LOBAS v. UKRAINE - 21380/04 - Chamber Judgment [2013] ECHR 1102 (07 November 2013)

In the case of Lobas v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Ann Power-Forde,
          André Potocki,
          Paul Lemmens,
          Helena Jäderblom,
          Aleš Pejchal, judges,
          Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 21380/04) 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 Sergiy Mykolayovych Lobas (“the applicant”), on 28 April 2004.

The applicant, who had been granted legal aid, was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice.

The applicant complained, in particular, that he had been ill-treated by the police, that his pre-trial detention had been unlawful and that his trial had been unfair. He also alleged that he had not been able to obtain copies of documents needed to substantiate his application.

On 9 November 2007 notice of the application was given to the Government. At that stage of the proceedings the Government was not invited to submit observations on the case pending the outcome of another case that partly concerned similar issue under Article 34 of the Convention (see Naydyon v. Ukraine, no. 16474/03, in which the Court delivered a judgment on 14 October 2010). On 22 June 2011 the Court invited the Government to submit observations on the admissibility and merits of the present application.

Ms 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 S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1964 and is currently serving a prison sentence in Sokal Correctional Colony.

On 21 December 2002 three people were murdered in the village of Rosava in Kyiv Region (oblast).

A. The applicant’s alleged ill-treatment by the police

1. The applicant’s version of events

According to the applicant, on 29 December 2002 he was arrested by the police on suspicion of having committed the murders. As he denied his responsibility for the murders during his questioning at the police station, ten police officers, including officer S., tortured him with the aim of forcing him to confess to having committed the crimes. In his application to the Court the applicant initially stated that his ill-treatment had included beatings, the administration of electric shocks, hanging over a horizontal crowbar while handcuffed with his head pointing downwards (the applicant called this ill-treatment “lom” (лом)) and suffocation using a gas mask. In his observations dated 7 February 2012, prepared with the assistance of his representative, the applicant stated that the police officers had suffocated him using a gas mask which had not left any visible traces on his body or face and thus during his medical examination on 30 December 2002 no injuries had been noted (see paragraph 19 below). As a result of his il-treatment, the applicant had lost consciousness several times and had eventually confessed to having committed the crimes. In particular, the applicant signed a confession which he claimed had been written by his wife and the investigator.

Subsequently, the police officers explained to the applicant how the murders had been committed. Under threat of torture the applicant repeated that version of the events during a crime scene reconstruction on 30 December 2002 which was recorded on video.

Some time later the applicant was questioned by the investigator. During the questioning session the applicant was given alcohol to drink and was forced to sign verbatim records which he did not read.

The applicant was not assisted by a lawyer during the crime scene reconstruction and the questioning session.

After questioning the applicant was taken to Myronivka police temporary detention centre (“the ITT”).

During his detention in the ITT from 30 December to 2 January 2002 the applicant was severely beaten up by unspecified police officers. They also administered electric shocks to him, suffocated him using a gas mask and subjected him to “lom” in order to force him to sign a number of other documents prepared by the police. As a result of the ill-treatment, the applicant suffered an injury to his arm which was discovered about seven months later (see paragraph 39 below).

The applicant argued that the police officers had had no qualms about torturing him, as they had already obtained a medical certificate stating that no injuries had been discovered on the applicant’s body. The applicant had not been medically examined in the ITT.

The applicant stated that during his detention in the ITT his complaints of ill-treatment and of the use of unlawful methods of investigating the case had been blocked by the investigator and the administration of the ITT, and that he had only been given an opportunity to raise those complaints at trial.

In support of his complaints of torture, the applicant submitted a letter which he claimed had been written by his father on 20 December 2007, stating that on 10 March 2003 his father had visited him in the ITT and had noted that he had suffered multiple injuries to his face and arms and that his arms had not been “functioning”. According to that letter, the applicant had informed his father that he had been tortured by the police.

The applicant also submitted a letter which he stated had been written on 11 March 2008 by a person who had seen him at the pre-trial detention centre in Kyiv (“the SIZO”) in September 2003. In the letter it was stated that the applicant had had an open wound of about 5 cm on his left arm and had said that he had been tortured by the police.

