FOURTH SECTION
\nCASE OF TIKHAK v. UKRAINE
\n(Application no. 59937\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Tikhak v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 27 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The 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 (\u201cthe Convention\u201d) by a Ukrainian national, Mr Roman Petrovych Tikhak (\u201cthe applicant\u201d), on 28\u00a0November 2008.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0M.O. Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their then Agent, most recently Mr I. Lishchyna.<\/p>\n 3.\u00a0\u00a0On 22 June 2011 notice of the application was given to the respondent Government.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government\u2019s objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v. Ukraine [Committee], no. 43104\/04<\/a>, \u00a7\u00a05, 18\u00a0January 2018, and Lada v. Ukraine [Committee], no. 32392\/07<\/a>, \u00a7\u00a04, 6\u00a0February 2018).<\/p>\n THE FACTS<\/strong><\/p>\n A.\u00a0\u00a0Background of the case<\/strong><\/p>\n 5.\u00a0\u00a0The 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 \u201cvictim\u201d) lived in the same town, a short distance from the applicant\u2019s house.<\/p>\n 6.\u00a0\u00a0In 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 caf\u00e9 where he saw K., the caf\u00e9\u2019semployee.<\/p>\n 7.\u00a0\u00a0At about 11 p.m. the applicant walked into the caf\u00e9, saw Y., bought chocolates and left.<\/p>\n 8.\u00a0\u00a0At about 1 a.m. on 28 February 2007 Y. left the caf\u00e9. 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\u2019s evidence at paragraph23 below).<\/p>\n B.\u00a0\u00a0Criminal proceedings against the applicant<\/strong><\/p>\n 9.\u00a0\u00a0On 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.<\/p>\n 10.\u00a0\u00a0On 3 March 2007 the police searched the applicant\u2019s flatin 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.<\/p>\n 11.\u00a0\u00a0On 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 caf\u00e9 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.\u2019s house. Y. left the caf\u00e9 at about 1 a.m. on 28\u00a0February 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.<\/p>\n 12.\u00a0\u00a0On 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 \u201cWhy did you shoot me?\u201d This was recorded in a police report, which the applicant signed without raising any objections.<\/p>\n 13.\u00a0\u00a0On 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\u2019s lawyer alleged that there was a discrepancy between the victim\u2019s 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.<\/p>\n 14.\u00a0\u00a0On 5 May 2007 Y. committed suicide for unknown reasons.<\/p>\n 15.\u00a0\u00a0On 1 June 2007 the applicant asked the investigator to question Sh. (see paragraph 6 above), to extract the bullets from Y.\u2019s body and to establish whether they had been fired from the pistol found in hisflat (see paragraph 10 above).<\/p>\n 16.\u00a0\u00a0The investigator refused the applicant\u2019s 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\u2019s body because the victim\u2019s mother had not permitted the exhumation of his body.<\/p>\n 17.\u00a0\u00a0The applicant\u2019s case was submitted to the Mena Court (\u201cthe trial court\u201d) for trial. The indictment stated that the applicant had shot Y. with thepistol which had been found in his flat.<\/p>\n 18.\u00a0\u00a0At the first hearing the trial court granted the applicant\u2019s request to summon and question Sh. The court also decided of its own motion to summon and question O. (see paragraph 6 above).<\/p>\n 19.\u00a0\u00a0At the same hearing the court questioned Ty. (see paragraph\u00a06 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, \u201cI\u2019ll do it to him\u201d. At around 9.25 p.m. Y. had left. The applicant and his lawyer did not challenge the accuracy of Ty.\u2019s statements and did not ask him any questions.<\/p>\n 20.\u00a0\u00a0The applicant\u2019s 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.<\/p>\n 21.\u00a0\u00a0On an unspecified date the trialcourt questioned K., the caf\u00e9 employee(see paragraph 6 above). She stated that at around midnight on 27\u00a0February 2007 she saw the applicant standing near the caf\u00e9 and observing the victim.<\/p>\n 22.\u00a0\u00a0The 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\u2019s 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\u2019s 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.<\/p>\n 23.\u00a0\u00a0Dr 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\u2019s tissues.<\/p>\n 24.\u00a0\u00a0The investigator who had organised the identification parade, and T., who had been in the identification line-up with the applicant (see\u00a0paragraph\u00a012 above) stated that during the identification parade they had seen Y. confidently identify the applicant as the perpetrator, approach the applicant and ask \u201cWhy did you shoot me?\u201d.<\/p>\n 25.\u00a0\u00a0Y.\u2019s 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.\u2019s words after he had been shot (see paragraph8 above).<\/p>\n 26.\u00a0\u00a0Before the trial court the applicant and his lawyer argued that the gun had been planted in the applicant\u2019s flat by the police. They said that Y.\u2019s statements concerning the gunman\u2019s 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 caf\u00e9. 