«Рябінін і Шаталіна проти України»: ЄСПЛ встановив відсутність порушення Конвенції, оскільки Заявник у подальшому неодноразово підтримав свої початкові показання, надані без адвоката (ст.ст. 3, 6, 8, 34 Конвенції, заява № 33006/07, від 07.11.2019 р.)
Фабула судового акта: Справу розпочато за заявами громадян України Рібяніна В.І. (Заявник) та його матері - Шаталіної Ю.І. (Заявниця) у зв’язку з стверджуваним порушенням гарантованих Конвенцією прав Заявників під час кримінального провадження щодо Заявника.
Заявника було заарештовано за підозрою у вбивстві жінки. Заявник раніше відбував покарання у вигляді позбавлення волі, а після звільнення жив з матір’ю. Під час обшуку в домі Заявників, який відбувався в присутності Заявниці, міліція вилучила деякі речі і повідомила Заявниці про необхідність явки Заявника у відділок. На думку Заявниці, це було пов’язано зі звільненням із в’язниці, проте у відділку Заявника було затримано за підозрою у вбивстві С., і вилучено мобільний телефон (який належав Заявниці).
У подальшому Заявник стверджував, що зазнав жорстокого поводження з боку працівників міліції, в тому числі побиття, катування електричним струмом, з огляду на що вимушено зізнався у вчиненні злочину. Документи щодо затримання Заявника було знищено після закінчення встановленого строку зберігання. У СІЗО Заявника було оглянуто лікарем, проте пошкоджень – не задокументовано. Заявник неодноразово звертався до прокуратури з вимогою розслідувати факт жорстокого поводження, проте йому було відмовлено у відкритті справи.
Згодом Заявнику було додатково інкриміновано незаконне зберігання зброї, проти чого Заявник заперечував. Суд визнав Заявника винним у вчиненні злочинів та засудив до довічного позбавлення волі, попри відмову Заявника від пізнавальних показань; твердження про жорстоке поводження було визнано судом необґрунтованими. У рішенні суд в переліку речових доказів не зазначив про вилучений у Заявника телефон. Заявник оскаржив вказане рішення, проте в задоволенні скарги було відмовлено, а рішення залишено без змін.
Через деякий час телефон було повернуто Заявниці і вона звернулася до суду з цивільним позовом з вимогою відшкодування шкоди у зв’язку із затримкою повернення телефону. Загальні та адміністративні суди відмовили Заявниці у відкритті провадження у зв’язку з неправильним визначенням юрисдикції.
ЄСПЛ наголосив, що стаття 3 Конвенції зобов’язує державу здійснити офіційне розслідування аргументованих скарг особи щодо жорстокого поводження. Проте, попри те, що скарги Заявника на жорстоке поводження були досить детальними, він не зміг чітко вказати, яких саме травм зазнав, надати належні докази завдання травм або іншим чином підтвердити свої твердження. З огляду на вказане, скаргу Заявника на порушення статті 3 Конвенції було відхилено як явно необґрунтовану.
Разом з цим, ЄСПЛ встановив, що на початковому етапі слідства (в тому числі під час давання зізнавальних показань) Заявнику не було надано захисника, з огляду на що право Заявника на правову допомогу було неправомірно обмежене. Проте, Заявник неодноразово підтримав своє зізнання у подальшому, коли користувався правовою допомогою адвоката. ЄСПЛ також дійшов висновку, що зізнавальні показання Заявника не були основною підставою для засудження, оскільки рішення ґрунтувалося на речових доказах і показаннях свідків. ЄСПЛ дійшов висновку, що справедливість провадження в цілому не було порушено, а рішення національних судів були належним чином обґрунтовані. ЄСПЛ також встановив відсутність порушення статті 6 Конвенції за скаргою Заявника щодо розгляду скарги Заявника за його відсутності, оскільки це було наслідком дій Заявника, а саме неявки у засідання.
ЄСПЛ встановив порушення статті 8 Конвенції з огляду на комплексний моніторинг кореспонденції Заявника під час тримання під вартою. Вказане порушення було наслідком виконання вимог чинного на той момент законодавства.
Скаргу другої Заявниці щодо порушення статті 1 Першого протоколу до Конвенції було визнано неприйнятною. Зокрема, ЄСПЛ наголосив, що Заявниця належним чином не обґрунтувала труднощі, з якими зіткнулася через неможливість використовувати свій телефон, її право власності було відновлене після повернення телефону, а питання щодо належності телефону було встановлене як прокуратурою, так і судами під час розгляду скарг Заявника на вилучення майна.
Аналізуйте судовий акт: «Сімеонові проти Болгарії [ВП] (Simeonovi v. Bulgaria [GC]), заява № 21980/04
«Лабіта проти Італії [ВП] (Labita v. Italy [GC]), заява № 26772/95
«Енеа проти Італії [ВП] (Enea v. Italy [GC]), заява № 74912/01
«Вінтман проти України» (Vintman v. Ukraine), заява № 28403/05
«Собко проти України» (Sobko v. Ukraine), заява № 15102/10
CASE OF RYABININ AND SHATALINA v. UKRAINE
(Application no. 33006/07)
7 November 2019
This judgment is final but it may be subject to editorial revision.
