FIFTH SECTION
DECISION
Application no. 52193/09
Dmytro Georgiyovych VOLFOVYCH
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 23 January 2018 as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 15 September 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Dmytro Georgiyovych Volfovych, is a Ukrainian national, who was born in 1973 and is detained in Vinnytsya.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 26 July 1995 the applicant shot and killed a certain Mr V. (“the first episode”). The applicant was arrested on suspicion of murder.
4. On 30 December 1996 an investigator of the Dnipropetrovsk Regional Prosecutor’s Office terminated criminal proceedings against the applicant for lack of a corpus delicti in his actions. The investigator found that the applicant and the victim had known each other from a boxing club. Their relations had soured, the victim had threatened the applicant and the victim’s friends seriously beat up the applicant’s friends. The applicant bought a gas pistol for self-defence. He loaded the pistol with gas and blank cartridges, the blanks on top. When he met the victim on 26 July 1995, the latter behaved aggressively and, as he was getting ready to hit the applicant, the latter shot in the victim’s direction, simply to frighten him and honestly believing that he was shooting a blank cartridge. The victim died of a penetrating firearm wound to his heart. Large lead shot was found in the wound. The investigator concluded that the applicant had acted in legitimate self-defence and had had no intent to kill.
5. In 1999 the applicant was convicted of using threats or violence to induce performance of a civil obligation and sentenced to a three-year prison sentence, suspended for two years.
6. On 28 May 2004 the applicant shot in the chest and killed a certain Mr K. (“the second episode”). The killing occurred at a bar after a confrontation between the applicant and the victim and their friends.
7. On 29 May 2004 a prosecutor instituted criminal proceedings against the applicant in connection with the second episode. On 27 December 2007 the applicant was arrested.
8. On 25 January 2008 the Prosecutor General’s Office quashed the decision of 30 December 1996, holding that that decision was based on a superficial examination of the evidence. In particular the investigation had to inquire into whether the applicant had modified the gas pistol and into the origin of the lead shot found in the victim’s body.
9. The applicant stood trial before the Dnipropetrovsk Regional Court of Appeal, sitting as trial court, on various charges related to the two episodes, most notably murder without aggravating circumstances in respect of the first episode and aggravated murder in respect of the second episode. He pleaded not guilty, arguing essentially that in both instances he had acted in legitimate self-defence: (i) he shot the first victim because he feared violence from him based on previous incidents and because the victim was getting ready to hit him. In order to frighten the victim he shot at him with a blank. The gun malfunctioned causing the victim injury; (ii) as to the second episode, the applicant was drinking with friends at a café when the second victim and his friends started behaving in a disorderly and threatening fashion towards staff and others. The applicant left the café, took his hunting rifle from his car and, upon his return, saw the victim punch his friend. The victim had then started advancing on the applicant with a fork and table knife. After shouting a warning, he had shot the victim.
10. In the course of the trial the applicant asked for witnesses D.K., R.O., V.M. and, according to the applicant, also O.G., to be called. It appears from the Supreme Court’s subsequent ruling (see paragraph 18 (i) below) that these witnesses were the applicant’s friends from the time of the first incident. It appears from the same ruling and from the applicant’s submissions to the domestic courts that those witnesses could testify that the first victim had threatened him and that he had reason to fear the victim. The trial court refused to call those witnesses. The applicant has not submitted any information about the reasons given by the trial court for that decision, if any.
11. Two cooks who worked at the café where the second incident occurred were summoned as witnesses but failed to appear. Their pre-trial statements were read out. The copies of those statements provided by the applicant are not entirely legible but it appears from them that both cooks stated that they had not seen the moment the shot was fired. It appears that the statements were not incriminating as they do not appear in the list of incriminating evidence in the trial court’s judgment.
12. On 4 November 2008 the trial court convicted the applicant of murder in connection with both episodes (1995 and 2004), the first one being murder without aggravating circumstances and the second one aggravated murder due to the repetition of the offence. He was sentenced to life imprisonment. The trial court relied in particular on:
(i) the applicant’s admissions, expert conclusions and witness evidence showing that the applicant’s pistol had been modified to be able to fire live ammunition, that the first victim died of a firearm wound, and witness evidence confirming that the applicant had shot the first victim;
(ii) as far as the second episode was concerned, also the evidence of the victim’s friends who had been present on the scene and of a café employee (other than the two mentioned in paragraph 11 above) who testified that the victim had not threatened the applicant, evidence that the applicant’s hunting rifle had been modified to allow shooting with the stock folded and thus no longer qualified as a permitted hunting weapon.
