PODVEZKO proti Ukrajině

FIFTH SECTION

DECISION

Application no. 10549/18
Anton Vitaliyovych PODVEZKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 20 October 2022 as a Committee composed of:

Mārtiņš Mits, President,

Lətif Hüseynov,

Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 10549/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 February 2018 by a Ukrainian national, Mr Anton Vitaliyovych Podvezko (“the applicant”), who was born in 1976 and lives in Kharkiv;

the decision to give notice of the complaints set out in paragraph 1 below 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 complaints, in the context of his trial on charges of fraud, that: (i) Ms V.P.R., a witness, was not examined at the trial, in breach of Article 6 §§ 1 and 3 (d) of the Convention, and (ii) the composition of the appellate court that upheld his conviction was such that it had not been an independent and impartial tribunal established by law, within the meaning of Article 6 § 1, particularly on account of the fact that the case was reassigned, allegedly in breach of established rules, from a judge to whom the case had initially been allocated to different judges.

2. The applicant was convicted of fraud in relation to loans he had made to individuals on several occasions. According to the domestic courts’ findings, the following scheme was used. At the same time as signing the loan agreements, the applicant and his associate Mr B. induced the borrowers (without their full understanding) into signing documents appointing B. as their agent to sell their flats. Without the borrowers’ knowledge, B. guaranteed the borrowers’ debts vis-à-vis the applicant.

3. B., acting as the borrowers’ agent but without their knowledge, transferred the flats to individuals associated with him and with the applicant. Since no money actually changed hands in those “sales”, B. avoided transferring the non-existent proceeds of the sales to the borrowers by signing documents according to which he transferred those proceeds to the applicant to cover the borrowers’ debts. Those debts were in turn inflated through the imposition of high fines for late payment.

4. One of the cases concerned a flat belonging to Ms V.P.R., her husband Mr V.V.R. and their daughter Ms L.

5. In the course of the pre-trial investigation V.P.R. stated that she had signed documents by which the applicant had loaned her daughter L. (a private entrepreneur) 25,000 United States dollars. Their flat had been mortgaged to secure the debt. She signed the documents without understanding them and nothing had been explained to her. She had not been aware that she had signed an agreement appointing B. as her agent. B. had not even been present at the signing. Subsequently, on 27 August 2010 some people had unsuccessfully attempted to change the locks to the flat and break in. They had eventually succeeded on 30 August 2010, when the witness, who was at work, had learned from her husband that they had been locked out of the flat. The witness had not seen the applicant on 27 and 30 August but her daughter had told her that he and B. had been among the people who had entered the flat on those occasions.

6. In the course of the investigation, a confrontation interview was held between the witness and the applicant. She reaffirmed her statements. However, this witness was not examined during the trial.

7. In convicting the applicant in relation to this incident, the trial court relied on V.P.R.’s pre-trial statements and the results of the confrontation interview. It also relied on the following testimony given in court by a number of witnesses.

(i) Ms L. stated that she and her parents had been tricked by the applicant into signing the agreement appointing an agent to sell their flat, without understanding its meaning.

(ii) V.V.R. made a statement similar to that of his wife and daughter.

(iii) Mr L. (Ms L.’s husband) and Mr K. (who had acted as an intermediary between Ms L. and the applicant) both testified that they had been present at the signing of loan documents but had not heard any discussion of the agreement appointing an agent for the sale of the flat. They added that B. had not been present on that occasion.

(iv) Ms Z., who had bought the victims’ flat from B. in a fictitious transaction, was examined at the trial and her more incriminating pre-trial statements were read out. Z. stated that she had been the applicant’s girlfriend and had occasionally acted as the borrowers’ “agent” (even though she never had any contact with them) by selling their flats to the applicant’s friends or associates. Her purchase of V.P.R.’s flat was a fictitious transaction carried out at the request of the applicant, who had retained all the documents, and no money had in fact changed hands. Later, at the applicant’s request, she had resold the flat to a group of nine individuals, including B. and several of the applicant’s relatives, in a similar formal transaction in which no money had actually changed hands.

(v) Several other witnesses who had participated in the execution of technical aspects of the relevant transactions were examined.

8. The trial court also relied on records of the examination of the relevant documentation and files and on audio-recordings of wiretapped conversations between the applicant and relatives of his who had participated in the relevant transactions.

9. In convicting the applicant of other counts of fraud the court relied on testimony from borrowers and other witnesses describing the same fraudulent scheme as set out in paragraphs 2 and 3 above.

10. The applicant appealed against his conviction and the case was assigned to Judge M. of the Kharkiv Regional Court of Appeal. Judge M. twice returned the case to the trial court, instructing it to allow the defence to study the case file.

11. Domestic law (at the time, section 15 of the Judicial Organisation and Status of Judges Act of 2010) provides that cases are assigned to judges automatically by an electronic case management system (ECMS), taking into account certain factors such as judges’ caseload and specialisation. Regulations governing the work of the ECMS were enacted by the Council of Judges[1] on 26 November 2010.

