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FIFTH
SECTION
CASE OF IGLIN v. UKRAINE
(Application
no. 39908/05)
JUDGMENT
STRASBOURG
12
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Iglin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
André
Potocki, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39908/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Ruslan Anatolyevich
Iglin (“the applicant”), on 28 October 2005.
- The
applicant, who had been granted legal aid, was represented by
Messrs M. Tarakhkalo and A. Kristenko, lawyers
practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agents, Mr Y. Zaytsev
and Mrs V. Lutkovska.
- The
applicant alleged, in particular, that he had been detained in
degrading conditions and had had no effective remedies with respect
to this complaint, that he had been deprived of the guarantees of a
fair trial and that the State authorities had hindered his right of
individual petition to the Court.
- On
16 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- Mrs
G. Yudkivska, the judge elected in respect of Ukraine, was unable to
sit in the case (Rule 28 of the Rules of Court). The President of the
Chamber decided to appoint Mr Mykhaylo Buromenskiy to sit as an ad
hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1981 and is currently serving
a life sentence in Izyaslav.
A. Criminal proceedings against the applicant
- On 21 February 2002 the applicant was convicted of
robbery and other crimes, sentenced to 13 years’ imprisonment
and taken to the Kryvyy Rig correctional colony to serve his
sentence.
- While the applicant was serving his sentence, new
criminal proceedings were instituted in which charges of criminal
association membership, murder and other violent crimes were advanced
against him. On an unspecified date N. N. was appointed as the
applicant’s legal-aid lawyer. Subsequently A. K., another
legal-aid lawyer, replaced him.
- On
an unspecified date the applicant, along with several other
individuals, was committed for trial to the Dnipropetrovsk Regional
Court of Appeal (hereafter “the Regional Court”), acting
as a first-instance court. The charges against him included belonging
to a criminal association, as a member of which he had taken part in
three murders with a view to personal gain; several robberies;
unlawful handling of arms; and unlawful taking of a vehicle.
- During
the trial the applicant confessed to having participated in the
robberies and the other crimes attributed to him. However, he argued
that his personal role in the murders had been negligible, and that
he had not had any intention of profiting personally from one of the
three murders.
- The
applicant also complained to the court that he had been tortured by
the investigative authorities during the pre-trial investigation. The
court ordered the Dnipropetrovsk Prosecutors’ Office to conduct
an inquiry into the applicant’s complaint, which found that
there was no case of ill treatment to answer.
- On
6 January 2005 the applicant was convicted as charged and sentenced
to life imprisonment.
- The
applicant and A. K. (his legal-aid lawyer) drafted separate
cassation appeals. The applicant’s lawyer challenged the
assessment of the facts and application of the law in respect of
several points and requested a milder sentence.
- The
applicant, for his own part, complained, primarily, about the
severity of his sentence, of ill-treatment by the investigative
authorities, and of the court’s failure to question Z., another
alleged criminal association member, who had been on a wanted list.
In his appeal, the applicant also stated that he wanted to further
substantiate his arguments once he had had a chance to study the case
file.
- On
23 and 24 March and 4 and 5 April 2005 the applicant was brought into
the Regional Court’s offices to study the case file in order to
prepare his cassation appeal. He signed affidavits asserting that he
had read the entire case file.
- On
14 June 2005 the Supreme Court of Ukraine adjourned consideration of
the case until 13 September 2005 in order to ensure the applicant’s
and his co-defendants’ presence at the proceedings.
- On
28 June 2005 the applicant complained to the Supreme Court that he
had not been properly familiarised with the case-file materials. He
mentioned, in particular, that he had only been brought to the
court’s records office to study the file on four occasions. He
further noted that he had remained in handcuffs at all times and that
this had not only been physically painful, but also detrimental to
his ability to take notes. Lastly, the applicant noted that he had
been coerced into signing the affidavits that stated that he had
properly studied the file. The applicant asked the Supreme Court to
ensure that he be provided with an opportunity to study the case file
in his lawyer’s presence.
- On
13 September 2005 the applicant asked the Supreme Court to adjourn
the case, regard being had to the failure of his legal-aid lawyer to
appear. He further asked the Supreme Court to oblige A.K. to perform
her professional duties, to admit L.L., his mother, as his lay
defence representative, and to provide him with an opportunity to
familiarise himself with the case file in order to prepare his
defence.
- On
the same date the Supreme Court adjourned the hearing. It noted that
the applicant’s request for additional familiarisation with the
case file was ill-founded, as he had signed affidavits stating that
he had properly studied it. On the other hand, the Supreme Court
found the applicant’s concern about his lawyer’s absence
substantiated and ruled as follows:
“to give [the applicant] the
opportunity to appoint a lawyer or a defence representative
to participate in the cassation proceedings in order to represent his
interests.
