Communicated on 30 November 2017

FOURTH SECTION

Application no. 6970/15 Yu ZHANG against Ukraine lodged on 20 January 2015

STATEMENT OF FACTS

The applicant, Mr Yu Zhang, is a Chinese national who was born in 1983 and is currently in prison. He is represented before the Court by Mr A. Podkopayev , a lawyer practising in Kharkiv .

A. The circumstances of the case

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

At the time of the events the applicant was an undergraduate student of economics at Kharkiv National University (Ukraine).

On 1 May 2009 a group of about fifteen Chinese students, including the applicant, were having a picnic. When they were about to finish, four Ukrainian men (D., Sa., Su. and M.), who were picnicking nearby, approached them to get some beer. The Ukrainians were clearly drunk. D. took a knife from the Chinese students ’ table and threw it in the river on the pretext that it was a weapon and there was no place for it there. M., who appeared less drunk than his friends, was friendlier and the applicant gave him a bottle of beer. All four drank the beer and returned for more. Apparently, they offered the Chinese students a small folding knife instead of the one that had been thrown away, but their offer was declined. D. ’ s behaviour was particularly insulting and indecent: he undid his trousers and showed his genitals to everyone around him, including girls. The applicant gave the Ukrainians another bottle of beer and the group of Chinese people started packing up. M. filmed the events on his smartphone. The last thing recorded was one of the Chinese students, subsequently identified as W., taking two metal skewers out of a plastic bag.

At some point a fight started between the two groups. Subsequently they blamed each other for beginning it. In the course of the fight M. was stabbed in the back with a metal skewer.

Sa . caught one of the Chinese students, Ch. When the police arrived, Sa . stated that he had seen Ch. stabbing M. in the back with a folding knife and confirmed his statement in writing the same day. According to the report of the police officer on duty, Su. and D. were so drunk it was impossible to question them.

When the police arrived at the scene of the fight, the applicant was waiting there together with the four Ukrainians and some of his compatriots (several others had run away). None of the Ukrainians expressed any suspicions about the applicant and he eventually left with his friends.

On 2 May 2009 M. was questioned in hospital. He submitted that he had been stabbed unexpectedly in the back and that he had not seen who had done it. When he had fallen down, he had seen three Chinese men stepping over him, including the applicant. M. remembered the applicant because he appeared bigger than the other Chinese men and had spoken better Russian.

On the same day Sa . changed his initial statement and submitted that he had seen “one of the Asians, who appeared bigger than the others and called himself Yura [the applicant], jump on [M. ’ s] back and stab him with a metal skewer”.

On 4 May 2009 M. died of his injury in hospital.

On the same day Su. told the police he had seen “one of the Asians, who appeared to be bigger than the others, stabbing [M.] with a metal skewer”.

During an identification parade conducted that day Sa . and Su. pointed out the applicant as the one who had injured M.

The applicant was arrested that day on suspicion of M. ’ s murder.

On 6 May 2009 one of the Chinese students, W., speaking in the presence of a lawyer and with the aid of an interpreter, made a statement of surrender to the police. He stated that he had accidentally injured one of the Ukrainians with a skewer and had run away because he had been scared. He was sorry for what had happened.

On 8 May 2009 W. repeated his confession, adding that the applicant had done everything possible to prevent the conflict.

On an unspecified later date W. retracted his confession and submitted that he had only slightly injured D. and Su. with a metal skewer, but not M.

The investigation established that the Chinese students had initially had six metal skewers. Only four of them, packed in a plastic bag, were discovered. The two skewers taken by W. from the bag shortly before the fight were never found.

In the course of the pre-trial investigation twelve Chinese citizens made witness statements describing the events prior to, during and after the fight. None of them had seen who had injured M. or how it had happened. Nor had anybody seen the applicant holding a metal skewer at any point. To the contrary, some witnesses among the Chinese students submitted that they had been next to the applicant during the fight and that he had not been the one who had injured M.

Furthermore, several of the Chinese witnesses told the police that W. had been particularly nervous after the incident, had destroyed the clothes he had been wearing on 1 May 2009 and had asked his parents for a considerable amount of money.

On an unspecified date the investigation was declared completed and the Kharkiv Kyivskyy District Court (“the Kyivskyy Court”) started the trial.

