LYUBCHENKO v. UKRAINE
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Yonko Grozev
1. The applicant, Mr Aleksandr Vasilyevich Lyubchenko was born in 1973 and lives in Dzhankoy, the Autonomous Republic of Crimea (the “ARC”). At the time of lodging of his application, he indicated of being a Ukrainian national. In May 2014 he informed the Court that he had obtained Russian nationality in April 2014. 2. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice. 3. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. By a judgment of 19 February 2002, a certain K. was sentenced to three and a half years’ imprisonment suspended for two years’ probation. In June-September 2003 K. failed to appear before the probation officer for his fortnightly registration allegedly for medical reasons, including hospitalisation. 6. On 6 November 2003 the applicant, a probation officer, represented the District Penal Inspection Authority in judicial proceedings against K. concerning replacement of K.’s probation with imprisonment due to the latter’s failure to comply with the probation requirements. The court adjourned the proceedings until 19 November 2003, having requested K. to submit documents confirming his hospitalisation. 7. On 13 November 2003 K. gave a statement to the Deputy District Prosecutor of Dzhankoy. He submitted that after the court hearing of 6 November 2003 the applicant had summoned him to his office on 10 November 2003. When he had arrived, the applicant informed him that the judge and the prosecutor were intending to replace his probation with imprisonment but that the applicant could settle the matter in his favour for 200 US dollars (USD). K. signed the aforementioned statement and confirmed that he was aware that knowingly reporting false information about a crime was a criminal offence. 8. On the same day, 13 November 2003, prosecutor M. decided to institute a preliminary inquiry under Article 97 of the Code of Criminal Procedure (“the CCP”) and assigned the task to economic crime detectives I. and Sh. from the Crimea Police Department. At 2.30 p.m. the detectives examined two 100 USD notes provided by K. which they had marked with special luminescent fluid (lumiphore) and which K. then put in his pocket. This action was documented in a record of the application of special chemical substances (Протокол применения специальных химических веществ) and was signed by the participants and two attesting witnesses. According to later submissions by some of those present, K. also had a dictaphone attached to his clothing. 9. At about 3 p.m. on the same day K. entered the applicant’s office and emerged a few minutes later, indicating to the detectives and prosecutor M. that he had given the banknotes to the applicant, whereupon they also entered the applicant’s office. According to the crime scene inspection report (Протокол осмотра места происшествия) drawn up by the prosecutor, between 3.25 p.m. and 5.05 p.m. the prosecutor and police officers conducted a search of the applicant’s office. They recorded that during the search the applicant was asked by the police officers whether he had received any money. He replied in the negative. The police officers then checked the applicant’s hands with a special device and found traces of lumiphore on his right hand. They looked in an open safe situated near the applicant’s desk and found the two marked banknotes inside. It was also noted in the report that the search had been audio-recorded. 10. The applicant was arrested that same day. 11. On 15 November 2003 the applicant was charged with soliciting and receiving a bribe. 12. On 16 November 2003 the applicant was released. 13. On 1 April 2004 the applicant was dismissed from his post of probation officer. 14. On 21 January 2004 the Dhzankoy District Court (“the District Court”) examined the applicant’s case and referred it to the Dzhankoy Prosecutor’s Office for further investigation. The court ordered that during the further investigation the banknotes which had been used for the bribe should be located and checked for the applicant’s fingerprints, and that the audio-recording of the bribe-taking, and documents proving that that operation had been lawful must be produced. 15. On 26 February 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) quashed the ruling of 21 January 2004, finding that the requirements laid down by the first-instance court were irrelevant or unnecessary. It observed in particular that the banknotes had been treated with chemicals and examined by forensic experts, that the probability of finding fingerprints on them was therefore low and that it was for this reason that the corresponding examination had not been conducted. The court also noted that there was no evidence either in the case-file or the bill of indictment that an audio-recording had been made, and the first-instance court judge had failed to indicate on what basis he had concluded that such an audio-recording of the bribe handover had in fact been made. 16. By a judgment of 9 March 2005 the District Court acquitted the applicant. The court noted that the applicant denied the accusations, claiming that after the postponement of the hearings in the case of K., the latter had approached him on several occasions to ask about the case. On 13 November 2003 K. had come to his office, they had shaken hands and K. had started asking him again about his probation. After K. had left the office, the police officers had come in and had found the US dollars in his safe. The applicant claimed that he knew nothing about the money and had never solicited or taken any bribe from K. He argued that K. could have put the money in his safe without his knowledge and that the traces of lumiphore on his hand could have been caused by shaking hands with K. The court also examined the evidence presented by the police and found that the operation had been conducted in breach of criminal procedure. It held, in particular, that the operation had been instigated on the basis of unverified allegations made by K. and without an order to institute criminal proceedings against the applicant, and also that certain investigative techniques (special chemicals and audio-recording) had been used without an operational file having been opened, contrary to section 9 of the Search and Seizure Activities Act. The court further noted that the prosecution had lost the audio-recording of the conversation between K. and the applicant, which constituted an important item of evidence that could have confirmed or refuted K.’s allegations that the applicant had extorted money from him. Although the prosecutor denied the use of audio-recording during the operation, K. and one of the police officers confirmed that a dictaphone had been used during the operation. The court also observed that the expert opinion stated that the marked banknotes could in fact have been checked for the applicant’s fingerprints but this had not been done and the banknotes had been lost. The traces of the chemical on the applicant’s hand did not in itself constitute conclusive evidence that he had taken money from K. The court also noted that during the trial prosecutor M. had claimed that the operation had been headed by police inspector I., whereas the latter stated that they were merely assisting the prosecutor to verify the notification of a crime. The court also doubted the testimony given by K. in the light of an earlier promise to take revenge, which was confirmed in the court by two of the applicant’s colleagues. For all these reasons the court concluded that the evidence presented by the prosecution had either been unlawfully obtained or was too inconclusive to establish that the applicant had solicited or received a bribe from K. 17. The prosecutor appealed. In the applicant’s reply to the appeal he stated that the audio-recording made during the operation contained evidence of his innocence and had been withheld from the case file for this reason, and that prosecuting investigator M. had not investigated the real intention behind K.’s complaint, namely to slander the applicant and evade imprisonment. 