«Малий проти України»: Факт ненадходження до ЄСПЛ кореспонденції від позбавленої волі особи сам по собі не свідчить, що держава перешкоджала у реалізації права на індивідуальну скаргу (ст. 3, ст. 6, ст. 34 Конвенції, заява № 14486/07, від 11.04.2019 р.)
Фабула судового акта: Заявник, громадянин України О.О.Малий, стверджував, що зазнав жорстокого поводження з боку працівників міліції, що таке поводження не було ефективно розслідувано, що умови тримання під вартою у СІЗО були неналежними, скаржився на порушення права на справедливий суд, на відсутність доступу до матеріалів своєї справи для звернення до ЄСПЛ та ін.
Заявника було заарештовано за підозрою у низці збройних пограбувань банків та ювелірних крамниць. Заявник відмовився від захисника і визнав провину у скоєнні злочинів. Згодом Заявник неодноразово вимагав захисника та відмовлявся від його допомоги. Заявника було поміщено під варту у СІЗО, а у його помешканні проведено обшук, під час якого вилучено деякі предмети одягу з метою подальшого вивчення. Згодом Заявник зізнався у намірі пограбувати літню пару та вчиненому під час пограбування вбивстві з необережності. У подальшому Заявник стверджував, що зізнання у вбивстві було наслідком жорстокого поводження з боку працівників міліції, показання заявника підтвердив його спільник, К.
Проти Заявника було порушено кримінальну справу, за підозрою у вбивстві. На одязі Заявника, вилученому під час обшуку, під час експертизи було виявлено сліди людської крові. Син убитих, А., під час упівзання за статурою і голосом впізнав Заявника як вбивцю своїх батьків. Суд визнав Заявника у вчиненні подвійного вбивства за обтяжуючих обставин та засудив його до довічного позбавлення волі. Під час ухвалення рішення суд опирався на зізнавальні показання самого Заявника та показання К., А., речові докази. Верховний Суд України залишив вирок Заявника без змін. Неодноразові скарги Заявника на жорстоке поводження з боку працівників міліції прокуратурою було визнано безпідставними.
ЄСПЛ наголосив, що у випадку перебування особи під контролем влади, існує презумпція завдання травм під час затримання. Доказами щодо жорстокого поводження можуть бути свідчення очевидців, документи та ін. ЄСПЛ відзначив, що Заявник стверджував два епізоди жорстокого поводження: перший епізод полягав у перебуванні у тугих наручниках, словесних образах, битті по вухах, ненаданні можливості спати та ін.; другий епізод полягав у битті по голові, нирках і ногах. Проте, оскільки Заявник не зміг надати ЄСПЛ серйозну і достовірну інформацію по цій частині скарги, її були відхилено як явно необґрунтовану.
Вивчивши матеріали справи та рішення щодо заявників, які утримувалися у цьому ж СІЗО приблизно в той самий період часу, ЄСПЛ дійшов висновку, що мало місце порушення статті 3 Конвенції у зв'язку з неналежними умовами тримання Заявника під вартою у СІЗО. Заявник перебував у СІЗО майже два з половиною роки, маючи в розпорядженні близько 3,5 м. кв. особистого простору.
ЄСПЛ встановив порушення статті 3 Конвенції у зв’язку із поміщенням Заявника у металеву клітку під час слухань у Верховному Суді України. ЄСПЛ відхилив аргументи Уряду щодо виправданості такого заходу метою захисту інших осіб; ЄСПЛ наголосив, що поміщення особи у металеву клітку саме по собі є приниженням, несумісним з нормами цивілізованої поведінки і становить образу людської гідності.
ЄСПЛ встановив порушення пунктів 1, 3 (с) статті 6 Конвенції через відсутність у Заявника адвоката на перших етапах досудового розслідування. ЄСПЛ наголосив, що право Заявника на юридичну допомогу було обмежене, оскільки кримінальну справу щодо Заявника було розпочато пізніше за отримання від нього показань, а адвокат так і не отримав доступ до Заявника. Таке обмеження не було виправданим, і більше того, суперечило чинному законодавству (з огляду на можливість призначення Заявнику покарання у вигляді довічного позбавлення волі). ЄСПЛ також відзначив, що після призначення адвоката і спілкування з ним Заявник не підтверджував своїх зізнавальних показань, проте, саме зізнавальні показання Заявника стали однією з основних підстав для його засудження. Також адвокат Заявника не був присутнім під час процедури впізнання за участю А.
ЄСПЛ констатував, що Україна не виконала свої зобов'язання відповідно до статті 34 Конвенції у зв'язку з відмовою надати Заявнику копії документів для його звернення до ЄСПЛ. ЄСПЛ наголосив, що національне законодавство не передбачало чітку і конкретну процедуру, яка би дозволяла отримати доступ до матеріалів справи після завершення кримінального провадження і виговити копії таких матерілів.
ЄСПЛ встановив, що Україна не порушила свої зобов'язання відповідно до статті 34 Конвенції у зв'язку з втручанням у листування Заявника і ЄСПЛ. ЄСПЛ підкреслив, що зобов'язання держави не перешкоджати ефективному здійсненню права на подачу індивідуальної скарги виключає будь-яке втручання в право особи подати та ефективно представляти свою скаргу в ЄСПЛ. Вивчивши всі обставини, ЄСПЛ встановив, що два подані Заявником листа дійсно не було отримано, проте це могло статися внаслідок технічних помилок. Факт ненадходження до суду вказаних листів сам по собі не може слугувати підставою для висновку, що держава свідомо зупинила відправку листа Заявника або надіслала його неналежним чином.
Інші скарги Заявника окремо розглянуто не було.
«Салман проти Туреччини» [ВП] (Salman v. Turkey [GC]), заява № 21986/93
«Муршич проти Хорватії» [ВП] (Muršić v. Croatia [GC]), заява № 7334/13
«Бьоз проти Бельгії» [ВП] (Beuze v. Belgium [GC]), заява № 71409/10
«Сімеонові проти Болгарії» (Simeonovi v. Bulgaria [GC]), заява № 21980/04
«Савицький проти України» (Savitskyy v. Ukraine), заява № 38773/05
CASE OF MALYY v. UKRAINE
(Application no. 14486/07)
11 April 2019
This judgment is final but it may be subject to editorial revision.
