FIFTH SECTION

DECISION

Application no. 47866/13 Anatoliy Volodymyrovych PIKHOTSKYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 March 2021 as a Committee composed of:

Mārtiņš Mits , President, Jovan Ilievski, Ivana Jelić , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 15 July 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Anatoliy Volodymyrovych Pikhotskyy , is a Ukrainian national, who was born in 1981 and, according to the most recent information provided to the Court, was detained in Lityn . He was represented before the Court by Mr O.I. Nykytyuk , a lawyer practising in Vinnytsya .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna .

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

4 . On 13 July 2011 the police organised a controlled purchase operation during which the applicant sold some cannabis and an illegally owned sawed-off hunting rifle to a police agent A. who acted under the name of K. (hereinafter “K.”).

5 . The applicant was arrested immediately after having handed over a bag containing the drugs and the rifle to K. The police searched the applicant in the presence of attesting witnesses and found him in possession of cannabis (the remainder of that sold) and of the banknotes paid by K. Banknotes were marked by a special substance visible only under ultraviolet light and were accordingly the banknotes given to K. by the police for the controlled purchase.

6 . In the course of the pre-trial investigation the applicant stated that he had found the sawed-off rifle on a riverbank and had gathered some wild cannabis plants in a field and had sold them to K.

7 . The applicant stood trial before the Ladyzhyn Court.

8 . During the trial he pleaded not guilty and stated that he had been framed by his acquaintance G. who had asked him to give a bag, without the applicant knowing what was inside, to a stranger. After having met K. he opened the bag, had seen some packages inside and had given some of them to K. in exchange for some money.

9 . G. testified that he knew the applicant but completely denied the applicant ’ s account.

10 . The attesting witnesses testified that they had observed how the police had marked the banknotes and given them to K. for the controlled purchase and then seized the marked banknotes and some cannabis from the applicant. They had then observed K. give up some cannabis and a rifle to the police – on that occasion K. had explained that he had purchased the items from the applicant. The attesting witnesses further testified that at the time of arrest the applicant had explained that he had received the money found on him for the sale of some cannabis and a rifle.

11 . According to the trial record, the hearing of 7 December 2011, at which the applicant and his lawyer were present, unfolded as follows:

(a) the trial judge ruled that, because the court had no facilities to have K. examined through technical means from a separate room (see paragraph 17 below for the relevant rules of the domestic law), the witness, “to ensure his safety”, would be examined by the trial judge in the absence of the defendant. There is no indication in the trial record whether prior to the ruling on the issue the trial court solicited the opinion of the parties;

(b) K. was examined by the trial judge alone in chambers. K. stated that he had participated in the controlled purchase in the course of which the applicant had offered and sold him the drugs and the rifle. Upon return to the courtroom the judge read out either a full text or a summary of K. ’ s testimony. The applicant and his lawyer did not raise any matters in that respect;

(c) subsequently several other witnesses were examined;

(d) the trial court asked the parties whether they had any requests or applications to make. The applicant made no requests concerning K. ’ s evidence;

(e) the parties made closing statements. The applicant and his lawyer did not mention K. ’ s evidence.

12 . On 9 December 2011 the trial court convicted the applicant of illegal possession and sale of firearms and drugs and sentenced him to six years ’ imprisonment with confiscation of his property. The court relied on the following evidence:

(a) the evidence of the attesting witnesses and K. (see paragraphs 10 and 11 (b) above);

(b) police reports documenting the controlled purchase and the discovery of the drugs and marked banknotes on the applicant;

(c) forensic examination report identifying the substance given up by K. and found in the applicant ’ s possession as cannabis;

(d) a video recording of the applicant ’ s arrest and search.

13 . The applicant appealed. He argued in particular that there was insufficient evidence against him and that “not all participants in the controlled purchase had been examined”. The applicant also submitted some additional elements to his appeal which were not provided to the Court.

14 . On 22 February 2012 the Vinnytsya Regional Court of Appeal upheld the applicant ’ s conviction. The court held that there was sufficient evidence of his guilt. Concerning the evidence of K., the court stated that he had been examined in the absence of the applicant, in accordance with domestic law (see paragraph 17 below), to ensure the witness ’ s safety, and that after K. had given his evidence the trial judge had familiarised the applicant with it (see paragraph 11 (b) above).

15 . The applicant appealed on points of law. In addition to his previous arguments, he stated that there had been indication that the applicant had been entrapped into committing the crime by G. and K. and under such circumstances K. was subject to examination as a usual witness and not as a protected one by the trial judge alone. Moreover, domestic law only allowed for the removal of the defendant from the courtroom when a protected witness was examined (see paragraph 17 below). Instead, the trial judge had examined the witness not only in the absence of the defendant but also of his lawyer.

16 . On 12 March 2013 the High Specialised Court for Civil and Criminal Matters upheld the applicant ’ s conviction. It agreed that there was sufficient evidence of his guilt, pointing in particular to the testimony of the attesting witnesses and K. The court did not comment on the modalities of K. ’ s examination.

17 . At the relevant time Article 303 of the 1960 Code of Criminal Procedure provided that as a general rule all parties to the proceedings had the right to put questions to the witnesses. However, to ensure safety of a witness the court on its motion or on the motion of any of the parties could issue a reasoned ruling to have the witness examined through technical means, with the witness being placed in a separate room (where necessary outside of the courthouse), so that the parties would have the possibility to listen to the testimony, put questions and hear the answers. Where there was danger that the witness could be identified by voice, acoustic distortion could be put in place.

