Information Note on the Court’s case-law 223

November 2018

Zhang v. Ukraine - 6970/15

Judgment 13.11.2018 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Conviction for murder based on inconsistent prosecution witness statements in proceedings where all defence witness evidence had been excluded: violation

Facts – The applicant, a Chinese economics student, had been having a picnic with a g roup of about fifteen Chinese students when a fight broke out with a group of four Ukrainian men. One of the Ukrainian men was stabbed in the back with a metal skewer and died in hospital a few days later.  The applicant was convicted of the murder.

Law – Article 6 § 1: The key evidence on which the applicant’s conviction had been based was the inconsistent statements of the victim’s friends. The defence had pointed to the inconsistencies and contradictions in its objections raised repeatedly throughout the proceedings. Furthermore, the domestic courts themselves had acknowledged them as serious shortcomings in their rulings ordering repeated remittals of the case for additional pre-trial investigation. However, no efforts had been eventually made to analyse those issues. Thus, in its judgment, by which the applicant had been convicted for murder, the domestic court had merely stated that it had no doubts regarding the factual circumstances of the case and that it considered the witnesses’ statements “consist ent and corroborated by other evidence”. The higher courts had endorsed that approach without further comment. In other words, although the undisputed flaws in the witness evidence had called for an increasingly careful assessment by the domestic courts, t hey had chosen, without any explanation, not to doubt the credibility of that evidence, let alone interpret any doubts to the accused’s benefit.

Apart from those inconsistent witness statements from the prosecution, there had been no material or other evid ence against the applicant. Furthermore, there had been numerous witness statements from the Chinese students for the defence, and one of them even had confessed, at one point, to having accidentally injured one of the Ukrainians. While the pre-trial inves tigation continued, all those students had left the territory of Ukraine. The issue of establishing their whereabouts, with a view to either summoning them to Ukraine or arranging for their long-distance questioning, had never been raised.

In 2012 the new Code of Criminal Procedure (“the CCP”) had entered into force in Ukraine. By that time the criminal proceedings against the applicant had been going on for three and a half years, with several rounds of pre-trial investigation aimed at rectifying its numer ous flaws and deficiencies. The new CCP provided that the courts could rely only on statements made directly at the court hearing, but not those made earlier to the investigator or the prosecutor. That novelty was meant to contribute to putting an end to t he widespread practice of police ill-treatment in Ukraine aiming, in particular, at extracting confessions, often criticised by the Court as being routinely applied to criminal suspects at the early stages of the investigation. At the same time, the CCP 20 12 specified that the admissibility of evidence was to be determined on the basis of the CCP in force at the time when that evidence had been obtained. In the applicant’s case it was not disputed that all the witness statements for the defence had been obt ained when the CCP 1960 was still in force.

Although the new legal provisions were aimed at strengthening an accused person’s rights, in the applicant’s case the domestic courts had interpreted them as grounds for excluding all the witness statements from the defence as they had not been obtained at court. As a result, the prosecution had had all the witnesses at its disposal, whereas the applicant had found himself with no witness evidence to rely on in his defence. He had therefore been placed at a substantial disadvantage vis-à-vis the prosecution .

Against that background, irrespective of whether the CCP 1960 or the CCP 2012 were to be applied to the applicant’s case, the domestic courts had interpreted and applied the provisions on criminal procedure on assessing the admissibility of evidence in a manner incompatible with the State’s obligations under the Convention.

Lastly, the domestic courts at all three levels of jurisdiction had failed to give any assessment to the applicant’s specific pertinent and important points about the serious flaws in the prosecution witness evidence and about the alleged unlawfulness and arbitrariness of the exclusion of all the defence witness evidence from the file.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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