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NAYDYON v. UKRAINE - 16474/03 [2010] ECHR 1519 (14 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1519.html
Cite as:
[2010] ECHR 1519
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FIFTH
SECTION
CASE OF NAYDYON v. UKRAINE
(Application
no. 16474/03)
JUDGMENT
STRASBOURG
14 October
2010
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 Naydyon v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16474/03) 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 Vladimir Nikolayevich
Naydyon (“the applicant”), on 22 April 2003.
Between
25 March and 31 July 2008 Mr A. Bushchenko, a lawyer practising
in Kharkiv, represented the applicant in the proceedings before the
Court. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
On
26 November 2007 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1962 and is currently serving a prison sentence
at the Yenakiyeve Town Correctional Colony (Prison) No. 52, the
Donetsk Region (“the Yenakiyeve Colony”).
A. The arrest and detention of the applicant
On
23 November 1999 the applicant was arrested by the police on
suspicion of burglary. According to the applicant, during his
detention from 23 to 25 November 1999 and subsequent interrogations,
which took place at the police station, he was subjected to various
forms of ill-treatment, the aim of which was to extract a confession
for grave crimes, including murder and burglary. The applicant
maintained that he had received multiple bruises and abrasions on his
head and body and that several ribs and teeth had been broken. The
applicant did not have access to a doctor and the alleged injuries
were not recorded.
On
25 November 1999 the applicant was given access to an official
defence lawyer, appointed by the authorities, who continued to
represent him until the completion of the proceedings. On the same
day the applicant was transferred to the Mariupol Town Temporary
Detention Centre (“the Mariupol ITU”).
On
29 November 1999 the applicant was transferred to the
Mariupol Pre-Trial Detention Centre No. 7 (“the Mariupol
SIZO”).
According
to the applicant, he complained to the prosecutors that he had been
ill-treated. His complaint was allegedly rejected as unsubstantiated
by the Deputy Prosecutor of the Donetsk Region on 12 April 2000 and
he did not challenge that decision before the courts. No copy of the
decision was submitted to the Court. The Government did not contest
these submissions, though they provided a copy of the letter from the
General Prosecutor’s Office of 24 January 2008 by which the
Government Agent had been informed, inter alia, that the
applicant had not lodged any complaints with the Donetsk Regional
Prosecutor’s Office claiming that unlawful investigation
methods had been applied in his case (see paragraph 31 below).
In
the course of his trial the applicant maintained his complaint of
ill-treatment. In particular, the applicant alleged that his
confession for having committed some of the crimes with which he had
been charged had been obtained under duress. In his submissions
before the courts the applicant referred to the decision of
12 April 2000, indicating where it was to be found in the
domestic case file. While the Donetsk Regional Court of Appeal gave
no reply to the applicant’s complaint, the Supreme Court, in
its decision of 26 September 2002 (see below), held, in general
terms, that there was no evidence that the applicant’s
statements had been obtained in an arbitrary manner. The relevant
parts of that decision read as follows:
“... Naydyon disagrees with [his] conviction, as,
in his view, it is harsh, partial and unfair. [According to him] the
case was heard with the accusatory inclination; the force was used
during [his] questioning; [he was] questioned in a misleading manner;
[and] he did not organise a [criminal] group ...
Having heard the judge-rapporteur, the prosecutor ...
having examined the case materials, and having discussed the
arguments in the cassation appeals, the panel of judges concluded
that the appeals shall not be allowed ...
There is no evidence that the statements of the
convicted were obtained in a misleading or in any other unlawful
manner.
...”
On
22 July 2001 the applicant was transferred to the Donetsk Pre Trial
Detention Centre No. 5 (“the Donetsk SIZO”), where he was
held at least until 10 July 2004, when he was transferred to the
Yenakiyeve Colony in which he is now serving his sentence. During his
detention in the Donetsk SIZO the applicant requested and
subsequently received dental treatment on one occasion and he also
had his lungs x-rayed and examined in May 2003 and January 2004. He
did not request any other medical aid.
According
to the applicant, the conditions of his detention in the Donetsk SIZO
were poor, he was not provided with food of adequate quality and
there was a person with mental health problems detained in the same
SIZO building with him.
B. The applicant’s trial
On
31 May 2000 the pre-trial investigations in the applicant’s
case were completed and the case was subsequently referred to the
Donetsk Regional Court of Appeal.
