Published on 23 January 2023

FIFTH SECTION

Application no. 20239/16 Dmytro Gennadiyovych TRISKA against Ukraine lodged on 1 April 2016 communicated on 6 January 2023

SUBJECT MATTER OF THE CASE

The application concerns an alleged breach of the applicant’s right to a fair trial resulting from his conviction for an offence that he was allegedly incited to commit by a police informant, whom the applicant could not question in the court proceedings.

The applicant refers to Article 6 §§ 1 and 3 (d) of the Convention.

QUESTIONS TO THE PARTIES

1. 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? In particular:

(a) Did the undercover technique used to investigate the drug offences in the present case amount to an entrapment (see, mutatis mutandis , Ramanauskas v. Lithuania [GC], no. 74420/01, § 51, ECHR 2008)?

(b) Before the applicant was approached by the police informant Mr P., had the investigative authorities possessed preliminary information concerning the applicant’s pre-existing criminal intent? Did this information come from a verifiable source unconnected with the individual involved in the undercover operations (see Khudobin v. Russia , no. 59696/00, § 134, ECHR 2006 ‑ XII (extracts))?

(c) When did the police start collaborating with Mr P. in the present case? Did he exert such an influence on the applicant as to incite the commission of the offences that would otherwise not have been committed (see Malininas v. Lithuania , no. 10071/04, § 37, 1 July 2008 and Ramanauskas , cited above, § 67)?

(d) Did the authorities have good reasons for mounting the covert operations (see Ramanauskas , cited above, §§ 63 and 64, and Malininas , cited above, § 36)? What other investigative activities were carried out as regards the applicant prior to the test purchases?

(e) Was the procedure authorising the test purchases clear and foreseeable ( Khudobin , cited above, § 135)? Did the decision authorising them refer to the information as to the reasons for and purposes of the planned test purchases? Were the test purchases documented in a way allowing for a subsequent independent scrutiny of the actors’ conduct (see Veselov and Others v. Russia , nos. 23200/10 and 2 others, §§ 102 and 110, 2 October 2012)?

(f) Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint about entrapment before the national courts (see Ramanauskas , cited above, §§ 69-70)?

g. Was the issue of entrapment examined in an adversarial, thorough and comprehensive manner? Was all relevant information put openly before the trial court or tested in an adversarial manner (see Malininas , cited above, § 36)? Did the courts have access to the full file relating to the operation and search activities against the applicant prior to the test purchases (see Lagutin and Others v. Russia , nos. 6228/09 and 4 others, §§ 121 - 122, 24 April 2014)?

(h) Did the courts assess the reasons for mounting the operations, the extent of the police’s involvement in the offences and the nature of any incitement or pressure to which the applicant had been subjected (see Ramanauskas , cited above, § 71)?

2. Was the applicant able to examine certain witnesses for the prosecution or to obtain the examination of certain witnesses on his behalf, as required by Article 6 §3 (d) of the Convention?