MALOV v. UKRAINE - 55876/08 (Judgment : Article 34 - Individual applications : Fourth Section Committee) [2018] ECHR 1034 (18 December 2018)

In the case of Malov v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1. The case originated in an application (no. 55876/08) 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 Yevgeniy Ivanovich Malov ("the applicant"), on 31 October 2008.

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 I. Lishchyna.

3. On 11 January 2011 notice of the application was given to the Government. At that stage of the proceedings the Government were not invited to submit observations on the case. On 22 June 2011 the Court invited the Government to submit observations on the admissibility and merits of the application.

4. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government's objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018, and Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1950 and, at the time of the last communication from him to the Court, was detained in Torez Correctional Colony.

A. Criminal proceedings against the applicant

6. The applicant, represented by a lawyer, stood trial before the Kerch Court on charges of engaging in sexual intercourse with his stepdaughter, A. (born in 1999), over the period between March 2006 and April 2007. The applicant denied the charges, asserting that he may have broken A.'s hymen by accident while bathing her.

7. On 27 July 2007 the trial court found the applicant guilty of rape and sentenced him to eleven years' imprisonment.

8 . The judgment was based, in particular, on

(i) the victim's statements made at the pre-trial stage;

(ii) the statements of a number of witnesses (comprising nannies, a classmate and a psychologist) made during the court hearings, who had reported incriminating statements that A. had made to them. Witness K. had testified that, in the relevant period, she had had sexual relations with the applicant;

(iii) the conclusions of experts who had examined the applicant and the victim. The experts had concluded that the victim's hymen had been broken and it was unlikely that that had been caused by unintentional actions; the victim and the applicant both had a fungal infection on their genitalia; the examination of the applicant's genitalia had not revealed any obstacle to his having sexual relations; the victim suffered from a light mental retardation and the applicant did not suffer from any psychiatric illness.

According to the applicant, the trial court had refused to order an additional expert examination to determine whether, because of any disease of his "internal sexual organs", he had been unable to engage in normal sexual intercourse at the relevant time.

9. On 11 September 2007 the Crimea Court of Appeal upheld the applicant's conviction.

10 . The applicant lodged an appeal in cassation with the Supreme Court. He argued that there had been insufficient evidence of his guilt. The appeal contained the following statement:

"The court's conclusion as to my guilt is based only on indirect evidence and on the statement of a minor [A.], made in the course of the pre-trial investigation and who, according to a psychiatric expert's analysis, was suffering from mental retardation" ( Вывод суда о моей виновности сделан судом только на основании косвенных доказательств, а так же [sic] на показаниях малолетней [A.], которые она дала на досудебном следствии, и которая, согласно заключению судебно-психиатрической экспертизы, страдает умственной отсталостью ).

11. The applicant submitted that the breaking of A.'s hymen was explained by the fact that he had accidentally penetrated her with his finger while bathing her. However, even if such a penetration had been intentional, it would not have constituted the offence of rape.

12. The applicant further complained of the trial court's refusal to order an additional expert examination to determine whether he had any diseases of his "internal sexual organs" which would have prevented him from sustaining an erection and engaging in sexual intercourse.

13. The applicant asked the Supreme Court to reclassify his actions as "abuse of a minor" ( розбещення неповнолітніх ), a lesser offence than rape, and to impose a non-custodial sentence.

14. On 9 June 2008 the Supreme Court refused to consider the case in cassation and upheld the lower courts' findings.

B. The applicant's efforts to obtain copies of documents for his application to the Court

15. On 27 November 2008 the Court's Registry asked the applicant to provide copies of his appeal, his appeal in cassation and the decision of the Supreme Court in his case, to supplement his application.

16. He accordingly requested those documents from the trial court, the Court of Appeal and the Supreme Court.

17. On 19 January 2009 the Court of Appeal advised the applicant that he needed to address his request for the copies to the trial court.

18. On 26 January 2009 the trial court informed the applicant that it was not empowered to send him the requested copies.

19. On 28 January 2009 the Supreme Court informed the applicant that it was not the court's practice to issue copies of appeals in cassation or of its decisions.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

20. The applicant complained of a number of violations of Article 6 of the Convention, which reads, in so far as relevant:

"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:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(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;

..."