According
to the applicant, in the course of the court proceedings, he asked
for several witnesses to be called and examined on his behalf. He
received no reply to his request.
On
19 July 2001 the Donetsk Regional Court of Appeal, acting as a court
of first instance, found the applicant, together with three other
persons, guilty of crimes committed in 1998-99, including several
counts of aggravated murder, burglary and sexual intercourse with a
minor. The court sentenced the applicant to life imprisonment and
confiscated all his property. The court based its judgment on the
statements made before it by the defendants and their statements
obtained during the pre-trial investigations in which they had
confessed to having committed some of the crimes with which they had
been charged; the statements of ten victims and witnesses heard by
the court and the written statements of six other victims and
witnesses obtained in the course of the pre-trial investigations; and
the reports of fifteen experts.
The
applicant’s lawyer and the applicant himself lodged separate
appeals in cassation with the same court.
The
lawyer alleged that the first-instance court had erred in the
assessment of evidence and had not applied the law correctly in the
case.
The
applicant complained that the first-instance court had failed to
summon witnesses on his behalf or the expert on whose conclusions the
applicant’s conviction of sexual intercourse with a minor had
been based. The conclusions concerned the state of sexual development
of the victim. In his appeal in cassation the applicant further
alleged that the court had refused to take into account his
allegations of torture during his detention and subsequent
interrogations in November 1999 and that it had not examined his
submissions concerning various procedural violations committed by the
authorities in the course of the pre-trial investigations.
On
26 September 2002 the Supreme Court partly amended the judgment of 19
July 2001. However, the applicant’s conviction and sentence
remained unchanged. The Supreme Court found that the judgment had
been well-founded and that there had been no procedural
irregularities during the investigation or trial. The Supreme Court’s
decision was communicated to the applicant on 25 October 2002.
C. The application to the Court
On
17 April 2003 the applicant sent his first letter to the Court and
the application form was received on 30 September 2003. In support of
his application the applicant submitted copies of the court decisions
in his criminal case, his lawyer’s appeal in cassation and
several letters from the authorities which the applicant had received
in reply to his complaints that his conviction had been unlawful.
In
the letters, which the Court received from the applicant in 2003, he
alleged that the staff of the Donetsk SIZO had often refused or
substantially delayed the dispatch of his letters, including the
application form, addressed to the Court; that they had refused to
provide him with copies of the documents which he had intended to
submit to the Court (the applicant’s complaints and procedural
requests made in the course of his trial and the courts’
replies to the applicant’s submissions); and that they had put
psychological pressure on the applicant asking him not to complain
about the SIZO authorities. The applicant maintained that, because of
his application to the Court, he was placed in a cell with a person
suffering from the open form of tuberculosis. As a consequence, he
was at risk of being infected with this disease.
On
27 October 2003 the Court invited the Government to submit factual
information with respect to allegations contained in the applicant’s
letters to the Court.
By
letter dated 3 December 2003, the Government informed the Court that
there had been no interference with the applicant’s
correspondence. They submitted copies of the Donetsk SIZO’s
register of incoming and outgoing correspondence and the applicant’s
written statements addressed to the State Penitentiary Department, in
which he had acknowledged that he had had no complaints against the
Donetsk SIZO authorities and that his letters had been dispatched
without delay.
In
his letters of 22 November and 12 December 2003 the applicant alleged
that on 5 November 2003 the deputy governor of the Donetsk SIZO had
told him to write such statements.
In
his letter of 22 May 2006 the applicant stated that in July 2004,
just before his transfer to the Yenakiyeve Colony, an unspecified
member of staff of the Donetsk SIZO had made threats against him in
order to prevent him complaining about the SIZO authorities.
By
letter dated 7 July 2006, the Court asked the applicant to submit
documentary evidence in respect of his complaints under Articles 3
and 6 of the Convention. In particular, the applicant was invited to
submit copies of his complaints made to the national authorities
concerning the alleged ill treatment and copies of their replies
to such complaints concerning the events of 23-25 November 1999, a
copy of his appeal in cassation against the judgment of the Donetsk
Regional Court of Appeal of 19 July 2001 and copies of his written
requests to have witnesses examined by the latter court on his
behalf.