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.\u2019s 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.<\/p>\n 27.\u00a0\u00a0On 16 November 2007 the trialcourt convicted the applicant of grievous bodily harm and sentenced him to five years\u2019 imprisonment. The conviction was based, in particular, on:<\/p>\n (i)\u00a0\u00a0the victim\u2019s statements given during the pre-trial investigation, including in the course of the face-to-face confrontation with the applicant (see\u00a0paragraph 13 above);<\/p>\n (ii\u00a0\u00a0the results of the identification parade (see\u00a0paragraph 12 above);<\/p>\n (iii)\u00a0\u00a0the results of the examination and forensic expert analysis of the pistol and the revolver (see\u00a0paragraph 22 above);<\/p>\n (iv)\u00a0\u00a0the statements of Ty., K. (the caf\u00e9 employee), of the participants in the identification parade, and the victim\u2019s girlfriend and mother (see\u00a0paragraphs19, 21,24 and 25 above).<\/p>\n The court held that the inconsistencies in the victim\u2019s 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.<\/p>\n 28.\u00a0\u00a0The applicant\u2019s 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\u2019s 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\u2019s lawyer also pointed out an inconsistency between the victim\u2019s 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).<\/p>\n 29.\u00a0\u00a0In a judgment of 17 January 2008 the Chernigiv Regional Court of Appeal found that the applicant\u2019s guilt had been sufficiently established on the basis of the victim\u2019s 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.<\/p>\n 30.\u00a0\u00a0The applicant and his lawyer appealed in cassation, raising the same arguments as those raised before the Court of Appeal (see paragraph\u00a028 above). They also complained that neither Y. nor the witnesses proposed by the applicant (see\u00a0paragraph 20 above) had been called and questioned by the trial court.<\/p>\n 31.\u00a0\u00a0On 4 June 2008 the Supreme Court dismissed the appeals in cassation.<\/p>\n C.\u00a0\u00a0Facts concerning the State\u2019s alleged non-compliance with Article\u00a034 of the Convention<\/strong><\/p>\n 32.\u00a0\u00a0In February 2009 the applicant\u2019s sister, who was representing the applicant before the Court at that time, asked the trialcourt to give her the police records of the questioning of Y. and his girlfriend, documents concerning the applicant\u2019s search after his arrest, the minutes of the court hearings, and the police report concerning the identification parade. On 6\u00a0March 2009 the trialcourt replied that it was not legally empowered to give copies of documents after the termination of criminal proceedings.<\/p>\n 33.\u00a0\u00a0On 13 May 2009 the Court asked the applicant\u2019s sister to provide copies of the applicant\u2019s appeals, stamped by the Court of Appeal and the Supreme Court, to prove that they had been received by both courts.<\/p>\n 34.\u00a0\u00a0On 16 June 2009 the applicant\u2019s sister requested the Mena Court, the Chernigiv Regional Court of Appeal and the Supreme Court to send her those documents.<\/p>\n 35.\u00a0\u00a0On 24 June 2009 the Supreme Court replied that it was not empowered to give copies of documents.<\/p>\n 36.\u00a0\u00a0The Chernigiv Regional Court of Appeal suggested that the applicant\u2019s sister address the trial court with her request for the documents.<\/p>\n 37.\u00a0\u00a0The trialcourt replied that the applicant\u2019s 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.<\/p>\n 38.\u00a0\u00a0On 22 February 2012 the applicant was taken to the trialcourt 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).<\/p>\n 39.\u00a0\u00a0On 28 February 2012 Mr Tarakhkalo, the applicant\u2019s 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\u00a0March 2012.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0The 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.<\/p>\n The applicant relied on Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, which reads in so far as relevant, as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n (d)\u00a0\u00a0to 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.\u201d<\/p>\n A.\u00a0\u00a0Exhaustion of domestic remedies and compliance with the six\u2011month rule<\/strong><\/p>\n 41.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 42.\u00a0\u00a0The 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\u2019s argument concerning non-exhaustion and non-compliance with the six-month rule must therefore be rejected.<\/p>\n B.\u00a0\u00a0Admission into evidence of the victim\u2019s pre-trial statements<\/strong><\/p>\n 43.\u00a0\u00a0The applicant stated that, in violation of Article 6 \u00a7 3 (d) of the Convention, there had beeninsufficient safeguards capable of remedying the handicap under which the defence had laboured due to the admission of the victim\u2019s pre-trial statements in evidence against him. He submitted, in particular, that the domestic courts had failed to approach the victim\u2019s statements with sufficient cautionand to order a posthumous examination of the victim\u2019s mental state to show whether he had been able to correctly remember and report the relevant events.<\/p>\n
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n