13. The court stated that, whatever the perceived threat the first victim posed, the applicant had long been aware of it and was in a position to take reasonable action to avoid it. Instead, he had modified his pistol to be able to shoot with live ammunition, had consciously sought to meet the victim, even though he had had sufficient time to avoid any confrontation, and had shot him.
14. In the second episode, likewise, the applicant had acted with premeditation, having sufficient time to leave the café and come back with his rifle, which he had previously modified, and had shot the victim to resolve a trivial conflict. There was no credible evidence that the victim posed a serious threat to the applicant.
15. The court stated that it was suspicious of the evidence of the café employees because the applicant was friends with the establishment’s management.
16. The applicant appealed to the Supreme Court. In the part of his appeal submitted to the Court he argued that the criminal proceedings against him concerning the first murder had been reactivated without sufficient grounds. Moreover, the first episode had to be considered as time-barred. He challenged the assessment of evidence and criminal law-classification of his actions adopted by the trial court. He also complained that the trial court had refused to call D.K., R.O. and V.M. (see paragraph 10 above) as witnesses.
17. In support of his appeal he submitted notarised statements of the two cooks who had failed to appear (see paragraph 11 above) which they had made after the delivery of the trial court’s judgment. The statements confirmed that the victim in the second episode had behaved in a disorderly fashion, had hit the applicant’s friend and had attempted to attack the applicant with a table knife. For the applicant, these statements proved that the trial court had erroneously interpreted his conduct as aggravated murder while it had to be classified as a killing committed in exceeding the limits of legitimate defence (see paragraph 21 below).
18. On 17 March 2009 the Supreme Court upheld the applicant’s conviction and sentence. It considered that the trial courts’ conclusions were correct and supported by sufficient evidence. In particular:
(i) with regard to the first episode, the trial court had correctly concluded that there was no need to examine proposed defence witnesses, who were the applicant’s friends, namely D.K., R.O., V.M. “and others”, since it had in any case accepted the circumstances they could testify to, namely the existence of a degree of hostility between the applicant and the first victim and the reasons for it;
(ii) concerning the statements of the two above-mentioned café cooks (see paragraph 11 above), the court considered them untrustworthy since there were indications that the applicant had exerted influence on those witnesses to make statements supporting his defence, notably the fact that those witnesses had seriously changed the tenor of their statements after the applicant had been arrested to accord with his story which, in turn, also closely resembled the one he had told to justify the first killing. In particular, the court noted that from 2004 and until the applicant’s arrest in August 2007 the café employees, including the cooks, had not mentioned that the victim and his friends had behaved in a particularly threatening way or attacked the applicant. In fact, according to those statements, they had not observed the incident itself and only heard the shot and, having run to the scene, observed the victim’s body on the floor.
B. Relevant domestic law
19. The relevant provisions of the Code of Criminal Procedure of 1960, in force at the material time, provided:
Article 216. Resumption of the investigation in a terminated case
“The investigation in a terminated case may be resumed, within the time-limit applying to criminal liability, by a decision of the prosecutor...”
Article 227. Powers of the prosecutor in supervising the enforcement of the law by inquiry and investigation bodies
“In supervising the enforcement of the law by inquiry and investigation bodies, the prosecutor shall be empowered to take the following measures within the scope of his competence:
(1) request the criminal case files from inquiry and investigation bodies for review...;
(2) reverse unlawful and unsubstantiated decisions taken by investigators and inquiry officers;
...
(8) remit criminal cases to the investigating bodies for additional investigation with instructions; ...”
20. Other relevant provisions of the Code of Criminal Proceedings can be found in Blagoy v. Ukraine (dec.) (no. 18949/04, §§ 18-20, 15 October 2013).