By
letter dated 1 August 2006, the applicant asked the Donetsk Regional
Court of Appeal to send him copies of his appeal in cassation, the
reports on his confrontation with four police officers who had
allegedly ill treated him, his complaint to the Donetsk Regional
Prosecutor stating that he intended to submit those copies to the
Court in substantiation of his application and the latter’s
reply.
In
its reply of 14 August 2006, the court refused to provide copies of
the requested documents because the applicant’s request had no
basis in domestic law.
By
letter dated 8 December 2006, the applicant requested the same court
to send him copies of his complaints to that court about the
allegedly unlawful investigations in his case.
The
applicant received no reply to his latter request.
On
13 June 2007 the applicant sent a third letter to the court of
appeal, requesting copies of the same documents from his case file.
On 3 July 2007 he received a reply from the deputy president of
the Donetsk Regional Court of Appeal. In that letter, he was informed
that his request had been refused on the ground that, because his
conviction had become final, he was entitled to receive copies only
of the courts’ decisions in his criminal case. According to the
deputy president of that court, no copies of other documents from the
case file were allowed to be sent to the applicant.
On
26 November 2007 the Court invited the Government to submit written
observations on the admissibility and merits of the case (see
paragraph 3 above). They were also requested to submit a copy of the
applicant’s appeal in cassation and relevant documents
concerning his complaints about the alleged ill-treatment to the
national authorities, copies of their replies to such complaints, and
copies of his written motions to have witnesses on his behalf
examined by the Donetsk Regional Court of Appeal.
On
29 February 2008 the Government sent to the Court their observations
on the case and copies of the applicant’s appeal in cassation
of 31 August 2001 together with written amendments to his appeal
dated 29 July 2002, copies of the applicant’s letters to
the president of the Donetsk Court of 9 and 20 February 2001
requesting copies of documents from his case file, and a copy of the
letter from the General Prosecutor’s Office of 24 January 2008
by which the Government Agent had been informed, inter alia,
that the applicant had not lodged any complaints with the Donetsk
Regional Prosecutor’s Office claiming that unlawful
investigation methods had been applied in his case. The Government’s
observations were subsequently forwarded to the applicant.
On
25 March 2008 the applicant informed the Court that he had found a
lawyer to represent him in the proceedings before the Court and asked
for legal aid. On 27 May 2008 the President of the Chamber decided
that legal aid should be granted to the applicant for his
representation before the Court. The lawyer prepared and submitted
observations to the Court on behalf of the applicant. By a letter of
31 July 2008, the applicant informed that he did not wish the lawyer
to continue representing him before the Court.
II. RELEVANT LAW AND PRACTICE
A. Domestic law
1. Punishment for particularly serious crimes
The
Criminal Code of 1960 (repealed on 1 September 2001) provided for the
death penalty as an exceptional type of punishment for particularly
serious crimes, including aggravated murder.
By
a judgment of 29 December 1999, the Constitutional Court held that
the provisions of the Criminal Code concerning the death penalty were
contrary to the Constitution of Ukraine. On 22 February 2000 those
provisions were changed by the Verkhovna Rada, the Parliament, to the
effect that the death penalty was replaced by life imprisonment.
Before the changes of 22 February 2000, the maximum term of
imprisonment under the Code had been twenty years.
2. Access to documents in criminal case files
Under
the Code of Criminal Procedure of 1960, an accused, a defendant,
their defence lawyers or non-legal representatives may familiarise
themselves with materials in the criminal case file at various stages
of the proceedings until their completion (Articles 43, 48, 218, 219,
222, 255, 349, 362, 384 of the Code). When studying the case file
they are allowed to take notes.
According
to section 32 of the Information Act of 1992, citizens have the right
to ask the authorities to provide them with any official document,
whether or not it concerns them, except in cases in which the law
limits access to documents. Copies of the requested documents may be
given against the payment of a fee (section 35 of the Act).
Regulations
on case processing in courts of appeal and local courts of general
jurisdiction, issued by the State Judicial Administration on
6 January and 27 June 2006 (Order nos. 1 and 68), respectively,
provide for a procedure through which persons taking part in court
proceedings may familiarise themselves with case files. In
particular, case files should be studied at a court’s premises
in the presence of a member of the registry. Copies of documents
included in a file, court decisions which have entered into force and
written information notes are issued by registry staff upon a written
request and against the payment of a court fee. Upon approval by the
president or deputy president of a court, a complete case file may be
sent by post to those State bodies which are entitled by the law to
request it.