In the case of Malyy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 19 March 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 14486/07) 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 Aleksey Alekseyevich Malyy (“the applicant”), on 14 March 2007.
2. The applicant was represented by Ms H.V. Ovdiyenko and Ms N.G. Okhotnikova, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3. The applicant alleged, in particular, that he had been ill-treated in police custody and that there had been no effective domestic investigation into the matter. He further complained about the conditions of his detention in the Dnipropetrovsk Pre-trial Detention Centre (“SIZO”) and his confinement in a metal cage in the courtroom during the hearing at the Supreme Court. The applicant also raised a number of complaints under Article 6 §§ 1 and 3 (c) of the Convention. Lastly, he complained under Article 34 that the SIZO administration had failed to send his correspondence to the Court and that he had not been allowed access to the documents in his case file in order to properly prepare his application to the Court.
4. On 2 January 2017 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Aleksey Alekseyevich Malyy, is a Ukrainian national who was born in 1972 and is currently serving a sentence of life imprisonment.
A. Background events related to the murder of Mr and Ms S.
6. In the evening of 12 October 2004 a couple, Mr and Ms S. (aged 62 and 55, respectively), were robbed and murdered in their house in the Dnipropetrovsk region. The victims’ 15‑year-old son A. informed his neighbours, the family of K. (an acquaintance of the applicant), about that tragic event. According to A., the perpetrator was a masked man equipped with a knife and a hammer.
7. On the same day the police arrested A. on suspicion of the murder. He was detained for over three months and confessed to having killed his parents. However, eventually he retracted that confession as made under duress.
B. Criminal proceedings against the applicant
8. On 15 January 2005 the police arrested the applicant and his acquaintance, K. (see paragraph 6 above), on suspicion of a number of armed robberies of jewellery stores and banks committed together with several other persons in Dnipropetrovsk on various dates in 2004.
9. On the same date the applicant signed a waiver of legal assistance and confessed to several counts of robbery.
10. On the following day he again waived his right to a lawyer and reiterated his confessions, adding some further details.
11. On 17 January 2005 a confrontation was conducted between the applicant and K., in the course of which they both confessed to the robberies and explained all the details.
12. Later that day the applicant expressed a wish to be represented by lawyer Z. The investigator allowed that request and lawyer Z. was admitted to the proceedings.
13. On 18 January 2005, shortly before an identification parade in which the security guard of one of the jewellery stores was to recognise the perpetrators, the applicant changed his mind and submitted that he did not need legal representation. Accordingly, he was not assisted by a lawyer during that investigative measure.
14. Later the same day the applicant once again changed his mind and requested to be represented by lawyer Z. His request was allowed.
15. The Government submitted to the Court a copy of the record of the applicant’s questioning as an accused conducted later on 18 January 2005 in the presence of his lawyer, Z. The applicant maintained his confession statements.
16. The applicant did not comment on the above-mentioned record. According to information which he had provided to the Court in his application form, he had had the first meeting with his lawyer on 25 January 2005 in the investigator’s presence. It appears from the case-file materials that no investigative measures were conducted on that date.
17. On 18 January 2005 the Dnipropetrovsk Kirovskyy District Court remanded the applicant in custody pending trial. On the same day he was transferred to the Dnipropetrovsk Temporary Detention Facility (“the Dnipropetrovsk ITT”).
18. The applicant kept confessing to the robberies of which he was accused, in particular, during a reconstruction of the events conducted on 27 January 2005. Before the beginning of that investigative measure, he had stated that he did not need legal assistance given that he maintained his confession and wanted to show his remorse.
19. The case file contains a copy of the search report of 28 January 2005, according to which the police conducted a search at the applicant’s home from 7.30 a.m. to 8 a.m. on that day. As stated in the report, some of the applicant’s sweaters and t-shirts of different colours and fabrics (about ten in total) were seized with a view to “being adduced to the investigation material”.
20. Later on 28 January 2005 the applicant wrote “a statement of surrender to the police” confessing to the robbery and murder of Mr and Ms S. (see paragraph 6 above). As stated therein, he had found out from K. that the latter’s neighbours, Mr and Ms S., had sold some real estate and had a significant amount of money. The applicant and K. had agreed that the applicant would rob the couple, but the applicant had overstepped that agreement and had killed them.
21. According to the applicant, the above-mentioned “statement of surrender” was a result of his continued ill-treatment on that day by the police on the premises of the criminal investigation department of Dnipropetrovsk Region (see paragraph 38 below).
22. Later the same day K., too, wrote “a statement of surrender to the police” in respect of the robbery and murder of Mr and Ms S., in which he confirmed to the same investigator the account of the events given in the applicant’s related confession (see paragraph 20 above). K. submitted that on 12 October 2004 he had accompanied the applicant to the house of Mr and Ms S., that the applicant had gone inside for about twenty minutes and that after his return he had given K. 1,000 US dollars. Subsequently, in the course of the trial, K. would submit that the investigator had forced him to incriminate the applicant (see paragraphs 31 and 35 below).
23. The case file contains a copy of the investigator’s decision on the admission of lawyer G. on 28 January 2005, “at the request of the accused”, to represent the applicant in the proceedings. As can be deduced from the case number indicated, those proceedings concerned the murder investigation. It is not known why the applicant’s procedural status was “an accused” at that stage (see also paragraphs 24 and 25 below). Nor is there any information or documents indicating when the lawyer started representing him in practice.
24. On 1 February 2005 the applicant signed a report confirming that he had been familiarised with his defence rights as a suspect. He wrote that he “[did] not need a lawyer at [that] moment”. In the course of his questioning as a suspect that day, he reiterated his confession to the double murder. He signed a statement that “no measures of physical or psychological coercion” had been applied to him. According to his submissions to the Court, he was forced to waive his right to legal assistance and to further incriminate himself under the psychological pressure of the police.
25. According to the information provided by the Government, on 4 February 2005 criminal proceedings were instituted against the applicant on suspicion of aggravated murder.