In the case of Ryabinin and Shatalina v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 15 October 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 33006/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Valeriy Ivanovich Ryabinin (“the first applicant”) and Ms Yuliya Ignatyevna Shatalina (“the second applicant”), on 20 December 2006 or 12 July 2007 (the date is in dispute as regards the first applicant – see paragraphs 81 and 83 below) and 5 November 2009 respectively.
2. The applicants, who had been granted legal aid, were represented by Mr A.S. Kychenok, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna.
3. The first applicant alleged, in particular: that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter; that he had not had a fair trial; that his correspondence had been subjected to routine monitoring in detention; and that he had been unable to obtain copies of all the relevant documents from his case file in order to substantiate his application. The second applicant complained about the allegedly arbitrary seizure and retention of her property in the context of the criminal proceedings against her son and the lack of an effective domestic remedy in that regard.
4. On 20 June 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
- THE CIRCUMSTANCES OF THE CASE
5. The first applicant was born in 1965 and is serving a life‑imprisonment sentence in Vinnytsya Prison no. 1. The second applicant is his mother. She was born in 1936 and lives in Kryvyy Rig.
- Background events
6. On 13 November 2004 the first applicant was released from prison having served a twelve-year sentence for murder.
7. In May 2005 he became acquainted with S. and they started a relationship. Shortly thereafter S. sold her flat and moved to a rented one.
8. On 12 June 2005 she was seen alive for the last time.
9. On 17 June 2005 the police extracted a leg and an arm from the local river Ingulets, later identified as being body parts of S.
10. On 23 June 2005 the remaining parts of the body and its dissected head were retrieved from the river near the applicants’house.
- Alleged ill-treatment of the first applicant and domestic investigation into the matter
11. On 23 June 2005 the first applicant was arrested on suspicion of the murder of S. (see paragraph 29 below).
12. The first applicant alleged that he had been ill-treated by the police following his arrest and provided the following account of events. The police beat him up by plastic bottles filled with sand and liquid, with a view to extracting his confession to the murder of S. and dissecting her corpse. As he refused, his ill-treatment is alleged to have continued until he fainted. When he regained his senses, he realised that his trousers and pants were lowered and that an electric cable was attached to his testicles. Another electric cable was attached to his lower lip. The police administered an electric current to the first applicant which made him faint several times. The officers also threatened him with rape. Eventually, the first applicant succumbed and wrote a statement of confession dictated to him. The police officer gave him some vodka, after which the first applicant vomited. Thereafter he was placed in a cell where there was another inmate. The first applicant had nausea and vomited. He was taken to the toilet several times at his request. Following one such request, a police officer took him out and shackled him to a motorcycle on a lorry outside. The first applicant spent the night outside. There was a fire hose from which cold water was pouring on him all the time.
13. In the morning on 24 June 2005 the first applicant was allegedly made to change into clean clothes brought by his mother at the investigator’s instruction. According to the first applicant, the clothes which he had been wearing during his arrest were soiled with his blood following his ill-treatment. The investigator allegedly told the first applicant’s mother to destroy them, which she did.
14. According to the Government, the first applicant was not subjected to any physical or moral coercion. They observed, however, that the documents pertaining to his detention in the Inguletskyy police station on 23 June 2005 had been destroyed in 2012 after the expiry of the period prescribed for their storage.
15. On 25 June 2005 a judge of the Kryvyy Rig Inguletskyy District Court (“the Inguletskyy Court”) remanded the first applicant in custody. According to the first applicant, he was not given an opportunity to complain of his ill-treatment and the judge did not react to the visible injuries on his face (unspecified by the first applicant).
16. On 1 July 2005 the first applicant was brought to the Kryvyy Rig pre‑trial detention facility (SIZO) where he was examined by a doctor. According to the Government, the examination did not reveal any injuries. According to the first applicant, his injuries were not documented. He did not, however, specify those injuries.
17. On 25 August 2005 the first applicant complained to the Kryvyy Rig City Prosecutor’s Office that he had confessed to the murder “under moral coercion” by the investigator. He submitted that the investigator had instructed him what to say during the investigative measures under threat of harm to his relatives. Allegedly being afraid for his mother and daughter and feeling depressed, the first applicant had followed those instructions, even when represented by a lawyer.
18. On 14 September 2005 the Inguletskyy District Prosecutor’s Office (“the Inguletskyy Prosecutor’s Office”), to which the above-mentioned complaint had apparently been forwarded, wrote to the first applicant that his allegations had been investigated and had proved to be without basis.
19. On an unspecified date after 23 September 2005 (see paragraph 41 below), during the first applicant’s trial, he complained to the Dnipropetrovsk Regional Court of Appeal (“the Dnipropetrovsk Court”), which was examining the case as a court of first instance, that he had been coerced into making self-incriminatory statements (see paragraph 43 below). On 1 February 2006 the Dnipropetrovsk Court instructed the Inguletskyy Prosecutor’s Office to investigate the matter.
20. On 13 February 2006 the Inguletskyy Prosecutor’s Office issued a ruling refusing to institute criminal proceedings against the police officers concerned, having found no indication of a criminal offence.