The
Internal Regulations of Penitentiary Institutions, approved by the
State Department for the Execution of Sentences on 25 December 2003
(Order no. 275), do not allow prisoners to keep any documents,
other than copies of judgments in their criminal cases and
correspondence concerning their application to the European Court of
Human Rights (Annexes 6, 7 and 9 to the Regulations). Further to
amendments made to the Regulations on 14 March 2007, a prison
administration is required to assist prisoners who wish to obtain
copies of documents concerning their applications from the State
bodies. When copies of such documents are received, prisoners should
be allowed to keep them and, if appropriate, to join them to their
applications to the Court (Regulation 43). Under amended Regulation
92, prisoners are to be provided with photocopying services against
the payment of a fee.
B. Law and practice in the Council of Europe member
States
A
comparative survey of national legislation in eighteen of the member
States of the Council of Europe demonstrates that while there are no
specific regulations on prisoners’ access to their case files,
other domestic legal provisions can be relied upon by prisoners to
make a request for access to such documents. The most common
provisions can be found in Codes of Criminal Procedure. This is the
case in seven of the surveyed member States, namely, France, Greece,
Italy, Latvia, Malta, Poland and the United Kingdom. In five member
States, the relevant provisions can be found in Acts on the
Administration of Justice or the Courts, as is the case for Bulgaria,
Denmark, Estonia, Ireland and Turkey. In another four member States,
namely, Georgia, Moldova, the Netherlands and Romania, Access to
Public Information provisions provide the best way for a prisoner to
request such documents. Finally, in one member State, Georgia, the
relevant provisions can also be found in the Administrative Code of
Procedure.
Using
one or more of these legal provisions, a prisoner, who does not have
a person to represent him or her outside the penitentiary
institution, may have access to documents in a criminal case file
once domestic proceedings have ended, usually by way of a written
request to the court for photocopies of the relevant documents to be
sent by post, or, as, for instance, in Poland, consultation of the
file under supervision in prison. In the majority of the surveyed
member States, the photocopies of the relevant documents would have
to be paid for, although in some member States there is provision for
an exemption for charges depending on the means of the prisoner (such
as in Estonia).
C. European Prison Rules
The
relevant extract from the Appendix to the Recommendation Rec(2006)2
of the Committee of Ministers to member states on the European Prison
Rules, adopted on 11 January 2006, reads as follows:
“...Legal advice
...
23.6 Prisoners shall have access to, or be
allowed to keep in their possession, documents relating to their
legal proceedings...”
According
to legal commentary contained in the Council of Europe publication of
the European Prison Rules (2006, p. 52), Rule 23.6 is designed to
assist prisoners by giving them access to legal documents which
concern them. Where for reasons of security and good order it is not
acceptable to allow them to keep those documents in their cells,
steps should be taken to ensure that they are able to access them
during normal working hours.
THE LAW
I. SCOPE OF THE CASE
The
Court notes that, after the communication of the case to the
respondent Government, the applicant complained about the poor
conditions of his detention in the Yenakiyeve Colony and the lack of
medical treatment and assistance for his diseases in the Colony. The
applicant did not invoke any provision of the Convention.
In
the Court’s view, the applicant’s allegations are not an
elaboration of his original complaints to the Court which were lodged
approximately six and a half years earlier and concerned other facts.
The Court considers, therefore, that it is not appropriate to take
these matters in the context of the present case (see Piryanik v.
Ukraine, no. 75788/01, § 20, 19 April 2005).
II. Alleged
violation of Articles 3, 6, 7, 13 and 15 of the Convention
The
applicant complained that he had been tortured by the police between
23 and 25 November 1999. He also complained, in general terms, that
in the Donetsk SIZO he had not received adequate medical aid; that
the food there had been of a poor quality; and that there had been a
person with mental health problems detained in the same SIZO building
with him. The applicant invoked Article 3 of the Convention.
He
next complained that there had been a violation of Article 6 §§
1 and 3 (d) of the Convention, stating that his conviction
had been based on evidence obtained unlawfully, in particular, by
threats and torture, that the courts had refused to call and examine
witnesses on his behalf, and that, in his case, they had assessed the
evidence and applied the law inaccurately.