The administration
of the SIZO should assist [the applicant] in establishing a
connection with his defence representative or persons who can
appoint a defence representative”.
- On
15 September 2005 the applicant further complained to the Supreme
Court that he had not been familiarised with the appeals brought by
other parties to the proceedings.
- On
4 October 2005 the Supreme Court held a hearing in the applicant’s
case in the absence of his lawyer. At the beginning of the hearing,
the applicant requested that the Supreme Court act on his previous
requests. The prosecutor opined that the applicant had had sufficient
opportunity to familiarise himself with the case file. The court
rejected the applicant’s requests as unfounded and upheld the
judgment of the first instance court.
- On
12 June 2006 the Court’s Registry asked the applicant to
provide certified copies of his appeals and his procedural requests
addressed to the Regional and the Supreme Courts.
- On
29 June 2006 the applicant asked the Regional Court’s records
office to provide him with the documents at issue in connection with
the Registry’s request.
- On
6 July 2006 the Regional Court rejected this request, referring to
the lack of any obligation under national law to make copies of case
file documents.
- On
31 January 2007 L.L., the applicant’s mother, who was also
acting as his representative in the Convention proceedings at the
material time, lodged a new request with the Regional Court on his
behalf. In particular, referring to Article 34 of the Convention, she
requested that the Regional Court either mail certified copies of the
documents requested by the Court’s Registry to her home address
or inform her in writing where they could be delivered to her.
- On
9 February 2007 the Regional Court returned her request without
providing the copies sought, noting that “the Code of
Criminal Procedure in force does not oblige the court to prepare
copies of materials from a criminal case file”.
B. Conditions of the applicant’s detention
- From
27 January 2004 until 4 August 2006, with short interruptions, the
applicant was detained in Dnipropetrovsk pre-trial detention facility
no. 3 (“SIZO no. 3”).
1. The applicant’s account
- According
to the applicant, he had been detained with another individual in a
cell measuring 1.90 by 3.70 square metres for most of the day. The
applicant’s bunk, which had measured 1.70 metres by
50 centimetres, had had raised bars at its ends. Given that the
applicant was 1.84 m tall, he had been unable to stretch out
fully and get adequate sleep. The cell had been located in the
basement, scarcely letting in daylight or fresh air, while the
electric light had been dim and there had not been any artificial
ventilation. The windows had had grates on them, which had further
blocked natural light from coming in through the window. Moreover,
they had been blocked by the upper bunk of the bed. The air had been
damp and ventilation had been insufficient. The toilet had not been
separated from the living quarters. It had smelled of excrement and
had frequently been flooded. The applicant had made a cover for the
toilet (a “grusha”) to prevent unpleasant smells.
However, it had been confiscated by the prison authorities. They had
likewise routinely confiscated a number of his other belongings and
appliances for no apparent reason, including food, a TV antenna and a
string, without which it had not been possible to open the window.
Consequently, the applicant’s access to information from the
outside world had been severely limited and he had been unable to
open the window to disperse the smell from the toilet. The food had
been meagre and had mostly consisted of wheat cereal and bread. The
detainees had only been able to wash themselves, cut their nails and
shave once a week in a special bathing facility. All of the detainees
had shared the same pair of scissors. They had remained handcuffed by
the hand to the wall while they had been cutting their nails and
shaving, which had felt degrading.
- On
11 November 2005 the applicant’s cellmate had hit him on the
head with a metal mug while he was asleep, causing an open wound.
Notwithstanding the applicant’s numerous requests for medical
assistance on account of this incident, he had only been provided
with oxygenated water and a bandage. The injury had resulted in the
applicant having frequent headaches, vertigo, vomiting, and pus and
blood dripping from one ear, which he had treated himself with his
own urine.
- On
28 February 2006 the applicant had been severely beaten by SIZO
guards for allegedly organising inter-cell communication. In spite of
his repeated requests for medical assistance on account of the
injuries sustained as a result of the beating, the applicant had
merely been given painkillers.
31. The applicant had presented several
copies of his complaints to different authorities covering various
aspects of the physical conditions of his detention, including one
dated 4 February 2006 addressed to the General Prosecutor’s
Office. In this complaint, he had described the conditions of his
detention, with particular regard to poor ventilation, and had
complained of arbitrary seizure of various personal belongings,
including the self-made toilet cover and the string for opening and
closing the window. At the end of this complaint, there had been the
signature of his cellmate, A.Z., attesting that the applicant had
despatched the complaint on 4 February 2006. It appears from the case
file that the applicant never received an answer to this complaint.