21. The first applicant challenged the above refusal before the Inguletskyy Court. He submitted that on 23 June 2005 he had been subjected to “physical and psychological violence”. The first applicant noted that the clothes in which he had been arrested had been soiled with his blood and that the investigator had therefore instructed the first applicant’s mother to bring him similar clean clothes and to destroy the dirty ones. The first applicant further complained that the law enforcement officials had infringed the law by withdrawing from him a sum of money and a mobile phone belonging to his mother.
22. On 16 March 2006 the Inguletskyy Court dismissed the first applicant’s complaint as unfounded. It noted that, apart from the vaguely expressed allegation of “physical and psychological violence”, the first applicant had not specified the circumstances of his alleged ill‑treatment. At the same time, the judge observed that in his complaint against the prosecutor’s refusal the first applicant had raised some new allegations, which had not been verified earlier. Namely, the first applicant additionally alleged that there had been various violations of the procedural rules in respect of the seizure of certain valuables. Accordingly, in so far as his complaint concerned other issues than his alleged ill-treatment, the Inguletskyy Court forwarded it to the local prosecutor.
23. On 14 April 2006 the Inguletskyy Prosecutor’s Office issued another ruling refusing to institute criminal proceedings against the police officers involved in the first applicant’s arrest and questioning, for the lack of the constituent elements of a crime. The officers had been questioned and had denied any wrongdoings. It appears that the issue of the first applicant’s alleged ill-treatment was also covered by that decision. Thus, the prosecutor referred to the statements by the officers who had submitted that the first applicant had not resisted his arrest and that immediately thereafter, in a conversation with the investigator, he had confessed to having murdered S. and to having dissected her body. The investigator had also denied having threatened the first applicant with rape.
24. On 6 July 2006 the Inguletskyy Court upheld the above refusal.
25. On 6 September 2006 the Dnipropetrovsk Court upheld the decision of the Inguletskyy Court of 16 March 2006 (see paragraph22 above).
26. On 13 September 2006 it also upheld the decision of the Inguletskyy Court of 6 July 2006 (see paragraph 24 above).
- Criminal proceedings against the first applicant
27. On 23 June 2005, at 6 p.m., after having retrieved fragments of a corpse from the river near the applicants’ house (see paragraph 10 above), the police conducted a search at the applicants’ household, in the presence of the second applicant. They also documented her explanations as follows. In May 2005 her son had started a relationship with S., who had given him the key from her flat. Before 9 or 10 June 2005 S. had often come to see the first applicant. As he explained to his mother, thereafter S. had left for Kyiv. On 16 or 17 June 2005 the first applicant had brought a television set. On the following day he had left with a handcart and had come back some time later with a kitchen cabinet in that handcart.
28. The police seized a hacksaw and four hacksaw blades, as well as the handcart, the TV-set and the kitchen cabinet referred to by the second applicant. The first applicant was not at home at that time.
29. The investigator asked the second applicant to telephone her son and to tell him to come to the Inguletskyy district police station, which she did. According to the first applicant, he considered that the request was in connection with the usual police supervision following his release from prison. He therefore went to the police station, where, at 7.20 p.m., he was arrested on suspicion of the murder of S. The investigator indicated in the arrest report that evidence of the commission of a criminal offence had been discovered at the first applicant’s home and that there was a risk that he might abscond or reoffend.
30. Shortly after his arrest on 23 June 2005 the first applicant gave written “explanations” to the chief of the Inguletskyy police department. The Government provided a copy thereof to the Court. That document was handwritten in Russian on fourteen pages, in simple words and without any references to legal provisions (see paragraph 84 below). The first applicant confessed to the murder of S. on 12 June 2005 and gave a detailed account of the events. He explained that they had had a dispute while drunk and that he had hit her several times in the head with an axe back. The first applicant emphasised that he had not meant to hurt S. and that she had provoked him. He went on to state that he could see her suffering and that he had realised that she would die anyway. To put an end to her suffering, he had smothered her with a pillow. On 13 and 14 June 2005 he had dissected the body and placed its parts in the refrigerator in the flat rented by S. Subsequently, he had drowned them in the river nearby. Following complaints from the neighbours about bad smells, the first applicant had sprayed several containers of air freshener in the flat of S. He admitted having taken some appliances and furniture from that flat and having withdrawn money from the deceased’s bank card on 12, 13 and 15 June 2005. He stated that he was confessing of his own free will and that he regretted what he had done.
31. The same evening the first applicant signed “a report on the familiarisation of the suspect with his defence rights” with extensive relevant quotations from the Constitution and the Code of Criminal Procedure. He also wrote that he wished to be represented by a lawyer as of his first questioning as a suspect.
32. On 24 June 2005 a lawyer was appointed for the first applicant.
33. On the same day he was questioned as a suspect in the presence of his lawyer and repeated his confession.
34. Later on 24 June 2005 a reconstruction of the events was carried out in the lawyer’s presence. The first applicant maintained his confession. As it can be seen from the numerous photos included in the reconstruction report, the first applicant had no visible injuries.
35. On 25 June 2005 the Inguletskyy Court remanded the first applicant in custody pending trial. On the same day he was questioned as an accused person in the presence of his lawyer and reiterated his previous confessions. The first applicant also wrote in the interview report that he fully admitted his guilt.