Invoking
Article 7 of the Convention, the applicant complained that the courts
had sentenced him to life imprisonment, although in 1999, when he had
committed the criminal offences, such punishment had not existed.
He
further submitted that he had been denied an effective remedy in
respect of his complaints that the police had tortured him and that,
in the course of the investigations and trial, there had been certain
procedural shortcomings. He invoked Article 13 of the
Convention.
The
applicant alleged a violation of Article 15 of the Convention
without any further specification.
As
regards the applicant’s complaint of torture during the
pre-trial stage of the proceedings, the Court notes that, having
regard to the parties’ submissions, it is not clear if the
applicant raised it before the prosecutors (see paragraphs 8 and 31
above). Even assuming that the applicant had complained to the
prosecutors and that the latter rejected the complaint as
unsubstantiated on 12 April 2000, the Court observes that he
failed to challenge the prosecutors’ decision through the
relevant court procedure envisaged by the Ukrainian legislation (see
Yakovenko v. Ukraine, no. 15825/06, §§ 71-73,
25 October 2007). Instead, the applicant decided to raise his
complaint of torture before the trial court. The Supreme Court
dealing with the applicant’s appeal against his conviction
dismissed the applicant’s complaint of torture as
unsubstantiated.
Given
the Court’s findings in Yakovenko (cited above), the
Court considers that he cannot be regarded as having exhausted
domestic remedies in respect of his complaint of torture, as required
by Article 35 § 1 of the Convention. Similarly to Yakovenko,
the criminal proceedings against the applicant in the present case
were aimed at finding him innocent or guilty of the criminal charges
levelled against him, rather than attributing responsibility or
affording redress for the alleged ill-treatment.
In
so far as the applicant complained about the conditions of his
detention in the Donetsk SIZO, the Court observes that he was treated
by a dentist and also had his lungs x-rayed and examined after he had
asked for medical aid and there is no evidence that he had required
or asked for any other or additional medical examination or treatment
in the Donetsk SIZO. The applicant’s allegation of poor
nutrition is made in general terms and lacks specification. His
complaint about the presence of a person with mental health problems
in the same building of the Donetsk SIZO is unsubstantiated. In any
event, the applicant did not demonstrate that his alleged moral
suffering in such situation had attained the minimum level of
severity to fall within the scope of Article 3 of the Convention.
Accordingly, the Court finds that this part of the application is
manifestly ill-founded, within the meaning of Article 35 § 3 of
the Convention.
The
Court further observes that the applicant’s complaints under
Article 6 §§ 1 and 3 (d) of the Convention are equally
unsubstantiated. In particular, the applicant failed to prove, either
before the national authorities or before this Court, that his
confessions, on which his conviction had been partially based, had
been obtained under duress. The applicant also failed to demonstrate
that he or his lawyer had used all the procedural means provided for
in Ukrainian law in order to have the witnesses, whom he had
mentioned in his appeal, heard at a public hearing or to show that it
had been necessary for those witnesses to be questioned at the trial
(see Khivrenko v. Ukraine (dec.), no. 65743/01, 25 September
2007). On the whole, the Court notes that the domestic courts of both
judicial instances duly considered and answered the arguments in the
applicant’s defence, based their decisions on a substantial
amount of oral and documentary evidence and provided sufficient
reasoning for their decisions.
As regards the applicant’s complaint that there
had been a violation of Article 7 of the Convention, the Court
observes that the domestic criminal law in force at the time of some
of the applicant’s crimes carried a maximum penalty of capital
punishment for aggravated murder. By the time that the applicant was
convicted in July 2001, the death penalty had been abolished and
replaced by a more lenient penalty, life imprisonment (see paragraphs
33-34 above). Accordingly, the Court cannot conclude that a heavier
penalty, within the meaning of Article 7 of the Convention, was
imposed on the applicant than the one that had been applicable at the
time the criminal offences were committed by him (see Hummatov v.
Azerbaijan (dec.), nos. 9852/03 and 13413/04, 18 May 2006). It
follows that this complaint is manifestly ill-founded, within the
meaning of Article 35 § 3 of the Convention.
Finally,
the Court observes that the applicant’s complaints under
Articles 13 and 15 of the Convention do not disclose any appearance
of a violation of the rights and freedoms set out in these provisions
of the Convention.