2. The Government’s version of events

According to the Government, on 30 December 2002 the applicant confessed in writing to the police that he had murdered three people and indicated that the murder weapons were in his rented house. In the course of a search subsequently conducted in that house on the same day, he voluntarily handed over to police officers a knife, an axe and a grey jacket, which he said he had worn during the murders. The axe and the jacket had had blood stains on them and the jacket had smelt of smoke. Subsequently, the applicant expressed the wish to be questioned in the presence of a lawyer. Accordingly, the investigator appointed Mr K. to act as the applicant’s lawyer. During the applicant’s questioning in the lawyer’s presence, the applicant confirmed his confession.

Some time later on 30 December 2002 the applicant underwent a medical examination, which did not reveal any injuries on his body. The Government submitted that the applicant had not been tortured by the police.

B. The criminal investigation and trial

Criminal proceedings against the applicant were instituted on 30 December 2002. On the same date the investigator ordered the applicant’s detention pursuant to Article 115 § 3 of the Code of Criminal Procedure of 1960.

Mr K., who had been appointed to represent the applicant earlier that day, continued assisting the applicant until the completion of the investigation. During the trial the applicant was represented by a different lawyer. According to the applicant, the lawyers did not visit him during his detention in the ITT and then, from September 2003 onwards, in the SIZO.

On 2 January 2003 the Myronivka Court remanded the applicant in custody in view of the pending criminal investigation against him. The applicant remained in detention for the entire duration of the criminal proceedings against him.

During the court hearing on 2 January 2003 the applicant confirmed that he had committed the murders.

On an unspecified date in January 2003 the applicant met with a prosecutor, whom the applicant claimed he told that he had not committed the crimes. The applicant did not complain to the prosecutor of ill-treatment by the police. As the applicant explained during the trial, he had not “wished” to complain to the prosecutor.

On several occasions in December 2002 and January 2003 police officers and the investigator questioned the applicant’s wife concerning the case. During questioning she stated that she had been with the applicant at the scene of the crimes on 21 and 22 December 2002 and had witnessed part of the events, including a fight between the applicant and the victims. During the trial the applicant’s wife stated that the victims had been murdered by the applicant in her presence because she had had an affair with one of the victims, a fact of which the applicant had become aware shortly before the murders.

On 9 January 2003 the investigator carried out a confrontation between the applicant and his wife. According to the verbatim record of the confrontation, the applicant confirmed his wife’s statements concerning his responsibility for the murders and also confirmed his confession. According to the applicant, the investigator forced him to sign the verbatim record and his lawyer was not present during the confrontation.

During questioning later on 9 January 2003 the applicant retracted his confession.

On 1 July 2003 the applicant was informed of the completion of the investigation. On the same date the prosecutors drew up an indictment, accusing the applicant of murdering three people.

On 11 July 2003 the case was referred to the Kyiv Region Court of Appeal for trial.

On 17 July 2003 the court held a hearing in which the applicant and his lawyer took part.

During the hearing the applicant denied having committed the murders.

In particular, the applicant submitted that between 21 and 22 December 2002 he had stayed in his rented house, which was in the vicinity of where the murders had been committed, as he had had flu. On 23 December 2002 he had gone to work in Kyiv. However, he had decided to return home on the same day, having lied to his colleagues that his aunt had died. He had lied “in order to return home”. At about 6 p.m. on 29 December 2002, he had been taken from home to the police station together with his wife. At the police station his wife had been questioned separately from him, though he had heard that she had been beaten up and intimidated by police officers. He had been taken to a gym in the police station where ten police officers, including officer S., whom he knew personally, “had hanged [him], punched [him] in the torso and put a gas mask [on his face]”. Police officers and the investigator had forced him to sign a confession and they had explained to him how the murder had been committed. He had then been taken to the crime scene, where he had repeated the version of the events he had been told by the police officers. The police officers and the investigator had also forced him to sign fabricated verbatim records containing self-incriminating statements. He had complained about the ill-treatment to his lawyer and the investigator, but to no avail. According to the applicant, the investigator dealing with the case had been personally biased as he had had a dispute with the applicant in January 2002.

