazaliyeva v. Russia [GC], no. 36658/05, §§; 122-27, 18 December 2018).(b)   Relevant general principles33.  The relevant principles of the Court’s case-law are summarised in Chernika v. Ukraine, (no. 53791/11, §§ 39-52, 12 March 2020).(c)   Application of the above principles to the present case34.  The Court will first examine the question of what role the evidence of the absent witnesses played in the applicant’s conviction – namely whether it was “sole”, “decisive” or “carried such significant weight that its admission may have handicapped the defence”, as those terms are defined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 116, 119, 123 and 124, ECHR 2015). The second relevant question is whether the composition of the court that convicted the applicant changed entirely or only in part.35.  The Court will then examine whether the Government has shown that there was a good reason for the witnesses’ absence at the retrial which led to the applicant’s conviction and, if the absent witnesses’s evidence carried the significant weight referred to above, whether appropriate safeguards were in place to ensure that, despite that absence, that court formation nevertheless had an adequate understanding of the absent witnesses’ evidence such that the fairness of proceedings was preserved.36.  Turning now to the first of the questions mentioned in paragraph 34 above, the Court considers that evidence of the witnesses in question was central to the prosecution’s case since they were the only direct witnesses to the unlawful activity with which the applicant was charged. Following exclusion of the video evidence from the file, there was no direct evidence, other than those witnesses’ evidence, which would show that the applicant had solicited and received money for a bribe and not, as he claimed, for legal fees. The Court considers, therefore, that the evidence of the witnesses was “decisive” in the sense that it was likely determinative of the outcome of the applicant’s case.37.  The composition of the trial court changed entirely and the new composition did not examine neither of the witnesses in question.38.  As to the reasons for the witnesses’ absence, the sequence of events on 11 October 2010 (see paragraph 17 above) shows that the witnesses were reachable and the key reason for their non-appearance at the trial was their refusal to testify. That was their right under domestic law (see paragraphs 24 and 25 above) and the trial court, accordingly, could not compel them to testify. The Court is not prepared to accept that the blanket exemption from obligation to testify which domestic law grants to victims, based merely on their formal procedural status, was a good reason from the Convention perspective. In the present case there were no demonstrated specific reasons for exempting the victims from the obligation to testify (see Bobeş v. Romania, no. 29752/05, §§ 39 and 40, 9 July 2013).39.  Even if the court, under domestic law, was unable to compel the victims to testify, the retrial judge failed to explain why, despite the victims’ unexplained evasive conduct, she was still prepared to rely on their previous statements she did not personally observe.40.  The Government have not pointed out to any safeguards in place, other than the availability to the retrial judge of the transcripts of the absent witnesses’ testimony at the original trial.41.  Given the fundamental change in the body of evidence which occurred at the retrial and the absence of a good reason for the witness’ absence, the availability of the transcripts of their testimony at the first trial was not a sufficient safeguard to preserve the overall fairness of proceedings.42.  There has, accordingly, been a violation of Article 6 §§ 1 and 3 (d) of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION43.  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.”Damage44.  In the application form the applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage. When invited to submit his claims for just satisfaction after communication of the case to the respondent Government, the applicant reiterated his previous claim.45.  The Government contested the claim on the grounds that the application was inadmissible and, in any event, the applicant had failed to demonstrate a causal link between the alleged violation and the non‑pecuniary damage claimed.46.  The Court, ruling on an equitable basis, awards the applicant EUR 3,600 in respect of non-pecuniary damage.Default interest47.  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,Declares the application admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;Holds(a)  that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;4. Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 17 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller  Arnfinn BårdsenDeputy Registrar President