In
the light of the foregoing, the Court finds that the applicant’s
above complaints must be rejected as manifestly ill-founded pursuant
to Article 35 §§ 1, 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF THE RIGHT OF INDIVIDUAL PETITION
A. Alleged interference with the applicant’s
correspondence with the Court and his alleged intimidation by
officials of the Donetsk SIZO in connection with his application to
the Court
The
applicant complained that the Donetsk SIZO authorities had obstructed
his correspondence with the Court by refusing to send or by delaying
the postage of his letters. He invoked Article 10 of the Convention.
However,
the Court notes that, given its case-law on the matter (see,
for instance, Klyakhin v. Russia, no. 46082/99, §§
108-110 and 118-123, 20 November 2004),
the applicant’s complaint falls to be examined under
Articles 8 and 34 of the Convention. These provisions read, in so far
as relevant, as follows:
Article 8
“1. Everyone has the right to respect
for ... his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 34
“The Court may receive applications from any
person ... 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
applicant further alleged, without relying on any specific provision
of the Convention, that he had been intimidated by the Donetsk SIZO
authorities in connection with his application to the Court.
The
Court considers that this complaint likewise falls to be examined
under Article 34 of the Convention.
The
Court notes that there is no evidence that the authorities delayed or
stopped the applicant’s letters. Furthermore, there is no
evidence of threats or other concrete attempts to dissuade the
applicant from applying to the Court. He was able to lodge his
application and he continued corresponding with the Court without any
obstacles, except for those with which the Court will deal below.
In
the light of the foregoing, the Court finds that this part of the
application is unsubstantiated. Accordingly, it rejects the
complaints in the context of Article 8 of the Convention as
manifestly ill-founded pursuant to Article 35 §§ 1, 3 and 4
of the Convention and holds that there is no appearance of hindrance
of the exercise of the applicant’s right of individual
petition, within the meaning of Article 34 of the Convention.
B. Refusal to provide the applicant with copies of
documents for his application to the Court
The
applicant complained that the refusal of the domestic authorities to
provide him with copies of documents necessary for substantiating his
application to the Court constituted a violation of his right of
individual petition as provided in Article 34 of the Convention.
1. Submissions of the parties
The
Government submitted that it was the applicant’s fault that he
had not obtained documents from his criminal case file. In
particular, the Government maintained 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 for the
applicant’s subsequent application to the Court. According to
the Government, from the early stages of the proceedings against him,
the applicant had known that he would lodge an application with the
European Court and thus he could have started collecting the
necessary documents before the completion of those proceedings.
They
further submitted that, following the completion of the domestic
proceedings, the applicant could have asked his close relatives or a
hired lawyer to obtain copies of documents for the present
application and could have hired a lawyer to represent him before the
national authorities.
The
applicant disagreed that he was responsible for not collecting
documents for an application to the Court before the completion of
the domestic proceedings. He further submitted that, following his
conviction, his relatives had refused to have contact with him; that
the lawyer who had been appointed to defend him in the domestic
proceedings was under no obligation to assist him in bringing his
case before the European Court; that he had had no money to hire a
new lawyer; and that it was not possible to obtain legal aid for such
purposes under the domestic legislation.
2. The Court’s assessment
(a) General principles emerging from the
Court’s case law
The
Court notes that Article 34 of the Convention imposes an
obligation on a Contracting State not to hinder the right of
individual petition. In particular, this provision requires that
applicants or potential applicants should be able to communicate
freely with the Court without being subjected to any form of pressure
from the authorities to withdraw or modify their complaints (see, for
instance, Sisojeva and Others v. Latvia [GC], no.
60654/00, §§ 115-116, 15 January 2007).
Although
the object of Article 34 is essentially that of protecting an
individual against any arbitrary interference by the authorities, it
does not merely compel States to abstain from such interference. In
addition to this primarily negative undertaking, there are positive
obligations inherent in Article 34 requiring authorities to
furnish all necessary facilities to make possible a proper and
effective examination of applications. For instance, under certain
circumstances authorities may be under obligation to provide
applicants with copies of documents necessary for examination of
their applications. Such an obligation will arise in the situations
of particular vulnerability and dependence of applicants who are
unable to obtain documents needed for their files (see Iambor v.