26. On 10 February 2005 the investigator started to hold a confrontation between the applicant and K., in the presence of their lawyers, in respect of the murder case. The applicant, however, refused to participate in that investigative measure, referring to his hostile relations with K.
27. On 11 February 2005 the investigator showed K. four different sweaters seized from the applicant’s home on 28 January 2005 (see paragraph 19 above). K. recognised one of them as that worn by the applicant at the time of the murder on 12 October 2004. Immediately thereafter, the sweaters were shown to A., who also recognised the same sweater.
28. On 9 March 2005 a forensic medical immunological expert examination report was issued in respect of the applicant’s sweater recognised by K. and A. as the one worn during the crime (see paragraphs 19 and 27 above). A brown spot measuring about one square centimetre was discovered on the right sleeve. The experts established that it was human blood and that it could not be excluded that it might originate from a person or persons with the same blood group as the victims.
29. On 12 May 2005 an identification parade took place in the absence of the applicant’s lawyer. A. identified the applicant “by his stature and voice” as the person who had murdered his parents. As submitted by the applicant, he had been the only person wearing winter clothes, which were also dirty. Furthermore, instead of masks the three participants of the identification parade had worn black plastic bags on their heads. A copy of the identification report of 12 May 2005 in the case file is illegible. It can only be seen that its text is limited to one brief paragraph.
30. On 14 July 2005 the case was referred to the Dnipropetrovsk Regional Court of Appeal (“the Dnipropetrovsk Court”) for trial.
31. On 19 January 2006 the Dnipropetrovsk Court, sitting as a court of first instance, found the applicant guilty of double murder committed with particular cruelty (in front of the victims’ child) and for profit, several counts of robbery, illegal arms’ handling, and creating a criminal gang. The most severe penalty, life imprisonment, was for the aggravated murder and absorbed those in respect of the other charges. During both the pre-trial investigation and the trial the applicant consistently confessed to almost all the robberies (except for one count). He had, however, retracted at a certain point during the trial his confession to the aggravated murder as extracted under duress and without legal assistance. K. also retracted his earlier statement on that charge in which he had incriminated the applicant, as having been obtained under duress.
32. In reaching its conclusion about the applicant’s guilt, the trial court relied on his and K.’s “statements of surrender” made during the pre-trial investigation (see paragraphs 20 and 22 above). It noted that their ill‑treatment complaints had been duly investigated and dismissed by the prosecution authorities (see paragraph 43 below). Accordingly, the court considered that their initial confessions had been made of their own free will and observed that they were concordant with each other in all the details. At the same time, given the fact that the defendants had retracted them during the trial, the court refused to consider them as a mitigating circumstance in setting the sentence. The court further relied on the results of the identification parade of 12 May 2005, during which A. had recognised the applicant as the offender (see paragraph 29 above). Lastly, the trial court mentioned the applicant’s sweater among the evidence in support of his guilt (see paragraphs 19, 27 and 28 above).
33. Both the applicant and his lawyer (the applicant was still represented by lawyer Z. – see paragraph 12 above) lodged cassation appeals against the above judgment. The case file before the Court contains only a copy of the lawyer’s cassation appeal, but not that lodged by the applicant (see also paragraphs 56-60 below).
34. The applicant’s lawyer submitted in his cassation appeal that his client maintained his confessions to the robberies, but denied his involvement in the creation of a criminal gang. He also insisted that the applicant had had nothing to do with the aggravated murder of the Mr and Ms S. The lawyer found it suspicious that on 28 January 2005 the applicant had made his “statement of surrender to the police” in respect of that murder in the criminal investigation department of Dnipropetrovsk Region, whereas the ongoing criminal investigation at that time had been under the responsibility of the Kirovskyy police. In the lawyer’s opinion, that indicated that the applicant’s confession had not been made of his own free will. He further observed that his client had not been legally represented while making that confession. The lawyer argued that, even when the applicant had been legally represented, most investigative measures had taken place in the absence of his lawyer. That had concerned, in particular, the identification parade of 12 May 2005, of which the lawyer had not been informed in due time. The applicant’s lawyer considered that investigative measure to have been flawed also given the considerable difference in appearance between his client and the other participants, as well as the fact that A., who had himself been under suspicion, had had his own interests to pursue. Lastly, the lawyer observed that the trial court had relied on the statements of K. incriminating the applicant even though K. had stated that he had made them under duress.
35. K. also lodged an appeal in cassation challenging, in particular, his conviction for abetting the robbery of the S. family. He submitted that he had been coerced into incriminating the applicant.
36. On 3 October 2006 the Supreme Court upheld the applicant’s conviction, as well as that of the other defendants (six persons in total were convicted of the robberies), having found that the first-instance court had duly examined his arguments and complaints. During the hearings before the Supreme Court the applicant, along with the other defendants, was kept in a metal cage and remained handcuffed.
C. Alleged ill-treatment of the applicant and the investigation thereof
37. According to the applicant, during the period from 15 to 18 January 2005, when he was held in the Kirovskyy police station after his arrest (see paragraph 8 above), he was subjected to various forms of ill-treatment, such as being kept in extremely tight handcuffs, slaps on his ears, deprivation of sleep and verbal abuse.
38. The applicant also alleged that on 28 January 2005 he had been taken to the Dnipropetrovsk Region criminal investigation department, where the police had ill-treated him with a view to extracting his confession to the aggravated murder of Mr and Ms S. The applicant provided the following account. Police officers put a black cap on his head covering his eyes and hit him many times in the head with a pile of books. His hands remained handcuffed behind his back. They also hit him several times with a rubber truncheon in the kidneys and on the legs. He further alleged that the police had threatened him with rape. The alleged ill-treatment continued from about 10 a.m. to about 6 p.m., after which he succumbed to the pressure (see paragraph 20 above).
39. The case file contains contradictory information as to whether the applicant was taken to the Dnipropetrovsk Region criminal investigation department on 28 January 2005. The ITT’s records indicate that he did not leave the ITT premises on that day. However, as noted by the head of the Dnipropetrovsk Region criminal investigation department in his letter of 14 May 2007 sent in reply to an enquiry from the applicant, on 28 January 2005 the applicant had indeed been on the premises of that department, but no investigative measures had been carried out on that date. Following the applicant’s request for additional details, the official’s reply was that there was no information as to the exact time the applicant spent in that building on 28 January 2005 or as to which officer had requested his transfer there.