36. On 10 August 2005 a forensic expert medical examination established that the victim’s body could have been dissected with the hacksaw seized in the applicants’ household on 23 June 2005 (see paragraph 28 above).
37. On 23 August 2005 the first applicant underwent a forensic psychiatric examination with a view to establishing whether he could be held responsible for the criminal offence in question. In the course of that examination, he reiterated his confessions and raised no complaints. The experts concluded that the first applicant was aware of his actions and could control them. The first applicant signed the above-mentioned examination report with a note that he had no statements or requests to make.
38. On 14 September 2005 the charges against the first applicant were modified. In addition to aggravated murder, he was charged with robbery and the unlawful possession of weapons (a home-made gun and a nunchaku had been found at his home). The first applicant was questioned in the presence of his lawyer and maintained his confession. He disagreed, however, with the charges of robbery and unlawful possession of weapons. The first applicant wrote in the interview report that he “partly” admitted his guilt. He stated that S. had herself given him her bank card and that he had killed her not for profit but as the result of a dispute. The first applicant also wrote that he had had the home-made weapons only for use in self-defence.
39. On 15 September 2005 the pre-trial investigation was completed and the first applicant and his lawyer were given the opportunity to study the case file. As indicated in the report to that effect, the lawyer made a request that the charges against the first applicant be dropped, without further details.
40. On the following day the investigator rejected that request on the grounds that the case file contained sufficient evidence to prove that the first applicant had committed the crimes of which he was accused. Furthermore, the investigator observed that the first applicant had not denied murdering S.
41. On 23 September 2005 the case was sent to the Dnipropetrovsk Court for the trial.
42. On an unspecified date the charges against the first applicant were modified: he was charged with murder as a repeat offence and theft.
43. On 20 February 2006 the Dnipropetrovsk Court found the first applicant guilty as charged and sentenced him to life imprisonment. The first applicant pleaded innocent in the court hearing. He retracted his confession made during the pre-trial investigation and alleged that it had been the result of his torture. The first applicant submitted that he had seen S. for the last time on 12 June 2005. While he admitted having used her bank card thereafter, he insisted that she had earlier entrusted it to him. The first applicant also admitted having taken some appliances and furniture from her flat as she “was not showing up”. Furthermore, he noted that he had been obliged to clean the flat and to spray several containers of air freshener because of the neighbours’ complaints about bad smell.
44. The trial court did not consider plausible the first applicant’s submissions in the hearing and chose to rely on the statements he had made confessing his guilt during his numerous questionings as a suspect and subsequently as an accused, which had been conducted in the presence of his lawyer (see paragraphs 34, 35, 37 and 38 above). It was noted that the first applicant had consistently maintained his confessions throughout the pre-trial investigation. The Dnipropetrovsk Court observed, in particular, that, while he had disagreed with the charges of robbery and unlawful possession of weapons, he had still admitted having killed S. arguing that it had not been for profit, but as the result of a dispute (see paragraph 38 above). Furthermore, the trial court examined the video record of the reconstruction of the events conducted on 24 June 2005, in the presence of the first applicant’s lawyer. It observed that the first applicant had no visible injuries and had been acting freely and giving detailed descriptions of how he had committed the crime in question. It was also noted in the judgment that, as confirmed by the case-file materials, the first applicant had been provided with the possibility to make handwritten comments and remarks in his questioning reports.
45. The trial court relied on the following material evidence in convicting the first applicant: a pillow from the flat with traces of the deceased’s blood on it, as well as an axe and gloves with her blood and the first applicant’s fingerprints in that flat; the items seized from the applicants’ household on 23 June 2005 (see paragraphs 28 and 36 above); and the key of the victim’s flat and her bank card found on the first applicant. The court also heard a number of witnesses. One of them submitted that she had seen S. allow the first applicant use her bank card. Several neighbours of the victim stated that there had been a smell of rotting flesh coming from the flat of the deceased, about which they had complained to the first applicant. According to them, the latter had appeared nervous.
46. It was noted in the judgment that the first applicant’s complaint of ill‑treatment by the police, confined to a vague allegation of “physical and psychological violence”, had been investigated and had been declared ill‑founded. During the hearing, the court questioned the principal investigator, who had arrested the first applicant.
47. Lastly, the trial court observed a number of similarities between the murder, in respect of which the first applicant had already served his sentence (see paragraph 6 above), and that of S. Thus, the first applicant had abandoned the first victim’s body in the same river, not far from where he had dumped the corpse of S.
48. It was noted in the judgment that the first applicant had thirty days to lodge an appeal on points of law starting from the date when the judgment was served on him.
49. On 2 March 2006 a copy of the judgment was served on the first applicant.
50. On 20 March 2006 the first applicant, who was no longer legally represented, lodged an appeal on points of law. He complained that he had been convicted in respect of crimes that he had not committed and that there was no conclusive evidence of his guilt. He alleged that he had incriminated himself “under physical and psychological duress” and under threats of rape. The first applicant alleged that he had been beaten in the Inguletskyy police station from 12.50 a.m. until 5 p.m. Having allegedly been threatened with rape, he had succumbed and had written a confession to the police. The first applicant noted that he had spent the night in a cell and that in the morning on 24 June 2005 he had been made to change into clean clothes brought by his mother. According to him, he continued to be afraid of being raped and had therefore maintained his confession even when represented by a lawyer. The first applicant further submitted that he had retracted his confession once the pre-trial investigation had been completed and his appointed lawyer had been replaced at his request. According to him, the investigation into his allegation of ill-treatment had been incomplete and superficial.
