FIFTH SECTION

Application no. 3396/08 Ivan Dmytrovych KOTOK against Ukraine lodged on 22 December 2007

STATEMENT OF FACTS

The applicant, Mr Ivan Dmytrovych Kotok, is a Ukrainian national, who was born in 1938 and lives in Shchors. He is represented before the Court by Ms L.M. Koval, a lawyer practising in Kyiv.

A. The circumstances of the case

In the afternoon of 7 February 2006 the police stopped the applicant, a sanitary officer at the material time, at his workplace with UAH 400 hryvnias in his pocket labelled in fluorescent paint with the word “bribe”. The applicant was immediately taken to the police station and questioned about the origins of this money. The applicant ’ s requests to postpone the questioning as he was stressed, disoriented and needed to see a doctor, were dismissed. His demands for a lawyer were also rejected.

After several hours of questioning, the applicant signed a confession statement, admitting to having accepted a bribe in exchange for certifying that A.D. ’ s potatoes were radiation-free without inspecting the potatoes in question.

On 14 and 16 February 2006 respectively criminal proceedings concerning bribery and fraud were instituted against the applicant.

On 3 March 2006 the applicant ’ s advocate was admitted to the proceedings.

On 30 March 2006 the investigation was completed and the applicant was committed to stand trial before the Shchors District Court on charges of fraud and bribery.

Officer K. of the Shchors police, questioned at the trial, testified that on 7 February 2006 M.P. had notified him that the applicant had solicited from him a bribe for certifying potatoes he had bought from A. D. as radiation-free. K. had telephoned the Chernigiv economic police, seeking their cooperation in intercepting the applicant. Upon arrival of officers D. and Sh. of the Chernigiv economic police, M.P. had been given 400 hryvnias labelled with fluorescent paint and the entire group arrived in the applicant ’ s office. Once M.P. had handed the money to the applicant and had obtained the certificate, the applicant had been intercepted with the money in his pocket.

Officers D. and Sh. of the Chernigiv economic police, questioned during the trial, gave similar testimonies and clarified that officer K. had contacted the Chernigiv police by telephone between 10 and 11 a.m. on the day of the operation.

M.P., questioned during the trial, submitted that on 6 February 2006 he had been approached by lorry drivers, identifying themselves as bulk potato buyers coming from the Donetsk Region. They had requested M.P. ’ s assistance in buying potato from local producers. M.P. had agreed to help the lorry drivers and had undertaken to obtain radiation-free certification for five tons of potato, sold to them by A.D. At about 1 p.m. on 7 February 2006 M.P. was received by the applicant in his office, who had solicited a bribe for issuing the requested certificate. M.P. had then come to the Shchors police station and had complained about the applicant ’ s conduct. Having been handed the labelled money, M.P. had returned to the applicant ’ s office at about 2 p.m. on the same date and had handed him the money in exchange for the certificate.

The applicant, questioned during the trial, maintained that the whole incident had been staged by the police. He requested the court to inquire the telephone operator, at what time the Chernigiv economic police had received a telephone call from the Shchors police on 7 February 2006. The applicant alleged that should this call have been made between 10 and 11 a.m., as indicated by officers Sh. and D., it would have preceded the applicant ’ s first meeting with M.P., which had taken place at about 1 p.m. on that day. The court dismissed the applicant ’ s request as seeking disclosure of classified information.

On 27 July 2006 the District Court convicted the applicant as charged. It further imposed on him a fine and a three-year prohibition on occupying managerial and administrative posts.

The applicant appealed, alleging that he had been incited to commit the crimes and that his defence rights had been breached. He noted, in particular, that he had neither solicited nor accepted the bribe. The whole story with the sale of potatoes to the Donetsk lorry drivers had been made up in order to insinuate fraud and bribery. The officers of the Chernigiv economic police had been invited to participate in the applicant ’ s interception several hours before M.P. had first approached the applicant. The trial court had arbitrarily refused to verify this inference. In addition, M. P. had acted in bad faith, having misrepresented himself as A.D., when demanding the certificate and having provided inconsistent accounts of his encounters with A. D. and the lorry drivers in the course of investigation and trial. A.D. ’ s grandmother had testified in court that A.D. had neither grown nor sold any potatoes; and the lorry drivers themselves had never been identified. The applicant also maintained that his defence rights had been breached. In particular, after his interception, he had been questioned without a lawyer for several hours, although he had felt extremely stressed and disoriented. Being a sixty-eight-year-old civil servant with a forty-year impeccable record, he had had a hypertension crisis, but his demands to see a doctor and a lawyer had been ignored by the interrogating officers.

On 19 October 2006 the Chernigiv Regional Court of Appeal reduced the fine imposed on the applicant. The court rejected the applicant ’ s complaint about the breach of his defence rights, finding that the applicant ’ s representation had been duly assured by the admission of the lawyer in the proceedings on 3 March 2006 upon the applicant ’ s request. The court found that a lawyer ’ s participation in procedural activities preceding this date had not been mandatory, since the applicant had not been formally detained or arrested. The court also rejected the applicant ’ s allegations that he had been incited to commit the crimes, having found that these allegations were “ groundless and rebutted by the entirety of the available evidence ”.

The applicant appealed in cassation, alleging, in particular, that following seizure of the money he had been de-facto arrested by the police in connection with his questioning and should have been entitled to have access to a lawyer. He also complained that the trial court had arbitrarily rejected his requests to investigate whether the Chernigiv economic police had been requested to engage in his interception prior to M.P. ’ s first visit with him.

On 24 July 2007 the Supreme Court of Ukraine upheld the judgment of the Court of Appeal.

B. Relevant domestic law

1. Constitution of Ukraine

The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

2. Criminal Procedure Code of 1960 (repealed with the effect of 20 November 2012)

The relevant provisions of the Criminal Procedure Code in force at the material time read as follows:

Article 43-1. The suspect

“The suspect shall denote:

1) a person detained on suspicion of having committed a crime;

2) a person, in respect of whom a preventive measure has been applied before the taking of a decision to bring charges against him/her as an accused.

The suspect shall be entitled to: know what he/she is suspected of; to testify or to refuse to testify and to answer questions; to engage a defence counsel and [to have] a meeting with him/her before the first interrogation ...

The arrest report or the decision to apply a preventive measure shall indicate that the suspect was apprised of his/her rights.”

Article 44. The defence counsel

“ ... Defence counsel may be admitted in the case at any stage of the proceedings. ... ”

COMPLAINTS

The applicant complains that the criminal proceedings against him were unfair. In particular, was incited by the police via M.P. to commit the actions incriminated to him and his relevant arguments had been arbitrarily rejected by the courts.

Furthermore, his right to defence was breached, as he was denied legal assistance during the initial stages of the investigation.

The applicant refers to Article 6 §§1 and 3 (c) of the Convention in respect of the above complaints.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention? In particular:

(i) Was the applicant induced by State agents or other persons under their control to commit the criminal offences of which he was then convicted (see e.g. Teixeira de Castro v. Portugal , 9 June 1998, §§ 35-36 and 39, Reports of Judgments and Decisions 1998-IV and Bannikova v. Russia , no. 18757/06 , §§ 33-65, 4 November 2010)?

(ii) Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint about entrapment before the domestic courts? For instance, was any form of “entrapment defence” available to the applicant under Ukrainian law? If so, how was it taken into account by the domestic courts?

(iii) Was the applicant ’ s initial questioning without a lawyer compatible with his rights not to incriminate himself and to defend himself through legal assistance ( see e.g. Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008 and Leonid Lazarenko v. Ukraine , no. 22313/04 , §§ 48-52, 28 October 2010) ?