40. According to the applicant, in the morning of 29 January 2005 he told the ITT doctor that he had been beaten up and that he was suffering from a headache, but his complaints were disregarded.
41. On 31 January 2005 the applicant was transferred from the Dnipropetrovsk ITT to the Dnipropetrovsk Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”). According to the Government, during his medical examination no injuries were discovered on him and he did not raise any complaints. According to the applicant, that examination was superficial and his complaints of headache did not receive any attention.
42. On 8 November 2005 the Dnipropetrovsk Court instructed the prosecution authorities to investigate the applicant’s allegation of ill‑treatment, along with similar allegations from the other accused (see paragraphs 31 and 32 above).
43. On 18 November 2005 the Dnipropetrovsk regional prosecutor’s office issued a ruling refusing to institute criminal proceedings in respect of the above allegations, having found them unsubstantiated. That decision was based on the statements of the police officers concerned, who denied having ill-treated the applicant and the other accused. As the investigator had explained, all the accused had confessed of their own free will to the offences of which they were suspected and had consistently reiterated those confessions. Furthermore, none of them had raised any complaints of ill‑treatment. In sum, their allegations were dismissed as being without basis.
44. After his conviction, the applicant complained to various authorities of ill-treatment by the police during the pre-trial investigation and of the unfairness of his conviction.
45. On 19 April 2007, having sent numerous requests, the applicant received a copy of the prosecutor’s ruling of 18 November 2005 (see paragraph 43 above). His subsequent complaint to the courts against it was dismissed without examination as belated: having initially complained to the wrong court, the applicant missed the seven-day time-limit calculated from 19 April 2007.
46. In February 2008 the applicant’s mother complained to the Prosecutor General’s Office that there had been no effective investigation into his ill-treatment allegations. Her complaint was dismissed as unsubstantiated.
47. On 23 March 2017 the Dnipropetrovsk prosecutor informed the Government’s Agent, in reply to an enquiry from the latter, that all the investigation materials had been destroyed because the five-year time-limit for their storage had expired.
D. Conditions of the applicant’s detention in the Dnipropetrovsk SIZO
48. From 31 January 2005 to 26 July 2007 the applicant was detained in the Dnipropetrovsk SIZO: in an ordinary cell before his conviction on 19 January 2006; and in the high-security wing located in a semi-basement thereafter.
49. According to the applicant, during the entire period the conditions of his detention in the SIZO were unacceptable. There were tight metal screens on the windows preventing access to daylight. The artificial light was poor, too. The toilet was not separated from the living area and was exposed to the video-surveillance camera. The sanitary conditions were very poor, with a malfunctioning sewerage system, recurrent floods and a permanent smell of excrement. For most of the time he was detained in a basement cell measuring 1.9 m by 3.7 m, which he shared with another inmate. The cell lacked basic furniture and items such as a cupboard, a mirror or a rubbish bin. The premises were infested with rats and had never been disinfested. The detainees had very limited access to news and information about the outside world, the only source being a radio turned on only for a limited period of time every day, apart from weekends. The food was meagre and consisted mostly of bread and wheat-based cereal.
50. According to the information provided by the Government, the applicant was detained in the following cells: nos. 1003, 1021 and 1024 (designated for six inmates), nos. 717, 724, 725, 728, 732, 733, 739, 743 and 786 (designated for four inmates), and, following his conviction by the first-instance court, in high-security cells nos. 01, 1k, 02, 03, 04, 4k, 05, 06 and 6k (designated for two inmates). As stated by the SIZO administration, the applicant had been provided with a bed and with “all the necessary items”.
51. On 12 January 2007 the applicant complained about the conditions of his detention to the State Department for Execution of Sentences (“the Prison Department”), which replied that they were in compliance with the applicable legal standards.
E. The applicant’s correspondence with the Court
52. According to the applicant, on 11 December 2006 he submitted to the SIZO administration his first letter to be dispatched to the Court, outlining his complaints and requesting that proceedings be opened. In the absence of a reply, on 23 February 2007 the applicant submitted another similar letter to the administration. In his further correspondence with the Court he indicated the reference numbers assigned by the administration to those first two letters. The Court has never received them. The first letter from the applicant to have reached the Court was dated 11 December 2006; it had been sent to the Court by his mother on 14 March 2007 (the date on the postage stamp).
53. As indicated in a letter sent to the applicant by an official of the Prison Department on 11 October 2007, the administration of the Dnipropetrovsk SIZO had duly registered and sent his letters to the Court.
54. In November 2007 the applicant’s mother requested the governor of Yanakiyeve prison (in which the applicant was serving his sentence at the time) to provide her with documentary evidence proving that her son’s letter of 11 December 2006 had indeed been sent to the Court. The prison official replied that it could be proved by the fact that a copy of the cover letter from the SIZO administration accompanying the applicant’s letter in question was available in the file.
55. In March 2017 the Dnipro (renamed “Dnipropetrovsk”) prison authorities informed the Government’s Agent, in reply to an enquiry from the latter, that the correspondence records of the Dnipropetrovsk SIZO related to the period in question had been destroyed owing to the expiry of the time-limit for the storage of such documents.
F. The applicant’s access to documents in the criminal file in the context of his application to the Court
56. Starting from October 2006 the applicant sent numerous requests to the trial court, seeking access to his case file and copies of certain documents, which he intended to submit in substantiation of his application to the Court.
57. On 27 July and 23 August 2007 the Court requested the applicant to submit a copy of his cassation appeal against the judgment of the Dnipropetrovsk Court of 19 January 2006.
58. By a letter dated 19 October 2007, the applicant, relying on the above-mentioned letters from the Court, asked the Dnipropetrovsk Court to send him a copy of his appeal in cassation.
59. In its reply of 24 October 2007, the court stated that there was no legal basis for providing the applicant with copies of documents from his case file after the entry into force of the verdict in his case.