Where it was not possible to have the witness examined through such technical means, the court would examine him in the defendant ’ s absence. Upon the defendant ’ s return to the courtroom, the trial judge was to allow him to examine the witness ’ s evidence and give him an opportunity to provide any explanations in that respect. The defendant and other parties to the proceedings had the right to put questions to the witness who would answer in the defendant ’ s absence.

COMPLAINT

18 . The applicant complained under Article 6 §§ 1 and 3 (d) that he had not been able to examine witness K.

THE LAW

19 . In his reply to the Government ’ s observations on the admissibility and merits of the case the applicant presented a new complaint to the effect that he had been a victim of police entrapment. The Court considers that this complaint cannot be considered as an elaboration of the applicant ’ s original complaints, on which the Government have commented. The Court considers, therefore, that it is not appropriate to take up this matter in the context of the present case.

20 . The applicant complained of a violation of his rights under Article 6 §§ 1 and 3 (d) of the Convention, which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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;

...”

21 . The applicant submitted that the provisions of the domestic law relied upon to restrict his right to examine the witness had been intended for undercover Government agents not known to the accused. However, in the present case K. had been a direct participant in the events, directly communicated with the applicant in the course of the undercover operation, had been known to him and therefore had had no right to witness protection. The trial court had not justified the need for such protection (citing Kornev and Karpenko v. Ukraine , no. 17444/04, § 56, 21 October 2010).

22 . The evidence of that witness had been decisive since no other evidence directly pertained to the moment when the drugs and the money changed hands. There had been no sufficient safeguards in place since the judge, after having examined the witness alone, had not allowed the applicant to listen to the recording of the witness ’ s evidence (he had merely summarised it) and had not offered to the applicant a possibility to put additional questions to the witness. The higher courts had failed to examine the question of necessity and lawfulness of the restrictions.

23 . The Government submitted that witness K. had been examined by the judge in camera in accordance with domestic law to ensure his safety. Apparently, the domestic authorities had had sufficient grounds for applying the procedure under Article 303 of the Code of Criminal Procedure (see paragraph 17 above) while interviewing him. A controlled purchase was a covert procedure which by its legal nature required enhanced security measures and an increased level of confidentiality, the State was under a positive obligation to ensure the security of participants in such operations.

24 . The applicant ’ s conviction had not been based mainly on K. ’ s evidence but on extensive other evidence. Immediately upon examination of the witness by the trial judge, his evidence had been announced to the applicant and his lawyer who had been able to challenge it. Following the examination of that witness and the reading out of his evidence the trial judge had inquired whether the parties had any requests or applications to make but the defence had neither put any questions to the witness nor asked “for additional access to the testimonies of the witness”.

25 . The relevant principles of the Court ’ s case-law were developed in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-131, ECHR 2015) and were recently summarised in Boyets v. Ukraine (no. 20963/08, §§ 75 and 76, 30 January 2018). They are applicable where, as here, witnesses are questioned under special examination arrangements involving the impossibility for the defence to attend the witnesses ’ questioning (see Papadakis v. the former Yugoslav Republic of Macedonia , no. 50254/07, § 89, 26 February 2013).

26 . Turning to those principles, the Court notes at the outset that no good reason has been shown for the modalities of K. ’ s examination: the applicant had known him at least by sight, if not his true identity (see Papadakis , cited above, § 89), there is no indication that the applicant was a member of any criminal network or any other reason for which the witness was at particular risk.

27 . Less restrictive alternatives were available under domestic law (see paragraph 17 above) and the domestic court did not provide any convincing reasons for not using them.

28 . The Court also has no difficulty finding that K. ’ s evidence was, if not decisive, at least such that it carried significant weight and its admission might have handicapped the defence. That witness was the only person other than the applicant who directly participated in and observed the drugs- and arms-sale transaction (compare Yakuba v. Ukraine , no. 1452/09, § 48, 12 February 2019, and Papadakis , cited above, § 88).

29 . As far as counterbalancing factors were concerned, the applicant enjoyed an opportunity to give his own version of the events and to cast doubt on the credibility of K. as a witness. There was also considerable corroborative evidence, most notably the fact that the applicant was discovered in possession of drugs and marked banknotes.

30 . At the trial the applicant did not question the modalities of K. ’ s examination. He did not comment on the substance of K. ’ s evidence or the procedure for his examination even though he repeatedly had an opportunity to do so (see paragraph 11 above). He did not attempt to use his right to put additional questions to the witness (see Dončev and Burgov v. the former Yugoslav Republic of Macedonia , no. 30265/09, §§ 57-61, 12 June 2014, and contrast Papadakis , cited above, § 94).

31 . Even assuming that the applicant raised this matter on appeal, he did so in a brief and unclear manner (see paragraph 13 above) and, moreover, did not ask for the witness to be re-examined by the Court of Appeal (see Palchik v. Ukraine , no. 16980/06, § 36, 2 March 2017, and contrast Gabrielyan v. Armenia , no. 8088/05, § 85, 10 April 2012). In summary, he failed to use all the measures available to him to protect his own right to examine the witness (compare Gryb v. Ukraine, no. 65078/10, § 60, 14 December 2017 (Committee)).

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

33 . 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 22 April 2021 .

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Martina Keller Mārtiņš Mits Deputy Registrar President