FIFTH SECTION

DECISION

Application no. 38839/07 Volodymyr Petrovych LYALYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 10 June 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen , President, Ganna Yudkivska , Mattias Guyomar , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 16 August 2007,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Volodymyr Petrovych Lyalyuk , is a Ukrainian national, who was born in 1957 and lives in Cherkasy.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchutskyy , from the Ministry of Justice.

The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant ran a business in the city of Cherkassy and had a food shop there.

5 . On 10 September 2005 the applicant left for Odessa.

6 . On 11 September 2005 two unknown men approached the applicant ’ s wife and told her that the applicant had promised them that he would bring some good wine from Odessa. She replied that the applicant was in Odessa at the time and they asked her to call him and to ask him to bring thirty litres of wine. After several reminders from them, she called the applicant and told him to bring some wine.

7 . On 13 September 2005 the applicant returned to Cherkassy.

8 . At 8 a.m. on 13 September 2005 the same unknown men came to the applicant ’ s shop and asked him if he had brought the wine which they had ordered through his wife. They also gave the applicant three 10-litres plastic cans to put the wine in.

9 . At 2 p.m. the same two men came to the shop and asked the applicant ’ s wife whether they could take the wine. She replied that they could, but instead of taking the wine they started a search of the shop and stated that they were tax inspectors. Then they asked her to call the applicant.

10 . When the applicant arrived, the tax inspectors accused him of illegal sale of alcohol. He objected to the accusations, stating that he had been privately asked to bring some alcohol and had not received money for it. The applicant was asked to sign a protocol of seizure of goods and documents, which he did.

11 . On 15 September 2005 the applicant ’ s wife received a telephone call from the tax police investigator, who informed her that a criminal case had been instituted against the applicant for unlawful sale of alcohol.

12 . On 27 September 2005 the applicant appeared before the investigator.

13 . On 28 March 2007 the Sosnovskiy District Court of Cherkassy found the applicant guilty of unlawful sale of alcohol and sentenced him to a fine of 1,000 hryvnias (UAH) (equivalent of 148.36 euros).

14 . Following his conviction, the applicant made numerous requests to have access to the case-file materials and audio records of the hearings. He received only part of the records and access to the remainder of the materials was refused.

15 . In his appeal against the judgment of 28 March 2007 the applicant challenged the assessment of the facts by the domestic authorities, alleged falsification of certain procedural documents, but he did not put forward “the entrapment defence”. He claimed that he had committed no offence, because he had made no profit from the wine he had brought upon request of his wife, it was his wife and not himself who had been approached by the tax inspectors with the request to bring some wine and that he had not been present at the shop when the tax inspectors had come to seize the wine. However, he did not allege that his acts had been extraordinary and that he would never have committed them if not for the tax police involvement.

16 . On 22 May 2007 the Cherkassy Regional Court of Appeal upheld the decision of the first-instance court.

17 . On 3 March 2008 the Supreme Court of Ukraine rejected the applicant ’ s appeal on points of law, stating that his complaints about wrong assessment of facts and incorrect application of the law, as well as his allegations of falsification of the criminal case file materials were unsubstantiated.

COMPLAINTS

18 . The applicant complained under Article 6 of the Convention about the unfairness of the criminal proceedings against him. In particular, he claimed that the domestic courts had given preference to the arguments of the prosecution, had not substantiated their decisions and had not reacted to his arguments and his complaints about falsification of some procedural documents. He also complained about the provocation by the tax inspectors that had led to his conviction. He further complained under Article 13 that he had not been allowed to study in full the case-file and audio records of the court hearings.

THE LAW

19 . The Court notes that all complaints of the applicant under Article 6 § 1 and Article 13 of the Convention fall to be examined solely under Article 6 § 1 of the Convention.

20 . The parties submitted no observations.

21 . The Court must first determine whether the applicant has complied with the admissibility requirements under Article 35 of the Convention, which stipulates in so far as relevant:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

...

3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded...

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

23 . The Court notes that in substantiation of his complaints, the applicant submitted copies of all decisions of the domestic courts in his case, as well as a copy of his appeal against the judgment of the first instance court. The submitted documents, however, do not demonstrate whether the applicant made his “entrapment defence” before the court of cassation. The applicant lodged his application on 16 August 2007, that is prior to the final decision in the criminal case against him. He later furnished the Court with a copy of the Supreme Court decision, from which it appears that the applicant complained about wrong assessment of facts and incorrect application of the law, as well as falsification of the criminal case file materials.

25 . The Court reiterates in this respect that when the domestic law provides remedies which are effective at least in theory it is for the applicant to substantiate his claim that he used those remedies (see, mutatis mutandis , Shalimov v. Ukraine , no. 20808/02, §§ 55-57, 4 March 2010). Furthermore, the Court must look into the substance of the applicant ’ s complaints made before the domestic courts. The mere fact of lodging an appeal on points of law is not sufficient, the applicant must demonstrate that the complaints formulated in that appeal were the same complaints that the applicant has raised before this Court (see, mutatis mutandis , Buglov v. Ukraine , no. 28825/02, §§ 108-110, 10 July 2014).

27 . Accordingly, the application 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 1 July 2021 .

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Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President