32. The applicant also alleged that in
some cases the SIZO administration had refused to despatch his
complaints and had torn them in front of the applicant, advising him
to “stop this nonsense business of complaining” for his
own benefit.
2. The Government’s account
- The
Government submitted that the conditions of the applicant’s
detention in SIZO no. 3 had been adequate. They presented a
certificate issued by the SIZO administration dated February 2010
attesting that, according to their inspection on that date, there had
been at least 3.5 square metres of available space per detainee in
each cell. The dimensions of bunks used in the SIZO had been 185
centimetres by 70 centimetres. The basement floor cells, where the
life prisoners had been held, had had windows measuring 110
centimetres by 100 centimetres, which size had afforded sufficient
access to daylight. In the evenings the cells had been lit by
100 watt lamps, which had enabled the detainees to read and
write without hurting their eyes. Each window had had a special
ventilation pane, which had been able to be opened to air the cells.
In addition, an electric ventilator in the corridor had ensured
artificial ventilation of the cells. The cells had been fitted with
radiators to ensure a stable temperature of between 18 and 20 degrees
Celsius. Each cell had been equipped with two metal bunks, a chair, a
shelf for personal belongings, a table, two small cupboards which
could also be used as stools for sitting, a clothes hanger, a tap
with a sink, a mirror, and a toilet. The toilets had had bent pipes
to prevent unpleasant odours and had been separated from the living
area by fixed partitions.
- The
Government further submitted (without providing any supporting
documents) that, as regards sanitary arrangements, the SIZO’s
detainees had had weekly access to bathing facilities, where they had
also been provided with razors and scissors. Disinfectant had been
used on a regular basis to clean the cells and other premises. Twice
a year (in the spring and the autumn) comprehensive measures against
rats had been implemented and the entire SIZO facility had been
disinfected. The detainees had been provided with meals three times a
day, freshly cooked by the SIZO’s cooks. Food had been varied
and in conformity with applicable nutrition regulations.
- No
instances of seizure of or damage to the applicant’s belongings
by the SIZO administration had been recorded.
- As
regards medical assistance, on 5 December 2005 the applicant had been
diagnosed as suffering from an acute ear infection. On 6 February
2006 he had consulted an otolaryngologist and had been diagnosed with
a fistula in one of his ear canals. Between 29 January and 7 February
2007 the applicant had received in-patient treatment for pulled leg
muscles. In February 2007, having been transferred to a correctional
colony to serve his sentence, the applicant had undergone an
operation to extract a foreign body from his left ear canal.
- As
regards the incident of 28 February 2006, the applicant had never
complained about it before to the domestic authorities. There was no
evidence that this incident had ever taken place.
II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS
A. Code of Criminal Procedure 1960
- Relevant
provisions of the Code of Criminal Procedure as worded at the
material time read as follows:
Article 47. Procedure for the engagement and
appointment of a defence representative
...
A defence representative shall be appointed in the
event:
...
(2) that ... the defendant wishes to engage a
defence representative, but lacking funds or in view of other
objective circumstances is unable to do so.
...
... if it is impossible to obtain the presence of the
defence representative selected by the ... defendant within
seventy-two hours ... the court may propose that the ... defendant
appoint another defence representative. If this defence
representative is unable to appear in the case within twenty-four
hours and also in the event that ... the defendant has not engaged
another defence representative within this timeframe ... the ...
judge by a ruling or the court by a decision shall appoint a defence
representative.”
Article 393. Admission of new materials by the
cassation court
“To support or disprove arguments presented in an
appeal, the persons who advanced them may submit documents to the
cassation court which were not in the case file...”
Article 395. Scope of review of the case by the
cassation court
“The cassation court shall review the lawfulness
and reasonableness of the court judgment... or part [thereof] which
was appealed. The cassation court may exceed the scope of a cassation
claim, if doing so would not prejudice the situation of the convicted
or acquitted person...”
Article 398. Grounds for annulment or modification of
a judgment, decision or ruling
“Grounds for annulment or modification of the
judgment, decision or ruling shall be:
(1) substantial breach of the law of criminal
procedure;
(2) incorrect application of the criminal
law;
(3) the selected penalty being
disproportionate to the gravity of the offence and the personality of
the convicted person.
A judgment of the court of appeal taken by it as a
first-instance court may be annulled or modified [on the basis of]
bias, incompleteness of any inquiry, pre-trial or trial investigation
or inconsistency in the court’s reasoning cited in the judgment
with the factual circumstances of the case...”
