ANDREY ZAKHAROV v. UKRAIN - 26581/06 [2016] ECHR 48 (12 January 2016)

In the case of Andrey Zakharov v. Ukraine,

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

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Khanlar Hajiyev,
          André Potocki,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 1 December 2015,

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

PROCEDURE

1. The case originated in an application (no. 26581/06) 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 Andrey Yevgenyevich Zakharov (“the applicant”), on 7 June 2006.

2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. 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.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1954 and is serving his prison sentence in Gorodyshche Town. Before his arrest he lived with his partner Te. in a privately owned house located in the Rusanovskiye Sady District of Kyiv.

5. The police received intelligence information that a group of people were detaining a man in a privately owned house in Rusanovskyie Sady, and were illegally selling apartments owned by third parties.

6. On 9 February 2004 police officers B., T., and S. entered the applicant’s house and asked whether or not he had any firearms. The applicant showed them a gun and some ammunition which a certain Va. had brought round to his house earlier. The police took the applicant to the police station. The applicant’s arrest was recorded on video. Before the Court the applicant stated, without providing any further details, that during and after his arrest police officers B., T., and S. had subjected him to physical and psychological ill-treatment.

7. According to the Government’s version of events, on the same day the applicant voluntarily, in the presence of investigator Ch., gave a written statement saying that from July to August 2003 he had kept a certain Mr N. in his house at the request of Kr. and Ko. In September 2003 Kr. and Ko. brought Mr V. and Ms Sh. to his house and asked to keep them in the basement. The applicant agreed in return for payment. In November 2003 V. and Sh. died in the basement because of cold. The applicant buried them in his backyard and thoroughly cleaned the basement.

8. In his first letter to the Court, the applicant stated, without providing further details, that police officers T. and B. and investigator Ch. had forced him into making the above self-incriminating statement by means of physical and psychological pressure. In his application form, the applicant stated that he had not written the above statement and did not know who had written it.

9. On 10 February 2004, during reconstruction of events which was conducted by investigator Ch. and recorded on video, the applicant showed where he had buried V. and Sh., and the police sent their bodies for forensic examination. The experts established that the victims had died of cold in November 2003.

10. On the same day investigator Ch. ordered the applicant’s detention, and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of two people. The applicant’s defence rights were explained to him, and he expressed a wish to have a lawyer.

11. On 11 February 2004 investigator Ch. appointed a lawyer, R., under legal aid scheme to act as the applicant’s defence counsel. Upon being questioned by Ch. on 11 and 12 February 2004 in the presence of that lawyer, the applicant confirmed his previous statements. He also said that he had been aware that V. and Sh. had been put in his basement in order to prevent them from hindering the illegal sale of their apartments.

12. On 13 February 2004 the Dniprovskyy District Court of Kyiv ordered the applicant’s detention pending trial. On the same date a medical doctor examined the applicant and found no injuries on his body. The applicant did not raise any complaints of ill-treatment or his health condition.

13. On 20 February 2004 investigator Ch. charged the applicant with murdering Sh. and V.

14. On the same date the applicant was questioned in the presence of lawyer R. and confirmed his previous statements.

15. On 17 May 2004 the applicant had a formal confrontation with Kr. in the presence of R. The applicant confirmed his previous statements.

16. On 3 June 2004 investigator Ch. appointed another lawyer, K., under legal aid scheme as the applicant’s defence counsel instead of R. The latter was no longer able to perform his duties as a defence lawyer because of illness.

17. On the same date the applicant was questioned in the presence of lawyer K. and denied all the statements he had given earlier. He stated that he had given self-incriminating statements previously because he had been in a state of “shock”.

18. On 6 July 2004 investigator Ch. instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to Sh. and V.

19. On an unspecified date the applicant complained to Ch. that during and after his arrest he had been ill-treated by police officers B., T., and S. It is unclear whether the applicant provided any details about such ill-treatment because a copy of the complaint available to the Court is unreadable.

20. On 11 July 2004 investigator Ch. questioned B., T., and S., who denied that they had put the applicant under any pressure.

