Strasbourg unimpressed over evidence not only once retracted, but also in absentia
In an important judgment from the European Court of Human Rights, the Court found that the use by a Ukrainian court of written evidence from a person also accused of the crime who the applicant was unable to question had been a violation of his right to defence (Article 6 § 1 of the Convention).
The applicant Stanislav Lutsenko was represented by Arkady Bushchenko, Head of the KHPG Legal Aid Centre for Victims of Ill-treatment (and Head of the Ukrainian Helsinki Human Rights Union Board).
In his claim, lodged in August 2004, the applicant alleged, in particular, that he had been convicted in violation of Article 6 § 1 of the Convention, on the basis of statements given by his absentee co-accused during the pre-trial investigation, then retracted as having been made under duress.
I. The circumstances of the case
Mr Lutsenko (b. 1977) was arrested on 17 November 1995 on suspicion of having murdered Mr O.M. four days earlier. In the course of a subsequent search of the applicants house 1,500 dollars (USD) were seized.
He was remanded in custody between 17 November 1995 and 13 December 1996 in the Donetsk SIZO [pre-trial detention centre]. He alleged that the conditions in which he was held were inhuman and degrading. Furthermore, the police allegedly tortured him to obtain a confession.
Mr Lutsenko consistently denied any involvement in the murder.
On 18 November 1995 Mr N.L., the applicants acquaintance, who was a shareholder and a driver in a company managed by Mrs O.M., the victims widow, was questioned by the police concerning the murder. As he was questioned as a witness, Mr N.L. was warned of his obligation to provide all the information known to him on pain of criminal sanctions and was not offered the option to consult with a lawyer. He confessed to having hired Mr Lutsenko to kill Mr O.M. and to having paid him USD 2,000 in advance and USD 10,000 post factum. He also testified that on the eve of the murder the applicant had shown him the gun he had acquired to kill Mr O.M. Soon afterwards Mr N.L. was indicted for incitement to murder. Following his indictment and purportedly a consultation with a lawyer, he retracted his confession and subsequently consistently denied his or the applicants involvement in the events throughout the course of the proceedings.
On an unspecified date the case against the applicant and Mr N.L. was referred for trial to the Donetsk Regional Court. According to the prosecution, the applicant was guilty of murder for profit, unlawful possession of firearms and unlawful transactions in foreign currency.
On 29 May 1996 the Donetsk Regional Court referred the case for additional investigation, having found that the facts of the case were insufficiently established and the evidence of the defendants involvement in the incriminated offences was insufficient. On an unspecified date the case was referred back to the court for trial.
On 13 December 1996 the Donetsk Regional Court acquitted the defendants, having found, in particular, that the prosecution had failed to account for inconsistencies between the available sources of evidence and to secure sufficient proof of the defendants guilt. In particular, a number of facts, such as Mr N.L.s alleged involvement in the crimes and the sums purportedly received by the applicant to commit the murder were lacking in any evidentiary basis save for Mr N.L.s initial confessions, which he had subsequently retracted as given under duress. Accordingly, the court found the evidence unreliable and, as no other evidence was available, interpreted all the doubts in favour of the defence.
15. The applicant was released from custody on the day of his acquittal and soon afterwards left the country and settled in Uzbekistan, allegedly fearing reprisals on the part of the police. On an unspecified date Mr N.L. disappeared.
On 9 June 1997 the Donetsk Regional Court placed the applicant and Mr N.L. on the wanted list. According to the applicant, he was unaware of this fact and was never in hiding. He settled, worked, married, had a child and obtained a drivers licence in his own name.
On 13 December 1997 the Supreme Court allowed the appeal in cassation by the prosecution and remitted the case for fresh consideration to the Donetsk Regional Court.
18. In 2002, when the applicant applied to the Ukrainian authorities to renew his expired passport, he was arrested and detained in Ukraine pending trial.
19. As Mr N.L. was not found, on 9 December 2002 the Donetsk Regional Court of Appeal (the former Donetsk Regional Court) solicited the applicants opinion about holding a trial in his absence, to which the applicant, represented by a lawyer, agreed. In the course of the trial, the prosecution requested the court to read out depositions by Mr N.L., to which the defence did not object. The court granted the request by the prosecution.
20. On 3 October 2003 the Donetsk Regional Court of Appeal accepted the prosecutions version of events as filed in 1996. It convicted Stanislav Lutsenko of murder for profit and unlawful possession of firearms and acquitted him of unlawful transactions in foreign currency, which was by then no longer a criminal offence.
24. Mr Lutsenko appealed in cassation. He maintained, inter alia, that his conviction lacked evidentiary basis and de facto relied to a decisive extent on the initial depositions by Mr N.L., given by him in the absence of a lawyer when interrogated as a witness without privilege against self-incrimination, and which he had subsequently retracted as given under duress. He maintained that without a reference to those depositions all the other evidence was insufficient to establish the facts, in particular concerning the possession of the gun and the payment of money for the murder.
