Communicated on 27 August 2020 Published on 14 September 2020

FIFTH SECTION

Application no. 40829/12 Sergiy Anatoliyovych MARTYNENKO against Ukraine lodged on 18 June 2012

STATEMENT OF FACTS

The applicant, Mr Sergiy Anatoliyovych Martynenko , is a Ukrainian national, who was born in 1986 and lives in Sumy.

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

According to the police reports on a test purchase of drugs, on 12 and 30 January 2009 the applicant sold a small quantity of cannabis to his acquaintance P. used by the police as their undercover agent. The supposed purchases took place in the apartment house where the applicant lived, in the absence of any eye-witnesses. According to the applicant, he did not sell any drugs and the police reports had been fabricated.

On 30 January 2009, immediately after the second reported undercover operation, the police carried out a search at the applicant ’ s home. They found about 150 grams of cannabis, but no banknotes used by the police for the test purchase.

On the same day the applicant was arrested.

On 30 April 2009 a bill of indictment was drawn up. As stated therein, the applicant was charged with: repeated drug dealing under Article 307 § 2 of the Criminal Code of Ukraine (“the CCU”) and illegal drug possession without intent of dealing (Article 309 § 1 of the CCU).

On 26 June 2010 P. made a written statement that he had incriminated the applicant under the police pressure. The Sumy Zarichnyy district prosecutor ’ s office (“the Zarichnyy prosecutor ’ s office”) investigated the matter. On 3 August 2010 it issued a ruling refusing to institute criminal proceedings against the Zarichnyy police officials for the absence of constituent elements of a criminal offence. The prosecutor noted that initially P. had explained that in 2007 he had been given a suspended imprisonment sentence of four years and that the police had threatened to put him in prison if he had refused to incriminate the applicant. However, subsequently, when questioned by the investigator, P. denied having been pressurised and submitted that he had made that allegation in order to help the applicant at the latter ’ s request.

On 15 December 2010 the Sumy Zarichnyy District Court (“the Zarichnyy Court”) found the applicant guilty of repeated drug dealing (Article 307 § 2 of the CCU) and illegal drug possession without intent of dealing (Article 309 § 1 of the CCU). The applicant was sentenced to six years ’ imprisonment with confiscation of personal property under Article 307 § 2 of the CCU and to two years ’ imprisonment under Article 309 § 1 of the CCU. As a final penalty defined by absorption of less severe punishment by more severe, the court sentenced him to six years ’ imprisonment with confiscation of property.

Both the applicant and the prosecutor appealed.

The applicant admitted having kept some cannabis for his own use, but denied any drug dealing. He argued that there had been no evidence proving that the test drug purchases had in fact taken place. The applicant referred in that connection to the absence of any eye-witnesses and to the failure of the police search to find the money supposedly used for the purchases. Lastly, he drew the appellate court ’ s attention to the fact that at the time of the events P. had been particularly susceptible to police pressure given his suspended prison sentence.

In his initial appeal of 21 December 2010 the prosecutor of the Zarichnyy prosecutor ’ s office submitted that, when establishing the sentence, the trial court had failed to take into account the fact that the applicant had not admitted his guilt and had tried to wrongly accuse the police of falsification of the criminal case. The prosecutor therefore asked for increasing the applicant ’ s prison sentence to eight years.

On 27 April 2011 the prosecutor submitted the following modifications to his appeal:

“Having additionally studied the foundedness of the judgment of the [ Zarichnyy Court] in respect of [the applicant], I consider that the appeal should be modified.

In its decision that [the applicant ’ s] guilt for having committed an offence under Article 307 § 2 of [the CCU] was proven, the [trial] court referred to the testimonies of witness [P.].

However, the purchase of [cannabis] by [P.] from [the applicant] is not confirmed by any other evidence than the statements of [P.] himself. The court has not had regard to the fact that the money handed to [P.] for the test drug purchase from [the applicant] had not been seized and that the attested witnesses had not been present during the test purchase itself at [the applicant ’ s] domicile.

Therefore, [there is] insufficient evidence of [the applicant ’ s] guilt for having committed a crime under Article 307 § 2 of the [CCU].

The pre-trial investigation in respect of [the applicant ’ s] charge under Article 307 § 2 of the [CCU] was incomplete and one-sided. It is, however, impossible to rectify those shortcomings by remittal of the case for retrial or for additional pre-trial investigation.

In the light of the foregoing and having regard to [the rules of criminal procedure regarding appeals and their examination],

I REQUEST [THE APPELLATE COURT]:

To quash, for lack of evidence, the judgment of the [ Zarichnyy Court] in respect of [the applicant], in so far as it concerns [his] conviction under Article 307 § 2 of the [CCU], and to discontinue the proceedings in this part.