The applicant also argued that his confession had been obtained without a lawyer being present and that the search in his rented house, during which the physical evidence had been found, had also been carried out without a lawyer having been present.

When replying to questions put to him by his lawyer, the applicant stated that he had “broken” his arms when he had served in the Army in 1983-1985.

During hearings on 18 and 21 July 2003 the applicant and his lawyer asked the court to call a number of witnesses, the applicant’s colleagues from work, who had been questioned at the pre-trial stage of the proceedings. The applicant argued that they could confirm that he had bought the jacket seized in his rented house on 23 December 2002, namely after the date on which the murders had been committed.

The court decided to summon those witnesses and ordered the police to bring them to court. The court also ordered the prosecutors to carry out an inquiry into the applicant’s allegations of police torture and bias on the part of the investigator.

During a hearing on 28 July 2003 the court noted that, according to the police, the witnesses’ whereabouts were unknown and that it had been impossible to bring them to the hearing (the witnesses were absent from their registered places of residence, as they had left to work elsewhere - two people having gone to Chernobyl, Ukraine, and one to Moscow, Russia). Hence, the court decided to review the witnesses’ statements obtained at the pre-trial stage instead of hearing them in person. Neither the applicant nor his lawyer objected to this or challenged the trustworthiness of the witnesses’ statements, except that the applicant claimed that, contrary to the statements of two of the witnesses, when leaving his place of work on 23 December 2002 he had taken a jacket and not his work tools with him.

During the hearing on 28 July 2003 the court questioned the investigator, the lawyer who had represented the applicant during the investigation, and the applicant concerning the applicant’s complaints of ill-treatment by the police and the investigator’s bias. The investigator denied the alleged ill-treatment or that he had been personally biased towards the applicant; the lawyer and the applicant confirmed that they had not raised such allegations before the authorities at the pre-trial stage. The lawyer also stated that the applicant had not complained to him of ill-treatment.

On the same date the prosecutors issued a decision refusing to institute a criminal investigation into the applicant’s complaints. The prosecutors found no fault on the part of the police or the investigator. In particular, they noted that the applicant had not complained of police torture during the investigation; that, according to police officer S., although the applicant had initially denied responsibility for the murders, after having been confronted with witness statements to the contrary the applicant had voluntarily agreed to confess; and that police officers from the Myronivka police station had stated that the applicant had not been ill-treated. The prosecutors also noted that, according to an X-ray examination which the applicant had undergone earlier on 28 July 2003, his lower left wrist had become deformed as a result of a fracture of the left arm not healing properly. According to the prosecutors, the applicant had informed them that he had injured both of his arms during his service in the Army.

As to the applicant’s allegation of bias on the part of the investigator, the prosecutors noted that, according to the investigator, the applicant had been his neighbour and the investigator had not had a dispute with the applicant. The prosecutors further noted that no objection had been raised concerning the investigator’s dealing with the case during the pre-trial proceedings.

During a hearing on 29 July 2003 the court examined the prosecutors’ decision of 28 July 2003. Neither the applicant nor his lawyer raised objections against it.

During that hearing the applicant and his lawyer agreed that the examination of evidence could be completed. At that time they did not suggest that it was incomplete because of defence witnesses not having been questioned in court.

On 5 August 2003 the Kyiv Region Court of Appeal found the applicant guilty of aggravated murder and wilful destruction of property and sentenced him to life imprisonment. In particular, the court found that on 21 December 2002 the applicant had murdered three people with the knife and the axe in the presence of his wife at the house of one of the victims. The applicant had committed the murder because he had been jealous of the relationship between one of the victims and his wife. On 22 December 2002 the applicant and his wife had returned to the scene of the crime and the applicant had poured gasoline which he had taken from his rented house over the bodies and had set them on fire.

The applicant’s conviction was mainly based on the statements of his wife made during the court hearings. The court noted that the inconsistencies in her statements during the investigation and trial could be explained by the fact that she had been concerned for the applicant’s future because he was the father of their child. The court also noted that the applicant’s wife had denied having been forced to make those statements and that the applicant’s submissions to the contrary were baseless. Her version of events had been partly confirmed by several forensic examinations concerning the way in which the victims had been murdered.