Romania (no. 1), no. 64536/01, § 216, 24 June 2008;
Novinskiy v. Russia, no. 11982/02, § 120, 10
February 2009; Gagiu v. Romania, no. 63258/00, §§
93-99, 24 February 2009; and, a contrario, Kornakovs
v. Latvia, no. 61005/00, §§ 172-173, 15 June 2006;
Chaykovskiy v. Ukraine,
no. 2295/06, § 96, 15 October 2009).
(b) Application of these principles to the
present case
The
Court takes note of the applicant’s specific situation at the
time he lodged and pursued his present application. In particular,
that the criminal proceedings against the applicant had been
completed and his criminal case file was being kept at the trial
court. Having been imprisoned, the applicant could not consult the
file himself. He had no contact with his family and had only limited
contact with the outside world. The applicant’s property had
been confiscated following his conviction and he had no source of
income. No legal aid was available to him. Therefore, to complete his
present application, the applicant was dependent on the authorities.
However,
the authorities did not take into account the applicant’s
specific situation. Despite the fact that, in his requests to the
authorities, he clearly mentioned that he needed copies of certain
documents from his case file for his application before the Court,
his requests were refused. As a result, he could not comply with the
Court’s request of 7 July 2006 and the Court had to ask the
Government to provide documents concerning the applicant’s
allegations of a violation of substantive provisions of the
Convention (see paragraphs 25-30 above and, a contrario,
Chaykovskiy, cited above).
The
Court notes that the reason that the authorities refused the
applicant’s requests was that according to Ukrainian law they
were under no obligation to send to interested persons copies of
documents from case files, except for court decisions, following the
completion of the proceedings. In this context, the Court observes
that there are a number of provisions in the domestic law providing
for public access to documents being kept by the authorities,
including court case files (see paragraphs 35-38 above). However,
given the position of the national judicial authorities and the
parties’ submissions in this case, the Court cannot decide if
in the applicant’s specific situation these provisions could
have formed a basis for a request for the documents from his case
file.
Moreover,
the Court cannot speculate as to whether in the course of the
domestic proceedings the applicant had known that he would lodge an
application with the European Court and that he could have collected
the necessary documents at that time.
In
view of the foregoing, the Court considers that in the present
circumstances the authorities’ failure to ensure that the
applicant was provided with a possibility of obtaining copies of
documents which he needed to substantiate his application amounted to
an unjustified interference with his right of individual petition.
The Court notes that his application has reached the Court and that
the Government have submitted copies of the documents enabling it to
examine the applicant’s complaints under Articles 3 and 6 of
the Convention. However, this does not preclude the Court from ruling
on the issue arising under Article 34 (see, mutatis mutandis,
Orhan v. Turkey, no. 25656/94, § 406, 18 June 2002).
Accordingly,
it concludes that Ukraine has failed to comply with its obligations
under Article 34 of the Convention with respect of the refusal to
provide the applicant with copies of documents for his application to
the Court.
IV. 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.”
The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT
Declares by a majority the complaints under
Articles 3, 6, 7, 8, 13 and 15 of the Convention inadmissible;
Holds unanimously that Ukraine has not failed to
comply with its obligations under Article 34 of the Convention with
respect of the alleged interference with the applicant’s
correspondence with the Court and his alleged intimidation by
officials of the Donetsk SIZO in connection with his application to
the Court.
Holds unanimously that Ukraine has failed to
comply with its obligations under Article 34 of the Convention
with respect of the refusal of the authorities to provide the
applicant with copies of documents for his application to the Court.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Yudkivska is annexed to
this judgment.
P.L.
C.W.
CONCURRING OPINION OF JUDGE YUDKIVSKA
I
fully subscribe to the Court’s reasoning and conclusion as to
the core issue of the present judgment – violation of Article
34 of the Convention.
I
also agree that the complaint under Article 3 is inadmissible, though
for a different reason. I shall attempt to explain why I am unable to
accept that the applicant did not exhaust domestic remedies for this
grievance, as suggested in paragraph 46.
Firstly,
I find it established that the applicant had complained to the
prosecution authorities and that the latter had rejected his
complaint as unsubstantiated on 12 April 2000. Although he was unable
to provide the Court with this decision, he clearly referred to it in
his submissions, which the Government did not contest. Moreover, in
his pleas before the domestic courts he specified the page number in
the case file where this decision could be found. It remains unclear
whether the applicant received a copy of this decision or whether he
found out about it only when he was given access to the case
materials. Given the Court’s findings under Article 34 we
cannot conclude that the applicant had a copy of the decision of 12
April 2000 or even that he was timely informed about it and thus
could challenge it before the courts as suggested in paragraph 46.