A. Failure to order an additional expert examination of the applicant

21. The applicant complained that the courts had failed to order an additional expert examination to determine whether, because of any disease of his "internal sexual organs", he had been unable to engage in normal sexual intercourse, which would have ruled out his conviction for rape.

22. The Court reiterates that Article 6 § 1 of the Convention does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts' assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017).

23. The applicant did not point to any specific substantive flaw in the expert examinations which had already been conducted other than pointing out that they had been limited to his genitalia and had not explored whether he had any internal condition which would have prevented him from having genital sexual intercourse. In view of the other evidence relied on by the domestic courts (see paragraph 8 above), the Court perceives nothing arbitrary or manifestly unreasonable in their conclusion that an additional expert analysis of the type suggested by the applicant was not necessary to resolve the case before them.

24. As to an argument raised by the applicant that he had not been legally represented when the original expert examination had been ordered and conducted, the Court points out that he was represented before the trial court. There is no indication that the defence was prevented from casting doubt on the reliability of the experts' analyses or their conclusions or from examining the experts in the course of the trial.

25. Accordingly, this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints under Article 6

26. The applicant also submitted complaints in respect of the admission of the victim's pre-trial statements, an alleged failure to ensure the presence of a witness who could have testified that he had had no sexual relations with the victim, a lack of clarity in the charges, insufficient time for the preparation of his defence and a lack of legal assistance in the course of the pre-trial investigation.

27. The Government submitted that the applicant had not raised these complaints in his appeal to the Supreme Court.

28. The applicant referred to the phrase cited in paragraph 10 above as evidence that he had, in fact, raised his complaints, most importantly the complaint about the admission of A.'s pre-trial statements into evidence, before the Supreme Court. Moreover, he submitted that he had no legal training and had been unrepresented in the proceedings before the Supreme Court and that the breaches of his rights had been so flagrant that the Supreme Court should have taken up those issues of its own motion.

29. The Court is not persuaded by the applicant's arguments and finds that in his appeal in cassation the applicant did not formulate the complaints he is now putting forward before the Court (compare Shalimov v. Ukraine , no. 20808/02, § 65, 4 March 2010). He thus failed to make use of an effective domestic remedy for complaints about the unfairness of criminal proceedings (contrast Oleg Kolesnik v. Ukraine , no. 17551/02, § 28, 19 November 2009).

30. It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

31. The applicant complained that the authorities had refused to provide him with copies of the documents which he needed to substantiate his application to the Court. He relied on Article 34 of the Convention, which provides:

"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."

32. The Government stated that there had been no hindrance of the effective exercise by the applicant of his right of individual application. They argued that he had obtained copies of a number of the principal decisions in his case prior to the completion of the criminal proceedings in his case. They also argued that the applicant could have hired a lawyer and could have obtained the necessary copies through him or her, which he had failed to do.

33. The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine (see, for example, Vasiliy Ivashchenko v. Ukraine , no. 760/03, §§ 107-10, 26 July 2012, and Andrey Zakharov v. Ukraine , no. 26581/06, §§ 68-70, 7 January 2016). In particular, in Vasiliy Ivashchenko (cited above, § 123) 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.

34. In the present case, the Government did not put forward any reason for the Court to depart from its findings under Article 34 of the Convention in the cases cited above.

35. The Court concludes that by refusing to provide the applicant with copies of documents, 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.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. 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

37. The applicant claimed 700,000 euros (EUR) in respect of non-pecuniary damage.

38. The Government disputed that claim.

39. The Court, having regard to the particular circumstances of the case and ruling on an equitable basis, considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (see, mutatis mutandis , Andrey Zakharov , cited above, § 75).

B. Costs and expenses

40. The applicant also claimed EUR 2,766.40 for legal representation before the Court.

41. The Government contested that claim.

42. 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 (see paragraph 2 above), the Court rejects the applicant's claim.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant's complaints under Article 6 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 that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

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

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Faris Vehabović
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MALOV v. UKRAINE - 55876/08 (Judgment : Article 34 - Individual applications : Fourth Section Committee) [2018] ECHR 1034 (18 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/1034.html Cite as: [2018] ECHR 1034