FIFTH SECTION

Application no. 38839/07 Volodymyr Petrovych LYALYUK against Ukraine lodged on 16 August 2007

STATEMENT OF FACTS

The applicant, Mr Volodymyr Petrovych Lyalyuk , is a Ukrainian national, who was born in 1957 and lives in Cherkassy .

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

The applicant run a business in the city of Cherkassy and had food shop there.

On 10 September 2005 the applicant came to Odessa .

On 11 September 2005 two men approached the applicant ’ s wife and told her that the applicant had promised them that he would bring some good wine from Odessa . She replied that the applicant was in Odessa at the time and they asked her to call him and to ask him to bring thirty litres of wine. After several reminders she called the applicant and told him to bring some wine.

On 13 September 2005 the applicant returned to Cherkassy .

At 8 a.m. on 13 September 2009 two unknown men came to the applicant ’ s shop and asked him if he had brought the wine which they had ordered through his wife. They also gave the applicant three 10-litres plastic cans to put the wine in.

At 2 p.m. the same two men came to the shop and asked the applicant ’ s wife whether they could take the wine. She replied that they could, but instead of taking the wine they started a search of the shop and stated that they were the tax inspectors. Then they asked her to call the applicant.

When the applicant arrived, the tax inspectors accused him of illegal sale of alcohol. He objected to the accusations, stating that he had been privately asked to bring some alcohol and had not received money for it. The applicant was asked to sign a protocol of seizure of goods and documents, which he did.

On 15 September 2005 the applicant ’ s wife received a telephone call from the tax police investigator, who informed her that a criminal case had been instituted against the applicant for unlawful sale of alcohol.

On 27 September 2005 the applicant appeared before the investigator.

On 28 March 2007 the Sosnovskiy District Court of Cherkassy found the applicant guilty of unlawful sale of alcohol and sentenced him to a fine of 1,000 hryvnias (UAH). The court noted that, regardless of the fact that the wine had been ordered by the police officers, it was established that the applicant bought the wine for sale.

Following his conviction the applicant made numerous requests to have access to the case-file materials and audio records of the hearings. He received only part of the records and access to the remainder of the materials was refused.

On 22 May 2007 and 3 March 2008, respectively, the Cherkassy Regional Court of Appeal and the Supreme Court of Ukraine upheld the decision of the first-instance court.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the unfairness of the criminal proceedings against him. He complains that the courts gave preference to the arguments of the prosecution, refused to verify his allegations about falsification of certain documents. He also complains under Article 13 that he was denied access to materials and audio records of the trial. He further complains that the appellate court did not want to listen to his objections. He finally complains that the State created conditions when the tax inspectors incited private persons to actions which then are formally classified as a criminal offence.

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 of the Convention (see, as a recent authority, Ramanauskas v. Lithuania [GC], no. 74420 / 01 , § 49 et seq., ECHR 2008 and further case-law referred to)? In particular:

(i) Was the applicant induced by State agents or other persons under their control to commit the criminal offence of which he was then convicted?

(ii) Prior to the operation on 13 September 2005, did the domestic authorities have any good reason to suspect the applicant of any previous, ongoing or envisaged criminal activity in the field of bribery?

(iii) 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, was it taken fully into account by the Court of Appeal and Supreme Court of Ukraine?

(iv) Were the applicant ’ s objections to the admissibility of evidence obtained in the course of the operation on 13 September 2005 taken fully into account by the Court of Appeal and Supreme Court of Ukraine?