60. The applicant and his mother on his behalf sent a total of about ten requests for copies of documents from his case file. All of them were rejected with the same reasoning as mentioned above.
II. RELEVANT DOMESTIC LAW
61. The relevant provisions of the Code of Criminal Procedure 1960 (repealed with effect from 19 November 2012) as regards the requirement of mandatory legal representation and statements of surrender to the authorities are summarised in Sobko v. Ukraine (no.15102/10, §§ 39 and 40, 17 December 2015), and as regards the maximum duration of detention in temporary detention facilities, inNechiporuk and Yonkalo v. Ukraine (no. 42310/04, § 135, 21 April 2011).
III. RELEVANT INTERNATIONAL MATERIAL
62. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”) visited the Dnipropetrovsk SIZO during the visit to Ukraine it carried out from 9 to 21 September 2009. The relevant parts of its report (CPT/Inf (2011) 29) are quoted in Gorbatenko v. Ukraine (no. 25209/06, § 98, 28 November 2013).
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT OF THE APPLICANT IN POLICE CUSTODY AND THE LACK OF AN EFFECTIVE DOMESTIC INVESTIGATION
63. The applicant complained that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
64. The Government submitted that the applicant’s allegations of ill‑treatment were not supported by any evidence. They observed that he had not raised any complaints in that regard during the entire duration of the pre-trial investigation, even though he had been legally represented at certain points when he had wished to be. The Government also noted that the applicant’s medical examination upon his arrival at the Dnipropetrovsk SIZO on 31 January 2005 had not revealed any injuries on him. Lastly, they submitted that the matter had been duly investigated at domestic level and invited the Court to declare those complaints inadmissible as being manifestly ill-founded.
65. The applicant contested the Government’s arguments. Maintaining his account of the events (see paragraphs 37 and 38 above), he alleged that he had been ill-treated by the police before each investigative measure during his detention in the police station from 15 to 18 January 2005, as well as on 28 January 2005 in the Dnipropetrovsk Region criminal investigation department.
66. The applicant submitted that he had not been able to provide any evidence in support of his allegations, given that the authorities had taken efforts to conceal any such evidence. He drew the Court’s attention to his prolonged detention, first in the police station and later in the Dnipropetrovsk ITT (for sixteen days instead of the legal limit of three days – see paragraphs 41 and 61 above). According to him, that time had been required for traces of his ill-treatment to disappear.
67. Lastly, the applicant submitted that the domestic investigation had been ineffective and superficial.
B. The Court’s assessment
68. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof to provide a satisfactory and convincing explanation may be regarded as lying with the authorities (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no.21986/93, § 100, ECHR 2000‑VII).
69. That being so, applicants are expected to submit at the very least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, for example, Kushnir v. Ukraine, no. 42184/09, § 102, 11 December 2014, with further references). Such evidence might include eyewitness statements or any documents showing that the applicant had entered the police premises in good health but left them having sustained injuries (see, for example, Gorbatenko v. Ukraine, no.25209/06, § 120, 28 November 2013).
70. Turning to the present case, the Court observes that the applicant complained about the following two episodes of his alleged ill-treatment by the police: firstly, during the period from 15 to 18 January 2005 and, secondly, on 28 January 2005 (see paragraphs 37, 38 and 65 above).
71. As regards the first episode, the applicant submitted that his ill‑treatment had consisted in his tight handcuffing, slaps on the ears, deprivation of sleep and verbal abuse (see paragraph 37 above). He did not specify the duration of his handcuffing and whether it had resulted in any injuries. The applicant also failed to provide any factual details as to the slaps on the ears he had allegedly sustained and their consequences, if any. Nor did he indicate for how long he had not been able to sleep and what exactly his alleged verbal abuse had consisted in.
72. Overall, although the applicant argued that the sole purpose of his continued detention in the Dnipropetrovsk ITT had been to allow sufficient time for his injuries to heal, he did not indicate, even summarily, what kind of injuries he had allegedly sustained.
73. The Court also observes that the applicant consistently confessed to the charges relating to the robberies, both during the pre-trial investigation and throughout his trial, and never alleged that those confessions had been the result of any coercion (see, for example, paragraph 34 above).
74. As regards the second episode of the applicant’s alleged ill‑treatment, according to the applicant, it took place on 28 January 2005 and consisted in repeated blows to the head with a pile of books, as well as blows to the kidneys and legs with a truncheon (see paragraph 38 above). The Court notes, given the applicant’s submission that he had been blindfolded prior to his alleged ill-treatment, that it is not clear how he could have known exactly what he was being hit with.
75. The Court next observes that, according to the applicant, on 29 January 2005 he complained to the ITT doctor that he was suffering from a headache as a result of his ill-treatment. However, when undergoing a medical examination as part of the standard procedure for admission to the SIZO on 31 January 2005, the applicant, as he himself admitted (see paragraph 41 above), only complained of a headache.
76. The Court does not lose sight of the fact that, as pointed out by the applicant, he was detained first in the police station for three days and later in the Dnipropetrovsk ITT for thirteen days, whereas the applicable legislation required his transfer to the SIZO within three days of his arrest (see paragraphs 41 and 61 above). However, that fact alone is not sufficient to support a finding that he was ill-treated during that period (see and compare with Savchenko v. Ukraine [Committee], no. 1574/06, § 99, 22 September 2016).
77. The Court next observes that the applicant was legally represented, at least episodically, during the pre-trial investigation and throughout the trial by lawyer Z. (see paragraphs 15, 26 and 34 above). He has not alleged that he did not trust his lawyer or that he was prevented from sharing his ill‑treatment allegations with him. There is therefore no explanation as to why the applicant and his lawyer failed to request a medical examination and to report the injuries if there were any (see Yuriy Volkov v. Ukraine, no. 45872/06, § 51, 19 December 2013). Furthermore, the wording used by the applicant’s lawyer in his cassation appeal suggests for the Court that in fact he had had no account of the applicant’s ill-treatment to be conveyed on his client’s behalf. Thus, the lawyer alleged in broad terms that the applicant had confessed to the aggravated murder under duress, relying only on the fact that the latter had made his “statement of surrender to the police” on the premises of the Dnipropetrovsk Region criminal investigation department (see paragraph 34 above).