B. Materials with respect to conditions of detention
- Relevant
Council of Europe and other materials establishing standards for
conditions of detention and international reports concerning the
conditions of detention in Ukraine can be found in the judgment in
the case of Davydov and Others v. Ukraine, nos. 17674/02 and
39081/02, §§ 101-108, 1 July 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION AND THE
APPLICANT’S BEATING BY SIZO GUARDS
- The
applicant complained that the conditions of his detention in
Dnipropetrovsk SIZO no. 3, including physical, sanitary and
health-care arrangements, had been inhuman and degrading, that he had
been beaten by guards on 28 February 2006 and that there had been no
effective investigation into his complaint of ill-treatment. The
applicant referred to Article 3 of the Convention in respect of these
complaints, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Conditions of detention
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint about the conditions of
his detention. In particular, he could have brought such a complaint
before three levels of domestic jurisdiction (in this respect, they
referred to Article 55 of the Constitution, Article 248-1 of the Code
of Civil Procedure and Article 2 of the Code of Administrative
Justice) or addressed it to the Prosecutors’ Office.
- The
applicant disagreed. He alleged that the remedies referred to by the
Government were ineffective.
- The
Court observes that it has rejected non-exhaustion arguments similar
to those raised by the Government in the present case in a number of
other cases where the complaints concerned problems of a structural
nature in the domestic prison system in question (see, for example,
Kalashnikov v. Russia (dec.), no. 47095/99, 18 September
2001; Melnik v. Ukraine, no. 72286/01, §§
69-71, 28 March 2006; Yakovenko v. Ukraine, no. 15825/06,
§§ 75-76, 25 October 2007; Koktysh v. Ukraine,
no. 43707/07, § 86, 10 December 2009; and Logvinenko v.
Ukraine, no. 13448/07, § 57, 14
October 2010). It does not see any reason to depart from its
previous approach in the present case. In addition, the Court notes
that, as appears from the case-file materials, the applicant voiced
complaints about the conditions of his detention (see paragraph 31
above). In the light of the above, the Court rejects the Government’s
objection.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. This complaint must therefore be declared admissible.
2. Ill-treatment by SIZO guards on 28 February 2006
- The
Government suggested that the applicant should have complained to the
Prosecutors’ Office of his alleged ill-treatment. Absent such a
complaint, it was not possible to establish the relevant facts and
the applicant could not be considered as having exhausted domestic
remedies in respect of this aspect of his application.
- The
applicant did not comment on this point, but noted in general terms
that he maintained his complaint concerning the incident on
28 February 2006.
- The
Court notes that the applicant presented no evidence whatsoever that
he had been beaten up on 28 February 2006. Likewise, he presented no
evidence that he had raised a relevant complaint before the competent
authorities, although a number of his letters addressing other
aspects of his life in detention have been included in the case-file.
The Court considers that the particular incident complained about can
not be approached as a structural problem. It therefore agrees with
the Government that the applicant should have made the competent
authorities aware of his alleged suffering in this respect. Absent
any evidence that he made any attempt to do so, the Court has no
basis to dismiss the Government’s objection (see Aliev v.
Ukraine (no. 2) (dec.), no. 33617/02, 14 October 2008, and
Logvinenko, cited above, §§ 62-64).
- This
part of the application should therefore be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
B. Merits
- The
applicant alleged that the conditions of his detention in SIZO no. 3
had been very poor. He contested the Government’s account of
the events, alleging that it had only referred to the situation
pertaining in 2010, while the period complained of had ended in 2006.
He further submitted that the Government’s account had been too
general and had not concerned the specifics of his situation,
including enumeration of the cells in which he had been held. The
applicant also referred to international and domestic reports by
various authorities, according to which the conditions of detention
in Ukrainian remand facilities were overall very poor.
- The
Government contested this view. They noted that the conditions of the
applicant’s detention had been adequate and sufficient to meet
his basic needs.
- The Court notes that as regards various aspects of the
conditions of the applicant’s detention, including the
dimensions of his bunk, lighting, ventilation, sanitary arrangements
and seizure of his belongings, the parties’ accounts differ and
neither is supported by sufficient evidence. The relevant facts
therefore cannot be proved “beyond reasonable doubt”,
which is the standard of proof usually applied by the Court (see
Starokadomskiy v. Russia, no.
42239/02, § 39, 31 July 2008). However, in the
present case the Court does not consider it necessary to establish
the truthfulness of each and every allegation made by the applicant.
Instead, the Court will concentrate primarily on the allegations that
have not been disputed by the respondent Government, or those in
respect of which the Government insufficiently commented, where they
had been clearly and consistently formulated before the domestic
authorities and later before the Court (see Trepashkin v. Russia,
no. 36898/03, § 85, 19 July 2007).
