Chinese student’s murder conviction on the basis of contradictory witness statements violated his right to a fair trial
JUDGMENT
Zhang v. Ukraine 13.11.2018 (no. 6970/15)
SUMMARY
The case concerned the applicant’s conviction for murder.
The Court found in particular that the applicant had been convicted on the basis of contradictory and inconsistent prosecution witness testimony, a reason the case had earlier been remitted several times for further investigation. The courts had in the end accepted that evidence, at the same time refusing to admit testimony in favour of the applicant.
The courts had cited new procedural rules introduced in 2012 for their decision against admitting the evidence in favour of Mr Zhang, rules which had been introduced to strengthen an accused person’s rights. However, the courts’ interpretation and application of the provisions had been incompatible with the State’s obligations under the Convention and had led to the exclusion of all the defence witness evidence from the file.
None of the courts had addressed the applicant’s arguments about the flaws in the evidence against him or the unfairness and arbitrariness of excluding evidence in his favour. The trial as a whole had thus led to a violation of his rights.
THE IMNPORTANCE OF THE CASE
An important and interesting decision. The ECtHR puts particular emphasis on the evaluation of evidence, and in particular on witnesses. The fair trial is violated if the conviction is based on contradictory testimonies and unreliable witnesses.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Yu Zhang, is a Chinese national who was born in 1983 and lives in Tianchang (China).
On 1 May 2009, a fight broke out in Kharkiv between four Ukrainians and a group of Chinese students, including the applicant, while the students were having a picnic. During the fight, one of the Ukrainian men was stabbed. He died from his injuries in hospital three days later. Mr Zhang was arrested and charged with his murder the same day.
A new Code of Criminal Procedure (CCP) came into force in Ukraine in November 2012, introducing major changes. By that time the proceedings against the applicant had been going on for three and a half years, with several rounds of pre-trial investigation aimed at rectifying numerous flaws and deficiencies.
Meanwhile all the applicant’s fellow Chinese students, who had made witness statements favourable to the defence, had left the country. Relying on the new CCP, the courts refused to admit the statements as evidence as they had not been made directly in court.
In July 2013 the Kharkiv Kyivskyy Court sentenced the applicant to 12 years’ imprisonment. An ordinary appeal by Mr Zhang and an appeal on points of law were unsuccessful. He argued, among other things, that the testimony of the absent witnesses should have been admitted, as the old CCP had still been in force at the time of the events and it allowed such evidence. The appeal court did not take up that argument.
His conviction was largely based on the testimony of two of the Ukrainian men involved in the fight, Sa. and Su. However, Su. had reportedly been too drunk to talk to the police on the day of the incident, while Sa. had offered contradictory accounts of events on at least three occasions, at one point conceding that his identification of Mr Zhang as the culprit had been driven by emotion.
Mr Zhang was released in 2016 and returned to China.
THE DECISION OF THE COURT
The Court noted that the case against the applicant had been built on statements by the victim’s friends, but that evidence had been inconsistent as the witnesses had changed their stories. It was because of such issues that the case had been remitted several times.
However, the court which finally convicted Mr Zhang had based its verdict on those statements. That meant that even though the courts should have treated the evidence with caution, they had in fact chosen, without any explanation, to believe it, and had not interpreted any doubts in his favour.
In addition, the courts, relying on the new Code of Criminal Procedure, had excluded testimony in favour of Mr Zhang that had been given in the pre-trial investigation by his fellow students. The goal of the new provisions was laudable as it prevented the use of testimony which the police had obtained under duress, a practice which the Court had criticised. However, the new provisions had been used to Mr Zhang’s detriment and had led to all the evidence being in the prosecution’s favour.
At the same time, the Court noted that the events in question had actually taken place before the new Code had come into force, meaning the testimony of absent witnesses could have been allowed. Ultimately the Court found that whichever Code was valid in Mr Zhang’s case, the domestic courts had interpreted and applied the criminal procedure provisions on assessing the admissibility of evidence in a manner that was incompatible with the State’s obligations under the Convention.
The courts at all three levels of jurisdiction had also failed to assess Mr Zhang’s 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.
Taken as a whole, the criminal proceedings against Mr Zhang had led to a violation of his right to a fair trial under Article 6 § 1 of the Convention. Given this finding, the Court saw no need to examine separately his complaint about the length of the proceedings.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay the applicant 7,500 euros (EUR) in respect of non-pecuniary damage. He did not make a claim for costs and expenses(echrcaselaw.com editing).