51. On 17 June 2006 the first applicant submitted a request to be present during the hearing before the Supreme Court.
52. On 24 July 2006 the Supreme Court rejected the above-mentioned request. It observed that, pursuant to Article 391 of the Code of Criminal Procedure (see paragraph 75 below), the time-limit for lodging such a request had been the same as for introducing an appeal on points of law (thirty days from the date of the service of the judgment on the first applicant). Given that the judgment of the trial court had been served on him on 2 March 2006 (see paragraph 49 above), the first applicant’s request had clearly been submitted out of time.
53. On 15 August 2006, following a hearing with the participation of the prosecutor but in the absence of the first applicant or any person representing him, the Supreme Court upheld the judgment of 20 February 2006 and endorsed its reasoning. It held that the trial court had duly verified the first applicant’s allegations of ill-treatment and had rightly dismissed them as unfounded.
54. The first applicant has not specified when the Supreme Court’s ruling was served on him. It appears from the case-file materials that he was informed of it on 5 December 2006 at the latest.
- The first applicant’s access to documents required for substantiation of his application before the Court
55. According to the first applicant, on numerous occasions after the criminal proceedings against him were completed, he requested the trial court to provide him with copies of documents from his case file as required for substantiating his application before the Court. His requests were refused on the grounds that, firstly, he had already studied the case file in full (see paragraph 39 above) and, secondly, there was no legal basis for providing him with copies of documents from his case file. It was observed that the first applicant had already received copies of documents required by law (the bill of indictment and the judgment).
56. The first applicant brought an administrative claim against the Deputy President of the trial court in respect of the above-mentioned refusals.
57. On 21 May 2010 the Vinnytsya Circuit Administrative Court partly allowed the first applicant’s claim. It concluded that the official’s refusals to provide the first applicant with the required copies of documents ran counter to the State’s obligations stemming from Article 34 of the Convention. Accordingly, the deputy president of the trial court was obliged to provide the first applicant with those copies. On 28 April 2011 the Kyiv Administrative Court of Appeal quashed that ruling and rejected the first applicant’s claim. However, on 18 April 2013 the Higher Administrative Court quashed the appellate court’s ruling and upheld that of the first-instance court of 21 May 2010.
58. The first applicant was provided with the requested copies of documents in 2013, which he confirmed in writing.
- Seizure of the second applicant’s mobile telephone and its retention by the investigator
59. On 23 June 2005, following the first applicant’s arrest, the investigator seized, in particular, a mobile telephone from him. As it was eventually established, that telephone belonged to the second applicant, and her son had taken it on that day because his own telephone had not been charged. It was also later established that the investigator had requested the second applicant to bring the charger, which she did. The investigator explained to her that he needed to keep the telephone for some time.
60. The verdict delivered by the Dnipropetrovsk Court in respect of the first applicant on 20 February 2006 did not mention the mobile telephone in question among the pieces of evidence. According to the second applicant, no procedural decision was ever taken in respect of that telephone.
61. On 2 August 2007 the prosecutor returned to the second applicant her mobile telephone and its charger, and she wrote a receipt to that effect.
62. The second applicant brought a civil claim against the investigator in respect of the delay in returning her mobile telephone.
63. On 5 August 2008 the Inguletskyy Court refused to open proceedings following her claim, having concluded that it fell within the jurisdiction of the administrative rather than the civil courts.
64. On 5 June 2009 the second applicant re-submitted her claim, this time before the administrative courts.
65. On 8 June 2009 the Dnipropetrovsk Circuit Administrative Court refused to open proceedings, having concluded that the claim fell to be examined under criminal rather than administrative procedure.
66. The second applicant complained about that matter to the prosecution authorities, but their constant reply was that there had been no violations of the law in her case.
- The first applicant’s correspondence with the Court
67. On 20 July 2007 the Court received the first letter from the first applicant dated 12 July 2007, in which he complained, in particular: that he had been ill-treated by the police and that his complaints in that regard had not been duly investigated; that he had incriminated himself under duress and in the absence of legal assistance; and that he had not been present at the hearing before the Supreme Court. The first applicant noted that he had already sent a similar letter to the Court on 20 December 2006.
68. The first applicant enclosed the following information note issued by the administration of the Ladyzhynska Prison in which he was detained at the material time:
“According to the case-file materials, [the first applicant] did indeed apply to the European Court of Human Rights during his detention in the Dnipropetrovsk SIZO. That application was registered under no. P-714 of 20 December 2006.”
69. Furthermore, according to the first applicant, on 16 February 2007 he had re-submitted his application to the Court from the Khmelnytskyy SIZO. However, it never reached the Court.
70. On 24 December 2007 the first applicant sent a completed application form to the Court.
71. The Government submitted that they were unable to provide any documents regarding the first applicant’s correspondence with the Court in 2005-2007 given that all the relevant records had been destroyed after the expiry of the mandatory period prescribed for their storage.
