FIFTH SECTION
DECISION
Application no. 25580/18
Eduard Mykolayovych GREBENYUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 9 June 2022 as a Committee composed of:
Mārtiņš Mits, President,
Ivana Jelić,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 25580/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 May 2018 by a Ukrainian national, Mr Eduard Mykolayovych Grebenyuk (“the applicant”), who was born in 1970 and lives in Odessa and was represented before the Court by Mr G.M. Avramenko, a lawyer practising in Chernihiv;
the decision to give notice of the complaints under Article 6 §§ 1 and 3 (d) of the Convention to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint under Article 6 §§ 1 and 3 (d) that he was convicted on appeal after having been acquitted by the trial court, even though the appellate court did not examine certain witnesses on whose evidence the trial court had relied in acquitting him.
2. In November 2013 a demonstration took place in Chernihiv. The applicant, who was deputy head of the regional police at the time, was charged with unlawful interference with the right to peaceful assembly in the context of those events.
3. According to the charges, the applicant had been aware that the demonstration did not present any risk to public order but had directed a police officer to submit to the city authorities a letter falsely asserting that there was such a risk. On the basis of this letter, the authorities had obtained a court order banning the installation of tents and audio and video equipment by the demonstrators. Such structures and equipment had nevertheless been installed. The applicant had directed police officers to help the State bailiffs to dismantle that equipment and block the demonstrators’ access to it. In doing so, the applicant had acted unlawfully in view of the fact that he had been aware that there had been no judicial order specifically authorising the dismantling of the equipment.
4. On 4 February 2016 the trial court acquitted the applicant. It based its decision in part on the evidence of six low-ranking police officers who had been present when the dismantling had taken place and who had testified that they personally had not observed the applicant directing that operation.
5. On 1 June 2017 the Chernihiv Regional Court of Appeal, having held hearings in the presence of the parties, re-examined much of the evidence in the case, including witnesses, but refused to examine the above-mentioned officers. The court convicted the applicant, sentencing him to three years’ imprisonment, suspended.
6. On 20 February 2018 the Supreme Court upheld the relevant part of that decision on appeal.
7. The applicant submitted his complaint as set out in paragraph 1 above. The Government disputed the applicant’s allegations.
THE COURT’S ASSESSMENT
8. The relevant general principles have been summarised in Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, § 273, 21 April 2011) and Chernega and Others v. Ukraine (no. 74768/10, §§ 176 and 177, 18 June 2019).
9. There is no suggestion that the Court of Appeal convicted the applicant without giving him an opportunity to be heard in person or examining any oral evidence in the case (contrast Botten v. Norway, 19 February 1996, § 53, Reports of Judgments and Decisions 1996‑I, and Júlíus Þór Sigurþórsson v. Iceland, no. 38797/17, §§ 39-44, 16 July 2019, respectively).
10. The relevant question is rather whether the Court of Appeal’s rejection of the evidence of six police witnesses without examining them undermined the fairness of the proceedings against the applicant, a question which should be examined primarily in the light of the principles concerning the examination of defence witnesses (see Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 158-68, 18 December 2018), the ultimate question being, in any event, whether the criminal proceedings overall were fair (see Chernika v. Ukraine, no. 53791/11, §§ 51 and 52, 12 March 2020, with further references).
11. The first two elements of the Murtazaliyeva test hinge on the reasons given for the request to examine a witness and for its rejection: the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness (see Murtazaliyeva, cited above, §§ 158 and 164-66).
12. In the present case, neither the specific reasons given for the defence’s request to examine the police witnesses (mentioned in paragraphs 4 and 5 above) nor the court’s reasons for rejecting it are known to the Court, as it has not been provided either with the request or with any decision in respect of it. However, given that the trial court relied in part on the evidence of those witnesses in acquitting the applicant, the reasons for the applicant’s request must have been sufficiently clear to the Court of Appeal.
13. As to the Court of Appeal’s reasons for rejecting the request, it appears that they were never stated explicitly, but they can be understood by reference to the Court of Appeal’s judgment. This aspect of the case will be best addressed by answering the question of whether the appeal court’s decision not to examine those witnesses undermined the overall fairness of the proceedings.
14. Turning to that question, the Court notes that the evidence of the six police witnesses in issue did not in any event concern a key element of the charges against the applicant – that he had directed a subordinate officer to mislead the city authorities about the risks to public order allegedly posed by the planned demonstration. The subordinate officer himself was examined by both the trial and appeal courts. Whereas the trial court mistrusted his evidence in which he identified the applicant as the source of the misleading information in the letter and its initiator, the appeal court accepted it.
15. As to the dismantling of the equipment, key evidence against the applicant lay in the testimony of protesters who, before both courts, identified the applicant as a commanding officer in charge of the dismantling operation. Whereas the trial court distrusted that testimony, the Court of Appeal, having itself examined those witnesses, accepted it. Likewise, officer Ya., who was the head of the public security police in the city of Chernihiv at the relevant time, was examined by both the trial and the appeal courts. Before the latter, he testified that the applicant had briefed the police officers before the operation and ensured the overall command of the operation in the park where the dismantling had taken place.
16. Both courts also examined video evidence of the events in question. The trial court itself acknowledged that the applicant could be seen on the video directing some police officers to either remove some of the protesters or record their actions on video (“знімати жінку і тих людей”, which in Ukrainian can mean either “record on video” or “remove” “that woman and those people”).
17. The Court perceives nothing arbitrary or manifestly unreasonable in the Court of Appeal’s different interpretation of that evidence to the effect that the applicant was not only ordering the recording of the protesters’ actions but also their removal from the scene. The Court of Appeal explicitly noted that the video was of good quality and enabled the identification of the people involved and had strong evidentiary value, as it was not dependent on the subjective interpretation of individual witnesses recounting the relevant events.
18. That statement can be considered an implicit comment on the limited value of the evidence of the six police witnesses not examined by the Court of Appeal: indeed, the evidence of those witnesses to the effect that they personally had not observed the applicant directing the dismantling operation was limited to their personal experiences and observations and therefore did not disprove other evidence examined by the appellate court which showed that the applicant had in fact been in command of the operation (compare Salogub v. Ukraine (dec.) [Committee], no. 21971/10, 10 December 2019).
19. In summary, the Court of Appeal directly examined all the essential evidence in the case and gave reasons for disagreeing with the trial court’s assessment of it. The applicant had a full opportunity to comment on and challenge all the evidence in the case. He did not allege that he had been prevented from cross-examining the witnesses that the Court of Appeal had examined and on whose testimony it ultimately based its decision.
20. The Court reiterates that it is not its function to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Article 6 does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. The Court should not act as a fourth‑instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for example, De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017, with further references). There is no indication of such arbitrariness or manifest unreasonableness in the present case.
21. The Court concludes that the applicant has failed to make an arguable complaint that his conviction on appeal in the absence of the re-examination of certain witnesses by the appellate court undermined the fairness of the criminal proceedings against him as a whole.
22. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 September 2022.
Martina Keller Mārtiņš Mits
Deputy Registrar President