21. On 13 July 2004 Ch. refused to institute a criminal investigation into the applicant’s allegations of ill-treatment and the applicant did not appeal against that decision. A copy of the decision is available to the Court, but is unreadable. On the same date Ch. refused the applicant’s request to have a formal confrontation with his girlfriend, Te. Later that day, the applicant absconded from the detention facility where he was being held, but was found by the police and brought back to the facility on the same date.

22. On the same day, the police instituted criminal proceedings against the applicant for absconding.

23. On an unspecified date the police questioned Pl., who worked as a doctor in a hospital in the town of Svetlovodsk. Pl. said that N. had been admitted to the hospital in the autumn of 2003. N. had told Pl. that he had been the victim of fraud, and that his apartment in Kyiv had been sold without his knowledge or consent.

24. On an unspecified date the police questioned Ru., who said that in the summer of 2003 he had sold his house to a woman called Olya. N. had lived in that house and had told Ru. that he had been the victim of fraud.

25. The applicant asked the investigator if he could have a formal confrontation with a certain Ro., but this request was refused.

26. On 5 August 2004 the investigator appointed another lawyer, V., to act as the applicant’s defence counsel under legal aid scheme instead of lawyer K. The reason for that decision remains unknown. On 8 September 2004 the pre-trial investigation was completed, and the applicant studied all the material in the criminal file.

27. The indictment stated that a group of people, including Kr., had asked the applicant to keep N. in his house while N.’s apartment had been sold without his knowledge or consent. The applicant had agreed in return for payment, and had kept N. in his house for about a month. After that, the same group of people had asked the applicant to keep V. and Sh. in his basement in order to prevent them from hindering illegal sale of their apartments. V. and Sh. had died of cold in the basement, and the applicant had buried them in his yard. The apartments of N. and V. had been sold while they had been kept in the applicant’s house. The apartment belonging to Sh. had been sold before she had been brought to the applicant’s basement. According to the indictment, by holding N., V., and Sh. in his house, the applicant, acting jointly with others, participated in fraud entailing the illegal sale of the victims’ apartments.

28. On 2 February 2005 a TV channel transmitted a programme called “Black Square”. According to the applicant, in that programme an investigator dealing with his criminal case spoke about his arrest and “persuaded the public” that the applicant was guilty as charged. Neither a recording of that programme, nor any further information about its contents was made available to the Court.

29. On 3 February 2005 the Kyiv Court of Appeal, composed of two professional judges and three lay judges and acting as the first-instance court in the applicant’s case, commenced the trial.

30. On 8 February 2005 the court appointed Krav. as the applicant’s lawyer under legal aid scheme instead of lawyer V. The grounds for that decision remain unknown.

31. Before the court, the applicant stated that when he had been detained by the police “his head had not been working” because he had been drunk. After the arrest, he had drunk some vodka given to him by the police, and that was why he did not remember what he had said or done from 9 to 11 February 2004. He “was not sure” that he had written the self-incriminating statement on 9 February 2004. Investigator Ch. had promised to charge him with only the offence of concealment if he admitted that he had kept V. and Sh. in his basement. Actually, V., Sh., and N. had voluntarily stayed in his house and none of them had been forcefully held in the basement. In November 2003 Sh. and V. had drunk too much vodka, had fallen asleep in one of the rooms of his house, and had died of cold. He did not know that the victims’ apartments had been sold without their consent. He had been afraid of the police and for that reason he had not reported the deaths of V. and Sh. and had buried them in his yard. After his arrest the police officers had not beaten him.

32. The court questioned investigator Ch. in the applicant’s presence and the latter asked him questions. Ch. stated that the applicant had not been drunk on the day of his arrest and the police had not given him any alcohol from 9 to 11 February 2003. Ch. denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment.

33. The court questioned experts who had examined the bodies of V. and Sh. and the applicant’s lawyer asked them questions. The experts stated that they could not exclude the possibility that V. and Sh. had died of cold while they had been asleep in one of the rooms of the applicant’s house. They said that it was also possible that they had died in the basement.