The court also relied on the self-incriminating statements obtained from the applicant during the investigation, having noted that the reliability of the verbatim records of the applicant’s questioning at the pre-trial stage had been confirmed by the investigator and the lawyer who had represented the applicant at that stage, that the material evidence had been collected in accordance with procedure and that the crime scene reconstruction had been carried out in the presence of the applicant’s lawyer and two attesting witnesses. As the applicant had been arrested after the search, it had not been unlawful for him to have not been assisted by a lawyer during the search.

The court rejected as groundless the applicant’s objections concerning the physical evidence, including the knife, his shoes and jacket - which had been stained by blood that, according to experts, could have belonged to the victims. As regards the applicant’s statement that he had brought the jacket home from work on 23 December 2002, the court noted that this had been disproved by the testimony of the applicant’s wife and also by the statements of the applicant’s work colleagues, which had been examined during the trial.

As to the applicant’s complaints of police torture and the investigator’s bias, the court noted that neither the applicant nor his lawyer had raised such complaints at the pre-trial stage and held that they had been disproved by the results of the prosecutors’ inquiry.

The court also noted that during the proceedings the applicant had made inconsistent and contradictory statements concerning the events.

The court further relied on the statements of a number of other witnesses questioned during the trial, including the owner of the applicant’s rented house who had stated that a gasoline can had been missing from the house and the father of one of the victims, who had stated that his late son had had an affair with the applicant’s wife.

The court rejected as lacking credibility the applicant’s daughter’s statements to the effect that the applicant had not left the house between 21 and 22 December 2002, having noted that during the trial she had acknowledged having difficulties recollecting the events of December 2002 clearly.

On 20 August 2003 the applicant lodged an appeal in cassation with the Supreme Court. Subsequently, the applicant amended it on several occasions. In his appeal the applicant focused his arguments on his disagreement with the factual findings of the first-instance court and stated that his wife had given false statements against him. The applicant also stated that that his colleagues could have confirmed that he had brought the jacket with him from work in Kyiv on 23 December 2002 and that his other clothes had also smelt of smoke. According to the applicant, this would have demonstrated that the blood-stained jacket should not have been used as evidence of his guilt. The applicant noted that those witnesses had not been questioned during the trial.

The applicant further complained that during the pre-trial proceedings he had not been allowed to choose his lawyer and that the lawyer appointed to represent him by the investigator had had a “preconceived” attitude towards his duties and had not been “interested in defending” him. The applicant stated that no lawyer had been present during the search of his rented house on 30 December 2002 and that his lawyer had not attended a number of unspecified investigative actions.

The applicant also complained that his self-incriminating statements made at the pre-trial stage had been obtained under torture and that he had not signed verbatim records of his questioning because his arms had been injured as a result of the “lom” ill-treatment. According to the applicant, the investigator had attached a pen to one of his arms with adhesive tape and had manipulated the arm in order to reproduce the applicant’s signatures on the documents.

On 27 November 2003 the Supreme Court upheld the conviction, having found, inter alia, that the applicant’s allegations of breaches of criminal procedure were unfounded.

A prosecutor was present at that hearing. According to the applicant, the authorities had failed to escort him to the Supreme Court, although he had asked to attend the hearing. The applicant did not provide any documents or further details in that regard.

On 14 March 2007 the applicant was transferred to Sokal Correctional Colony to serve the remainder of his sentence.

According to an undated letter from the Governor of the Sokal Correctional Colony, during his detention in the Colony the applicant had not met with his relatives, though he had received parcels and packages from his father.

C. The application to the Court

After the applicant lodged his application with the Court, he was invited to submit copies of various documents from the domestic case file, including a copy of his appeal in cassation and copies of documents pertinent to his allegations of ill-treatment. According to the applicant, he made several requests for such documents. The requests were refused by the Supreme Court as having no legal basis.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that he had been tortured by police officers in December 2002 and January 2003. He 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.”

