Communicated on 2 October 2018
FOURTH SECTION
Application no. 60800/10
O.V.
against Ukraine
lodged on 28 September 2010
STATEMENT OF FACTS
The applicant, Mr O.V., is a Ukrainian national, who was born in 1976 and is currently serving a life sentence. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 January 2009 the applicant, who had a history of criminal convictions, was arrested on suspicion of premediated murder of Bo. (an eight-year-old girl), which he had allegedly committed in order to cover another crime. In the course of pre-trial investigation, additional charges of several counts of debauchery of minors were brought against him.
On the same date lawyer B. was appointed to represent the applicant’s interests and admitted to the proceedings.
On 9 October 2009 the Rivne Regional Court of Appeal, sitting as a first‑instance court, found the applicant guilty of robbery and premediated murder of Bo., as well as of several counts of debauchery of minors. Using the rule of absorption of more lenient punishment by a stricter one the applicant was given life imprisonment as a final sentence. The applicant and his lawyer were present at the hearing.
On 29 October 2009 the applicant’s lawyer appealed against the judgment of 9 October 2009. He claimed that the murder and robbery charges were to be reclassified into “leaving a person in danger” and “fraud” respectively, and requested a more lenient sentence. This cassation appeal was eventually not accepted for examination as the lawyer had failed to eliminate its shortcomings in accordance with the court’s instructions.
On 6 November 2009 the applicant lodged his appeal against the judgment of 9 October 2009. He mainly challenged the assessment of evidence by the trial court, the legal characterisation given to his actions, the severity of the sentence and the amount of compensation awarded to the victims. He acknowledged his guilt for debauchery of minors, with the exception of two episodes concerning minors B. and D., in which he claimed he had deliberately abandoned his unlawful intentions and had left children untouched. He complained in this respect that he had been deprived of the opportunity to effectively defend himself and to challenge evidence against him as he had not been provided with an opportunity to put questions to B. and D. in respect of their statements made during the pre-trial investigation as his request to summon them to the hearing had been rejected by the court. The applicant further stated that he had killed Bo. by negligence and that he had not robbed her. He also submitted that the trial court had invented aggravated circumstances against him, such as his intoxication by alcohol, and had failed to take into account those that mitigated his guilt, such as his sincere regret, voluntary surrender to the police and his cooperation with the investigating authorities.
On 8 April 2010 the Supreme Court of Ukraine, sitting as a Court of Appeal, upheld the judgment of the first-instance court, having dismissed the applicant’s arguments as ill-founded. It noted, inter alia, that the applicant’s assertions about his deliberate abandoning his intentions were contradicted by his own statements, notably that he had ceased his actions only because D. had started crying and B. had refused entering the building with him.
The applicant and his lawyer did not attend the hearing before the Supreme Court, at which the prosecutor was present.
B. Relevant domestic law
The relevant provisions of domestic law can be found in the Court’s judgment in the case of Sobko v. Ukraine (no. 15102/10, § 41, 17 December 2015).
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the Supreme Court failed to ensure that the arguments in his defence be presented at the appeal hearing and about his inability to cross-examine two of the victims of the crime, B. and D.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by paragraph 3 (c) and (d) of this provision? In particular:
(a) Did the interests of justice require that the applicant and his lawyer be present at appeal hearing before the Supreme Court?
(b) Was the principle of equality of arms respected in the proceedings before the Supreme Court, regard being had to the applicant and his lawyer’s absence from the hearing, in which the prosecutor took part?
(c) Was the applicant able to examine witnesses against him, namely the victims B. and D.? If not, were there good reasons for the non-attendance of these witnesses at the trial? What efforts, if any, have been made to secure the presence of these witnesses before the trial court? Were the statements given by these witnesses during the pre-trial investigations determinant evidence for assessing the applicant’s guilt? Did the applicant enjoy sufficient procedural guarantees to counterbalance the difficulties faced by the defence by reason of the alleged inability to cross-examine B. and D.?
The Government are invited to submit to the Court all relevant documents concerning the above issues.
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