Under the regulations (regulation 2.3.44 as worded at the time), if a Court of Appeal judge remitted a case to a first-instance court for technical reasons (for example, to enable the parties to study the case file and trial record), then on the return of the case to the Court of Appeal the case was not subject to assignment by the ECMS but was to be assigned to the same judge as judge rapporteur (presiding judge).

12. Nevertheless, when the applicant’s case was returned to the Court of Appeal, the ECMS assigned it to a panel consisting of Judge P., as the presiding judge, and Judges G. and Sh. At the time Judge M. was excluded from being assigned cases through the ECMS as he was on leave.

13. The applicant challenged the composition of the panel, referring to the rules mentioned in paragraph 11 above and arguing that the case should have been assigned to Judge M. The panel accepted the challenge, finding that those rules had indeed been breached. In view of this, on 23 October 2015, in accordance with the decision of the head of the court registry, the case was redistributed through the ECMS to a panel consisting of Judge Sh., as the presiding judge, and Judges M. and O.

14. Subsequently, the panel’s composition was changed through the ECMS several times because a number of judges recused themselves on the grounds of prior involvement in matters concerning the applicant or B. (for example, extension of pre-trial detention). The relevant changes were documented by statements from the relevant judges, formal decisions of the head of the court registry and records of redistribution through the ECMS.

15. Eventually, Judge M. also recused himself from hearing the case because the applicant had initiated disciplinary proceedings against him.

16. On 18 April 2016 the Court of Appeal upheld the applicant’s conviction.

17. On 24 October 2017 the Higher Specialised Court for Civil and Criminal Matters upheld the applicant’s conviction. In particular, it observed that the case had been reassigned within the Court of Appeal to comply with the requirements of domestic law and it rejected the applicant’s argument that the panel of the Court of Appeal had been constituted unlawfully.

18. The Government contested the applicant’s complaints.

THE COURT’S ASSESSMENT

1. Composition of the Court of Appeal

19. The Court observes that the domestic courts acknowledged that an irregularity had occurred in the assignment of the case to a Court of Appeal panel after the return of the case from the trial court. As a result, the case had been assigned to a new panel which included Judge M., to whom the case should have been assigned in the first place. Eventually, however, that judge recused himself from the case (see paragraphs 13 to 15 above).

20. Accordingly, the applicant can no longer claim to be a victim of the alleged violation of his right to an independent and impartial tribunal established by law. This part of the complaint must therefore be rejected in accordance with Article 35 § 4.

21. There is no indication of any other manifest breach of domestic law in the formation of the Court of Appeal panel, let alone of any breaches which would be of such gravity as to entail a violation of the right to a tribunal established by law (see Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, §§ 243-52, 1 December 2020, and paragraph 17 above). The changes in that court’s composition do not raise any issue of impartiality as they were based on well-established criteria and accompanied by appropriate safeguards (see paragraphs 11 and 14 above and contrast, for example, Sutyagin v. Russia, no. 30024/02, §§ 186-93, 3 May 2011).

22. Accordingly, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Examination of witness V.P.R.

23. The relevant principles of the Court’s case-law are set out in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-31, ECHR 2015).

24. There is no information in the file concerning the reasons for V.P.R.’s absence from the trial. The Court is prepared, therefore, to proceed on the assumption that there was no good reason for her non-attendance.

25. Given that V.P.R. was one of the victims of one of the counts of fraud of which the applicant was convicted, the Court is prepared to assume that her evidence may be considered “decisive” for his conviction in that respect or, at the very least, that her evidence carried significant weight and that its admission may have handicapped the applicant’s defence.

26. However, the witness’s evidence in essence merely corroborated the evidence of other witnesses who testified to the same circumstances, most notably V.P.R.’s daughter L., who apparently played a more important role in the events than her mother, being the main borrower in the transaction (see paragraphs 5, 7 (i) and 8 above). In this context the Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence of the absent witness (see Schatschaschwili, cited above, § 116).

27. Turning to those factors, the Court notes firstly that the applicant enjoyed an unrestricted opportunity to give his own version of the events and to challenge the absent witness’s statements.

28. Secondly, various pieces of evidence corroborated the absent witness’s evidence (see paragraphs 7 and 8 above). Moreover, there was considerable witness and other evidence that the applicant and his co‑defendant used the same modus operandi in respect of other borrowers (see paragraph 9 above). In its case-law the Court has recognised this as an important corroborative factor (see Schatschaschwili, cited above, § 128).

29. Lastly, an opportunity to confront a witness for the prosecution at the investigation stage is an important procedural safeguard which can compensate for the absence of that witness from the trial. The applicant did not allege that, in the course of the confrontation interview, his rights had been restricted or he had been disadvantaged in any way (see Palchik v. Ukraine, no. 16980/06, § 50, 2 March 2017, and contrast Chernika v. Ukraine, no. 53791/11, § 70, 12 March 2020).

30. The Court concludes that the applicant has failed to make an arguable claim that the admission of the statements of the above-mentioned witness as evidence undermined the fairness of the criminal proceedings against him.

31. 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 10 November 2022.

Martina Keller Mārtiņš Mits
Deputy Registrar President

[1] A body of self-governance elected by and composed exclusively of judges.