The conviction of an accused without the examination of critical witnesses violates the ECHR and the failure to summon an accused before the Supreme Court constitutes an infringement of the equality of arms of the parties.

JUDGMENT 

Palchik v.Ukraine 2-3-2017 (no. 16980/06)

see here 

SUMMARY

Equality of arms. Witness examination. The principle of equality of arms is violated by the non-summon by the Supreme Court of Ukraine of the accused and his attorney at the hearing of the appeal. Taking into account unqualified witness evidence as evidence infringes Article 6 § 3d of the ECHR.

PROVISIONS

Article 6 par. 1

Article 6 par. 3d

PRINCIPAL FACTS

The applicant, Aleksandr Palchik, is a Ukrainian national who was born in 1954 and lives in Kostyantynivka. The case concerned his allegation that criminal proceedings brought against him for smuggling and related offences had been unfair.

In 2002 criminal proceedings were instituted against Mr Palchik, the managing director of a private company, on suspicion of having concluded fictitious contracts for ferromanganese with four Ukrainian private companies in order to obtain export value added tax refunds. Mr Palchik denied the allegations, stating that he had legally bought ferromanganese from the four companies, exported it to Russia and then received tax refunds. During the pre-trial investigation managers of the four companies admitted that the contracts had either been forged or fictitious and that no actual shipments of the goods had taken place; some of the managers also repeated these statements during confrontations with Mr Palchik.

The police tried on at least five occasions between 2003 and 2004 to bring these and other witnesses to court hearings on the case, without success. The pre-trial statements of these witnesses were therefore read out at a court hearing on the case in August 2004.

In December 2004 Mr Palchik was found guilty of exporting ferromanganese based on forged documents, receipt of tax refunds on the basis of fictitious and forged documents, abuse of office and forgery of documents. His final sentence was seven years and six months’ imprisonment with a ban on holding managerial positions for two years. In convicting Mr Palchik, the first-instance court relied in particular on the statements of a number of witnesses given during the pre-trial investigation as well as inconsistencies between the official records of Mr Palchik’s company and the shadow accounting discovered by the authorities. These findings and the sentence were upheld on appeal in March 2005. Mr Palchik’s and his lawyer’s appeals on points of law were dismissed by the Supreme Court in September 2005, on the ground that the lower courts’ findings had been based on a substantial amount of evidence, in particular the statements made by the managers of companies at the investigation stage.

Mr Palchik was released from detention following a presidential pardon in May 2009.

Relying on Article 6 §§ 1 and 3 (d) (right to a fair hearing/right to obtain attendance and examination of witnesses), Mr Palchik made a number of complaints about the fairness of the proceedings against him. In particular, he complained that the Supreme Court had failed to summon him and his lawyer to the hearing on his appeal on points of law, and thus had only heard the case in the presence of the prosecutor, in breach of the principle of equality of arms. Furthermore, he complained that the witnesses whose statements had been used to convict him had not been examined at trial and that five other witnesses had not been called at all. Lastly, he also complained that he had not been able to obtain a copy of the appeal court’s decision of March 2005 for a considerable amount of time during the proceedings, in breach of Article 34 (right of individual petition).

THE DECISION OF THE COURT

Violation of Article 6 § 1 (equality of arms)

No violation of Article 6 §§ 1 and 3 (d) – on account of the admission of the statements of two of the witnesses (S. and K.) as evidence

Violation of Article 6 §§ 1 and 3 (d) – on account of the admission of the untested statement of one of the witnesses (R.) as evidence

No violation of Article 34

Just satisfaction: EUR 1,000 (non-pecuniary damage) and EUR 600 (costs and expenses)


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