78. In the light of all the foregoing considerations, the Court considers that the applicant has failed to lay the basis of an arguable complaint that he was ill-treated as alleged. Furthermore, it is not open to him to contest the effectiveness of the domestic investigation, since he failed to provide the authorities with any serious and reasonably credible information about his alleged ill-treatment (seeKravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014).
79. Accordingly, the Court rejects the applicant’s complaint under both the substantive and procedural limbs of Article 3 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN THE DNIPROPETROVSK SIZO
80. The applicant complained under Article 3 of the Convention that he had been detained in extremely poor conditions in the Dnipropetrovsk SIZO.
81. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
82. Referring to his description of the conditions of his detention in the Dnipropetrovsk SIZO (see paragraph 49 above), the applicant argued that they had been incompatible with the Convention standards. He further referred to the Court’s judgments in the cases Iglin v. Ukraine (no. 39908/05, 12 January 2012), Gorbatenko (cited above), and Rodzevillo v. Ukraine (no. 38771/05, 14 January 2016), in which a violation of Article 3 of the Convention had been found on account of inadequate conditions of detention in the same detention facility and in respect of about the same time frame. According to the applicant, the Court’s conclusions in the cited cases remained pertinent in his case.
83. The Government submitted that the conditions of the applicant’s detention had been in compliance with the legal requirements. They observed that his complaint in that regard had been duly investigated at domestic level and dismissed as unfounded.
84. The Court notes that the relevant principles of its case-law were recently set out in Muršić v. Croatia ([GC], no. 7334/13, §§ 137-41, 20 October 2016). In particular, when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (§ 137). In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention (§ 139). Where a detainee had at his or her disposal more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (§ 140).
85. Turning to the present case, the Court notes that the applicant was detained in the Dnipropetrovsk SIZO for almost two and a half years. According to his submissions, which the Government did not refute, he had about 3.5 sq. m of personal space (see paragraphs 49 and 50 above). As pointed out by the applicant, the Court has already found a violation of Article 3 of the Convention on account of the lack of personal space afforded to the applicants and other aspects of inappropriate physical conditions of detention in the Dnipropetrovsk SIZO at about the time when the applicant in the present case was detained there (see Iglin, §§ 49-56, Gorbatenko, §§ 138-43, and Rodzevillo, §§ 50-55, all cited above).
86. The Court sees no reason to depart from those findings in the present case and therefore considers that there has been a violation of Article 3 of the Convention on account of inadequate conditions of the applicant’s detention in the Dnipropetrovsk SIZO.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S CONFINEMENT IN A METAL CAGE DURING THE HEARINGS BEFORE THE SUPREME COURT
87. The applicant complained that placing him in a metal cage during the hearings before the Supreme Court had been contrary to Article 3 of the Convention.
88. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
89. The applicant submitted that his confinement in a metal cage during the hearings before the Supreme Court had been an unnecessary and humiliating measure.
90. The Government contended that the applicant’s confinement in a metal cage and handcuffing during the hearing had been justified security measures given that he had been accused of violent crimes.
91. The Court has held that holding a person in a metal cage during a trial constitutes in itself – having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – an affront to human dignity in breach of Article 3 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)).
92. The Court observes that holding defendants, even those who have not been convicted, in metal cages during a court hearing appeared to be standard procedure in Ukraine (compare Titarenko v. Ukraine, no. 31720/02, §§ 41 and 63-64, 20 September 2012). Turning to the present case, it notes that the Government failed to provide any evidence that there had been an actual and specific security risk in the courtroom which required holding the applicant in a metal cage during the hearings in his case.
93. Accordingly, there has been a violation of Article 3 of the Convention on this account.
IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
94. The applicant further complained that he had not had a fair trial as required by Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(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; ...”
A. Lack of access to a lawyer on 28 January 2005
95. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) The parties’ submissions
96. The applicant complained that his conviction for aggravated murder had been mainly based on his self-incriminating statement given on 28 January 2005 without legal assistance and under duress. He therefore argued that his trial could not be regarded as fair.
97. The Government submitted that there had been no violation of the applicant’s rights under Article 6 of the Convention. They observed, in particular, that his confession had not been the only evidence relied on by the domestic courts in securing his conviction.
(b) The Court’s assessment
(i) General case-law principles
98. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, and the relationship of those rights with the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in the recent judgment in the case of Beuze v. Belgium ([GC], no. 71409/10, §§ 119-150, 9 November 2018).
(ii) Application of the general principles to the facts of the case
(α) Existence and extent of the restriction
99. The Court takes note of the following contradictions in the case-file materials as regards the starting point in the criminal proceedings against the applicant on suspicion of the murder of Mr and Ms S. and his procedural status at the early stages of the proceedings. After the applicant had confessed to the murder on 28 January 2005, a report was drawn up on a lawyer’s admission to the proceedings “at the request of the accused” (see paragraph 23 above). Subsequently, on 1 February 2005 another report, on the familiarisation of the applicant with his procedural rights, referred to him as “a suspect” (see paragraph 24 above). Lastly, according to the information provided by the Government, without any further details or explanations, criminal proceedings against the applicant on the murder charge were initiated on 4 February 2005 (see paragraph 25 above).
100. It is unclear for the Court when and for what reason the police started suspecting the applicant of the murder. That being so, the following facts, which are undisputed by the parties, are to be noted. Until mid-January 2005 it had been the victims’ son, A., who had been the key suspect (see paragraph 7 above). The applicant had been arrested on 15 January 2005 on suspicion of unrelated criminal offences, but there is no indication that the police had suspected him in relation to their murder-related investigation at any point before 28 January 2005. As regards the investigative measures carried out on that date, the sequence of events suggests that there had already been some reasons to suspect the applicant even before he had made his statement of surrender to the police. Thus, shortly before the applicant’s confession, the police had conducted a search at his home and had seized several items of his clothing with a view to their “being adduced to the investigation material” (see paragraph 19 above). On the facts of the case (see, in particular, paragraphs 27 and 28 above) it is clear that it was the murder-related investigation that was meant.
