Published on 11 December 2023
FIFTH SECTION
Application no. 66407/17
Volodymyr Volodymyrovych SHABAN
against Ukraine
lodged on 23 August 2017
communicated on 24 November 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 incited by a police informant.
The applicant is a former deputy head of the district council in Chernivtsi. On 14 December 2015 he was convicted along with co-defendant V. of soliciting and receiving a bribe from the manager of a local market, B., in exchange for facilitating the procurement of necessary permits for the reconstruction of the market’s premises. The conviction was upheld on appeal on 28 February 2017 and on cassation on 4 April 2016. The decisions of the domestic courts were based inter alia on the covert recordings of conversations held between the applicant, B., V., and others on various dates, including prior to the formal launch of criminal investigation on 31 May 2013.
The applicant complains under Article 6 § 1 of the Convention that he had been convicted of the criminal offence which he committed only because he had been incited to do so by the law enforcement bodies and B. acting as an agent provocateur.
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, mutatis mutandis, Ramanauskas v. Lithuania [GC], no. 74420/01, § 49 et seq., ECHR 2008)? In particular:
(a) Was the applicant incited by State agents or other persons under their control to commit the criminal offence of which he was then convicted? The Government are requested to provide the transcripts of conversations held between the applicant, B., V., and others, as examined during the applicant’s trial.
(b) When did the law enforcement bodies (in particular, the State Security Service of Ukraine and the police) start collaborating with B. in the present case?
(c) Before the applicant was approached by B., did the law enforcement bodies have good reasons for mounting the covert operations against the applicant?
(d) Was the procedure authorising the covert operations against the applicant, including those that took place prior to the launch of criminal investigation on 31 May 2013, clear and foreseeable (see, mutatis mutandis, Khudobin v. Russia, no. 59696/00, § 135, ECHR 2006-XII (extracts)? Were such operations documented in a way allowing for a subsequent independent scrutiny of the actors’ conduct (see, mutatis mutandis, Veselov and Others v. Russia, nos. 23200/10 and 2 others, §§ 102 and 110, 2 October 2012)?
(e) Was the applicant afforded adequate procedural safeguards enabling him to raise effectively the issue of incitement before the national courts (see Ramanauskas, cited above, §§ 69-70)?
(f) Was the issue of incitement examined in an adversarial, thorough and comprehensive manner (see Bannikova v. Russia, no. 18757/06, § 73, 4 November 2010; Yakhymovych v. Ukraine, no. 23476/15, §§ 54-62, 16 December 2021)? Was all relevant information put openly before the trial court or tested in an adversarial manner (see Malininas v. Lithuania, no. 10071/04, § 36, 1 July 2008)? Regard being had to the manner in which the domestic courts dealt with the applicant’s plea of incitement, the Government are specifically invited to comment on the applicant’s assertion that the domestic courts only reviewed selected extracts from the covertly recorded conversations, rather than the contents of the full conversations, and that they did not have access to the original versions of these recordings.
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