RELEVANT DOMESTIC LAW AND PRACTICE
- Criminal Code (2001)
72. Under Article 115 § 2 (13), premeditated murder committed repeatedly (with some exceptions not applicable to the circumstances of the instant case) was punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
- Code of Criminal Procedure (1960, in force at the material time)
73. Article 45 § 1 provided that legal representation during an inquiry, a pre-trial investigation and a trial before a court of first instance was obligatory if, inter alia, a life sentence was a possible penalty.
74. According to Article 383 § 1, verdicts of appellate courts delivered at first instance could be reviewed under the cassation appeal procedure.
75. Further relevant provisions concerning the cassation proceedings, including Article 391 (“Persons participating in the cassation proceedings”) are quoted in Shabelnik v. Ukraine (no. 2) (no. 15685/11, § 31, 1 June 2017).
- Code on the Enforcement of Sentences (2003)
76. Article 113 of the Code on the Enforcement of Sentences (2003) stipulates that prisoners are allowed to correspond with relatives, other persons and organisations. All such correspondence, unless it is specifically exempted, is subject to automatic monitoring by the prison authorities.
77. Prior to amendments introduced on 1 December 2005 and enacted on 21 December 2005, those exemptions had been limited to correspondence with the Parliamentary Commissioner for Human Rights and prosecutors. The above-mentioned amendments exempted from monitoring all correspondence by prisoners addressed to the Court and other international institutions of which Ukraine was a member.
78. Another round of amendments, which were introduced on 21 January 2010 and entered into force from 9 February 2010, added the following to the list of exemptions: (i) correspondence addressed to prisoners from previously exempt organisations and (ii) correspondence addressed to and received from prisoners’ lawyers.
79. On 8 April 2014 correspondence between prisoners and all courts was added to the list of exemptions. That amendment was enacted on 7 May 2014.
- ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
80. The first 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.”
- The parties’ submissions
81. The Government argued that the first applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. In their opinion, the six‑month time-limit had started running on 13 September 2006, the date of the last domestic decision in respect of his ill-treatment allegation (see paragraph 26 above). The Government contended that the date on which the application had been lodged had been 12 July 2007, not 20 December 2006 as alleged by the first applicant (see paragraphs 67 and 68 above). They noted that, even if the first applicant had indeed written to the Court on 20 December 2006, the contents of that letter remained unknown.
82. The Government also submitted that the first applicant’s allegation of his ill‑treatment on 23 June 2005 was not supported by any evidence. They observed that, although he had been legally represented as from 24 June 2005, he had not raised any complaints in that regard until 25 August 2005, and that even then his complaint had been confined to a vague allegation of “moral coercion” (see paragraph 17 above). The Government noted that the first applicant had complained for the first time that he had been beaten up following his arrest only during his trial and that that complaint had been duly investigated. They therefore considered his complaint under Article 3 of the Convention to be manifestly ill-founded.
83. The first applicant disagreed. He submitted that it was not his fault that the first two letters, which he had sent to the Court, had not reached it. The first applicant referred to the documentary evidence proving that he had sent a letter to the Court from the Ladyzhynska Prison on 20 December 2006 (see paragraph 68 above). He insisted that the contents of that letter were similar to that of 12 July 2007, which the Court had received. Accordingly, the first applicant argued that he had complied with the six-month time-limit.
84. The first applicant also contested the Government’s submission that his complaints were ill-founded. Maintaining his account of the events (see paragraph 12 above), he alleged that he had been ill-treated by the police immediately after his arrest on 23 June 2005. He submitted that his initial confession was “full of quotes from the Constitution and the Criminal Code of Ukraine”, which was an indication that it had been dictated to him and that, accordingly, he had been subjected to ill-treatment. The first applicant also maintained his allegation that the clothes which he had been wearing during his arrest had been soiled with his blood and that the investigator had asked the first applicant’s mother to destroy them. Lastly, he submitted that the domestic investigation had been ineffective and superficial.
- The Court’s assessment
85. The Court does not consider it necessary to address the Government’s objection based on the failure of the first applicant to comply with the six-month time-limit, as this part of the application should in any event be declared inadmissible as being manifestly ill-founded.
86. 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).
87. 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).
88. Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation where an individual raises an arguable claim of ill-treatment (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions1998‑VIII). Even in the absence of an express complaint, Article 3 of the Convention requires an official investigation where there are sufficiently clear indications that ill‑treatment might have occurred (see Goran Kovačević v. Croatia, no. 34804/14, § 48, 12 April 2018, with numerous further references).
89. Turning to the present case, the Court notes that the first applicant, when he finally complained of moral coercion in August 2005 and subsequently over several months detailed the ill-treatment complained of, he provided a detailed account of serious physical and psychological ill‑treatment on 23 June 2005, which allegedly included his continuous beating with plastic bottles filled with sand and liquid, administration of an electric current and threats of rape (see paragraph 12 above).
90. However, in the context of an ill-treatment allegation, the mere coherence of such an allegation cannot in itself prove the veracity of an applicant’s words, and a person with a vivid imagination, good memory and logical skills may invent an almost perfect story about something which has never happened (see Buntov v. Russia, no. 27026/10, § 153, 5 June 2012).