- The
Court notes, first of all, that it is not in dispute between the
parties that the applicant, who was held in SIZO no. 3 for some two
and a half years, spent most of his time detained in a basement cell,
shared with another inmate, which measured some 7 square metres. Each
inmate therefore had some 3.5 square metres of personal space
available to him, which is less than the minimum standard recommended
by the CPT for Ukraine (see Davydov and others, cited above,
§ 107)). In the light of its jurisprudence (see e.g.
Trepashkin v. Russia, cited above, § 92; Melnik
v. Ukraine, cited above, § 103; and Visloguzov v.
Ukraine, no. 32362/02, § 46, 20 May 2010), the
Court finds that the lack of personal space afforded to the applicant
in detention in and of itself raises an issue under Article 3 of the
Convention, regard being had, particularly, to the heavy restrictions
on freedom of movement and outside exercise.
- The
Court next notes that the Government’s affirmations that
ventilation, lighting and sanitary arrangements in the SIZO had been
adequate and that no personal belongings had ever been seized from
the applicant are not supported by sufficient evidence and are
couched in general terms. They do not contain responses to the
applicant’s concrete and consistent allegations to the
contrary.
- Likewise,
the Government’s comments concerning the medical assistance
provided to the applicant are general in nature. The applicant
specifically alleged that he had suffered a long-lasting inflammation
of one of his ears following an incident on 11 November 2005, when
his cellmate had allegedly hit him on the head, and that he had had
to treat this inflammation with his own urine. In the meantime, as
appears from the Government’s submissions, the applicant was
seen by doctors concerning problems with his ear on three occasions,
the first such occasion being in December 2005 and the last one (in
February 2007) being a surgical procedure. It appears from these
records that the applicant’s ear inflammation was indeed either
repetitive or prolonged and that it was aggravating over time. It is
not clear, on the other hand, what measures, if any, were taken by
the SIZO administration to ensure timely treatment and prevention of
the aggravation.
- Regard
being had to the Government’s failure to rebut, using detailed
and rigorous data, the applicant’s allegations concerning poor
lighting, ventilation, food, sanitary arrangements and medical
assistance available to him in SIZO no. 3, the Court is prepared to
conclude that his suffering on account of lack of personal space was,
at least to a certain extent, aggravated by the factors at issue.
- Consequently,
the conditions of the applicant’s detention were inhuman and
degrading. There has therefore been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND § 3
(B) AND (C) OF THE CONVENTION
- The
applicant complained that the Supreme Court had unfairly denied his
requests for additional time to familiarise himself with the case
file and to ensure the participation of a lawyer in the cassation
hearing. He relied on Article 6 §§ 1 and 3 (b) and (c) of
the Convention in respect of these complaints. The provisions at
issue read as follows:
“1. In the
determination of ... any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing...”
A. Admissibility
- The
Government did not present any comments on the admissibility of these
complaints.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant asserted that the thirty-two hours (four days) allocated to
him for familiarising himself with the case file had been
insufficient to allow the preparation of his cassation appeal, regard
particularly being had to the fact that the case file had contained
twenty-eight volumes (some 7,000 pages). His situation had been
further prejudiced by the fact that he had remained handcuffed on the
occasions that he was allowed to familiarise himself with the
materials, which had impeded his ability to take notes and had caused
him severe physical suffering. In addition, there had been a
six-month interval between the dates on which the applicant had
studied the case file and the date on which he had participated in
the cassation hearing, at which he had eventually found himself
without legal representation. In the light of these factors, the
Supreme Court’s refusal to provide him with additional time to
study the case-file materials had breached the guarantees of Article
6 of the Convention.
- The
applicant further alleged that the Supreme Court had unfairly denied
his request to ensure his legal representation in the cassation
proceedings. In the applicant’s opinion, the Supreme Court had
been obliged to do so under applicable law. Even if there had been no
such obligation, the failure of the Supreme Court to do so had, in
his opinion, been contrary to the requirement of fairness in the
proceedings, regard being had to the severity of the charges faced by
the applicant and the complexity of the case.
- The
Government disagreed. They submitted that the applicant had twice
been provided with an opportunity to study the case file. Firstly, he
had done so in presence of two defence representatives following the
completion of the pre-trial investigation in March 2004. Secondly, he
had studied the case file on his own on 23 and 24 March, and on 4 and
5 April 2005, while preparing his cassation appeal. Keeping
him in handcuffs on these occasions would have been unlawful, and,
absent any evidence in support of the applicant’s allegations,
this complaint was ill founded. There was likewise no evidence
that at the time of the familiarisation the applicant had requested
more time to study the case file. On the contrary, he had signed
affidavits recording that he had read all the volumes of the case
file and there was no evidence whatsoever that he had been coerced in
any way to do so.