The Government contended that this complaint was inadmissible. They argued that the applicant had not exhausted domestic remedies, as he had not challenged the prosecutors’ decision of 28 July 2003 before the courts - either in the course of the trial or by lodging a separate claim. They further submitted that the complaint was also time-barred, as the application had been lodged more than six months after 29 July 2003, the date on which the applicant had familiarised himself with the prosecutors’ decision of 28 July 2003.

As to the substance of the applicant’s complaint under Article 3 of the Convention, the Government argued that there was no evidence demonstrating that the alleged ill-treatment had taken place. According to them, the applicant’s medical examination on 30 December 2002 had not revealed any injuries on his body; during his detention in the ITT the applicant had not asked for medical treatment; the applicant had not raised a complaint of ill-treatment during the court hearing on 2 January 2003; the lawyer who had represented the applicant during the trial had confirmed that the applicant had not complained of ill-treatment prior to 17 July 2003; once the applicant had raised such a complaint the prosecutors had carried out an inquiry and had concluded that it had been baseless.

The applicant stated that he had not been informed of his ability to appeal against the prosecutors’ decision of 28 July 2003. Thus, he had pursued the complaint of ill-treatment in his appeal in cassation, which he had considered to be an effective remedy. For those reasons, the applicant argued that his complaint should not be rejected as inadmissible. He further argued that prior to 17 July 2003 he had not had an opportunity to complain of his ill-treatment, as his complaints had been blocked by the administration of the ITT. He had not been able to collect medical evidence in support of his allegations, as the ill-treatment to which he had been subjected prior to his medical examination on 30 December 2002 had not left marks on his body or face, while he had not been medically examined at the ITT. According to the applicant, the injuries which had been discovered during his medical examination on 28 July 2003 (see paragraph 39 above) had resulted from the alleged ill-treatment.

The Court notes that, having regard to its approach in similar cases against Ukraine and the circumstances of the present case, the applicant’s allegation of police torture may not be rejected for non-exhaustion of domestic remedies or for having been lodged out of time (see Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012). However, the Court considers that this complaint is in any event manifestly ill-founded, as the applicant did not demonstrate in a persuasive way that he was ill-treated by the police. In particular, the Court notes that there is no medical evidence in support of the applicant’s allegations. No injuries which could have been inflicted on the applicant during his detention were discovered during the applicant’s medical examinations in December 2002 and July 2003. The health problems noted during the applicant’s examination on 28 July 2003 appear to be related to the injuries to his arms that he suffered long before the events in question. This was established by the prosecutors who dealt with the applicant’s complaints and matched the applicant’s submissions made during the trial (see paragraphs 34 and 39 above). During the trial the applicant did not challenge the accuracy of the prosecutors’ findings.

The Court further notes that the applicant’s submissions concerning the events of 30 December 2002 lack consistency. In particular, although the applicant initially alleged that police officers had beaten him up, had subjected him to “lom” ill-treatment and had administered electric shocks to him, in his later submissions, prepared with the help of his lawyer, the applicant actually retracted those allegations (see paragraph 8 above).

The Court also notes that the applicant did not make notable attempts to raise the allegation of ill-treatment before the trial started. In particular, the applicant had not raised that allegation when he had met with a prosecutor or when he had been brought before a judge in January 2003, while the applicant did not suggest that he had been prevented from so doing (see paragraphs 22-24 above). Furthermore, during the trial the lawyer who had represented the applicant at the investigation stage stated that the applicant had not complained to him of ill-treatment (see paragraph 38 above).

In the light of the foregoing, the Court finds that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

The applicant complained that the proceedings in his case had been unfair, stating in particular that his conviction had been based on false evidence and self-incriminating statements obtained under torture, that the courts had refused to call defence witnesses or allow him to put questions to the prosecution witnesses, including the father of one of the victims, and to the experts, and that his appeal in cassation had been heard in his absence. He relied upon Article 6 §§ 1 and 3 (d) and Article 13 of the Convention.

The applicant also stated that during the proceedings before the first-instance court a number of witness statements had not been accurately noted in the case documents, many of his procedural requests had been ignored, and he had not been given sufficient time to familiarise himself with the experts’ findings and transcripts of the hearings.