25. The applicants lawyer lodged a separate cassation appeal in which he supported the applicants allegations concerning the insufficiency of the inculpating evidence. He noted, in particular, that there was no evidence whatsoever that the applicant had ever had a gun, much less fired it, or that the USD 12,000 allegedly given to the applicant had ever existed, much less been transferred to him as suggested, and submitted that it was not possible to establish exactly where the applicant had been at the time when Mr O.M. had been wounded.
26. On 11 March 2004 the Supreme Court upheld the judgment of 3 October 2003. In the text of its decision it summarised the evidence on which the conviction was based, as well as referring to the confession made by Mr N.L
2. The Courts assessment
The Court reiterated that rules on admissibility of evidence were primarily a matter for regulation under national law, and that there were occasions where it was not possible to secure the appearance of a witness at the trial. The rest of the assessment is given in full.
44. With regard to the circumstances of the present case, the Court notes at the outset that Mr N.L.s depositions, although read out at trial as part of the case-file, were not explicitly mentioned in the text of the judgment of 3 October 2003. The Court recalls, on the other hand, that the applicant was convicted, in particular, of aggravated murder “for profit” as opposed, for instance, to unqualified murder, governed by a different criminal statute. The trial court deemed it established that the applicant had had a pecuniary motive and noted that he had actually been paid USD 12,000 in two instalments of USD 2,000 and USD 10,000 respectively. In his cassation appeal, the applicant maintained that save for Mr N.L.s depositions and in the light of other available evidence, the allegation of his pecuniary agreement with Mr N.L., the actual payment and the amounts referred to, remained mere speculation. Likewise, apart from the fact that Mr O.M. was wounded by several shots from a gun of an unknown make, Mr N.L.s initial depositions were the only source of evidence that the applicant might actually have had a gun on him.
45. Responding to the applicants arguments, in its judgment of 11 March 2004 the Supreme Court explicitly referred to the contested depositions and noted that there was no reason to consider them inadmissible, as there had never been a conclusive finding that they had been given under duress. The Supreme Court further noted that the trial court had “properly assessed the evidence in its totality”, thus referring to the entire body of evidence examined at trial.
46. In light of the above, the Court considers that the confessional depositions by Mr N.L. were important for the purposes of securing the applicants conviction as it was formulated.
47. The Court must, therefore, examine whether the use of these depositions was consistent with the requirements of fairness laid down in Article 6 § 1 of the Convention.
48. In this regard the Court reiterates that in determining whether the proceedings as a whole were fair, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy.
49. The Court has previously found that where the domestic judicial authorities are confronted by several conflicting versions of truth offered by the same person, their final preference for a statement given to the investigative authorities over one given in an open court does not in itself raise an issue under the Convention where this preference is substantiated and the statement itself was given of the persons own volition (see Camilleri v. Malta (dec.), no. 51760/99, 16 March 2000). On the other hand, the reliability of evidence would be compromised where it was obtained in breach of the right to silence and the privilege against self-incrimination. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without recourse to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996-VI, and Jalloh, cited above, § 100). Where doubts arise as to reliability of a certain source of evidence, the need to corroborate it by evidence from other sources is correspondingly greater (see mutatis mutandis Jalloh, cited above, § 96).
50. As regards the facts of the present case, the Court recalls that Mr N.L. gave his confessional depositions when questioned as a witness. In the absence of any conclusive evidence concerning his ill-treatment, the Court cannot establish beyond a reasonable doubt that he gave his testimony under duress. On the other hand, the Court notes that, unlike a suspect or an accused, who enjoyed a right to remain silent according to the applicable law, a witness was under obligation to reveal all information known to him on pain of criminal punishment. Moreover, unlike a suspect or an accused, a witness had no statutory right to consult a lawyer before the first interrogation.
51. Although the issue in the present case is not the conviction of the author of the confessions, but that of his co-accused, the Court finds that the underlying principles are broadly similar, and these statements, obtained in the absence of procedural guarantees, should have been treated with extreme caution, regard being had, in particular, to the fact that Mr N.L. had promptly retracted them, complaining before the competent authorities that he had given them under duress. Further, Mr N.L. had consistently denied his initial confessions not only during his first trial in open court, but yet at the stage of the pre-trial investigation.
52. Regard being had to the fact that, as noted above, the confessional depositions of Mr N.L., whom the applicant was unable to confront in an open court, given by him in the absence of procedural guarantees against self-incrimination, were used to a decisive degree for establishing the facts material for the qualification of the applicants actions, the Court finds that the rights of the defence were restricted to an extent which compromised the fairness of the proceedings as a whole.
53. There was, therefore, a breach of Article 6 § 1 of the Convention.
(The case in full can be found at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en)