- As
regards the applicant’s complaint of the Supreme Court’s
failure to ensure his legal representation during the cassation
hearing, the Government pointed out that the Supreme Court had had no
obligation under the law to do so. In spite of this, the Supreme
Court had adjourned the hearing of 13 September 2005 specifically to
allow the applicant time to contact his lawyer or to hire a new one.
The Supreme Court should not be held responsible for the applicant’s
failure to take any action in this respect. Moreover, although the
applicant’s lawyer had not been present at the hearing, she had
submitted a cassation appeal which had been considered by the Supreme
Court, and the applicant himself had been present at the hearing to
provide any further explanation required. In the light of all the
above, there had been no unfairness in holding a cassation hearing in
the absence of the applicant’s lawyer.
2. The Court’s assessment
a. General principles
- The Court reiterates that the requirements of Article
6 § 3 are to be seen as particular aspects of the right to a
fair trial guaranteed by Article 6 § 1 of the Convention.
The Court will therefore examine the complaints under those two
provisions taken together (see, among many other authorities,
Van Mechelen and Others v. the Netherlands, 23 April 1997,
§ 49, Reports of Judgments and Decisions
1997-III).
- The Court notes that Article 6 § 3 (b) guarantees
the accused “adequate time and facilities for the preparation
of his defence” and therefore implies that the substantive
defence activity on his behalf may comprise everything which is
“necessary” to prepare the main trial. The accused must
have the opportunity to organise his defence in an appropriate way
and without restriction as to the opportunity to put all relevant
defence arguments before the trial court and thus to influence the
outcome of the proceedings (see Can v. Austria, no. 9300/81,
Commission’s report of 12 July 1984, Series A no. 96, §
53; Connolly v. the United Kingdom (dec.), no.
27245/95, 26 June 1996; and Mayzit v. Russia, no. 63378/00, §
78, 20 January 2005). Furthermore, the facilities available to
everyone charged with a criminal offence should include the
opportunity to acquaint himself with the results of investigations
carried out throughout the proceedings for the purpose of preparing
his defence (see C.G.P. v. the Netherlands, (dec.), no.
29835/96, 15 January 1997, and Foucher v. France,
18 March 1997, §§ 26-38, Reports
1997-II). The issue of adequacy of time and facilities afforded
to an accused must be assessed in the light of the circumstances of
each particular case (see Kornev and Karpenko v. Ukraine, no.
17444/04, § 67, 21 October 2010).
- As
regards Article 6 § 3 (c), the Court reiterates that, while it
confers on everyone charged with a criminal offence the right to
“defend himself ... through legal assistance ...”, it
does not specify the manner of exercising this right. It thus leaves
to the Contracting States the choice of the means of ensuring that it
is secured in their judicial systems, the Court’s task being
only to ascertain whether the method they have chosen is consistent
with the requirements of a fair trial (see Quaranta v.
Switzerland, 24 May 1991, § 30, Series A no. 205).
- The Court has previously held that the appointment of
defence counsel does not in itself necessarily settle the issue of
compliance with the requirements of Article 6 § 3 (c). Mere
nomination does not ensure effective assistance, as a lawyer
appointed for legal-aid purposes may be prevented from performing or
may shirk his or her duties. If they are notified of the situation,
the authorities must either replace the lawyer or oblige him or her
to fulfil those duties (see, for example, Kahraman v. Turkey,
no. 42104/02, § 35 in fine, 26 April 2007).
- Nevertheless, a State cannot be held responsible for
every shortcoming on the part of a lawyer appointed for legal-aid
purposes or chosen by the accused. It follows from the independence
of the legal profession from the State that the conduct of the
defence is essentially a matter between the defendant and his
counsel, whether counsel be appointed under a legal-aid scheme or be
privately financed (see Cuscani v. the United Kingdom, no.
32771/96, § 39, 24 September 2002). The competent national
authorities are required under Article 6 § 3 (c) to intervene
only if a failure by legal-aid counsel to provide effective
representation is manifest or sufficiently brought to their attention
in some other way (see Kamasinski v. Austria, 19 December
1989, § 65, Series A no. 168, and Daud v. Portugal,
21 April 1998, § 38, Reports 1998-II).
- In a number of cases, the Court has already ruled that
the State authorities may be responsible for ensuring that defendants
in criminal proceedings are legally represented in appeal
proceedings. The factors relevant to the determination of the scope
of this obligation include: (a) the scope of the jurisdiction of the
appeal court in question (whether it extended to both legal and
factual issues, whether the court was empowered to fully review the
case and to consider additional arguments which had not been examined
in the first-instance proceedings); (b) the seriousness of the
charges against the applicant; and (c) the severity of the sentence
which the applicant faced (see Maxwell v. the United Kingdom,
28 October 1994, § 40, Series A no. 300-C; Shilbergs v.
Russia, no. 20075/03, § 123, 17 December 2009;
Potapov v. Russia, no. 14934/03, § 24, 16
July 2009; Shulepov v. Russia, no.