In his submissions made on 7 February 2012, the applicant further complained under Article 6 §§ 1 and 3 (c) of the Convention of a violation of his right to mount a defence. In particular, he stated that his confession on 30 December 2002 had been obtained in the absence of a lawyer and that no lawyer had been present during the search of his rented house on that date. The applicant also argued that the Supreme Court had failed to address those issues, although they had been raised in his cassation appeal. According to the applicant, the Supreme Court had also failed to provide him with free legal aid, which, given his lack of funds, the seriousness of the matters at stake and the nature of the cassation appeal proceedings, had been necessary in his case. The applicant argued that domestic law had not provided for a procedure whereby a legal aid lawyer could have been appointed at that stage of the proceedings.

The Court considers that the applicant’s complaints of an unfair trial fall to be examined solely under Article 6 of the Convention, the relevant provisions of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(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;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The Government submitted that the applicant had not raised the complaint concerning his inability to question some of the witnesses (the applicant’s work colleagues) before the Supreme Court and had therefore not exhausted domestic remedies in that respect. They also argued that the application which the applicant had lodged with the Court in 2004 had not contained complaints of a violation of the applicant’s right to mount a defence at the pre-trial stage or during the proceedings before the Supreme Court. According to them, there was no evidence that the applicant had informed that court of his intention to take part in the hearing on his appeal.

The applicant disagreed with the Government’s first argument, stating that in his amended cassation appeal he had complained that his colleagues, who could have confirmed that he had brought the jacket with him to work in Kyiv on 23 December 2002 and that his other clothes had smelt of smoke, had not been questioned during the court hearings. The applicant did not reply to the Government’s submissions concerning the alleged violation of his right to mount a defence and his absence from the hearing before the Supreme Court.

At the outset, it is to be noted that the applicant’s complaint about the alleged violation of his right to mount a defence was first raised before the Court in his observations submitted in February 2012, while the domestic proceedings were completed in November 2003. Thus, this part of the complaints under Article 6 of the Convention was lodged out of time.

The Court further notes that, having regard to its findings concerning the applicant’s complaint under Article 3 of the Convention (see paragraph 66 above), the applicant’s allegation under Article 6 of the Convention that his self-incriminating statements were obtained under torture is without basis.

The Court observes that the applicant failed to raise the complaint of his inability to put questions to the prosecution witnesses in his cassation appeal and did not demonstrate, in a substantiated and persuasive way, that he had informed the Supreme Court of his wish to take part in the hearing on his appeal. Thus, those matters were not dealt with at the domestic level as a result of the applicant’s own failures. The Court accordingly will not examine them on the merits.

The Court further observes that the applicant did not raise before the Supreme Court, at least in a detailed and comprehensive way, his complaints concerning other irregularities during the proceedings before the first-instance court (see paragraph 68 above).

Even assuming that the applicant complied with the requirement of exhaustion of domestic remedies as regards his complaint that the first-instance court failed to ensure that defence witnesses were questioned during the trial, the Court considers that it must be rejected as unsubstantiated. In particular, the Court notes that the witnesses whom the applicant asked the trial court to summon had been questioned at the investigation stage. Their statements were examined in the presence of the applicant and his lawyer, who had been given sufficient opportunity to challenge them. Given the applicant’s submissions during the trial, the statements were considered to be generally accurate. Although the applicant argued that the witnesses could have confirmed his argument that the blood-stained jacket should not have been accepted as evidence, he did not demonstrate that, had they done so, their statements would have had any decisive effect on the outcome of the trial. The Court notes that the jacket was only part of a substantial amount of evidence on which the applicant’s conviction was based. The Court also notes that certain efforts were made by the trial court and the police in order to have those witnesses questioned at a hearing (see paragraphs 36-37 above). While there may be a question as to the sufficiency of the authorities’ efforts, it appears that the witnesses were not immediately available when the police looked for them. Thus, in the circumstances, the Court discerns no arbitrariness in the trial court’s decision to proceed with the case without hearing those witnesses in person, against which the applicant did not object (see paragraph 42 above). The fact that the Supreme Court did not specifically address the applicant’s submissions in this regard does not demonstrate that the examination of the case on cassation was not thorough or comprehensive. It was the conclusion of that court that the applicant’s trial had been conducted in accordance with applicable procedure. Having regard to the nature of the applicant’s submissions in his cassation appeal, the Court is not persuaded that the Supreme Court was required to provide more details in that respect.