34. On 17 March 2005 Ro. was questioned by the court in the applicant’s presence and stated that he had seen V., still alive, in the applicant’s basement, and had heard how V. had asked the applicant to release him. Later, Ro. had seen V.’s dead body in the applicant’s basement. Ro. had met N. in the applicant’s house on several occasions, and N. had told him that a group of people intended to “sell” him, and were keeping him in the applicant’s house. The applicant asked Ro. questions during the hearing and received answers.

35. Upon being questioned by the court, N. stated that in July 2003 certain “Olya” and “Volodya” had taken some of his documents, had brought him to the applicant’s house and had left him there until the end of August 2003. The applicant had not allowed him to leave the house and had told N. that he had had a gun. While N. had been staying in the applicant’s house he had observed the applicant, Olya, Volodya, and Kr., and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent. In August 2003 Olya had moved N. to the house which she had bought from Ru. In September 2003 Volodya and Olya had placed N. in a hospital in the town of Svetlovodsk. From there, N. had called his relatives in Kyiv and had learned that his apartment in Kyiv had been sold. He had then returned to Kyiv and had complained to the police. When N. had returned to the building where his apartment was located, the neighbours had told him that several people had been moving his furniture out of the apartment. They had described one of those people and N. had understood that it had been the applicant. The applicant was present during N.’s questioning by the court and asked him questions.

36. On 31 March 2005 the court questioned the applicant’s girlfriend, Te., in the applicant’s presence. She stated that N. had been living in the applicant’s house for about a month because he had been “having a rest” there. She further stated that a man and a woman had been locked in the basement of the applicant’s house against their will. The people who had brought N. to the applicant’s house had instructed Te. not to allow him to leave the house and not to talk to him about the apartment. She had been told that N.’s apartment was being sold in accordance with his wishes, but she had understood that, in fact, he had not known that the apartment was being sold. Once, the applicant had brought various pieces of furniture to the house and had explained Te. that the furniture belonged to N. Kr. had visited the applicant and had brought him food and money for feeding V., Sh., and N.

37. On 8 April 2005 the applicant asked the court to recall Te. as witness so that he could question her again. That request was granted, however, Te. did not appear before the court because the police could not find her at her permanent place of residence.

38. Kr. stated before the court that he had brought N., a man and a woman to the applicant’s house, where they had voluntarily stayed. In the autumn of 2003 the applicant had informed Kr. that the man and the woman had died in one of the rooms of his house and he had moved their bodies to the basement. Kr. had helped the applicant to carry two dead bodies from the basement to the yard and to bury them.

39. The applicant asked the court if he could call and question Pl. and Ru., because, according to him, their statements contradicted those of N. The request to call Pl. was granted but Pl. refused to appear before the court stating that he was too busy with his work in the Svetlovodsk hospital. The request to call and question Ru. was not granted by the court. The applicant requested (unsuccessfully) that the court order a forensic examination of his basement, such an examination being aimed at establishing whether or not V. and Sh. had indeed spent several weeks there.

40. On 25 May 2005 the Kyiv Court of Appeal convicted the applicant of having forcefully held N., V., and Sh. in his house, an action which led to the deaths of V. and Sh. The court also found the applicant guilty of absconding from detention facility, illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to N. and V. The applicant was sentenced to fifteen years of imprisonment. On the same date the lawyer Krav. stopped representing the applicant for unknown reasons. In his observations submitted in reply to those of the Government, the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before the Supreme Court. The case file does not contain copies of any such requests.

41. On 11 August 2005 the applicant appealed against his convictions. He stated that the trial had not been objective or fair, and that the first-instance court had misinterpreted the facts of the case, and had refused to call witnesses proposed by him. Ru. and Pl. had not been questioned at a court hearing, although their statements contradicted those of N., while the statements of Te. and Ro. contained contradictory and false information. His request for examination of his basement had also been refused.

42. On 22 December 2005 the Supreme Court upheld the applicant’s convictions and sentence, having found no irregularities in the first-instance court’s decision.

43. On 7 June 2006 the applicant sent his first letter to the Court. On 29 August 2006 he submitted a duly signed and completed application form. On 29 September 2006 and 21 March 2007 the Court asked the applicant to provide a copy of his cassation appeal, and copies of his complaints concerning the alleged ill-treatment by the police. The applicant asked the Kyiv Court of Appeal to send those documents to him, but on 14 May 2007 that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings.