15435/03, §§ 34-39, 26 June 2008; and Shugayev
v. Russia, no. 11020/03, §§ 53-60, 14 January
2010).
b. Application of these principles in the
present case
- The
Court notes that, insofar as the applicant in the present case
complained of having been held in handcuffs during his
familiarisation with the case file, the Government disputed these
allegations as unsubstantiated. Lacking any evidence, the Court is
unable to establish the veracity of either position. It, however,
finds the applicant’s account disturbing, particularly in light
of the fact that the Supreme Court offered no response to his
complaint in this regard. As regards the applicant’s complaint
of only having four days to familiarise himself with the
twenty-eight-volume case file, the Court considers that in the
circumstances of the present case this complaint should be viewed in
the light of the fact that the applicant was unrepresented in the
cassation hearing.
- According to the rules of criminal procedure (see
paragraph 38 above), where a court of appeal acted as a
first-instance court in criminal proceedings, the jurisdiction of the
Supreme Court reviewing the case in cassation proceedings extended
both to legal and factual issues. The Supreme Court of Ukraine also
had the power to consider additional arguments which had not been
examined in the first-instance proceedings. Given the seriousness of
the charges against the applicant and the severity of the sentence
imposed on him by the trial court, the Court considers that the
assistance of a lawyer at this stage was essential for the applicant
– all the more so, regard being had to the limited time
(thirty-two hours) afforded for his examination of the case file some
half a year before the hearing took place.
- In
the light of the above, the Court finds that the Supreme Court’s
rejections of the applicant’s requests for additional time to
familiarise himself with the case file and to ensure his
representation by a lawyer in the cassation proceedings were not in
conformity with Article 6 §§ 1 and 3 (b) and (c)
of the Convention.
- There
were, accordingly, violations of the provisions at issue.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant further complained under Article 13 of
the Convention of a lack of effective remedies for his complaints
under Article 3 about the conditions of his detention and of his
being beaten by SIZO guards. The relevant provision reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested this argument.
A. Lack of remedies for a complaint concerning the
conditions of detention
- The
Court finds that this complaint is not manifestly ill-founded or
indeed inadmissible on any other ground cited in Article 35 of the
Convention. It must therefore be declared admissible.
- With
reference to its earlier case-law (see, among other authorities,
Melnik v. Ukraine, cited above, §§
113-116, and Ukhan v. Ukraine, no. 30628/02, §§
91-92, 18 December 2008) and the circumstances of the present case,
the Court finds that the Government have not proved that, in
practice, the applicant had an opportunity to obtain an effective
remedy for his complaints – that is to say, a remedy which
could have prevented the violations from occurring or continuing, or
which could have afforded the applicant appropriate redress.
- The
Court concludes, therefore, that there has been a violation of
Article 13 of the Convention on account of the lack of an
effective and accessible remedy under domestic law for the
applicant’s complaints in respect of the conditions of his
detention.
B. Lack of remedies for a complaint concerning the
alleged beating of the applicant by SIZO guards
- The
Court recalls that it has found that the applicant has not made out
an arguable claim under Article 3 of the Convention of having been
beaten by SIZO guards. The guarantees of Article 13 do not,
therefore, apply to this complaint. This part of the application is
therefore inadmissible and must be rejected in accordance with the
requirements of Article 35 §§ 3 (a) and
4 of the Convention.
IV. ALLEGED VIOLATION OF THE RIGHT OF INDIVIDUAL PETITION
- The applicant further complained under Article 34 of
the Convention that the Regional Court had refused to provide him
with copies of documents from the case file requested by the Court’s
Registry. The provision at issue reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government contested this argument. They alleged, in particular, that
the Regional Court’s refusal to allocate its own resources for
copying of documents had not hindered the applicant’s mother or
any other representative of his choice from making copies themselves
and, if necessary, asking the court’s clerks to certify them.
- The
applicant contested these allegations. He alleged, in particular,
that the Regional Court had been the only body that could have
provided certified copies of the documents requested by the Court’s
Registry. He further submitted that his mother, not being a party to
the criminal proceedings, had not had standing to copy the documents
and that, being in detention and lacking funding for legal aid, he
could not have hired a lawyer to perform this request.