On 15 January 2010 the Kyivskyy Court ordered an additional pre-trial investigation. As stated in its ruling, several people had seen metal skewers in W. ’ s hands, but nobody had seen the applicant holding a skewer, let alone stabbing M. Sa . had eventually retracted his statement of 2 May 2009 about seeing the applicant stabbing M. and specified that in fact he had not seen the injury being inflicted on him. He explained that when pointing out the applicant he had been “driven by emotions”. Furthermore, while D. and Su. considered the applicant guilty of injuring M., it was established in the court hearing that none of them had seen how that had actually happened. The trial court further found unconvincing the conclusion reached by the pre-trial investigation that W. had inflicted light injuries on D. and Su. with a metal skewer but that it had been unlikely that he might have also injured M. Next, the court referred to the statement of the police officer who had been on duty on 1 May 2009 that the applicant had been there all the time after the arrival of the police and that he had been calm, clean and without any injuries. The officer further submitted that the Ukrainians had indicated that it was Ch. who had wounded M. and they had handed him over to the police. Ch. did not speak Russian well. After being provided with an interpreter, he had maintained his innocence. The investigator could not explain how suspicion had fallen on the applicant. He submitted that somebody from the criminal investigation department had told him that the applicant was the perpetrator, but could not remember exactly who. Lastly, it was observed in the court ruling that although some of the Ukrainians ’ witness statements had identified the applicant as appearing bigger than his compatriots, it was clear that there had been several other Chinese students who had appeared bigger and heavier than him. The investigation had failed to make any assessment of that point.

On 25 March 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed the above ruling, concluding that all the issues it raised could be clarified in the course of the trial and that an additional pre-trial investigation was not necessary.

On 26 September 2011 the Kyivskyy Court found the applicant guilty of murder and sentenced him to twelve years ’ imprisonment. It relied on the statements of Sa . and Su., who claimed to have seen the applicant injuring M., and those of D., who stated that he had seen the applicant running away from the victim with Ch. The court concluded that two metal skewers had been used in the fight. Given that W. had injured D. and Su. with one of them, he could not also have stabbed M. W. could not be examined in court as he had left Ukraine. The Chinese students gave their account of the fight. However, the court did not consider it credible and expressed the opinion that they had been trying to help the applicant.

The applicant appealed, submitting, in particular, that his conviction lacked any evidential basis apart from the controversial and speculative statements of M. ’ s friends. The prosecutor also lodged an appeal considering the sentence to be too lenient.

On 26 March 2012 the Court of Appeal quashed the judgment and remitted the case for additional pre-trial investigation owing to numerous flaws and omissions. It observed, in particular, that no effort had been made to establish the motive for the murder. It was thus clear from the evidence in the case file that both the applicant and M. had been friendly and that both of them had tried to avoid the conflict. Furthermore, the appellate court held that a forensic medical expert assessment was required in order to establish whether the statements of D., Sa . and Su. as regards the circumstances of M. ’ s fatal injury were plausible. The appellate court also considered the accusation against the applicant to be too vague as it had never been established where exactly M. and the applicant were situated prior to the incident. Nor had the exact mechanism of the infliction of M. ’ s injury been established.

Following an additional round of pre-trial investigation measures, the case was sent to the Kyivskyy Court.

On 2 July 2012 the Kyivskyy Court held that the directions given by the Court of Appeal in its ruling of 26 March 2012 had not been complied with and that the additional investigation, like the one carried out earlier, was incomplete and superficial. The case was therefore remitted once again for further pre-trial investigation.

On 20 September 2012 the Court of Appeal upheld the above ruling.

On 19 November 2012 the new Code of Criminal Procedure (“the CCP 2012”) came into effect, introducing many major changes in criminal procedure (see “Relevant domestic law” below).

On 24 July 2013 the Kyivskyy Court found the applicant guilty of murder and sentenced him to twelve years ’ imprisonment. It relied, in particular, on the statements made by Sa., Su. and D. in the court hearing, which were identical to those summarised in the judgment of 26 September 2011. The court also relied on M. ’ s testimony during the pre-trial investigation. At the same time, in spite of requests by the applicant, it refused to admit in evidence any of the statements of the other Chinese people, who had meanwhile left Ukraine and could therefore not be questioned in court. The Kyivskyy Court held as follows in that regard:

“... [Pursuant to Articles 85 and 86] and Article 95 § 4 of the CCP [2012], the court may only base its conclusions on statements received directly in the court hearing or in accordance with the procedure under Article 225 of this Code, and is not entitled to base judicial decisions on statements made to the investigator or prosecutor, or to refer to such statements. The court therefore holds that the reference by the applicant and his lawyer to the witness statements documented in the investigation ’ s reports and made either to the investigator or to the prosecutor outside of court hearings and not under the procedure of Article 225 of the CCP [2012], cannot be regarded as proper and admissible defence evidence.”

