The non-examination of a key witness in the audience trial violates the fairness of the trial and equality of arms
JUDGMENT
Bondar v. Ukraine 16.04.2019 (no. 18895/08)
SUMMARY
Equality of arms. Failure to recall an important witness to an intentional homicide trial. National courts have condemned the accused from his confession, that was optained through pressure, and did not call the key witness whose examination was crucial to the conviction or not. Unfair nature of the process. Infringement of the right to a fair trial.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Mykhaylo Bondar is a Ukrainian national who was born in 1960. He died in 2012 and
his mother continued the application on his behalf.
The case concerned his allegation that he had been tortured into confessing to a murder and that
the criminal proceedings against him had been unfair.
Mr Bondar was arrested in August 2003 on suspicion of murder. He confessed, but was released
when a judge found that there was not enough evidence against him.
During the ensuing investigation one witness stated that he had seen Mr Bondar in the victim’s
backyard, with blood on his hands, around the time of the murder, while three other witnesses said
that he had confessed to them. The investigation was suspended in 2004 because the perpetrator
could not be identified.
The investigation was however resumed in 2007 and Mr Bondar was arrested again when new
evidence came to light from another witness, O. O. stated that Mr Bondar had confessed to the
murder to her when they had been living in the same village.
Mr Bondar was brought to trial and convicted of murder in 2008. He was sentenced to 13 years’
imprisonment. The trial court relied on the pre-trial statements from the five witnesses and from
their cross-examination in court.
Mr Bondar appealed in cassation, arguing in particular that O. had retracted her testimony in a letter
to the trial court saying she had been put under pressure from an investigator. O. later took back her
retraction and the court refused to recall her as a witness. The Supreme Court upheld the trial
court’s judgment and Mr Bondar’s request in 2009 to reopen the proceedings was also unsuccessful.
Relying in particular on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and
examination of witnesses) of the European Convention on Human Rights, Mr Bondar alleged that the
proceedings against him had been unfair because the courts had relied on his confession, obtained
under duress, and failed to recall O. as a witness.
THE DECISION OF THE COURT
Violation of Article 6 §§ 1 and 3 (d) – regarding the way in which the national courts approached the evidence provided by the witness G.
The principle of ‘equality of arms’, which is indispensable in matters of witnesses, has not been complied with and, because the evidence was decisive for the applicant’s conviction or not, the fairness of the proceedings was undermined.
In the circumstances of the present case, that conclusion is correct, irrespective of whether the witness is considered to be a witness, because her initial testimony, which was finally confirmed, was important for the prosecution or if she was considered as a witness of the defense, looking at the witness after the initial revocation of her testimony, the defense could hope that this development could undermine the validity of her initial inculculative statement and the status of the category as a whole.
As a result, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
Just satisfaction: € 2,500 for non-pecuniary damage (echrcaselaw.com editing).