- The
Court has established that Article 34 of the Convention may
impose an obligation on the State authorities to provide copies of
documents to applicants who find themselves in situations of
particular vulnerability and dependence and who are unable to obtain
documents needed for their files without the State’s support
(see, for recent authority, Naydyon v. Ukraine,
no. 16474/03, § 63, 14 October 2010).
On the other hand, it has also found that the obligation not
to hinder the right of individual petition does not automatically
mean that the State has a duty to provide applicants with copies of
all or any desired documents or to furnish them with technical means
of their choice in order to make their own copies (see Kornakovs
v. Latvia, no. 61005/00, §§ 171-174, 15 June 2006, and
Chaykovskiy v. Ukraine, no. 2295/06, § 96, 15 October
2009).
84. The
Court notes that in the present case, unlike in the Chaykovskiy
case mentioned above, the applicant’s
request was limited to the provision of copies of documents
specifically requested by the Court’s Registry. On the other
hand, unlike in the Naydyon
case, where the detained applicant, in addition to lacking the
necessary funds, also had no family support and very limited contact
with the outside world (see Naydyon,
cited above, § 64), in the present case the applicant was
officially represented by L.L., his mother.
85. It
appears that L.L. asked the Regional Court to prepare copies of the
documents at its own expense, which request was refused on
9 February 2007. At the same time, she never approached
that court with a view to preparing her own copies to be certified by
the court’s officials. Thus the Court cannot speculate as to
whether or not this request would have been granted.
86. In
the light of the foregoing, the Court finds that the refusal of the
Regional Court to prepare certified copies of the requested documents
did not as such put the applicant in a situation, in which he became
unable to submit necessary documents in support of his application.
- The
Regional Court’s conduct did therefore not amount to a
hindrance of the exercise of the applicant’s right of
individual petition. Accordingly, Ukraine has not failed to comply
with its obligations under Article 34 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 3 of the Convention that he
had been ill-treated by the investigative authorities during the
pre trial investigation; under Article 5 of the Convention that
his detention in SIZO no. 3 pending his trial had been unlawful; and
under Article 6 § 3 (d) that the trial court had failed to
summon Z., another purported criminal association member, as a
witness. Finally, the applicant cited Articles 1, 2, 7, 8, 10, 12, 14
and 17 in respect of the facts of the present case.
- In
the light of all the material before it, and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the provisions relied upon by the applicant.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant sought trial de novo and claimed 20,000 euros (EUR)
in respect of non-pecuniary damage.
- The
Government submitted that these claims should be dismissed.
- The Court notes that in the
present case it has found a violation of Article 6 § 1 of the
Convention. Inasmuch as the applicant’s claim relates to the
finding of that violation, the Court reiterates that when an
applicant has been convicted despite a potential infringement of his
rights as guaranteed by Article 6 of the Convention, he should, as
far as possible, be put in the position in which he would have been
had the requirements of that provision not been disregarded, and that
the most appropriate form of redress would, in principle,
be trial de
novo, if requested (see Öcalan v. Turkey
[GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and
Popov v. Russia, no. 26853/04, § 263, 13 July 2006).
The Court notes, in this connection, that Ukrainian legislation
(Article 400-12 of the Code of Criminal Procedure, section 38 of the
Judiciary and Judges’ Status Act, and section 10 of the
Enforcement of the Judgments and Application of the Jurisprudence of
the European Court of Human Rights Act)
provides that court proceedings may be reopened if the Court finds a
violation of the Convention.
- As
regards monetary compensation, regard being had to the circumstances
of the present case and ruling on an equitable basis, the Court
awards the applicant EUR 15,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who had also been granted legal aid, claimed EUR 2,000
in legal fees for his representation before the Court.
- The
Government noted that the applicant had not provided any documents in
support of his claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant had been granted legal aid and to the
fact that he did not provide any evidence in support of his claim,
the Court makes no award.
C. Default interest
- The
Court 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 complaints concerning the
conditions of the applicant’s detention in SIZO no. 3,
insufficient time and facilities for the preparation of the
applicant’s cassation appeal, lack of legal representation at
the cassation hearing and lack of effective remedies for the
complaint about the conditions of detention admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 in conjunction with § 3 (b) and (c) of the
Convention;
- Holds that there has been a violation of Article
13 of the Convention;
5. Holds that Ukraine has
not failed to comply with its obligations under Article 34 of the
Convention with respect to the refusal of the judicial authorities to
provide the applicant with certified copies of documents for his
application to the Court;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
Ukraine at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann
Registrar President