101. It follows that, by the time the applicant started giving his “statement of surrender to the police”, a “criminal charge” in the autonomous Convention meaning existed, calling for the application of Article 6 safeguards. Therefore, by virtue of the principles of the Court’s case-law mentioned above, the applicant was entitled to have access to a lawyer during his first questioning (see paragraph 98 above).
102. It is an established fact, however, that he was not legally represented when confessing to the aggravated murder on 28 January 2005.
103. The case file before the Court does not contain any evidence indicating that the applicant waived his right to legal assistance during his questioning on that date, when the charge of the aggravated murder was advanced against him for the first time. Although scarce and contradictory, the available documentation rather suggests the contrary. The Court takes note, in particular, of the investigator’s decision on admission of a lawyer to the applicant on 28 January 2005 at the latter’s request (see paragraph 23 above). For unknown reasons the applicant was not legally represented on that day.
104. It appears that the applicant signed a waiver of his right to legal assistance in respect of the murder charge on 1 February 2005, having stated that his procedural rights had been explained to him and that no measures of physical or psychological pressure had been applied to him (see paragraph 24 above). He reiterated his confession to the aggravated murder. The Court has no sufficient material before it as to whether the applicant’ waiver was voluntary. It notes, however, that, having regard to the fact that the criminal proceedings against the applicant on that charge were formally started on 4 February 2005, it is not clear what procedural rights he had in fact had at that moment. That being so, it cannot be stated that, before signing that waiver, the applicant had been apprised of his right to legal assistance.
105. In sum, the Court considers that the applicant did not waive his right to legal assistance prior to his questioning on 28 January 2005. As regards that waiver prior to his repeated confession on 1 February 2015, it cannot be regarded, under the circumstances, as a knowing and intelligent relinquishment of that right.
106. It follows that there was a restriction on the applicant’s right to legal assistance.
(β) Whether there were compelling reasons for the restriction
107. The Court observes that neither any domestic authorities in the course of the applicant’s trial nor the Government in their submissions to the Court referred to the existence of any exceptional circumstances, which could have justified the impugned restriction on the applicant’s right to legal assistance. It is not the Court’s task to assess of its own motion whether they existed in the present case.
108. It is also worth noting that that restriction ran contrary to the legislative framework requiring mandatory legal representation where life imprisonment was a possible sentence (see the references in paragraph 61 above).
109. The Court therefore concludes that the lack of the applicant’s legal representation at the early stages of the pre-trial investigation regarding the aggravated murder charge was not justified by any compelling circumstances.
(γ) The fairness of the proceedings as a whole
110. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus is then on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see the reference in paragraph 98 above).
111. In this exercise, the Court will examine, to the extent that they are relevant in the present case, the various factors deriving from its case-law as set out in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 274, 13 September 2016), Simeonovi v. Bulgaria ([GC], no. 21980/04, § 120, 12 May 2017) and reiterated in Beuze (cited above, § 150).
112. There is no indication that the applicant was particularly vulnerable by reason of his age or mental capacity or for any other reason. It is relevant to note, however, that at the time of the events he was already in the hands of the police as a suspect in an unrelated investigation, in respect of several counts of robbery. In the Court’s opinion, that circumstance did render his situation somewhat vulnerable.
113. The Court refers to its conclusion that the applicant failed to make out his claim that he had made his initial confession as a result of ill-treatment (see paragraph 78 above). The inadmissibility of his related complaint under Article 3 of the Convention does not preclude the Court from examining his allegation of self-incrimination under duress from the standpoint of the Article 6 safeguards (see Yuriy Volkov, cited above, § 68). The Court cannot but observe that, even though the circumstances in which the applicant made his initial confession cast doubts on its reliability (see, in particular, paragraph 39 above), they were not elucidated by the domestic courts (see Yuriy Volkov, cited above, § 69).
114. The Court is mindful of the fact that on 1 February 2005 the applicant reiterated his confession, having previously signed a report confirming that his rights as a suspect had been explained to him and having waived his right to legal assistance (see paragraph 24 above). However, the Court has already concluded that that waiver could not be regarded as having been made in a knowing and intelligent manner (see paragraph 104 above). Furthermore, in the absence of any information that between his “statement of surrender to the police” of 28 January 2005 and his repeated confession of 1 February 2005 he had had any legal advice to rely on, the Court considers that the applicant’s procedural behaviour and defence strategy at that point continued to be heavily influenced by the initial restriction on his defence rights.
115. The case-file materials before the Court suggest that the applicant started to be legally represented in the murder-related case on 10 February 2005 (see paragraph 26 above). There are no documents showing that he maintained his confession once he was being assisted by a lawyer. However, there is no unequivocal documentary evidence either as to when exactly he retracted that confession. It appears that he did so at the early stages of his trial (see paragraph 31 above).
116. The Court agrees with the applicant that his initial confession obtained without legal assistance formed an important, if not a key, element of the prosecution’s case against him. Thus, the other pieces of evidence, on which the courts relied to secure the applicant’s conviction, were: firstly, the statements of his co-accused K., who claimed to have incriminated the applicant under duress (see paragraphs 22, 31 and 35 above); secondly, the statements by the victims’ son A., a minor who had himself been detained for three months and who had initially confessed to killing his parents (see paragraph 7 above); and, lastly, the applicant’s sweater as the material evidence, apparently of limited probative value (see paragraphs 19, 27 and 28 above).
117. Lastly, the Court cannot but observe the absence of other relevant procedural safeguards afforded by domestic law and practice, which could be regarded as counterbalancing the early restriction on the applicant’s right to legal assistance in the murder-related proceedings. The Court notes, in particular, that the applicant was not legally represented during the identification parade on 12 May 2005, when the victims’ son A. recognised him as the perpetrator (see paragraph 29 above). The argument of the applicant’s lawyer that he had not been duly notified of that investigation measure apparently remained without answer. Nor did the domestic courts comment on the applicant’s submission that during the identification parade in question his appearance had significantly differed from that of the other participants. The Court also takes note of the absence of a thorough assessment by the domestic courts of the allegation by K. that he had been coerced into incriminating the applicant.
118. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant in respect of the aggravated murder charge, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage.
119. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that regard.
