Communicated on 10 July 2019

FIFTH SECTION

Application no. 43571/12 Vadym Yaroslavovych BERLIZEV against Ukraine lodged on 1 July 2012

STATEMENT OF FACTS

The applicant, Mr Vadym Yaroslavovych Berlizev , is a Ukrainian national, who was born in 1978 and lives in Zboriv .

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

At the relevant time the applicant held the position of Deputy Chief Labour Inspector of Ternopil Region.

Between 30 March and 7 April 2010 the applicant communicated several times with G., a director of a private company, concerning his non ‑ compliance with labour law regulations. According to the applicant, G. repeatedly offered to settle the matter informally with him, hinting to him about a pecuniary reward, but the applicant rejected these offers.

On 7 April 2010 G., who was a former police officer, submitted a written complaint to the police, alleging that the applicant had demanded UAH 3,000 from him in exchange for not disclosing violations of labour law by G. at his company.

On the same day the police gave G. several banknotes marked with a luminescent substance only visible in special lighting, to be given to the applicant as bribe.

Later that day G. went into the applicant ’ s office and then came out informing the police that he had delivered the money. A video camera was used to record the operation.

The police entered the applicant ’ s office with two attesting witnesses. One of the witnesses was a student of the Ternopil Department of Police Academy. The marked banknotes were found in the applicant ’ s desk drawer. Allegedly, the luminescent substance was discovered on one of the applicant ’ s fingers. The officers then swabbed the applicant ’ s hands with a gauze tampon to collect the luminescent residue.

The applicant was charged with accepting a bribe.

During the trial the applicant denied the charge. He submitted that he had never demanded a bribe and that he had rejected G. ’ s repeated proposals to that effect; however, G. had put the cash in the applicant ’ s desk drawer, when the applicant had been in another room using a copying machine.

On 27 December 2010 the Ternopil City Court found the applicant guilty of accepting a bribe from G. and sentenced him to five years ’ imprisonment, suspended, with probation.

The court referred in particular to the statements of the police officers and the attesting witnesses who confirmed that one of the applicant ’ s fingers displayed the luminescent substance. The other two witnesses, who were working with the applicant and were present during the operation, stated that they had not seen any luminescent substance on the applicant ’ s hands.

The court then referred to the expert opinion concluding that the gauze tampon used to swab the applicant ’ s hands contained the luminescent residue. The court further noted that, according to the video records of the operation, G. had had a conversation with the applicant during which G. put his hand down and told the applicant “there are three here”; following that phrase there was a sound of the drawer opening and closing.

On 9 March 2011 the Ternopil Regional Court of Appeal upheld the applicant ’ s conviction. It considered that the applicant ’ s guilt had been confirmed by the available evidence, including the video records of the conversation between G. and the applicant.

The applicant appealed on points of law, arguing that G. had repeatedly incited him to accept a bribe and that he had planted the money in his office. The applicant contended that G. had been a former police officer and that he had known the police officer in charge of the covert operation. The applicant then argued that the evidence in the file had been obtained unlawfully, notably the video recording of the covert operation had been unlawful as it had not been authorised by the court.

On 24 January 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed the applicant ’ s appeal, considering that the alleged violations of the procedural rules had been insignificant and could not affect the findings of the lower courts.

Section 8 of the Operational-Search Activities Act of 1992 (as worded at the relevant time) provided that the use of technical means of obtaining information during the operational-search activities had to be authorised by a court decision.

COMPLAINTS

1. The applicant complains under Articles 6 and 13 of the Convention that he was convicted as a result of police entrapment and planting the marked banknotes in his office, that the courts failed to address his important and pertinent arguments regarding the inadmissibility of the evidence and the unlawfulness of the charge against him.

2. The applicant complains under Article 8 of the Convention that the video recording of his conversation with G. in the applicant ’ s office amounted to unlawful interference with his private life.

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?

( a ) In particular, was the applicant a victim of entrapment and did he have appropriate procedural safeguards in that respect?

(b) Did the applicant have appropriate procedural safeguards with regard to the use of evidence obtained by the secret video recording means? Did the courts address the applicant ’ s arguments in that respect?

2. With regard to the use of secret video recording means in the present case, has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention?