FIFTH SECTION
CASE OF Vasiliy IVASHCHENKO v. UKRAINE
(Application no.
760/03)
JUDGMENT
STRASBOURG
26 July 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 Vasiliy Ivashchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann,
President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
760/03) 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 Vasiliy Nikolayevich Ivashchenko (“the
applicant”), on 23 November 2002.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.
On 10 January 2007 the President of the Section
decided to give notice of the application to the Government. On 12 December
2007 the President of the Section also decided to communicate to the Government
the applicant’s complaint under Article 34 of the Convention that his letters
to the Court were blocked.
. Having
examined the applicant’s request for a hearing, the Chamber decided,
under Rule 54 § 3 of the Rules of Court, that no hearing was required in the
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1961. He is currently
serving a prison sentence in Izyaslav, the Khmelnytsk Region.
A. The applicant’s arrest
On 12 April 1998 a police officer was killed and
another police officer was severely wounded by a group of people using fire
arms. On the same day the police stopped a car, whose driver stated that he had
dropped off three people, who had allegedly committed the above crime, in a
field several hundred metres away. Thereupon four police officers went to
search for the suspects. They saw three people, including the applicant,
crossing the field. The police officers fired several shots into the air and
ordered the people to lie down on the ground.
According to the applicant, they all obeyed the
orders of the police. The officers then approached them and started beating the
applicant and the two others. The applicant was hit and kicked in the head,
chest, kidney and groin area, as a result of which he lost consciousness. The
applicant stated that the officers had pierced his cheek with a needle and had used
a cigarette lighter to burn his right hand and suggested that they had done so
in order to make him regain consciousness.
According to the written statements of the police
officers submitted by the Government, while the applicant and the other
suspects threw aside their guns they refused to obey the orders of the police
and “offered physical resistance to the arrest”. Because of this, the police
officers employed “unarmed combat techniques”, forced the suspects to the
ground and handcuffed them.
Several hours later the applicant was taken to
the medical wing of the investigative detention unit (слідчий
ізолятор – “the SIZO”) in
Cherkasy where he regained consciousness.
He was examined by a doctor who noted a number
of lesions and bruises on the applicant’s head and body, including a wound and
a haematoma on his forehead, and haematomas on his left shoulder, chest and
right thigh. The medical report, written by that doctor, also stated that the
applicant had several blisters on his fingers which, according to the
applicant, were the result of burns. The doctor stitched the wound on the
applicant’s forehead, prescribed a pain killer and suggested that the applicant
see a neurologist. According to the report, an X-ray examination of the
applicant’s chest did not reveal fractures of his ribs.
According to the applicant, the doctor did not
note down all of his injuries. For instance, fractures of the applicant’s ribs
and two fingers on his right hand were not revealed as no X-ray examination was
carried out.
The next day a medical expert examined the
applicant and noted that his injuries were minor.
In the course of the criminal investigations
against him, the applicant complained of ill-treatment by the police to various
public authorities, including the prosecutors.
By decisions of 21 August 1998 and 25 January
1999, the prosecutors refused to bring criminal proceedings against the police
officers, finding that they had acted lawfully during the arrest. The finding
was based on the statements of the police officers and the applicant’s medical
documents (see paragraphs 8, 10 and 11 above). The applicant did not challenge
the prosecutors’ decisions before the courts.
He again raised complaints of ill-treatment in
the course of his trial before the Cherkasy Regional Court of Appeal (“the Cherkasy Court”) and the Supreme Court, which rejected them as unsubstantiated (see paragraphs 30
and 39 below).
B. The criminal investigations in respect of the
applicant and his trial
On 13 April 1998 the investigator came to see
the applicant in the SIZO. The investigator wished to question the applicant.
He informed the applicant that he was suspected of aggravated robbery and
murder committed on 12 April 1998 and explained to the applicant his basic
procedural rights and guarantees, including the right to legal assistance and
to remain silent. The relevant records were signed by the applicant, the
investigator and a lawyer, Mr B., who, according to the Government, was also
present during the applicant’s questioning. The lawyer was appointed by the
investigator to represent the applicant in the proceedings.
The records also contain a statement by the
applicant expressing the wish to be represented by another lawyer, Mr T., but
that if that lawyer refused to take part in the case he would agree to be
represented by Mr B. In the records the applicant also noted that the statement
was made in the presence of Mr B. Accordingly, the applicant refused to be
questioned on that day. During his subsequent questioning, including at the
trial stage, the applicant denied his responsibility for the crimes of which he
was suspected.
In his application to the Court, the applicant
stated that Mr B. had taken part in the proceedings at the request of the applicant’s
wife, who had paid the lawyer’s fees. The applicant also contended that the
lawyer had not been present at the SIZO on 13 April 1998 and that he had signed
the records at a later date. The applicant submitted letters issued by the SIZO
administration on 16 June 2004, according to which during the pre-trial
investigations lawyers had not visited the applicant in the SIZO and the
applicant had left the SIZO only once – to undergo a psychiatric examination on
12 August 1998.
On 14 April 1998 the prosecutors invited Mr T.
to defend the applicant. As that lawyer refused to take part in the
proceedings, Mr B. continued to represent the applicant throughout the
proceedings.
According to the records submitted by the
Government, Mr B. took part in the investigative actions, including the
applicant’s questioning which took place in the SIZO on 21 April 1998 and 10
January 1999, studied the materials of the case, attended the court hearings,
made written and oral pleadings, and prepared an appeal in cassation contesting
the applicant’s conviction. The court hearings which the lawyer did not attend
were adjourned.
The applicant argued that during the entire
period of the investigations he had not communicated with Mr B. and had not
been allowed to correspond with anyone outside the SIZO. The investigators
allegedly told him that it was not possible to see the lawyer before the trial.
The applicant met the lawyer for the first time when the trial commenced.
On 21 April 1998 the applicant was
charged with several counts of aggravated robbery, murder and inflicting bodily
injuries.
In March 1999 the investigations were completed.
The applicant and Mr B. were invited to familiarise themselves with the case
file. The applicant expressed the wish to study it without the lawyer,
allegedly at the request of the investigator, who promised the applicant that
he would be allowed to meet with his brother.
In January 2000 the applicant finished studying
the case file and in March 2000 the Cherkasy Court started examining the case
as a court of first instance.
In the course of the court proceedings the
applicant submitted several requests for the withdrawal of Mr B., stating that
he did not need a lawyer at all. While the trial court made several requests to
the local bar association inviting it to suggest another lawyer for the
applicant, no replacement was found. The court also invited the applicant to
hire a new lawyer himself, which the applicant did not do. By a letter dated
13 September 2000, the President of the Cherkasy Court informed the Deputy
Minister of Justice that the applicant’s and his co-defendants’ refusal to be
legally represented had resulted in a delay of three months to the court
proceedings, which could not be pursued without the participation of a lawyer
given the gravity of the charges. It was also noted that the defendants had
submitted numerous procedural requests, including requests for their
representation by the Minister of Justice and relinquishment of jurisdiction in
favour of the Supreme Court, which evidenced that they were in fact trying to
protract the proceedings.
Before the trial court the applicant contested
the charges against him and alleged that the testimony of his co-defendants
confirming his and their involvement in the impugned criminal acts had been
obtained under physical and psychological pressure from the police. The
applicant also lodged a request with the court for a video or audio-recording
to be made of the proceedings, but this was rejected by the court.
The applicant’s co-defendants raised similar
complaints before the court and denied their submissions made in the course of
the pre-trial investigations.
On 28 January 2002 the Cherkasy Court found the
applicant guilty of several counts of aggravated robbery, inflicting grievous
bodily injuries and murder. It sentenced the applicant to life imprisonment.
The court based its judgment on the testimony of about thirty witnesses and
victims of the crimes, partly on the statements of the applicant’s
co-defendants in the course of the investigations, and also on the conclusions
of several forensic, ballistic and other expert examinations. The court further
took into account the fact that in the course of the searches at the defendants’
places of residence the police had found a large number of objects belonging to
the victims of the crimes.
The court also dealt with the defendants’
allegations that they had been tortured by the police in the course of the
pre-trial investigations in order to obtain their confessions. It questioned
the investigators and the police officers concerned and concluded that those
allegations were unsubstantiated. The court also noted that the defendants,
excluding the applicant, had made their statements to the investigators in the
presence of their lawyers. The applicant’s co-defendants had not complained of
ill‑treatment to the law-enforcement authorities. The court therefore
found no ground which could prevent it from relying on these statements in its
judgment.
As to the applicant, the court observed that he
had not admitted his guilt at any stage of the proceedings, and there was no
evidence that he had been forced to do so. Having questioned the police
officers who had arrested the applicant on 12 April 1998 and one of the
officers from the Cherkasy SIZO, the court noted that the applicant had been
injured during the arrest but that there was no evidence that he had been
ill-treated during his subsequent detention.
On 12 and 27 February 2002 respectively the
applicant and Mr B. lodged separate cassation appeals, contesting the factual
findings of the first-instance court. The applicant also complained that the
trial court had failed to give due consideration to the defendants’ arguments
that “they had been denied the opportunity to have and meet with a lawyer
before their first questioning” and that the trial court had not allowed the
defendants’ lawyers to visit them in detention. The applicant further made
reference to his ill-treatment on 12 April 1998 and alleged that the statements
of his co‑defendants had been obtained under physical and psychological
pressure from the police.
Meanwhile, on 7 February 2002 the applicant and
one of his co‑defendants concluded an agreement with Mr Br., pursuant to
which Mr Br. undertook to defend them in the proceedings.
On 10 February 2002 the applicant asked the Cherkasy Court to allow Mr Br. to participate in the proceedings as his defence
counsel.
On 20 February 2002 the Cherkasy Court informed
the applicant that it had no jurisdiction to decide on the matter.
On 11 March 2002 Mr Br. complained to the
President of the Supreme Court about the Cherkasy Court’s refusal to allow him
to act as the applicant’s and his co-defendant’s counsel. Mr Br. also requested
access to the criminal case file so that he could prepare a cassation appeal on
behalf of the applicant and his co-defendant and to be granted leave to visit
them in the SIZO. No reply was given by the Supreme Court to Mr Br.’s requests.
On 21 May 2002 the applicant sent an amended
cassation appeal to the Supreme Court in which he complained about the Cherkasy Court’s refusal to allow Mr Br. to act as his defence counsel.
By a letter of 4 June 2002, the Cherkasy Court informed the applicant, his co-defendant and Mr Br. that Mr Br. could
not represent two defendants at the same time, as they had made conflicting
submissions concerning the circumstances of the case. In particular, while the
applicant stated that he had not been present at the scene of one of the crimes,
his co‑defendant submitted that the applicant had been there.
The court also noted that Mr Br. did not have an
advocate’s licence and that he had not proved that, under domestic law, he
could participate as defence counsel in criminal proceedings. The court further
reiterated that Mr Br. should have asked the Supreme Court to grant him
leave to participate in the cassation proceedings, since the first-instance
court, which had already delivered a judgment in the case, was not competent to
decide on that matter.
On 9 July 2002 the Supreme Court held a hearing
on the cassation appeals. According to the applicant, Mr Br. was allowed to
take part in the hearing on the applicant’s behalf. The applicant, his
co-defendants and their lawyers were also present. The Supreme Court rejected
the cassation appeals submitted by the applicant and Mr B. The Supreme Court
further upheld the conclusions of the Cherkasy Court concerning the defendants’
allegations of their ill-treatment at the pre-trial stage of the investigation.
According to the applicant, Mr Br. was not given
an opportunity to study the case file or to meet with the applicant prior to
the Supreme Court hearing.
C. The application to the Court
On 23 November 2002 the applicant lodged his
present application with the Court.
On 22 April 2004 the applicant asked the
Cherkasy Court to provide him with copies of the medical reports drawn up after
his examination in the SIZO and of the procedural decision concerning his
request for a video or audio-recording of the proceedings before that court,
which he intended to submit to the Court in substantiation of his application.
By a letter of 28 May 2004,
the Deputy President of the Cherkasy Court informed the applicant that his
request had been refused, as it was not the function of that court to copy
documents for the applicant. The court also noted that there were no funds in
the court’s budget allocated for such purposes.
On 21 June 2004 the applicant lodged a complaint
with the Prydniprovskyy District Court of Cherkasy (the “Prydniprovskyy Court”)
against the Deputy President of the Cherkasy Court for failure to provide him
with copies of the documents from his case file. In his complaint, the
applicant stated that he needed copies of these documents in order to submit
them to the Court. He also sought compensation for the damage allegedly caused
by the refusal to provide him with the documents.
On 25 June 2004 the Prydniprovskyy Court declined jurisdiction to consider
the applicant’s complaint. The court held that under Ukrainian law judges
acting in their official capacity enjoyed immunity from court proceedings
against them.
On 8 July 2004 the applicant appealed against
the decision of 25 June 2004.
On 15 July 2004 the same court granted the
applicant time to rectify certain shortcomings in his appeal. The court held
that the applicant’s appeal should have been typewritten and should have
contained information concerning the parties to the proceedings, in particular,
their names and addresses.
On 26 July 2004 the applicant submitted a new
version of his appeal. The applicant also attached a note, issued by the
administration of the SIZO, stating that, in accordance with the law, detainees
were not provided with the opportunity to type their documents.
On the same day the Prydniprovskyy Court refused
to accept the applicant’s appeal for failure to comply with the decision of 15
July 2004. According to the applicant, he appealed against the decision of
26 July 2004. There is no information concerning the outcome of his
appeal.
By a letter of 28 June 2004, the Court asked the
applicant to submit copies of his appeal in cassation against the judgment of
28 January 2002 and of his requests for legal assistance.
On 19 July 2004 the applicant asked the
President of the Cherkasy Court to provide him with a copy of his appeal in
cassation as well as with copies of the documents which he had already requested
in his letter of 22 April 2004. The applicant referred to the Court’s
letter, but did not enclose a copy.
On 4 August 2004 the acting president of the Cherkasy Court rejected the applicant’s request on the same grounds as in the letter of 28 May
2004. The acting president of the court also stated that, if necessary, the
Court could ask the State authorities to provide it with copies of these
documents.
The applicant’s further requests for copies of
the documents from his case file were also rejected by the Cherkasy Court.
In April 2007 the Government submitted, at the
Court’s request, copies of various documents from the applicant’s criminal
case, including his appeal in cassation and documents concerning legal
assistance in the course of the domestic proceedings.
In July and October 2007 the Court received
several letters sent from the applicant’s brother’s address. In these letters
the applicant alleged that the Government had blocked his correspondence with
the Court. In particular, the applicant stated that on 10, 14, 17 and 23 May,
and on 9 and 15 July 2007 he had submitted his observations on the admissibility
and merits of the application, claims for just satisfaction, a friendly
settlement proposal, and some additional information to the staff of the Colony,
to which the applicant had been transferred from the SIZO in 2005, for them to
send to the Court. The applicant provided a copy of the document dated
4 October 2007 in which the authorities confirmed that they had dispatched
the applicant’s correspondence addressed to the Court on the above dates.
However, the Court never received the applicant’s submissions.
According to the Government, the impugned
letters were sent promptly to the Court. The staff of the Colony was not
responsible for the fact that they did not reach the Court.
In December 2007 the applicant complained to the
Prosecutor General and the Izyaslav Court alleging interference with his
correspondence. The complaints were dealt with by the prosecutors and the
postal service. The prosecutors replied to the applicant that his letters had
been duly dispatched by the staff of the Colony. The prosecutors also noted
that it was not possible to check whether the postal service had received and
dispatched the applicant’s letters, which were unregistered mail. That was
confirmed by the postal service.
By a letter dated 1 July 2009, the
Vice-President of the Cherkasy Court rejected another request from the
applicant for copies of documents from his case file. In the letter it was also
noted that the applicant had the right to hire a lawyer, pursuant to paragraph
2 of Article 8 of the Code on the Execution of Sentences, or to appoint a
representative among one of his close relatives. The applicant was informed
that such a representative would be given an opportunity to study the case file
and to make notes.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL
MATERIAL
The relevant provisions of domestic legislation
and the relevant provisions of the Recommendation Rec(2006)2 of the Committee
of Ministers to member States on the European Prison Rules were summarised and
quoted in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14 October 2010), which
mainly concerned the failure of the authorities to provide the applicant with
the opportunity to obtain copies of documents needed for his application before
the Court.
. In the context of the execution of
the Court’s judgment in Naydyon, in September 2011 the Ukrainian
Government submitted to the Committee of Ministers an action plan on measures
to comply with that judgment. An extract from the action plan concerning
general measures reads as follows:
“1. Publication and dissemination of the judgment
The summary of the judgment was published in the Government’s
Gazette [Uriadovyi Kurier], no. 28 of 15 [February] 2011.
By letters of 22 March 2011, explanatory notes on the
conclusions of the Court in the above-mentioned judgment were sent to the
Supreme Court of Ukraine, the High Specialised Court of Ukraine for civil and
criminal cases, the Donetsk Court of Appeal, the General Prosecutor’s Office
and the State Prison Service.
Moreover, the Court’s conclusions in the above judgment were
included in the submission to the Cabinet of Ministers of Ukraine concerning
the execution of ECHR judgments (as of March 2011). The Cabinet of Ministers of
Ukraine instructed the relevant authorities to take measures to remedy the
violation found, to avoid similar violations and bring their practices in
accordance with the requirements of the Convention.
2. Legislative measures
In order to determine whether any legislative amendments are
required the authorities are currently holding multilateral discussions. As
soon as this issue is determined at the national [level] the Committee of
Ministers will be informed thereof.”
At its 1120th meeting on 13-14 September 2011 the
Committee of Ministers took note of the action plan and invited Ukraine to keep it informed of the progress made in its implementation. So far, the
Committee of Ministers has not yet concluded the supervision of the execution
of the judgment under Article 46 § 2 of the Convention.
THE LAW
I. SCOPE OF THE CASE
The Court notes that, after the communication of
the case to the respondent Government, the applicant raised several new
complaints.
In particular, in his submissions dated 12 March
2007 the applicant complained under Article 7 of the Convention that he had
been unlawfully sentenced to life imprisonment, stating that such punishment
could not have been applied in his case.
In April 2008 the applicant complained under
Article 34 of the Convention that in the Colony he was not allowed to keep the
original letters sent to him by the Court. When they arrived, he was given a
short time (up to ten minutes) to read them in the presence of officers.
Subsequently, often after delays of over a month, he could obtain copies of
them on request. Where such letters were in English, of which the applicant had
no command, no translation or explanation was given to him by the staff of the
Colony.
In 2011 the applicant further complained that
from 12 to 21 August 2011 he had been provisionally placed in a detention
facility in Vinnytsya where the material conditions had been degrading. In
particular, the applicant was held in a dark, damp and cold cell and was not
permitted daily walks.
In the Court’s view, the applicant’s new
allegations are not an elaboration of his original complaints to the Court on
which the parties have commented. The Court considers, therefore, that it is
not appropriate to take these matters up in the context of the present case
(see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
tortured by the police during his arrest. He further complained that his
co-defendants had been tortured by the police in the course of the pre-trial
investigations in the case. The applicant relied on Article 3 of the Convention
which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that the applicant’s complaint
of the ill-treatment of his co-defendants must be rejected for lack of victim
status in accordance with Article 34 of the Convention.
Concerning the applicant’s complaint that he was
tortured by the police on 12 April 1998, the Court notes that the applicant
took steps at the domestic level to bring that complaint to the attention of
the national authorities. The applicant pursued this matter in the course of
his trial and the fact that the complaint was rejected by the prosecutors on 21
August 1998 and 25 January 1999 did not prevent the domestic courts from
examining it on the merits in the course of the applicant’s trial (see
paragraphs 30 and 39 above). In these circumstances, the applicant reasonably
waited for the completion of the trial to raise the complaint before the Court
and accordingly complied with the six-month rule provided for in Article 35 § 1
of the Convention (see Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012 (not yet final)).
The Court further finds that the applicant’s
complaint that he was tortured by the police on 12 April 1998 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. The parties’ submissions
The applicant complained that he had been beaten
by the police during his arrest. The applicant insisted that he had neither
resisted the arrest nor tried to escape. The applicant noted that his
ill-treatment had continued after he had lost consciousness (see paragraph 7
above) and had resulted in serious injuries.
The Government stated that on 12 April 1998 force
had been used against the applicant because he had refused to obey the orders
of the police officers. In particular, the officers had used unarmed combat
techniques against the applicant and subsequently handcuffed him.
According to the Government, the applicant
failed to prove that the police officers had used force unlawfully or
excessively. They also argued that there was no evidence that the applicant had
been tortured or subjected to inhuman treatment.
The Government argued that the use of force by
the police against the applicant had not attained the minimum level of severity
to qualify as inhuman or degrading treatment within the meaning of Article 3 of
the Convention.
The Government further noted that the applicant’s
complaints of torture had been duly examined by the prosecutors and the courts,
who had not found any violations in the police officers’ actions.
2. The Court’s assessment
The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and
inhuman or degrading treatment or punishment. In order to fall within the scope
of Article 3, the ill-treatment must attain a minimum
level of severity, the assessment of
which depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age and
state of health of the victim (see, among others, Ireland v. the United Kingdom, 18 January
1978, § 162, Series A no. 25).
The Court also reiterates that in assessing
evidence in a claim of a violation of Article 3 of the Convention the standard
of proof “beyond reasonable doubt” must be applied (see Ireland v. the United Kingdom, cited above, § 161,
and Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII
(extracts)). Such proof may, however, follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121,
ECHR 2000‑IV). Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will arise in
respect of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a satisfactory
and convincing explanation (see Ribitsch v. Austria, 4 December 1995, §
34, Series A no. 336, and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
Turning to the circumstances of the present
case, the Court notes that, although there is no
medical evidence in support of the applicant’s allegations that his
cheek had been pierced or that his ribs or fingers had been fractured, the applicant sustained a number of other injuries which
were noted in the medical report on the day of his arrest (see paragraph 10
above). Those injuries were substantially serious to amount to ill-treatment
within the meaning of Article 3 of the Convention (see, for instance, Spinov
v. Ukraine, no. 34331/03, § 46, 27 November 2008).
The Court further notes that it is common ground
between the parties that the injuries had been sustained during the applicant’s
encounter with the police. However, while the Government argued that the
applicant had been injured because of the legitimate use of force to arrest
him, the applicant contended that he had been deliberately tortured by the
police.
In this context, the Court observes that the
Government’s argument is based on the findings of the domestic authorities who
dealt with the applicant’s complaints of ill-treatment (see paragraphs 14, 15,
30 and 39 above). However, those findings lack important details and relevant
substantiation. In particular, they do not contain conclusive explanations of
the exact nature and degree of force used against the applicant. The written
statements of the police officers, on which the prosecutors and the courts
relied, do not provide such explanations either. They are couched in very vague
and confusing references to the applicant offering “physical resistance to the
arrest” and the officers employing “unarmed combat techniques” (see paragraph 8
above). Accordingly, the Court rejects the Government’s argument that recourse
to physical force by the police was made necessary by the applicant’s own
conduct as unsubstantiated.
The Court further notes that neither the
domestic authorities nor the Government made an attempt to address or to
challenge, with substantiated arguments, the applicant’s detailed submissions
concerning his ill-treatment by the police. In this regard, the Court attaches
particular importance to the fact that the applicant’s submissions concerning
the origin of several blisters on his fingers were completely disregarded (see
paragraphs 7 and 10 above).
Having regard to the relevant medical evidence
and the parties’ submissions in the present case, the Court finds that the
applicant was ill‑treated by the police on the day of his arrest.
However, the Court does not consider that the ill-treatment at
issue amounted to torture. While the police officers used disproportionate
force to arrest the applicant, it has not been established or persuasively
argued that they intended to inflict punishment or to intimidate the applicant.
In the light of the foregoing, the Court holds
that that there has been a violation of Article 3 of the Convention in that the
applicant was subjected to inhuman and degrading treatment by the police.
III. ALLEGED UNFAIRNESS OF THE CRIMINAL
PROCEEDINGS AGAINST THE APPLICANT
The applicant claimed that he was innocent and
that his conviction had been based on an incorrect assessment of the facts and
evidence. In particular, the applicant argued that the courts should not have
admitted the statements made by his co-defendants in the course of the
pre-trial investigation, alleging that these statements had been obtained under
physical and psychological pressure from the police.
The applicant also claimed that he had been
unaware of the nature and cause of the accusation against him and alleged that
the authorities had refused to give him access to legal assistance during the
pre-trial investigations. He further complained that they had not allowed
Mr Br. to examine the case file or to meet with the applicant in order to
prepare an appeal in cassation on his behalf.
The applicant relied on Article 6 §§ 1 and 3 (a)
– (d), Articles 13 and 17 of the Convention and Article 2 of Protocol No.
7. The Court considers that the applicant’s complaints fall to be examined
under Article 6 §§ 1 and 3 (a) – (c) of the Convention, which reads, in so far
as relevant, as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal
...
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(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 or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
...”
The Government contested the applicant’s
submissions, stating in particular that the applicant’s right to defence had
been secured at the domestic level.
At the outset, the Court observes that some of
the applicant’s complaints under Article 6 of the Convention were not raised,
in a clear and substantiated way, before the domestic authorities. In
particular, this concerns the alleged failure of the investigators to inform
the applicant of the nature and cause of the accusation against him and their
alleged refusal to give him access to legal assistance at the pre-trial stage.
The applicant’s statement in his cassation appeal that the trial court had
failed to examine submissions that “[the defendants] had been denied the
opportunity to have and meet with a lawyer before their first questioning” was
not supported by any details or arguments and thus did not represent a serious
allegation which had to be specifically addressed by the Supreme Court. In
these circumstances, the Court may not be called to consider the complaints on
the merits, essentially taking on the role of a domestic tribunal.
In any event, the Court considers that those
complaints are unsubstantiated. In particular, the applicant was duly informed
of the charges against him (see paragraph 16 above). Although the applicant
alleged that Mr B. had not been present during the applicant’s questioning in
the SIZO (see paragraph 18 above), the Court notes that the Government
submitted sufficient evidence to refute the applicant’s allegation (see
paragraphs 16, 17, and 20 above). The Court further notes that the applicant
did not demonstrate that any difficulties he might have experienced in communicating
with the lawyer during the investigations should be imputable to the
authorities and not to the applicant himself or the lawyer.
The Court further notes that the applicant’s
allegation that he could not communicate with anyone outside the SIZO is not
supported by any evidence whatsoever. There is also no indication that that
issue was brought to the attention of the domestic authorities.
As regards the applicant’s complaint about the
courts’ refusal to allow Mr Br. to examine the case file and to meet with the
applicant in order to prepare an appeal in cassation on his behalf, the Court
notes that this matter was addressed in detail by the Cherkasy Court. In
explaining its position on the matter, it referred to the specific
circumstances preventing Mr Br. from taking part in the proceedings, which
included the fact that he wished to represent two co-defendants who had made
conflicting submissions on the facts. Given that the applicant did not contest
the accuracy of that information, the Court does not consider that the
limitation on his right to choose a lawyer on that ground was disproportionate
or otherwise contrary to the guarantees of Article 6 § 3 (c) of the Convention.
The fact that the Supreme Court
eventually allowed Mr Br. to take part in the hearing on behalf of the
applicant (but not on behalf of his co‑defendant) does not cast doubt on
the Cherkasy Court’s position on that matter (see paragraph 91 above). The
applicant failed to indicate when the decision to grant Mr Br. leave to
participate was taken or what were the reasons for such a decision. In any
event, the Court notes that the applicant was not precluded from obtaining
legal advice prior to the Supreme Court hearing from Mr B., the lawyer who had
taken part in the investigations and the trial and had ample access to the case
file.
On the whole, the Court finds that the applicant
was afforded sufficient opportunity to prepare and to raise arguments in his
defence during the trial and the cassation proceedings, with the benefit of
legal advice from Mr B. The applicant did not demonstrate that his arguments
were not adequately dealt with or that any alleged violation of his procedural
rights or alleged errors of law or fact by the courts were such as to impair
the overall fairness of the proceedings under Article 6 of the Convention.
There is nothing in the case file allowing the Court to disagree with the
courts’ conclusions that the allegations of the applicant’s co‑defendants
of ill-treatment in the course of the pre-trial investigation were
unsubstantiated.
In the light of the foregoing, the Court
concludes that this part of the application should be rejected as manifestly
ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED interference
with the applicant’s right of individual petition
The applicant complained that the authorities
had failed to provide him with copies of the documents from his case file which
he had wished to submit to the Court in substantiation of his application. The
applicant further complained that the authorities had blocked his
correspondence with the Court. He relied on Article 34 of the Convention, which
provides 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 Court notes that the applicant’s complaints
under Article 34 of the Convention essentially concern two distinct issues.
Namely, the alleged refusal to provide the applicant with copies of documents
for his application to the Court and the alleged blocking of his letters to the
Court. The Court will deal with these issues separately.
A. Refusal to provide the applicant with copies of
documents for his application to the Court
1. The parties’ submissions
The Government argued that the applicant’s
complaint concerned the authorities’ refusal to make photocopies of certain
documents for him at their expense and not a refusal of the applicant’s access
to such documents. In this context, the Government noted that domestic
regulations did not require the authorities to provide prisoners with
photocopies of documents from their case files for free. In the Government’s
view, such an obligation would place an unjustified burden on the authorities,
especially given that the volume of case material might be very high. They also
argued that the limitation at issue constituted an element of unavoidable
suffering inherent in lawful detention.
The Government further noted that the applicant
and the lawyer who had represented him in the domestic proceedings had had full
access to the case file in the course of those proceedings and that they could
have made copies of the relevant documents at their own expense for the
applicant’s subsequent application to the Court. After the completion of the
domestic proceedings, the applicant could have asked the lawyer or his
relatives to obtain copies of documents for the application.
The Government also noted that the staff of the
Colony in which the applicant was being detained had provided him with copies
of certain documents.
According to the Government, the fact that the
applicant had lodged the application with the Court confirmed that the
authorities had not hindered his right of individual petition.
The applicant contested the Government’s
submissions and insisted that he had been denied access to his case file. While
the staff of the Colony had given him photocopies of the Court’s letters, they
had not assisted him in obtaining copies from his domestic case file. The
applicant further contended that, in spite of the fact that he had asked the
authorities to make copies of documents at his own expense, his requests had
been refused. The applicant considered that the refusal was linked to the fact
that he had been allowed to keep only copies of his verdict and of the appeal
decision in his possession (see paragraph 59 above).
The applicant also submitted that when studying
the case material during the criminal proceedings, he had not found it
necessary to make copies of the documents because he had thought that the
courts would not find him guilty.
2. The Court’s assessment
The Court notes that this part of the case
concerns a similar issue of interference with applicants’ right of individual
petition, concerning which it has delivered judgments in several cases against Ukraine. For instance, in Naydyon (cited above,
§§ 64-69) the Court found a violation of Article 34 of the
Convention on the ground that the authorities had failed to ensure that the
applicant, who had been dependent on them (a prisoner without a lawyer), had
been provided with the opportunity to obtain copies of documents which he had
needed to substantiate his application before the Court.
The principle difference between the applicant’s
situation in the present case and that in Naydyon is that the former
maintains contact with a relative, his brother, who is at liberty and sometimes
helps the applicant in communicating with the Court (see paragraph 55 above and
Naydyon, cited above). However, the Court is not of the view that this
element may form the basis for a different conclusion as to Ukraine’s compliance with Article 34 of the Convention.
Although the Government argued that the
applicant’s relatives could have helped him in getting copies of the documents
he needed, they did not explain the procedure which the applicant and, for
instance, his brother had to follow in order for the latter to gain access to
the applicant’s case file. In this regard, the Court takes note of the
situation in another case against Ukraine, where a prisoner’s mother was not
permitted to make copies of documents from his case file kept by a local court
(see Tretyakov v. Ukraine, no. 16698/05, § 84, 29 September 2011).
It is true that in Tretyakov the Court
held that Ukraine had complied with its obligations under Article 34 of the
Convention, in particular as regards providing the applicant with the
opportunity to obtain copies of the documents he had wished to submit in
support of his application. However, in that case after the applicant lodged
his application with the Court he had ample access to the case material as the
criminal proceedings were pending at that time, he was not precluded from
copying it by hand, and was able to submit to the Court all the documents he
deemed to be of relevance. His complaint principally concerned the refusal of
the trial court to allow him to photocopy them (see Tretyakov, cited
above, § 85).
In the present case, the applicant introduced
his application after the proceedings against him had been completed. Like the
applicant in Naydyon, he was denied access to the case file and was not
able to make copies of case documents either by hand or by any other means (see
Naydyon, cited above, § 65). In
these circumstances and given the applicant’s submissions, the Court does not
agree with the Government that his complaint is directed solely against the
authorities’ refusal to provide him with photocopies of certain documents for
free.
As to the Government’s argument that the
applicant could have made copies of the documents required for his application
before the domestic proceedings were completed, the Court notes that it has
already rejected a similar argument in Naydyon (see Naydyon,
cited above, §§ 59 and 67) and that
there is no ground to depart from that finding in the present case.
Contrary to the Government’s contention (see
paragraph 100 above), the fact that the present application reached the Court
does not exclude the possibility that there has been an interference with the
applicant’s right of individual petition (see Naydyon, cited above, § 68).
In the light of the foregoing, the Court
concludes that Ukraine has failed to comply with its obligation under
Article 34 of the Convention to furnish all necessary facilities to
the applicant in order to make possible a proper and effective examination of
his application by the Court.
B. Alleged interference with the applicant’s
correspondence with the Court
The Government argued that the applicant had
failed to raise the complaint of interference with his correspondence with the
Court before a prosecutor responsible for supervising the legality of execution
of sentences. Thus, the applicant could not be regarded as having exhausted
domestic remedies in respect of this part of the application.
The Government also denied any interference
with his correspondence with the Court.
The applicant disagreed.
As to the Government’s plea of non-exhaustion,
the Court reiterates that a complaint under Article 34 of the Convention is of
a procedural nature and therefore does not give rise to any issue of admissibility
under the Convention (see, mutatis mutandis, Puzan v. Ukraine,
no. 51243/08, § 49, 18 February 2010).
. Turning to the substance of the
applicant’s complaint, the Court notes that it may not be excluded that the
letters which the applicant sent to the Court in May and July 2007 were lost
due to a technical error at some stage of their dispatch or delivery. In any
event, the Court finds that there is insufficient factual basis to conclude
that Ukrainian authorities deliberately stopped the applicant’s letters or
failed to ensure that they were duly dispatched (see, mutatis mutandis, Juhas
Đurić v. Serbia, no. 48155/06,
§§ 75-76, 7 June 2011 (not yet final), and Orlov v.
Russia, no. 29652/04, §§ 120-21,
21 June 2011; compare and contrast
with, for instance, Nurmagomedov v. Russia, no. 30138/02, §§ 57-62,
7 June 2007, and Buldakov v. Russia, no. 23294/05, §§ 48-50, 19 July 2011).
. Accordingly, the Court finds that
the respondent State has not failed to comply with its obligations under
Article 34 of the Convention as regards the dispatch of the applicant’s letters
addressed to the Court.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The Court reiterates that Article 46 of the
Convention, as interpreted in the light of Article 1, imposes on the respondent
State a legal obligation to implement, under the supervision of the Committee
of Ministers, appropriate general and/or individual measures to secure the
right of the applicant which the Court found to be violated. Such measures must
also be taken in respect of other persons in the applicant’s position, notably
by solving the problems that have led to the Court’s findings (see Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII).
In order to facilitate the rapid and effective
enforcement of its judgments finding a violation of the Convention and to assist
the respondent State to fulfil its obligations under Article 46, the Court must
indicate, as precisely as possible, what it considers to be the problem that
has led to the Court’s finding. If the problem appears to be of a systemic
character and has given rise or is likely to give rise to numerous
applications, the Court may be required to identify the source of that problem
(see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96,
§§ 189-194, ECHR 2004‑V; Hutten-Czapska v. Poland [GC] no.
35014/97, § 232, ECHR 2006-VIII; Greens and M.T. v. the United Kingdom,
nos. 60041/08 and 60054/08, § 107, ECHR 2010 (extracts); and, with respect
to Ukraine, Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, §
80, 15 October 2009; Kharchenko v. Ukraine, no. 40107/02, § 101, 10 February 2011; and Balitskiy
v. Ukraine, no. 12793/03, § 54,
3 November 2011).
The Court notes that a part of the present case
concerns a systemic problem which calls for the implementation of measures of a
general character.
In particular, this is the second case, after Naydyon
(cited above), in which the Court has found a violation of Article 34 of the
Convention because the applicant, a prisoner dependent on the authorities, was
not provided with effective access to the documents which he needed to
substantiate his application before the Court. Similar complaints of
interference with the right of individual petition have been raised in a number
of other cases against Ukraine currently pending before the Court. Of them,
some twenty-three cases have been communicated to the Government so far.
Therefore, the Court concludes that this issue
was neither prompted by an isolated incident nor attributable to the particular
turn of events in a particular case (see, mutatis mutandis, Broniowski
v. Poland [GC], no. 31443/96, § 189, ECHR 2004‑V).
Given its findings under Article 34 of the
Convention in the present case, as well as in Naydyon (see paragraphs
110 above and Naydyon, cited above), the Court considers that the issue
resulted from the absence of a clear and specific procedure enabling prisoners
to obtain copies of case documents, either by making such copies themselves, by
hand or using relevant equipment, or having the authorities make copies for
them. While there were domestic regulations providing for public access to
documents kept by the authorities, including court case files, the national
judicial authorities did not consider themselves under an obligation to assist
prisoners, taking into account their specific situation, in obtaining such
copies. There is also no information that the prison authorities, who were given
such a task under the prison regulations, duly complied with it.
The Court also notes that the Committee of
Ministers has not yet concluded the supervision of the execution of the
judgment in Naydyon under Article 46 § 2 of the Convention (see
paragraph 61 above). Thus, it finds that the issue has remained unresolved.
Mindful of the utmost importance of the right
of individual petition enshrined in Article 34 for the effective operation of
the supervisory system established by the Convention, the Court considers that
adequate legislative and administrative measures should be taken without delay
by the respondent State in order to ensure that those who are deprived of their
liberty have effective access to documents necessary for substantiating their
complaints before the Court.
V. 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 claimed 2,000,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government did not comment.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects the claim in that respect. On the other hand, it awards the applicant
EUR 12,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not submit a claim for costs
and expenses. Accordingly, the Court considers that there is no call to award
him any sum on that account.
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
1. Declares unanimously the applicant’s
complaint that he was tortured by the police on 12 April 1998 admissible and
the applicant’s complaint of the ill-treatment of his co-defendants
inadmissible;
2. Declares by a majority the applicant’s
complaint that the proceedings against him were unfair inadmissible;
3. Holds unanimously that there has been a violation
of Article 3 of the Convention in that the applicant was subjected to inhuman
and degrading treatment by the police;
4. Holds unanimously that Ukraine has failed to comply with its obligations under Article 34 of the Convention with
respect to the refusal of the authorities to provide the applicant with copies
of documents for his application to the Court;
5. Holds unanimously
that Ukraine has not failed to comply with its obligations under Article 34 of
the Convention as regards the dispatch of
the applicant’s letters addressed to the Court;
6. Holds unanimously
(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 12,000 (twelve thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the respondent State 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;
7. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean
Spielmann
Deputy Registrar President