21. Article 48 of the Criminal Code of 1960 provided for a ten-year limitation period for offences punishable by more than five years’ imprisonment (this included murder without aggravating circumstances which was punishable by up to fifteen years’ imprisonment). The running of this period was interrupted by the commission of another offence punishable by more than two years’ imprisonment.
Article 49 of the Criminal Code of 2001 provides for a fifteen-year limitation period for the most serious offences (this includes murder without aggravating circumstances). The running of this period is interrupted by the commission of a new serious crime.
Article 118 of the Criminal Code of 2001 makes a killing committed in exceeding the limits of legitimate self-defence punishable by withholding of up to twenty percent of wages for up to two years or by confinement in a semi-open correctional institution for up to three years or by imprisonment for up to two years.
COMPLAINTS
22. In his application form the applicant presented the following complaints:
1. under Article 6 §§ 1 and 3 (d) of the Convention the applicant complained that the domestic courts had failed to call four defence witnesses he wished to be called and failed to establish the whereabouts of the two café cooks. Under the same provision he complained that the domestic courts had credited only the witnesses’ accounts incriminating him and had not taken into account the alleged contradictions in them;
2. referring to Article 6 § 1 the applicant complained that the domestic courts had failed to give sufficient reasons for their conclusion that he was guilty;
3. referring to Article 6 § 2 the applicant complained that:
(i) in the course of the trial the prosecutor terminated proceedings against the applicant on charges of illegal handling of a weapon in 1995 as time-barred. Therefore, the trial court, in convicting the applicant, “could not rely on those facts as proven”;
(ii) the authorities quashed the initial termination-of-proceedings decision after a substantial lapse of time and without sufficient grounds;
(iii) alleged contradictions in the evidence were not interpreted to the applicant’s benefit contrary to the principle of in dubio pro reo;
(iv) by erroneously not considering the first murder time-barred, the courts misclassified the second murder as one committed by a person who had previously committed murder.
23. In his letters of 6 December 2011 and afterwards the applicant also complained that the criminal proceedings against him were unfair in various other respects and that he had been unable to have officials allegedly guilty of falsifying evidence against him prosecuted.
THE LAW
24. The provisions of Article 6 of the Convention invoked by the applicant read, insofar as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
A. Failure to examine certain defence witnesses
25. The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf; its essential aim, as indicated by the words “under the same conditions”, is full equality of arms in the matter. The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair (see Vidal v. Belgium, 25 March 1992, § 33, Series A no. 235-B). The Court has also held that only exceptional circumstances can prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (see Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, § 89, and Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004). It is not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V).
26. As to the applicant’s complaint under Article 6 § 3 (d) of the Convention that the domestic courts failed to call four above-mentioned defence witnesses, the Court will proceed on the assumption that the applicant has exhausted available domestic remedies in this respect, even though in the part of the appeals made available to the Court the applicant explicitly mentioned only three out of those four witnesses (see paragraphs 10 and 18 (i) above).
27. The Court notes that the domestic courts exhaustively examined and acknowledged the circumstances to which those four witnesses could testify, namely the presence of hostility between the applicant and his first victim. The applicant stated that two of those witnesses D.K. and R.O, had been attacked by the first victim and his friends prior to the first episode. He did not explain the relevance of the other two witnesses’ potential evidence in any detail. It appears, however, that the applicant had sought the testimony of all those four witnesses to show that, beyond mere hostility, he had feared attack from the first victim. However, it appears that the applicant had ample opportunity to advance this argument in the proceedings and the domestic courts found it unconvincing, in view of the weight of other evidence. The Supreme Court considered that the evidence of these witnesses, which it stressed were the applicant’s friends (see paragraph 18 (i) above), would not be able to change that assessment.
28. As to the applicant’s complaint that the domestic courts had failed to establish the whereabouts and ensure the examination in the course of the trial of the two café employees (cooks), whose statements were instead read out (see paragraph 11 above), the Court observes that the applicant submitted additional notarised statements of those witnesses to the Supreme Court. The Supreme Court, which in this type of proceedings had broad authority to examine questions of facts and law (see Shabelnik v. Ukraine (no. 2), no. 15685/11, § 49, 1 June 2017), in fact took notice of those more favourable statements and still found them untrustworthy and insufficient to outweigh other evidence pointing to the applicant’s guilt (see paragraph 18 (ii) above). It is unclear, in such circumstances, how the live testimony of those witnesses before the trial court could have benefited the defence.