To consider [the applicant] convicted under Article 309 § 2 of the [CCU] and sentenced to two years ’ deprivation of liberty.”

On 5 May 2011 the Sumy Regional Court of Appeal rejected both the applicant ’ s and the prosecutor ’ s appeals (the applicant did not object to the prosecutor ’ s modified appeal) and upheld the judgment of 15 December 2010. Having overall reiterated the first-instance court ’ s reasoning, the appellate court held that the applicant ’ s guilt was sufficiently established.

The applicant and the prosecutor lodged appeals on points of law mainly reiterating their earlier arguments. The applicant submitted, in particular, that the appellate court had been obliged to carry out judicial investigation in respect of that part of the judgment, the lawfulness and foundedness of which had been challenged in the appeal. However, no such judicial investigation had been carried out. The prosecutor maintained that the applicant ’ s conviction under Article 307 § 2 of the CCU was groundless.

On 19 January 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the lower courts ’ decisions. It held that the “arguments raised in the appeals on points of law by [the applicant] and the prosecutor as regards the lack of evidence of [the applicant ’ s] guilt for having committed an offence under Article 307 § 2 of [the CCU] [were] groundless and in contradiction with the case-file materials and the legal requirements”.

Article 62 reads as follows:

“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty...”

Article 307 § 2 provided for five to ten years ’ imprisonment and property confiscation for repeated drug dealing.

Article 309 § 1 penalised illegal possession of drugs without intent of dealing by a fine of fifty to one hundred times the non-taxable income amount or community works for up to two years or arrest for up to six months or restriction of liberty for up to three years or imprisonment for up to three years.

Article 16-1 provided for the principle of adversarial proceedings (§ 1). It prohibited vesting the functions of accusation, defence and adjudication in the same body or person (§ 2). It was also stated in that provision that the obligations of the court were to ensure objectiveness and impartiality and to create the requisite conditions for fulfilment by the parties of their procedural duties and for exercising their rights (§ 6).

Article 22 stipulated that a prosecutor and an investigator were obliged to undertake all legally envisaged measures to ensure a complete and objective investigation. This implied establishing all the circumstances: both those incriminating an accused and those exculpating him/her (§ 1). Furthermore, neither court nor prosecutors or investigators had the right to shift the burden of proof on an accused (§ 2).

Article 264 provided that, if during judicial proceedings the prosecutor reached a conclusion that the judicial investigation did not confirm the accusation against the convict, he/she was obliged to drop the charge(s) and to indicate the reasons therefore in his/her ruling to that end (§ 3).

Article 277 stipulated that the prosecutor had the right to change the accusation during the judicial examination of the case, before the completion of the judicial investigation (§ 1). He/she had to formulate the new accusation and the reasons for the change in a respective ruling (§ 3).

Under Article 282, the court was obliged to discontinue the proceedings where the prosecutor had dropped the charges and where there was no private prosecution (§ 2).

Article 362 provided that judicial investigation was to be carried out at the appellate stage only in respect of that part of the verdict, the lawfulness and foundedness of which had been challenged on appeal (§ 5).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial. He alleges, in particular, that the courts dealing with his criminal case could not be regarded as impartial given that they pursued the drug-dealing charge against him even after the prosecutor had dropped it. Furthermore, he complains that the domestic courts failed to adequately state the reasons on which they based his conviction on that charge.

The applicant also complains under Article 6 § 2 of the Convention that he was convicted for drug dealing in the absence of any evidence proving his guilt even though such absence of evidence was explicitly acknowledged by the prosecutor. He complains that this was contrary to the legally established procedure.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?

In particular:

(a) Having regard to the fact that the Sumy Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters pursued the accusation against the applicant on the drug-dealing charge after the prosecutor had amended his appeal and thereby had in substance dropped that charge, were those courts independent and impartial, as required by Article 6 § 1 of the Convention (see, mutatis mutandis , Karelin v. Russia , no. 926/08 , §§ 69-84, 20 September 2016)?

(b) Did the domestic courts adequately state the reasons on which they based the applicant ’ s conviction for drug dealing (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I)?

2. Was the applicant ’ s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?

In particular:

(a) Was the applicant proved guilty on the drug-dealing charge “according to law”?

(b) Did the domestic courts comply with the principle that any doubt should benefit the accused (see, for example, Telfner v. Austria , no 33501/96, §§ 15-20, 20 March 2001)?