91. The Court notes that the first applicant did not specify what injuries he sustained if any. Nor did he refer to any evidence which existed to support his allegation, but which he had been unable to collect. While he submitted, in broad terms, that there had been some visible injuries to his face allegedly disregarded by the judge of the Inguletskyy Court during the habeas corpus hearing on 25 June 2005 (see paragraph 35 above), the video record and numerous photographs of the reconstruction event of 24 June 2005 pointed to the absence of any such injuries (see paragraphs 34 and 44 above).
92. Furthermore, although the first applicant alleged that his injuries had not been documented during the medical examination following his transfer to the Kryvyy Rig SIZO on 1 July 2005, he also failed to specify those injuries (see paragraph 16 above).
93. The absence of visible injuries is not, however, sufficient for the Court to dismiss an ill-treatment complaint. Thus, the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body (see Boicenco v. Moldova, no. 41088/05, § 109, 11 July 2006). And, of course, the consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace (see Hajnal v. Serbia, no. 36937/06, § 89, 19 June 2012).
94. While bearing that in mind, the Court does not discern any direct or indirect evidence in support of the first applicant’s allegations in the present case (see paragraphs 86 and 87 above). To the contrary, their plausibility appears undermined by a number of inconsistencies in his statements and conduct.
95. The Court notes that, starting from the day following his alleged ill‑treatment, the first applicant was legally represented. He did not allege that he had not trusted that lawyer or that he had been prevented from sharing his concerns with her. There is therefore no explanation as to why neither the first applicant nor his lawyer raised the ill-treatment complaint or sought the first applicant’s medical examination (see, mutatis mutandis, Yuriy Volkov v. Ukraine, no. 45872/06, § 51, 19 December 2013).
96. The Court further observes that, as rightly pointed out by the Government (see paragraph 82 above), when the first applicant did eventually complain to the prosecution authorities of his alleged ill‑treatment of 23 June 2005 some two months later, on 25 August 2005, his only allegation concerned threats of harm to his relatives (see paragraph 17 above). In his application before the Court the first applicant did not mention the existence of such threats, but rather alleged that he had been threatened with rape (see paragraph 12above).
97. It appears that it took the first applicant at least another month to elaborate his ill-treatment allegation at the domestic level. When he repeatedly raised it at some point between 23 September 2005 and 1 February 2006, he alleged physical ill-treatment for the first time. His complaint, however, remained confined to the vaguely couched allegation of “physical and psychological violence” (see paragraphs 21 and 46 above).
98. The Court takes note of the first applicant’s argument that his initial confession contained numerous quotations from the applicable legislation and was thus to be interpreted as proving his ill-treatment. It is noteworthy that, as it transpires from the copy of the document in question, which was provided to the Court by the Government and the accuracy of which the first applicant did not contest, it contained no legal quotations and was written in rather simple language (see paragraph 30 above). A further inconsistency is that he never mentioned before the national authorities the night allegedly spent outside under the fire hose (see paragraph 12 above).
99. The first applicant’s other argument in support of his complaint that the clothes which he had been wearing during his alleged ill-treatment had been soiled with his blood and had been destroyed by his mother at the investigator’s order (see paragraphs 13 and 84above) is not supported by any evidence. Furthermore, had the police wished to destroy those clothes, it would have been more logical not to give them to the first applicant’s mother. Even assuming that she had been instructed to destroy them, she was under no obligation to do so.
100. In the light of all the foregoing considerations, the Court considers that the first applicant failed to establish an arguable complaint that he had been ill-treated as alleged. It is thus not open to him to contest the effectiveness of the domestic investigation (see, for example, Kravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014, and H. P. v. Croatia (dec.), no. 45599/13, § 54, 16 June 2015).
101. Accordingly, the Court rejects the first 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.
- ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
102. The first 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; ...”
103. The Court notes from the outset that it is not clear under the circumstances whether the first applicant complied with the six-month rule (see paragraphs 54 and 67-68 above). There is no need, however, to determine this issue given that this part of the application should in any event be declared inadmissible as being manifestly ill-founded (see also paragraph 85 above).
Lack of access to a lawyer on 23 June 2005
- The parties’ submissions
104. The first applicant complained that his conviction for aggravated murder had been mainly based on his self-incriminating statement given on 23 June 2005 without legal assistance and under duress. He therefore argued that his trial could not be regarded as fair.
105. The Government submitted that there had been no violation of the first 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.
- The Court’s assessment
(a) General case-law principles
106. 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, §§ 119-50, 9 November 2018).
(b) Application of the general principles to the facts of the case
(i) Existence and extent of the restriction
107. The Court notes that the first applicant’s arrest and questioning on 23 June 2005 in respect of the murder of S. was preceded by a search at his home and the seizure of several items related to the investigation (see paragraphs 27-29 above). In other words, the police had begun to suspect him prior to their encounter on that date.
108. It follows that, by the time the first applicant started giving his initial confession, a “criminal charge” within the autonomous meaning of the Convention existed, calling for the application of Article 6 safeguards. Therefore, by virtue of the principles of the Court’s case-law stated in the above-mentioned Beuze judgment, the first applicant was entitled to have access to a lawyer during his first questioning (see the reference in paragraph 106 above).
109. It is an established fact, however, that he was not legally represented when confessing to the aggravated murder on 23 June 2005.