29. The applicant has thus failed to explain, in an adequate fashion, why it was still important for any of the above-mentioned defence witnesses to be heard. In view of the principles established in its case-law cited above and the above discussion, the Court concludes that no arguable case has been made that the evidence of the above-mentioned defence witnesses could have influenced the outcome of the applicant’s trial or that the failure to examine them prejudiced the fairness of the proceedings.
30. The remainder of the applicants’ complaint under Article 6 § 3 (d) (see paragraph 22 (1) above) amounts to a mere disagreement with the domestic courts’ assessment of the evidence, which the Court likewise does not find arbitrary or manifestly unreasonable.
31. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Other complaints concerning the fairness of proceedings
32. As to the first of the complaints under Article 6 § 2 (see paragraph 22 (3.i) above), the Court notes that the applicant did not raise it before the Supreme Court. Therefore, it should be declared inadmissible for failure to exhaust domestic remedies and rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
33. As to the second complaint (see paragraph 22 (3.ii) above), the Court notes that the decision to terminate proceedings against the applicant was not final in the sense that it could be quashed by a superior prosecutor and did not acquire the status of res judicata (see, mutatis mutandis, Horciag v. Romania (dec.), no. 70982/01, 15 March 2005, in the context of Article 4 of Protocol No. 7). That possibility was only subject to the general limitation period which had not expired (see paragraphs 19 and 21 above). The only question which remains to be asked is whether an arguable case can be made that the quashing of the termination-of-proceedings decision was susceptible to undermine the overall fairness of proceedings against the applicant, of which presumption of innocence invoked by the applicant is one element (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 131, ECHR 2014 (extracts)). The applicant did not provide any specific arguments which would justify such a claim, for example because delay led to loss of exculpatory evidence (compare Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). To the contrary, a question could be asked whether the original decision to terminate criminal proceedings against the applicant was not based on ignoring key evidence in the case, namely the evidence indicating that the applicant’s weapon had been modified and that he had shot at the victim with live ammunition at close range (see paragraph 4 above and, mutatis mutandis, Lenskaya v. Russia, no. 28730/03, § 39, 29 January 2009, and Giuran v. Romania, no. 24360/04, § 39, ECHR 2011 (extracts)).
34. As to the latter two complaints under Article 6 § 2 (see paragraph 22 (3.iii) and (3.iv) above) and the applicant’s complaint under Article 6 § 1 that the domestic decisions were not sufficiently reasoned (see paragraph 22 (2) above), the Court considers that they amount essentially to the applicant disagreeing with the domestic courts’ assessment of the evidence and their interpretation of domestic law. The Court reiterates in this context that both the admissibility of evidence and its assessment are primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them (see Lhermitte v. Belgium [GC], no. 34238/09, § 83, ECHR 2016). Normally, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal, no. 2) [GC], no. 19867/12, § 83, ECHR 2017 (extracts)). Moreover, it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The Court will not substitute its own interpretation for theirs in the absence of manifest arbitrariness (see, for example, Tejedor García, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII, and Karakutsya v. Ukraine, no. 18986/06, § 69, 16 February 2017).
35. The Court perceives nothing arbitrary or manifestly unreasonable in the domestic courts’ assessment of the relevant evidence or provisions of domestic law on the matters invoked by the applicant.
36. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Complaints submitted on 6 December 2011 and afterwards
37. Finally, the applicant complained about various other aspects of alleged unfairness of the proceedings against him. Those proceedings ended in a final decision of the Supreme Court on 17 March 2009. Accordingly, these complaints were submitted outside of the six-month period and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
38. To the extent that those complaints concern the applicant’s efforts to institute criminal proceedings against third parties in connection with alleged falsification of the evidence against him, those complaints must be rejected as being incompatible ratione materiae with the provisions of the Convention (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I, and Lobach v. Ukraine (dec.), no. 9276/02, 22 September 2009).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 February 2018.
Anne-Marie DouginYonko Grozev
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy