Published on 21 May 2024
FIFTH SECTION
Application no. 10242/15
Mykola Petrovych ZUBACHYK
against Ukraine
lodged on 19 February 2015
communicated on 30 April 2024
SUBJECT MATTER OF THE CASE
The case concerns the alleged unfairness of the criminal proceedings against the applicant. While the applicant relies on Articles 6 § 1 and 13 of the Convention, the application falls to be examined under Article 6 §§ 1 and 3 (c) of the Convention.
The applicant was found guilty of illegal drug possession without intent of dealing on the basis of evidence collected during the five-day period when his arrest had been documented as related to an administrative offence of disobedience to the police and when he had not had any legal assistance. While the cassation court eventually excluded from the evidence the applicant’s confessing statements made during that period (he had retracted them as soon as he had started to be legally represented), it did not give any assessment to the admissibility of the remaining evidence collected during the period in question.
Furthermore, it appears that the domestic courts did not comment on any of the following arguments consistently advanced by the applicant.
Firstly, the applicant submitted that he had not been taking drugs, with the reference to the report of his medical examination carried out immediately after his apprehension by the police, which had not revealed any traces of drug intoxication. He also provided a medical certificate stating that he had no history of drug addiction.
Secondly, the applicant noted, with the reference to the related expert report, that the package with cannabis found in his car (according to the applicant, it had been planted there by the police) did not contain his fingerprints.
Thirdly, the applicant argued that all the witness evidence against him had been given by either interested or vulnerable persons. He observed, in particular, that although the judicial ruling finding him guilty of disobedience to the police had eventually been quashed as unlawful, the credibility of the statements of the police officers concerned had never been questioned within his trial on the charge of illegal drug possession. The applicant further submitted there were no reasons for the investigation to believe the version of the facts given by his acquittance B. (and contested by the applicant), according to which they had been smoking cannabis supplied by the applicant when approached by the police. The applicant pointed out that, unlike himself who had had no criminal record, B. had already had multiple criminal convictions and had been well familiar to the police. Furthermore, B. had fled as soon as the police had approached them. As regards the person who admitted having sold cannabis to the applicant, he had changed his version of facts many times alleging pressure by the police. The applicant also questioned the impartiality of the attested witnesses present during the scene inspection, when the cannabis package had been found in his car: one of those witnesses had been a retired law-enforcement official, whereas the other one had been an acquittance of one of the police officers involved in the applicant’s apprehension. Lastly, the applicant argued that the investigator might have fabricated his case, given that, shortly after the events in question, he had been convicted for bribe-taking.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 §§ 1 and (c) of the Convention? In particular, was the applicant’s right to a lawyer respected, regard being had to his initial placement under administrative arrest (see, mutatis mutandis, Balitskiy v. Ukraine, no. 12793/03, §§ 40 and 41, 3 November 2011, and Beuze v. Belgium [GC], no. 71409/10, §§ 120-50, 9 November 2018)? Did the national courts provide sufficient reasoning for their decisions and observe the basic requirement of criminal justice that the prosecution has to prove its case beyond reasonable doubt (see, for example, Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011, Rostomashvili v. Georgia, no. 13185/07, § 55, 8 November 2018, and Zhang v. Ukraine, no. 6970/15, §§ 60 and 61, 13 November 2018, as well as the case-law references therein)?