Information Note on the Court’s case-law 238
Chernika v. Ukraine – 53791/11
Judgment 12.3.2020 [Section V]
Examination of witnesses
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: violation
Facts – The applicant was accused of stealing drugs he had had access to as a police officer and selling them to his friend, N.Sh., and her two acquaintances V.G. and I.G. All three witnesses gave incriminating statements during the pre-trial investigation. Pre-trial confrontations were held between them and the applicant. Only N.Sh. was heard and cross-examined at trial but, after the applicant’s conviction had been quashed on appeal, she failed to appear at the retrial. The other two witnesses never appeared either in the course of the trial or retrial.
Law – Article 6 §§ 1 and 3 (d): The Court applied a combination of the two sets of principles developed in the Court’s case-law regarding admission of evidence of witnesses absent from a trial and the principle of immediacy.
The first relevant question under both sets was what role the evidence of those absent witnesses had played in the applicant’s conviction. The three witnesses had been the only other direct participants in the unlawful activity with which the applicant had been charged. All other evidence against the applicant had simply showed that he had had an opportunity to commit the crime because of his access to the drugs and had been in contact with the three absent witnesses. Therefore the evidence of the witnesses had been “decisive” in the sense that it had been likely determinative of the outcome of the applicant’s case.
The second relevant question was how the composition of the court that had convicted the applicant had changed. It had changed entirely and the new composition had not examined any of the three witnesses.
The Court then examined whether there had been a good reason for the witnesses’ absence at the retrial which led to the applicant’s conviction and whether appropriate safeguards had been in place to ensure that, despite that absence, the court formation had nevertheless had an adequate understanding of the absent witnesses’ evidence such that the fairness of proceedings had been preserved.
The Government had not shown that the authorities had displayed appropriate diligence in their efforts to ensure the witnesses’ presence. Concerning N.Sh., the authorities had been unable to locate her. However, even though in the course of the retrial a witness had indicated that he had known where she had worked, there was no indication that the authorities had followed up on that information or attempted to find her. Accordingly, the Government had failed to show that there had been a good reason for her absence from the retrial. Concerning V.G. and I.S., there was no reason to doubt that their state of health indeed had prevented them from travelling the considerable distance where the retrial had been held. However, no reason had been given for their absence at the original trial.
The Court found that of considerable importance that the Government had failed to show there had been a good reason for the absence of the witness N.Sh. at the retrial. As the evidence of the other two witnesses was closely linked to that of N.Sh. and given centrality of the three witnesses’ evidence, the Government, therefore, needed to show that particularly strong safeguards had been in place to ensure the proper understanding of these three witnesses’ evidence by the new trial judge and the fairness of the proceedings.
There had been three potential alternative counterbalancing factors in the proceedings.
(i) The opportunity, which the applicant had enjoyed in the course of the domestic proceedings, to give his own version of the events in question and to cast doubt on the credibility of the absent witnesses and point out any incoherence in their statements: the applicant had had this opportunity but it could not, of itself, be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by their absence.
(ii) The availability of further corroborative evidence: while it had been available, it would have been of limited probative value in the absence of the evidence of the three witnesses in question.
(iii) The fact that the applicant had participated in confrontations with all three witnesses in the course of the pre-trial investigation and had been able to cross-examine N.Sh. in the course of the original trial.
Unlike in the cases of Famulyak and Palchik (see below), the applicant had submitted that at the pre-trial stage the defence had not had access to the evidence in the domestic case file. This consideration had been relevant in assessing the fairness of the procedure but could not, in itself, be decisive since, where a confrontation had occurred before the completion of the pre-trial investigation, in many cases the evidence-gathering process had been likely to be, by the very nature of things, incomplete. This handicap had not been so severe as to render, on its own, the confrontations entirely inadequate as a procedural safeguard.
However, the trial judge, who eventually had convicted the applicant, had had no opportunity to examine personally any of the three key witnesses for the prosecution. Neither had he had at his disposal a video recording of their statements even though domestic law had envisaged such possibility and the latter might have provided an important additional safeguard. Therefore, the handicap of the limited knowledge of the case file at the time of the confrontations that the applicant had suffered at the pre-trial stage had been combined with his inability to confront the witnesses in the presence of the judge who had been trying his case.
The Government had thus failed to show that any particularly strong safeguards had been in place other than the fact that the transcripts of those witnesses’ questioning in the course of the pre-trial investigation and (for N.Sh.) trial had been available to the new trial judge. The Government had failed to demonstrate that that sole safeguard had been sufficient under the circumstances. This combination of circumstances had been capable of prejudicing the overall fairness of the criminal proceedings against the applicant.
In that respect the applicant’s case had to be distinguished from the case of Famulyak v. Ukraine (dec.), in which the Court had declared the relevant complaint manifestly ill-founded, even though the composition of the court had changed completely. That case had been characterised by the particular circumstances that the retrial judge had had an opportunity to examine the witness whose evidence had been decisive for the applicant’s conviction, even though the latter had not had an opportunity to cross-examine the witness in that judge’s presence.
Conclusion: violation (unanimously).
Article 41: the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage.
(See also Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191; Palchik v. Ukraine, 16980/06, 2 March 2017; and Famulyak v. Ukraine (dec.), 30180/11, 26 March 2019, Information Note 229)