44. On 24 January 2008 the Kyiv Court of Appeal sent the applicant the copies which he had requested (see paragraph 43 above).

45. In October 2011 the applicant requested the same court to send him various materials from his case file, in particular, all the courts’ decisions, reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings. The applicant stated, without elaborating further, that he needed those documents to “substantiate his complaints” before the Court. On 18 November 2011 the Kyiv Court of Appeal refused the applicant’s request on the same grounds as on 14 May 2007.

46. Before the Court the applicant stated that the services provided to him by his lawyers had been of low quality. They were not interested in his case because he did not have any money to pay them.

47. According to the applicant, the conditions of his detention at the pre-trial detention facility (ITT) in which he was detained for three periods between 9 February and 27 July 2004 were inhuman and degrading.

THE LAW

I. SCOPE OF THE CASE

48. In his initial application form lodged with the Court on 29 August 2006 the applicant complained about ill-treatment by the police and poor conditions or detention in the ITT, low quality of his lawyers’ services, the courts’ failure to question Pl. and Ru. and recall Te. as witness, to order additional forensic examination and to arrange a confrontation with Te. and Ro. for him during the pre-trial investigation. He also complained that the TV programme influenced the judges of the court of appeal and the courts’ decsion had not been sufficiently reasoned. In one of his letters the applicant complained that the authorities refused to send him copies of documents which he had requested.

49. The Court notes that the applicant raised a number of new complaints in his reply (dated 28 March 2012) to the Government’s observations on the admissibility and merits of the case. In particular, he complained that: the authorities had not appointed a lawyer to represent him before the Supreme Court; he had not had access to a lawyer from 9 to 11 February 2004; the evidence collected during that period had been used as a basis for his conviction; and his complaints of ill-treatment had not been duly investigated. The Court considers that the last mentioned complaint is an elaboration on the applicant’s original complaint of ill-tretament; it thus must be examined within the framework of the present application. As regards the remainder of the complaints lodged on 28 March 2012, in the Court’s view, it does not constitute an elaboration on the applicant’s original complaints to the Court, on which the parties have already commented. The Court considers therefore that it is not appropriate to take up these matters in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. COMPLAINT UNDER ARTICLE 3 OF THE CONVENTION

50. The applicant complained that he had been physically and psychologically ill-treated by B., T., S., and Ch. and this had not been duly investigated. He also complained that the conditions of his detention in the ITT had been inhuman and degrading. He invoked Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

51. The Government stated that the applicant had not exhausted the remedies available to him, because he had not challenged the decision of 13 July 2004 (see paragraph 21 above), and had not raised his complaint concerning Ch. before the domestic authorities. Alternatively, they stated that the six-months time-limit for lodging the complaint concerning ill-treatment by the police with the Court had ended on 5 February 2005, while the applicant had only lodged it on 7 June 2006. The Government also stated that the applicant’s complaint of ill-treatment by the police was fully unsubstantiated. The applicant stated that he had not appealed against the decision of 13 July 2004 because he had learned about it only from the Government’s observations.

52. The Court considers that it is not necessary to examine the Government’s objections concerning non-exhaustion of domestic remedies and non-compliance with the six-months rule in respect of the complaint of police ill-treatment because the present part of the application is in any case inadmissible for the following reasons.

53. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may 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 2000IV). The Court observes that the applicant’s allegations of physical and psychological ill-treatment by Ch., B., T., and S. are not supported by any evidence or any detailed account of facts. Moreover, before the first-instance court, the applicant himself stated that the police had not beaten him (see paragraph 31 above). It is notable that no injuries were found on the applicant during his medical examination on 13 February 2004 (see paragraph 12 above). The Court therefore considers that the applicant has not made out his complaint concerning ill-treatment by the police. It follows that his complaint about lack of effective investigation into that ill-treatment is also unsubstantiated. As regards the part of the complaint which concerns the conditions of the applicant’s detention in the ITT, it was lodged more than six months after the date on which the applicant’s detention in that facility had ended (27 July 2004). It follows that this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

III. COMPLAINTS UNDER ARTICLE 6 OF THE CONVENTION

54. In his first letter to the Court dated 7 June 2006, the applicant complained that: i) the services provided to him by his lawyers had been of low quality; ii) the judges of the Kyiv Court of Appeal had not been impartial, because they had been influenced by the TV programme in which an investigator had persuaded the public of the applicant’s guilt; iii) the investigator had refused to arrange a face-to-face confrontation with Te. and Ro. for him during the pre-trial investigation; iv) the courts’ decisions were not sufficiently reasoned; v) the trial court had failed to call and question “important witnesses” and had refused his request for an additional forensic examination.