18. On 6 May 2005 the Court of Appeal quashed the earlier judgment, found the applicant guilty of bribery, sentenced him to three years’ imprisonment together with confiscation of all his property and detained him pending appeal. The court considered that the fact that the applicant had solicited a bribe from K. was proved by the consistent and logical statements given by the latter. It noted that the applicant had failed to check the validity of the reasons for K.’s non-compliance with the probation requirements. In the latter aspect, it referred to two decisions of the Dzhankoy District Court of 11 December 2003 and 20 May 2004 in favour of K. The court also relied on the evidence provided by the records of the use of the special chemical, of the discovery of the marked banknotes in the safe, of the discovery of traces of special chemicals on one of the applicant’s hands, of an event reconstruction proving that K. could not have put the money in the safe without the applicant having noticed it, of the finding of traces of the special chemical on the applicant’s hand and a forensic examination finding a similarity between the chemical on the applicant’s hand and that on the marked banknotes. The court held that the District Court had examined the evidence thoroughly but had assessed it incorrectly. Referring to the statement by police officer I. that no operational file had been opened because this had been a preliminary inquiry within the meaning of Section 97 of the CCP, it concluded that the evidence obtained in the course of the operation had been obtained in compliance with criminal procedure. 19. The applicant lodged an appeal on points of law challenging the admissibility of the evidence against him. Over and above the findings of the trial court he argued that the operation had not been authorised by any court, contrary to Article 97 of the CCP and section 8 of the Search and Seizure Activities Act, and that the operation conducted by the authorities on 13 November 2003 had assisted the provocation of a bribe rather than examining the truthfulness of K.’s allegations and preventing the crime. 20. On 30 June 2005 the Supreme Court of Ukraine upheld the decision of the court of appeal but reduced the applicant’s sentence to one year’s imprisonment. The court noted that the applicant’s guilt had been proved by the consistent testimonies of K. who had no reason for making false accusations against the applicant. It concluded that there had been sufficient direct and indirect proof that the applicant had not only taken the bribe but had solicited it too. 21. The applicant was released from prison on 2 May 2006. Article 62 “[...] An accusation shall not be based on illegally obtained evidence or on assumptions. All doubts with regard to the proof of a person’s guilt are to be interpreted in his or her favour.” Article 368 Taking a bribe 1. The taking of a bribe of any kind, by an official, in return for taking or refraining from any action for the benefit of the person offering the bribe or for the benefit of any third person by means of the authority or official powers entrusted in this official, shall be punishable by a fine of 750 to 1,500 tax-free minimum incomes, or imprisonment for a term of two to five years, with the deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years. 2. The taking of a substantial bribe by an official who occupies a responsible position, or by a group of persons following prior conspiracy, or if repeated or accompanied by solicitations for such a bribe, shall be punishable by imprisonment for a term of five to ten years along with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years and confiscation of property... Article 369 Offering a bribe 1. The offering of a bribe shall be punishable by a fine of 200 to 500 tax-free minimum incomes, or restraint of liberty for a term of two to five years. ... 3. A person who offers a bribe shall be discharged from criminal liability if the bribe was solicited from this person and if this person, after offering the bribe and before any criminal prosecution was initiated against him/her, voluntarily reported the act of bribery to the agency competent to undertake criminal prosecution. Article 370 Provocation of bribery 1. The provocation of bribery, that is to say the intentional creation, by an official, of circumstances and conditions that provoke the offering or taking of a bribe for the purpose of implicating those who offered or took it, shall be punishable by restraint of liberty for a term up to five years, or imprisonment for a term of two to five years. 2. The same act committed by a law enforcement official shall be punishable by imprisonment for a term of three to seven years. Article 97 Obligation to accept statements and notifications about crimes and the procedure for their examination “...If the need arises to check a statement or notification about a crime prior to the opening of a [criminal] case, such check shall be conducted by a prosecutor, an investigator, or a panel of inquiry within a period of ten days by taking explanations from particular individuals or officials or by requesting the necessary documents. A statement or notification about a crime prior to the opening of a criminal case may be verified by means of search and seizure activities. Certain search and seizure activities, determined by the legislative acts of Ukraine, shall be conducted with the court’s authorisation on the basis of a request to be submitted by the head or deputy head of the respective operative unit and approved by a prosecutor...” 22. Section 8 of the Act lays down a range of investigative techniques that constitute the search and seizure activities that may be conducted by the law enforcement bodies. It also requires that any covert entering of a home or other individual property, interception of communications, monitoring of correspondence and telephone conversations and application of other technical means for obtaining information, must be undertaken at the request of the head or deputy of the operative unit and authorised by a court decision. Any application of technical means for obtaining information must be documented and may be used as evidence in criminal proceedings. 23. Section 9 of the Act requires that search and seizure activities be carried out only after an operational file (оперативно-розшукова справа) has been opened, and prohibits these activities without the existence of such a file. “...19. Evidence shall be deemed to have been obtained illegally if it has been obtained and processed either in breach of individual and citizen’s rights guaranteed by the Constitution of Ukraine, or of legislation on criminal procedure, or by persons and bodies or through means not authorised by the relevant procedural norms.”