On the whole, the Court finds no fault with the way in which the courts dealt with the evidence before them or with the adequacy of the reasons which they based their decisions on in the applicant’s case. Any limitations which might have been imposed on the rights of the defence were not such as to deprive the applicant of a fair trial.

It follows that this part of the application must be declared inadmissible in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

The applicant complained that the authorities had denied him the opportunity to obtain copies of documents from his case file which he had wished to submit to the Court in substantiation of his application. 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 Government contended that Ukraine had complied with Article 34 of the Convention. They argued that the applicant could have obtained copies of the necessary documents with the help of his relatives, with whom he had maintained contact, and that the situation in the present case was analogous to that of Chaykovskiy v. Ukraine (no. 2295/06, §§ 96-97, 15 October 2009). They further argued that the Supreme Court had acted in accordance with the law; that the applicant should have submitted his requests to the Kyiv Region Court of Appeal, which had been the court of first instance in the applicant’s case and thus could have provided the applicant with the requested documents; and that the applicant had not sought copies of documents pertinent to his allegations of police torture.

The applicant contested the Government’s submissions. In particular, he stated that after his conviction his relatives had refused to help him; that he had not had a lawyer or money to hire a lawyer; and that he had thus been fully dependant on the authorities in his efforts to substantiate his application to the Court.

The Court observes that, while it remains unclear whether the applicant asked the authorities to provide him with copies of all the documents in accordance with the Court’s instructions, the applicant’s request for copies of his cassation appeal was refused by the Supreme Court as not having a legal basis. The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine. In particular, in Vasiliy Ivashchenko v. Ukraine (no. 760/03, § 123, 26 July 2012) the Court found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case documents after the completion of criminal proceedings, either by making such copies themselves, whether by hand or using appropriate equipment, or by having the authorities make copies for them.

In the present case the Government did not provide any reason for the Court to depart from its findings under Article 34 of the Convention in Vasiliy Ivashchenko (cited above). Notably, in that case the applicant, who, like the applicant in the present case, had maintained contact with one of his relatives, submitted requests for copies of documents to the trial court, but to no avail.

Accordingly, the Court concludes that the respondent State 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.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention of the unlawfulness of his pre-trial detention and the authorities’ failure to bring him promptly before a judge after his arrest. He also complained that for about a month after his conviction he had remained in the ITT, while he should have been taken to the SIZO.

The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

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 100,000 euros (EUR) in respect of non-pecuniary damage.

The Government did not comment.

The Court, ruling on an equitable basis, awards the applicant EUR 3,000 under this head.

B. Costs and expenses

The applicant also claimed 65,188.25 Ukrainian hryvnias (UAH)[1] for legal costs and UAH 112.75[2] for postal expenses incurred before the Court. The applicant asked for those sums to be paid directly into the bank account of his representative. The sum requested to cover legal costs was based on a rate of UAH 1,540[3] per hour, though it was not specified whether it included taxes. According to the applicant, his representative had had to spend over forty-two hours studying the case materials and preparing observations and just satisfaction claims.

The Government did not comment.

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, the Court notes that the only arguable complaint concerned a straightforward matter, which did not require extensive legal research or reasoning (see paragraphs 82-84 above). The Court further notes that the applicant’s representative has already been paid EUR 850 under the Court’s legal aid scheme. Regard being had to the nature of the factual and legal issues examined and the representative’s involvement in the case, the Court considers that it is not necessary to award any additional sum under this head.

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

1. Declares the applicant’s complaints under Articles 3, 5, 6 and 13 of the Convention inadmissible;

2. Holds that the respondent State 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;

3. 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 3,000 (three 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LOBAS v. UKRAINE - 21380/04 - Chamber Judgment [2013] ECHR 1102 (07 November 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1102.html Cite as: [2013] ECHR 1102