The applicant appealed. He submitted that the only evidence leading to his conviction had been the victim ’ s friends ’ inconsistent and contradictory statements, whereas there was no material evidence against him and no assessment had been given to the statements by twelve other Chinese people during the pre-trial investigation. Relying, in particular, on Article 5 § 2 and Article 18 of Chapter 11 of the Transitional Provisions of the CCP 2012 (see “Relevant domestic law” below), the applicant complained that it had been unlawful and unfair to exclude that evidence and that by doing so the trial court had substantially aggravated his situation and had deprived him of the possibility to defend himself.

On 27 November 2013 the Court of Appeal upheld the findings and the reasoning of the Kyivskyy Court ’ s judgment.

The applicant reiterated his arguments in an appeal on points of law.

On 22 July 2014 the Higher Specialised Court for Civil and Criminal Matters found against him and upheld the lower courts ’ decisions.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure 1960 (“the CCP 1960”; repealed with effect from 20 November 2012) read as follows:

Article 65. Evidence

“Evidence in criminal proceedings is any factual information, on the basis of which the inquiry authority, the investigator and the court ascertain, in compliance with the legally established procedure, whether or not an act that is a danger to society has been committed, whether the person who has committed it is guilty, and any other circumstances relevant for the proper resolution of the case.

Such information shall be established from: witness statements, the victim ’ s statements, the suspect ’ s statements, expert reports, material evidence, reports on investigative and judicial actions, detective and search activities ’ reports with annexes, and other documents.”

Article 82. Reports on investigative and judicial actions and other information carriers regarding those actions

“Reports on investigative and judicial actions drawn up and documented in accordance with the procedure established by this Code, as well as information carriers, on which procedural actions are recorded with the use of technical means, are the source of evidence, as they confirm the circumstances and facts of relevance for the resolution of a case.”

Relevant provisions of the Code of Criminal Procedure 2012 ( “the CCP 2012”; in force since 20 November 2012) read as follows:

Article 5. Temporal scope of the [CCP]

“ 1. A procedural action shall be carried out, and a procedural decision taken, in accordance with the [CCP] provisions in force at the time they were initiated.

2. The admissibility of evidence shall be determined by the [CCP] provisions in force at the time the evidence was obtained.”

Article 85. Relevance of evidence

“ 1. Evidence is relevant if it proves or disproves, directly or indirectly, elements to be proven in criminal proceedings and any circumstances of relevance for those proceedings, as well as the reliability and the possibility of using other evidence or the lack thereof.”

Article 86. Admissibility of evidence

“1. Evidence shall be regarded as admissible if it has been obtained in compliance with the procedure established by [the CCP].

2. Inadmissible evidence shall not be used for taking procedural decisions. Nor shall the court rely on such evidence in delivering a judicial decision.”

Article 95. Statements

“1. Statements are information provided orally or in writing by a suspect, an accused, a witness, a victim or an expert, in the course of their questioning, in respect of circumstances within their knowledge that are relevant for the criminal proceedings. ...

4. The court shall base its conclusions only on the statements made directly in hearings or obtained under the procedure established by Article 225 of [the CCP]. The court is not entitled to base judicial decisions on statements made to the investigator or prosecutor, or by reference to such statements.”

Article 225. Questioning a witness or victim during the pre-trial investigation by the court

“1. In exceptional cases, where it is required to obtain statements from a witness or a victim during the pre-trial investigation, if there is a risk to [his/her] life or health, or if [he/she] is seriously ill, or if there are other circumstances likely to render impossible the questioning of that witness/victim in court and thus likely to affect the completeness and credibility of [his/her] statements, a party to the criminal proceedings may apply to the investigating judge to question that witness/victim... In such a case the questioning of a witness/victim shall take place during a court hearing on the premises of the court or at the place of the ill witness/victim in the presence of the parties to the criminal proceedings and in compliance with the rules on questioning applicable to court hearings. ...”

Chapter XI. TRANSITIONAL PROVISIONS

“... 8. The admissibility of evidence obtained prior to the entry into force of this [CCP] shall be determined in accordance with the procedure applicable prior to its entry into force.”

COMPLAINTS

Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains about the refusal of the domestic courts to admit in evidence the witness statements made by his fellow Chinese during the pre-trial investigation, contrary to the applicable rules of criminal procedure, which were allegedly misinterpreted and misapplied to his disadvantage. That being so, the applicant complains that he was effectively denied justice.

The applicant also complains under Article 6 § 1 about the length of the criminal proceedings against him.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of fairness respected as regards the refusal by the courts to admit in evidence the witness statements for the defence obtained during the pre-trial investigation under the Code of Criminal Procedure 1960? Furthermore, did the domestic courts give attention to the validity, credibility or relevance of all the evidence submitted? Have any inconsistencies in witness evidence been addressed by the domestic courts and did their decisions provide adequate reasoning (see, mutatis mutandis , Carmel Saliba v. Malta , no. 24221/13, § 79, 29 November 2016)?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?