FIFTH SECTION

Application no. 42270/08 Volodymyr Sergiyovych POROTOV against Ukraine lodged on 20 August 2008

STATEMENT OF FACTS

The applicant, Mr Volodymyr Sergiyovych Porotov , is a Ukrainian national, who was born in 1952 and lives in Komsomolske .

The circumstances of the case

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

On 23 September 2004 the prosecutors instituted a criminal investigation into the theft of musical equipment from a restaurant. That equipment belonged to a private company.

On an unspecified date the applicant was charged with having burgled the restaurant and misappropriated the musical equipment. On 2 August 2005 the charges were requalified and the applicant was charged with having stolen the equipment. He denied that he had committed theft or burgla ry.

On 21 March 2006 the Zmiyiv Court remitted the case to the prosecutors for further investigation.

On an unspecified date the charges against the applicant were newly requalified to burglary . According to the applicant, he was not aware about the requalification.

On an unspecified date the prosecutors submitted the criminal case to the Zmiyiv Court for consideration. During one of the hearings the court established that the musical equipment had never been stolen and remained in the possession of the private company.

On 28 March 2007 the Zmiyiv Court , in the absence of the applicant and his lawyer but in the presence of a prosecutor, discontinued the criminal proceedings against the applicant due to the minor nature of the offence with which the applicant had been charged. The latter learned about this decision on 16 April 2007.

The applicant appealed to the Supreme Court. He stated that he had not misappropriated the musical equipment in question and asked the Supreme Court to close the proceedings against him for the lack of corpus delicti .

In its decision of 21 February 2008 the Supreme Court noted that “the case-file contains sufficient evidence that the applicant illegally misappropriated [the musical equipment from the restaurant]” and found that the lower court had lawfully discontinued the criminal proceedings against him.

COMPLAINTS

The applicant complains under Article 6 of the Convention that ( i ) he was not aware that the charges against him had been changed from theft to burglary; and that (ii) he was not informed about and was not present at the hearing of 28 March 2007. He also complains under Articles 6 §§ 1, 2 and 7 § 1 of the Convention that by declaring him guilty in its decision the Supreme Court violated his right to be presumed innocent. Relying on Article 13 of the Convention the applicant complains that the Supreme Court ’ s decision was not subject to appeal.

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QUESTION TO THE PARTIES

Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case having regard the wording of the decision of the Supreme Court adopted on 21 February 2008?