B. Other complaints regarding the fairness of the applicant’s trial
120. The applicant complained, in addition to his complaint analysed above, that the identification parade on 12 May 2005 had been conducted without his lawyer. He also alleged that that investigative measure had been flawed because of his difference in appearance as compared with the other participants (see paragraph 29 above). The applicant also complained that the domestic courts had relied on the statements of his co-defendant K., which the latter had claimed he had given as a result of ill-treatment.
121. The applicant next complained that his trial in the part concerning the robbery-related charges had also lacked fairness. He complained in his application form – albeit without developing this complaint further after the Government had been notified of it – that his first meeting with a lawyer had taken place on 25 January 2005 in the investigator’s presence. The applicant further alleged that he had been coerced into making self-incriminating statements and into waiving his right to legal assistance. Lastly, he maintained that even after he had explicitly expressed his wish to be legally represented, most of the investigative measures had been conducted in the absence of his lawyer.
122. In the light of its finding in paragraph 119 above, the Court does not consider it necessary to address separately the admissibility and merits of the applicant’s remaining complaints under Article 6 of the Convention (see Boyets v. Ukraine, no. 20963/08, § 97, 30 January 2018).
V. ALLEGED VIOLATION OF THE RIGHT OF INDIVIDUAL APPLICATION UNDER ARTICLE 34 THE CONVENTION
123. The applicant complained that the authorities had obstructed his access to the criminal case file and had refused to provide him with copies of the documents he had requested to substantiate his application to the Court. He also complained that the SIZO administration had blocked his correspondence with the Court. In raising the above complaints, the applicant relied on 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.”
A. The applicant’s access to his case file
124. The Government stated that there had been no hindrance to the effective exercise by the applicant of his right of individual application. They argued that he had obtained copies of a number of the main decisions in his case and that he could have made copies of other necessary documents when familiarising himself with the case file, that is to say prior to the completion of the criminal proceedings in his case. They also argued that the applicant’s mother, who had been at liberty, could have helped him to obtain the necessary copies.
125. The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine (see, among others, Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 103-110, 26 July 2012, with further references; Savitskyy v. Ukraine, no. 38773/05, §§ 152, 157-159, 26 July 2012; Korostylyov v. Ukraine, no. 33643/03, §§ 46-50, 13 June 2013; Andrey Zakharov v. Ukraine, no. 26581/06, §§ 66-70, 7 January 2016; and Artur Parkhomenko v. Ukraine, no. 40464/05, § 95, 16 February 2017). In particular, in the case of 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-file documents after the completion of criminal proceedings, either by making such copies themselves (whether by hand or using appropriate equipment) or by having the authorities make copies for them.
126. 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 case of Vasiliy Ivashchenko or the other cases cited above. Accordingly, the Court concludes that the respondent State failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicant in order to make possible the proper and effective examination of his application by the Court.
B. Alleged hindrance to the applicant’s correspondence with the Court
127. The applicant complained that the administration of the Dnipropetrovsk SIZO had never sent out his letters of 11 December 2006 and 23 February 2007 to the Court (see paragraphs 52-55 above).
128. The Government submitted that the administration of the detention facility had not hindered the applicant’s communication with the Court in any way, having dispatched his letters and having passed on those received from the Court addressed to him without delay.
129. The Court reiterates that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with an individual’s right to present and pursue his complaint before the Court effectively (see, for example, Gerashchenko v. Ukraine, no. 20602/05, § 150, 7 November 2013, with further references).
130. Turning to the substance of the applicant’s complaint, the Court notes that two letters which the applicant sent to the Court did not arrive (see paragraph 52 above). It is possible that this was due to a technical error at some stage of their dispatch or delivery. However, the Court is unable to find on that basis alone that the Ukrainian authorities deliberately stopped the applicant’s letter or failed to ensure that it was duly dispatched (see Vasiliy Ivashchenko, cited above, § 115).
131. Accordingly, on the basis of the evidence before it, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention as regards the dispatch of the applicant’s letters addressed to the Court.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
132. 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.”
133. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage and requested a retrial in compliance with Article 6 of the Convention
134. The Government contested this claim.
135. The Court considers that the applicant suffered non-pecuniary damage, which cannot be compensated for by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
136. The applicant also claimed EUR 850 for the costs and expenses incurred before the Court. No copies of the relevant legal service contracts, invoices, vouchers or any other supporting financial documents were submitted.
137. The Government contested that claim as unsubstantiated.
138. According to the Court’s settled 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 (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 130, 5 July 2016). A representative’s fees are considered to have been actually incurred if the applicant has paid them or is liable to pay them. The opposite is the case with respect to the fees of a representative who, without waiving them, has simply taken no steps to pursue their payment or has deferred it. The fees payable to a representative under a conditional-fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017, with further references).
139. In the present case the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by his representative. In the absence of such documents, the Court is not in a position to assess the points mentioned in the previous paragraph. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him (compare Gablishvili and Others v. Georgia, no. 7088/11, §§ 75-79, 21 February 2019).
140. It follows that the claim must be rejected.
C. Default interest
141. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Article 3 of the Convention concerning the alleged ill-treatment of the applicant in police custody and the lack of an effective domestic investigation inadmissible;
2. Declares the remainder of the applicant’s complaints under Article 3 of the Convention, as well as his complaint under Article 6 §§ 1 and 3 (c) of the Convention on the lack of access to a lawyer on 28 January 2005, admissible;
3. Holds that there has been a violation of Article 3 of the Convention on account of the poor conditions of the applicant’s detention in the Dnipropetrovsk SIZO;
4. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s confinement in a metal cage during the hearings before the Supreme Court;
5. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the applicant’s lack of access to a lawyer on 28 January 2005;
6. Holds that there is no need to examine the admissibility and merits of the applicant’s remaining complaints under Article 6 of the Convention;
7. Holds that Ukraine has failed to comply with its obligations under Article 34 of the Convention with respect to the refusal of the authorities to provide the applicant with copies of documents for his application to the Court;
8. Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention as regards the dispatch of the applicant’s letters addressed to the Court;
(a) that the respondent State is to pay the applicant, within three months, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
10. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President
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