O.V. v. UKRAINE (European Court of Human Rights)

FIFTH SECTION
DECISION
Application no. 60800/10
O.V.
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 10 September 2019 as a Committee composed of:

Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 28 September 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr O. V., is a Ukrainian national who was born in 1976. He is currently serving a life sentence. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms N. Okhotnikova and Ms O. Richko, lawyers practising in Kyiv.

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

A.    The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 27 January 2009 the applicant, who had a criminal record, including for abuse of minors, was arrested on suspicion of the premeditated murder and robbery of Bo., an eight-year-old girl who had been found murdered at her home in Rivne on 26 January 2009. On the same date the applicant made a statement of voluntary surrender and confession to the police on account of Bo.’s death and was appointed a lawyer to represent his interests.

5.  Later on, a number of criminal proceedings were instituted against the applicant on account of abuse of minors (розбещення неповнолітніх), including sexual abuse (насильницьке задоволення статевої пристрасті неприродним способом), and forattempted crime. The charges against him were amended accordingly.

6.  During his questioning at the investigation stage, the applicant admitted his guilt in Bo.’s death but stated that it had been an accident and not an intentional murder. He also stated that he had not asked Bo. for money but that it had been her own initiative to give it to him, in an attempt to ensure that he would not touch her. He further provided a detailed account of the circumstances in which he had abused, including sexually, boys and girls aged from 9 to 12. As regards an episode with a girl, D., he submitted, in particular, that when he had approached the girl on a staircase in a building and she had started crying, he had decided to leave her alone, being afraid that she would start screaming and attract people’s attention. As regards an incident with B., he stated that while the girl had agreed to follow him to a place he claimed was a medical institution, she had refused to enter the building with him once she had seen that it was not a medical facility, and walked away; he had let her leave and had not followed her as she could have started screaming. The applicant expressed his regret about what he had done but stated that he had been unable to resist his attraction to minors. He said that he had had similar problems in the past and had undergone medical treatment in this respect.

7. During the trial at Rivne Regional Court of Appeal (hereafter “the Court of Appeal”) relatives of B. and D. and of some other victims requested that the case be heard in the victims’ absence on the basis of the testimony they had given at the investigation stage. B.’s mother referred, in particular, to psychological trauma sustained by her child following the applicant’s actions. A copy of the trial records, submitted by the Government to the Court, suggests that the presiding judge then inquired as to whether the parties were prepared for their cases to be heard in the absence of those victims. Neither the applicant nor his lawyer raised any objections.

8.  In the course of the trial the applicant admitted guilt in abuse of minors and confirmed the sequence of events as presented by the prosecution, with the exception of the allegations that he had had sexual contact with some of the victims and had been drunk when he committed the crimes. He submitted in this respect that, in fact, he had only been simulating sexual contact with the victims but had been forced by the police to make false statements on this account. He further stated that he had not been drunk, as he had consumed only a bottle of a beer. The applicant admitted his guilt in relation to Bo.’s death, but maintained that he had had no intention of killing her and that he had not robbed her. He also maintained that he had deliberately decided not to pursue his criminal intentions in respect of B. and D. Subsequently, in the course of the trial, the sexual assault charges had been dropped by the prosecution for lack of evidence, with the applicant’s actions reclassified for those two episodes as “abuse of a minor” and “attempted crime”.

9.  On 9 October 2009 the Court of Appeal, which was sitting as a court of first instance, found the applicant guilty of the robbery and premeditated murder of Bo., several counts of abuse of minors and attempted crime. He was given a life sentence for the murder charge and terms from five to twelve years’ imprisonment with respect to the remaining charges. Using the rule of absorption of a more lenient punishment by a stricter one, the applicant’s final sentence was life imprisonment. The applicant and his lawyer were present at all hearings of the Court of Appeal.

10.  On 29 October 2009 the applicant’s lawyer appealed against the judgment of 9 October 2009. He submitted that the murder and robbery charges should be reclassified as “leaving a person in danger” and “fraud” respectively and requested a more lenient sentence. This cassation appeal was eventually not accepted for examination as the lawyer had failed to rectify its shortcomings in accordance with the court’s instructions.

11.  On 6 November 2009 the applicant lodged his appeal against the judgment of 9 October 2009, which he amended on 22 February 2010. Copies of the appeals, bearing the Supreme Court’s stamp, have been provided to the Court by the Government. In addition to the arguments set out in his lawyer’s appeal, the applicant insisted that he had deliberately abandoned his unlawful intentions with respect to B. and D. and submitted that no charges should therefore have been brought against him in this respect. He also challenged the assessment of evidence by the trial court, the severity of the sentence and the compensation awarded to some of the victims. He submitted, inter alia, that the trial court had invented aggravated circumstances against him, such as his intoxication by alcohol, and had failed to take into account those that mitigated his guilt, such as his sincere regret, confessions to the police and his cooperation with the investigating authorities.