55. In his application form lodged with the Court on 29 August 2006, the applicant maintained the above complaints. He added that the first-instance court had not called and questioned Ru. and Pl. According to the applicant, it was important to question them because their statements contradicted those of N. The applicant also complained that, despite his request, Te. had not been repeatedly questioned at a court hearing. He complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive.

56. The Court considers that the present part of the application falls to be examined under Article 6 §§ 1 and 3 (c) and (d) of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

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

...

(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...”

57. The Government submitted that the applicant had not raised the complaint concerning the quality of legal representation before the Supreme Court and has therefore not exhausted the domestic remedies available to him. Alternatively, they stated that this complaint should have been lodged with the Court no later than 25 November 2005, whereas the applicant had only lodged it on 7 June 2006, that is, outside the six-months time-limit. The Government also noted that the applicant had not indicated any specific deficiencies in the services provided to him by his lawyers. The complaint concerning the questioning of witnesses had only been lodged on 29 August 2006, and was therefore outside the six-months time-limit. The courts had duly examined all the evidence in the applicant’s case, and their decisions were properly substantiated. The applicant’s requests to question Ru. and Pl. at a court hearing had not been sufficiently reasoned. With regard to the issue of impartiality, the Government submitted that the applicant had not challenged the judges dealing with his case. They further submitted that Ukrainian legislation contained sufficient safeguards concerning the independence of the judiciary.

58. The applicant maintained his complaints and submitted that he had complied with the admissibility criteria. He noted that in his initial complaint to the Court he had complained of a violation of his right to defence not only at the pre-trial stage of the proceedings, but also at the judicial stage.

59. Having examined the case-file, the Court agrees with the Government that the applicant did not raise his complaint concerning the quality of lawyers’ services before the Supreme Court, and has therefore not exhausted the domestic remedies available to him in respect of this complaint.

60. The Court notes that the recording of the TV programme to which the applicant referred was not made available to it, and therefore it cannot verify the truthfulness of the applicant’s statement that an investigator persuaded the public of his guilt. There is no evidence in the file to suggest that the judges who dealt with the applicant’s case saw the TV programme or were influenced by it. In such circumstances, the Court considers that the applicant has not duly substantiated his complaint concerning the judges’ alleged lack of impartiality.

61. The Court further notes that, in his first letter dated 7 June 2006, the applicant complained that the courts had failed to call and question “important witnesses”. It therefore concludes that the applicant raised the complaint concerning the questioning of witnesses within the six-months time-limit. In his application form lodged on 29 August 2006, he further developed this complaint by specifying the names of the witnesses in question. The Court further notes that Te. and Ro. were questioned by the Kyiv Court of Appeal in the applicant’s presence, and he was able to put questions to those individuals. With regard to the questioning of Pl. and Ru., and the recall of Te. as a witness, the Court reitirates that Article 6 § 3 (d) of the Convention does not give the accused an unlimited right to have witnesses called and domestic courts have some discretion in deciding whether the hearing of a defence witness is likely to help to establish the truth. In particular, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses (see Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B). It is not sufficient for an accused to complain that he was not permitted to examine certain witnesses; he must also support his request to call witnesses by explaining the importance of doing so and it must be necessary for the court to take evidence from the witnesses concerned in order to be able to establish the true facts (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V, with further reference). The Court takes note that the applicant’s requests to call Pl. and recall Te. were granted by the courts; however, the case file does not contain any material which would enable the Court to establish how the questioning of Pl. and Ru. and repeated questioning of Te. was important to the case. The Court notes that Pl. and Ru. were not eyewitnesses of the events which had taken place in the applicant’s house in Kyiv. In particular, Ru. was a former owner of the house in which N. lived for some time after he had left the applicant’s house, while Pl. was a doctor who treated N. in the Svetlovodsk hospital (see paragraphs 23 and 24 above). In such circumstances, the Court discerns no arbitrariness in the trial court’s decision to proceed with the case without hearing Ru. and Pl. and repeatedly questioning Te.