Furthermore,
the remedy suggested in paragraph 46 remains questionable. In the
recent judgment Davydov and Others v. Ukraine, which concerned
ill treatment in prison, the Court rejected the Government’s
plea of non exhaustion and concluded that the applicants were
not required to challenge the prosecution authorities’ refusal
to institute criminal proceedings before the courts as “[s]uch
an application would have required the applicants to produce relevant
medical evidence to the courts, which they were not in a position to
do because no medical records were available... Moreover, a court
review would only have considered compliance with the substantive and
procedural grounds for instituting proceedings, and in the absence of
medical evidence (i.e. substantive grounds)... would have been
limited to whether the prosecutor had respected the time-limits and
taken a decision which was open to him...”.
I believe that similar reasoning is applicable in the instant case,
since “the applicant did not have access to a doctor and the
alleged injuries were not recorded” (paragraph 5).
In
addition, the Court recently cast doubt on the effectiveness of the
proposed remedy, having communicated to the Ukrainian government the
case of Kaverzin v. Ukraine with the question on the effect of
a court’s ruling to quash a decision of the prosecution
authorities to refuse the institution of criminal proceedings.
Without any intention to prejudge the outcome, I find it inconsistent
to question the same remedy in one case and insist on its exhaustion
in the other.
The
applicant, however, raised the complaint of ill-treatment in the
course of the criminal proceedings against him, which were rejected
for being unsubstantiated.
In
the case of Vladimir Fedorov v. Russia
the Court found that “by raising, before the trial and appeal
courts, a complaint about ill-treatment and the authorities’
failure to investigate, the applicant provided the domestic
authorities with the opportunity to put right the alleged violation”.
The same conclusion was reached in several other cases in which the
trial courts examined the defendants’ complaints of
ill-treatment and rejected them.
The Court was left “unconvinced that having additional recourse
[to challenge a refusal to institute criminal proceedings before the
courts] would have made any difference and yielded a different result
from the one obtained by the applicant in this respect in the main
set of criminal proceedings against him”.
Yet
in the present case the Court departed from the above-described
approach and found that the manner in which the applicant raised the
issue in the domestic courts was insufficient to exhaust domestic
remedies on the ground that “the criminal proceedings against
the applicant... were aimed at finding him innocent or guilty of the
criminal charges levelled against him, rather than attributing
responsibility or affording redress for the alleged ill treatment”.
In my
view, this is an excessively formalistic application of the rule of
exhaustion of domestic remedies, atypical for this Court. It is true,
stricto sensu, that the criminal proceedings in which
the applicant was a defendant could not provide the required redress
– to bring those responsible for the ill treatment to
account. But the same applies to the remedy proposed in paragraph 46
– a court can only quash the prosecutor’s decision not to
institute criminal proceedings against alleged perpetrators and remit
the matter for additional investigation. Such “ping-pong”
can last for years (see, for example, Vergelskyy v. Ukraine,
in which the prosecutors’ decision not to institute criminal
proceedings was quashed 13 (!) times).
On the other hand, in the trial proceedings the courts do examine the
defendants’ complaints of ill treatment in the context of
alleged self-incrimination, and are empowered either to send a case
for additional investigation
or to issue a separate ruling drawing the attention of the
prosecution authorities to the allegations of ill treatment.
Thus,
in the absence of the court’s power to institute criminal
proceedings - whether an applicant appeals against a decision not to
institute criminal case into his complaints of abuse or raises this
issue during his trial - the role of the judicial authorities is
limited in both situations. Following the line adopted in the
above-mentioned cases, I find that the applicant made the domestic
courts sufficiently aware of his grievances in respect of the alleged
ill-treatment and thus had exhausted the available domestic remedies.
Nevertheless,
the applicant’s inability to substantiate his claims creates
obvious difficulties in determining whether they are well-grounded.
There is no evidence before the Court that he was ill-treated, and
for this reason I would conclude that this complaint is inadmissible
as being manifestly ill founded. However, to the extent that the
absence of such evidence is attributable to the authorities’
failure to provide him with the requested documents, this failure is
addressed by the finding of a violation of Article 34.
