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Decisions of national courts

Verdict by the District Court of Shargorod of Vinnitsa region issued on November 10, 2014

03.02.2016

Person_1 was accused of making narcotic drug (desomorphine, metildezorfin and codeine), as well as of an attempt to illegally sale it. He was also accused of collection of wild poppy plants for sale.

            In the course of the trial the accused explained that he had been drug-addicted since 1994. He also admitted that he was HIV-positive with pulmonary consumption and chronic hepatitis. He said that he permanently suffered from acute pain which caused his drug addiction.

            At the moment of his arrest the accused wrote a statement of refusal from a counsel’s service. The court indicated that under the rules of criminal procedure such a refusal must necessarily be made in the presence of the counsel and after the confidential conversation between the counsel and the accused himself. The investigator failed to observe these rules.    

            Referring to the national rules of procedure, to the practice of the Supreme Court of Ukraine and to the practice of the European Court of Human Rights, the court decided that the mere fact of the violation of the right for protection constitutes the ground for annulment of the verdict.

            The court also revealed numerous violations of procedural rules:

  • on both accusations there were no operational and investigative files; instructions on the identification of the accused and verification of his connection to the sale of narcotic drugs were not duly registered and protocolled;
  • the prosecutor of Shargorod District was not immediately notified of the commencement of the pre-trial investigation;
  • the decision of the senior prosecutor of Shargorod District to conduct the investigation in such a manner as by buying drugs does not meet the requirements of the Criminal Procedural Code of Ukraine; moreover, this decision is vague and not specific on how many stages of investigation are going to be held, if more than one – what grounds exist for that;    
  • there is no information as to the costs allocated for the investigation and for buying of narcotic drugs;
  • plans of investigations were not drafted, the preparation for investigation was not conducted, recording of the moment of the crime by special tools was not carried on;
  • investigator did not follow up the prosecutor’s decision and spontaneously got out of pre-trial investigation; searching, buying, interrogating witnesses were conducted by the officers of the Department on struggle against drug trafficking, who did not make up the investigative group, in other words they were not authorized to conduct pre-trial investigation;
  • examination of money allocated for the purposes of buying in the first case were not conducted at all; in the second case the examination and stamping of money were made in the absence of a specialist;
  • examination of the seized goods and registration thereof were not carried out in both cases;  
  • the protocol of control was made up by the person with no authorization, with procedural gaps and in fact the protocol itself was not clear in its form and on merits;
  • necessity of the second buying of the narcotic drugs were not justified, the decision and respective plans were not adopted, and, as appropriate, there were no grounds for it;
  • the prosecution didn’t take appropriate measures for ensuring the presence of witnesses during the pre-trial investigation with a view to observing the right of the accused to stand before the fair and impartial court.
  • the investigative authorities violated the Instructions, establishing the procedures for buying of illicit substances;
  • the indictment act was composed in inappropriate manner: the wording of the indictment is in contradiction with facts of the case, there are no constituent elements of the crime, the scene the crime has not been confirmed by other materials and witness’ evidence, who took part in the pre-trial buying;
  • the investigative authorities provided contradictory information who possessed the subjects of the crime, relevant circumstances and scene of their seizure; 

The court concluded that as a result of violations of the national procedural rules committed by the police officers, the very possibility of impartial evaluation of the evidence, confirming or denying the fact of pre-trial buy, was lost.

The court also decided that bearing in mind the circumstances of the accused and the manner by which the pre-trial buy of the narcotic drug on the day of detention was conducted; in this case the provocation by the investigative authorities took place.

In the course of the trial the prosecution did not provide any reliable evidence that the buying of narcotic drugs from the accused was caused by his previous sell of drugs to persons other than those recruited for that purpose. 

The court also noted that the recruited person who bought the drugs was in fact drug-addicted and was under administrative supervision. He should have not been recruited for this purpose. The court was not also provided with solid proofs that this recruited person had previously gave his voluntary consent for that operation.

The court also established that this witness acting upon police’s instructions was very assertive. The police officers knew that the accused was drug-addicted and was very ill.

As a result, the court concluded that the prosecution was based on the assumptions of the investigative authorities and on inadmissible, illegally obtained evidence.

The court found that actions of the accused do not constitute a criminal offense. 

 The text of the verdict in Russian is accessible by the following link  http://hiv-legalaid.org/index.php?id=1421772913

The original text of the verdict in Ukraine is accessible by the following link http://www.reyestr.court.gov.ua/Review/41320019

 

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