62. The Court is not called upon to examine alleged errors of fact or law made by the domestic judicial authorities, in so far as no unfairness in the proceedings can be detected, and the decision reached is neither arbitrary nor otherwise manifestly unreasonable (see, for example, Dulskiy v. Ukraine, no. 61679/00, § 93, 1 June 2006). The Court finds that in the present case the national courts took account of the particular circumstances of the case and assessed the evidence carefully. The applicant’s conviction was based on the wide range of oral, physical and expert evidence. On the whole, the Court finds no fault in the way in which the national courts dealt with the evidence before them, or in the adequacy of the reasons on which they based their decisions.

63. The Court finally notes that the criminal proceedings against the applicant lasted from 9 February 2004 to 22 December 2005 at two levels of jurisdiction and their length (one year, ten months and thirteen days) in itself cannot be considered excessive.

64. In the light of the above the Court considers that this part of the application must be declared inadmissible in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

IV. COMPLAINT UNDER ARTICLE 34 OF THE CONVENTION

65. The applicant complained that on 14 May 2007 the Kyiv Court of Appeal had refused to send him copies of the documents which the Court had asked him to provide (see paragraph 43 above). He invoked Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organization 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.”

66. The Government admitted that on 14 May 2007 the Kyiv Court of Appeal had refused to send the documents to the applicant. However, on 24 January 2008 that court sent him all of the copies which he had requested (see paragraph 44 above). Therefore, the State did not hinder the “effective exercise” of the applicant’s right of petition.

67. In his observations submitted in reply to those of the Government, the applicant maintained his complaint and added that in October 2011 he had asked the Kyiv Court of Appeal to send him certain documents (see paragraph 45 above) from his case file, but this request was refused.

68. The Court notes that a copy of the applicant’s appeal was essential for consideration of the present case as it would allow the Court to establish whether the applicant had exhausted domestic remedies available to him in respect of the complaints which he had raised before the Court.

69. The Court reiterates that in Vasiliy Ivashchenko v. Ukraine (no. 760/03, § 110, 26 July 2012) it found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure to enable them to obtain copies of case documents after the conclusion of criminal proceedings. The Court does not find a reason to depart from that finding in the present case. As regards the Government’s argument that the applicant received the documents which he had requested, the Court observes that it already examined and rejected their similar argument in Savitskyy v. Ukraine (no. 38773/05, §§ 152, 157-159, 26 July 2012).

70. In view of the above, the Court finds that by its refusal of 14 May 2007 to send the applicant a copy of his appeal without unnecessary delay 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 allow the Court to carry out a proper and effective examination of his application (see Vasiliy Ivashchenko and Savitskyy (both cited above) and Vorobyev v. Ukraine, no. 28242/10, 16 October 2014).

71. The Court does not consider it necessary to examine whether the authorities’ failure to send the applicant other documents which he had requested in 2011 constituted a non-compliance with Article 34 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72. 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

73. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

74. The Government disputed that claim.

75. The Court finds that the applicant must have suffered non-pecuniary damage as a result of the Government’s failure to comply with their obligation under Article 34 of the Convention. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

B. Costs and expenses

76. The applicant also claimed EUR 2,713.20 for the costs and expenses incurred before the Court.

77. The Government disputed that claim.

78. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant’s representative has already been paid EUR 850 under the Court’s legal aid scheme, the Court rejects the applicant’s claim.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 3 and Article 6 §§ 1 and 3 (c) and (d) 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 without unjustified delay with a copy of his appeal;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4. Dismisses the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 7 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ANDREY ZAKHAROV v. UKRAIN - 26581/06 [2016] ECHR 48 (12 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/48.html Cite as: [2016] ECHR 48