12.  On 8 April 2010, following an appeal hearing with the participation of the prosecutor but without the presence of the applicant or any representative from his side, the Supreme Court upheld the judgment of 9 October 2009. It noted, inter alia, that the applicant’s assertions that he had deliberately abandoned his intentions were disproved by his own testimony, according to which he had had to leave the children alone as D. had started crying and B. had refused to enter the building with him and walked away (see paragraph 6 above).

13.  The applicant unsuccessfully sought review of his conviction in the light of newly-discovered circumstances.

B.     Relevant domestic law

14.  The relevant provisions of domestic law governing the review of criminal cases in cassation proceedings, as in force at the material time, can be found in the Court’s judgment in the case of Sobko v. Ukraine (no. 15102/10, § 41, 17 December 2015).

COMPLAINTS

15.  The applicant complained that the Supreme Court had failed to ensure that the arguments in his defence be presented at the appeal hearing and of his inability to cross-examine two of the victims of the crimes during the investigation or in the course of the trial. These complaints fall to be examined under Article 6 §§ 1 and 3 (c) and (d) of the Convention.

THE LAW

A.    Absence from the cassation hearing

16.  The applicant submitted that in view of the severity of the charges against him and the sentence imposed, his participation in the appeal hearing before the SCU should have been ensured by the authorities. In the absence of his lawyer from the cassation hearing, his inability to participate in the hearing had also put him in a disadvantageous position vis-à-vis the prosecution.

17.  The Government argued that the interests of justice did not require that the applicant or his lawyer be present during consideration of the applicant’s appeal as the applicant did not deny his guilt or challenge the facts, as established by the trial court, but contested only the legal qualification given to some of his acts by the prosecution. His arguments had been carefully addressed by the Supreme Court.

18.  It is undisputed by the parties that on 8 April 2010 the Supreme Court heard the applicant’s cassation appeal in his and his lawyer’s absence, but with the participation of the prosecutor.

19.  The Court has previously considered a similar situation in the case of Sobko v. Ukraine, cited above, and found no violation of Article 6 § 1 of the Convention in this respect. Accepting that it had been essential for the fairness of the proceedings, in the circumstances of that case, for the applicant to be present at the cassation hearing, the Court found (see §§ 73 to 83) that the applicant’s inability to participate in the cassation hearing had resulted from his failure to lodge a special request to be summoned to the hearing in accordance with the existing procedural formalities, which had not been excessive or unclear to him.

20.  The Court observes that in the present case the applicant, unlike the one in Sobko, did not even allege that he had ever informed the Supreme Court – either in person or through his lawyer – of his wish to take part in the hearing by lodging the relevant request. No evidence of such a request can be found in the case file either. Likewise, unlike the case referred to, the applicant did not deny his guilt or contest the facts, as established by the trial court, but merely challenged the classification which had been given to his actions under the criminal law (see paragraphs 6, 8 and 11 above).

21.  In these circumstances, and regard being had to its case-law mentioned above, the Court considers that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B.     Alleged inability to question witnesses

22.  The applicant submitted before the Court that there had been contradictions between his testimony and that given by two of the victims, B. and D., at the pre-trial stage. Those contradictions had not been resolved as he had never been given an opportunity to question these two victims, either during the investigation or in the course of the trial.

23.  The Government alleged that by allowing the requests of the victims’ relatives to hear the case in their absence, the trial court had been governed by the need to protect the interests of minors, given the psychological trauma they had sustained as a result of the applicant’s actions. In any event, given that the factual circumstances related to those episodes, as established by the trial court, had not been contested by the applicant, the evidence which the absent victims could have provided would have had no bearing on the outcome of the proceedings or the question of the legal classification of the applicant’s actions, which the applicant had challenged on appeal at the domestic level.

24.  The Court observes at the outset that the applicant’s complaint is vague and lacks detail, such as the nature of the alleged difference in the testimony and how the applicant’s inability to examine these two victims affected the fairness of the proceedings as a whole. Moreover, there is no evidence before the Court that the applicant ever requested that B. and D. be summoned by the trial court. On the contrary, the records of the hearings in the applicant’s case suggest that neither the applicant nor his lawyer objected to the trial court’s decision to hear the case in the victims’ absence, as requested by their relatives, even though the trial court had solicited the defence’s view on that point (see paragraph 7 above). Lastly, it does not appear from the available copies of the applicant’s cassation appeals, which have been provided to the Court by the Government, that the applicant raised this complaint on appeal (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 119 to 128, 18 December 2018, with further references).

25.  The above considerations are sufficient to enable the Court to conclude that this complaint must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 October 2019.

Milan Blaško                                                     Síofra O’Leary
Deputy Registrar                                                      President

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