CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 février 2022

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UKRAINE (Application no. 40829/12)         JUDGMENT   STRASBOURG 24 February 2022   This judgment is final but it may be subject to editorial revision. In the case of Martynenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström, President,   Lado Chanturia,   Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   40829/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 June 2012 by a Ukrainian national, Mr Sergiy Anatoliyovych Martynenko, born in 1986 and living in Sumy (“the applicant”), who had been granted legal aid and was represented by Ms S. Zapara, a lawyer practising in Sumy; the decision to give notice of a part of the applicant’s complaints under Article 6 §§ 1 and 2 of the Convention to the Ukrainian Government (“the Government”), represented by their then Agent, Mr Ivan Lishchyna, and to declare inadmissible the remainder of the application; the parties’ observations;   Having deliberated in private on 27 January 2022, Delivers the following judgment, which was adopted on that date: SUBJECT-MATTER OF THE CASE 1.     The case concerns the applicant’s complaints that his trial did not comply with the requirements of Article   6   §§   1 and 2 of the Convention, given that he was convicted on a drug-dealing charge, which the prosecutor had admitted to lack evidence. 2.     According to the police reports on a test purchase of drugs, on 12 and 30   January 2009 the applicant sold a small quantity of cannabis to his acquaintance P. used by the police as their undercover agent. The supposed purchases took place in the apartment house where the applicant lived, in the absence of any eyewitnesses. A search carried out at the applicant’s home immediately after the second undercover operation discovered some cannabis, but no banknotes used for the test purchase. 3.     At a certain point during the pre-trial investigation P. submitted that he had incriminated the applicant under police pressure. 4.     On 30 April 2009 the prosecutor approved a bill of indictment. As stated therein, the applicant was charged with repeated drug dealing under Article 307 § 2 [1] of the Criminal Code of Ukraine (“the CCU”) and illegal drug possession without intent of dealing under Article 309 § 1 [2] of the CCU. 5.     On 15 December 2010 the Sumy Zarichnyy District Court found the applicant guilty as charged and sentenced him to two years’ imprisonment for illegal drug possession and six years’ imprisonment for drug dealing. The final sentence was six years’ imprisonment. 6.     On 28 December 2010 the applicant appealed. He admitted having kept some cannabis for his own use but denied any drug dealing. He pointed out, in particular, that at the time of the events P. had been at the final stage of a suspended prison sentence and had therefore been particularly susceptible to police pressure. 7.     On the same date the prosecutor also lodged an appeal, seeking an increase of the applicant’s sentence to eight years. 8.     On 27   April 2011 the prosecutor, however, modified his appeal, stating that the drug-dealing charge was not supported by any evidence and that the applicant should only be convicted of illegal drug possession, with the sentence being limited to two years’ imprisonment. 9.     The Sumy Regional Court of Appeal on 5 May 2011 and the Higher Specialised Court for Civil and Criminal Matters on 19 January 2012 rejected both the applicant’s and the prosecutor’s appeals and upheld the applicant’s conviction and sentence. THE COURT’S ASSESSMENT 10.     The applicant complained under Article 6 §§ 1 and 2 of the Convention that he had not had a fair trial by an impartial tribunal, given that he had been convicted of drug dealing even though the prosecutor had in substance dropped that charge. 11.     The Government invited the Court to declare those complaints inadmissible as being manifestly ill-founded. The Court does not share that view. It considers that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION in respect of the impartiality requirement 12.     The general case-law principles of relevance are summarised, in particular, in Morice v. France ([GC], no. 29369/10, §§ 73-78, ECHR 2015). 13.     The Court found a violation of the principle of impartiality, for example, where the prosecutor had been absent from the entirety of the applicants’ criminal trials but the courts had proceeded to examine evidence, including questioning defendants and witnesses, and convicted the applicants. The Court considered that in such circumstances the courts confused   the roles of prosecutor and judge and thus gave grounds for legitimate doubts as to their impartiality (see Mikhaylova v.   Ukraine , no.   10644/08, §§ 59-60 and 64-67, 6 March 2018). 14.     The situation in the present case was even more serious: the domestic courts pursued the accusation against the applicant in respect of the drug ‑ dealing charge after the prosecutor had decided to abandon it. The applicant could therefore have legitimate doubts as to their impartiality. 15 .     This consideration is sufficient for the Court to find a violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 16.     The in dubio pro reo principle (doubts should benefit the accused) is a specific expression of the presumption of innocence (see Tsalkitzis v.   Greece (no. 2) , no. 72624/10, § 60, 19 October 2017). It   will be infringed where the burden of proof is shifted from the prosecution to the defence (see, for example, SA-Capital Oy v. Finland , no. 5556/10, § 107, 14   February 2019, with further references). 17.     In the present case the applicant was obliged to prove his innocence in respect of the drug-dealing charge even after the prosecutor had explicitly stated that there was no sufficient evidence in its support and had sought the annulment of the applicant’s conviction in that part. Such an approach ran counter to the fundamental principles of criminal law, particularly   in   dubio   pro   reo and clearly violated the presumption of innocence under   Article 6 § 2   of the Convention 18 .     There has therefore been a violation of that provision too. THE remaining complaint 19.     The applicant also complained that there had been a breach of Article   6 § 1 of the Convention on account of the poor reasoning of his conviction for drug dealing. In the light of its findings in paragraphs 15 and 18 above, the Court considers that this complaint does not raise any separate issues. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20.     The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 1,484.96 in respect of costs and expenses incurred before the domestic courts. He submitted a copy of a contract of 8   April 2010, by which Ms O. Martynenko (apparently the applicant’s mother) entrusted the applicant’s representation, within the criminal proceedings against him, to a local law centre. The applicant also provided a copy of a detailed report of 11   April 2012 on the work completed under the above-mentioned contract. As stipulated therein, the total amount due was 15,250.61 Ukrainian hryvnias (UAH), which was equal to EUR   1,484.96, according to the applicant’s calculation with the reference to the official hryvnia exchange rate established by the National Bank of Ukraine at the material time. 21.     The Government contested the above claims. 22.     The Court awards the applicant EUR 4,000 EUR in respect of non ‑ pecuniary damage, plus any tax that may be chargeable to him. 23.     Having regard to the documents in its possession, the Court also considers it reasonable to award EUR 1,485 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. Given that no claim has been made in respect of the applicant’s representation in the proceedings before the Court, there is no call for an award under that head, in addition to the legal aid already received by the applicant. 24.     The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the impartiality requirement; Holds that there has been a violation of Article 6 § 2 of the Convention; Holds that no separate issue arises   under Article   6 § 1   of the Convention in respect of the judicial decisions’ reasoning; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 1,485 (one thousand four hundred eighty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred in domestic proceedings; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 February 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President     [1] Punishable by five to ten years’ imprisonment and property confiscation. [2] Punishable by a fine of fifty to one hundred times the non-taxable income amount or community works for up to two years or arrest for up to six months or restriction of liberty for up to three years or imprisonment for up to three years.