110. The case file before the Court does not contain any evidence indicating that the first 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. The available material rather suggests the contrary. Thus, the first applicant noted in the report “on the familiarisation of the suspect with his defence rights”, which was drawn up in the evening on 23 June 2005, that he wished to be represented by a lawyer starting from his first questioning as a suspect (see paragraph 31 above).
111. It follows that there was a restriction on the applicant’s right to legal assistance on 23 June 2005.
(ii) Whether there were compelling reasons for the restriction
112. The Court observes that neither any domestic authorities in the course of the first 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 first applicant’s right to legal assistance. It is not the Court’s task to assess of its own motion whether any such circumstances existed in the present case.
113. 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 paragraph 73 above).
114. The Court therefore concludes that the lack of legal representation for the first applicant at the very early stage of the pre-trial investigation was not justified by any compelling circumstances.
(iii) The fairness of the proceedings as a whole
115. 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 106 above).
116. 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).
117. There is no indication that the first applicant was particularly vulnerable by reason of his age or mental capacity or for any other reason.
118. The Court observes that his legal representation began on the day following his arrest, from which time onwards he consistently maintained his initial confession, during the entire pre-trial investigation. Thus, the first applicant reiterated his confession during the subsequent investigative measures conducted in the presence of his lawyer: his questioning as a suspect and the reconstruction of the events on 24 June 2005, his questioning as an accused on 25 June 2005, and his questioning on 14 September 2005 after the charges against him had been slightly modified (see paragraphs 30, 34, 35, 37 and 38 above).
119. The Court refers here to its conclusion that the first applicant failed to make out his claim that he had made his initial confession as a result of ill-treatment (see paragraph 101 above). It is noteworthy that he continued to maintain his confession even after having complained, in broad terms, to the prosecution authorities on 25 August 2005 that his initial confession had resulted from his “moral coercion” by the investigator (see paragraph 17 above). The Court also observes that, while on 14 September 2005 the first applicant contested the newly-advanced charge of unlawful possession of weapons, he was still maintaining his confession to the murder of S., emphasising, however, that it had not been for profit (see paragraph 38 above). It was only on an unspecified date during his trial that the first applicant decided to retract his confessions (see paragraph 43 above).
120. Having regard to the extensive body of consistent evidence, including physical, documentary and witness evidence (see paragraphs 43‑46 above), the first applicant’s confession was not decisive for his conviction. Furthermore, even though his right to legal assistance had been restricted at a very early stage of the investigation, several key pieces of the material evidence against him had already been collected by that time (see paragraphs 27 and 28 above). In other words, the role of his initial self‑incriminating statement made in the absence of a lawyer had not been crucial for the prosecution’s case.
121. In any event, the Court observes that, in convicting the first applicant, the domestic courts relied on his numerous confessions made in the presence of his lawyer, rather than his initial “explanation”. The trial court reviewed the video recording of the reconstruction of the events conducted on 24 June 2005, during which the first applicant had confessed to the murder for the first time in the presence of his lawyer. The court’s conclusion was that he had been speaking of his own free will. In addition, the Dnipropetrovsk Court reviewed the reports on the first applicant’s questionings and noted that he had been able to comment on each of them in writing (see paragraph44 above). The trial court also summoned and questioned in a hearing the investigator who had arrested the first applicant (see paragraph 46 above).
122. Overall, the domestic courts of two levels of jurisdiction gave due consideration to all the evidence available and to the first applicant’s arguments about any procedural disadvantage he might have suffered on account of the initial restriction on his right to legal assistance. Their decisions were properly reasoned in factual and legal terms (see paragraphs 43-47 and 53 above).
123. Lastly, the Court has no doubt that sound public-interest considerations justified prosecuting the first applicant, as he was indicted on a repeat count of murder.
124. In the light of all the foregoing considerations, the Court considers that there is no appearance of a violation of Article 6 §§ 1 and 3 (c) of the Convention and that this part of the application must therefore be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The first applicant’s absence from the Supreme Court’s hearing
- The parties’ submissions
125. The first applicant complained, in broad terms, that he had been deprived of access to the Supreme Court. He submitted that the Supreme Court had examined his appeal on points of law in his absence but in the presence of the prosecutor.
126. The Government contested those arguments. They submitted that the first applicant had failed to file his request for participation in the cassation proceedings within the legally-envisaged time-limit and that the Supreme Court had therefore rightly dismissed it as belated (see paragraphs 51-52 and 75 above). In other words, the Government went on to state, the first applicant had failed to respect the existing procedural formalities, which had been neither excessive nor unclear to him.
127. The first applicant did not comment on the Government’s submissions.
- The Court’s assessment
128. The Court notes that Article 6 of the Convention, taken as a whole, guarantees that a person charged with a criminal offence should, as a general principle, be entitled to be present in person and to participate effectively in a hearing concerning the determination of criminal charges against him. This right is implicit in the very notion of adversarial proceedings, and it can also be derived from the guarantees contained in sub‑paragraphs (c), (d) and (e) of paragraph 3 of Article 6. However, the personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial. The manner in which Article 6 applies to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appeal court therein. In assessing whether any personal attendance was needed, regard must be had to, inter alia, the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the court of appeal, particularly in the light of the issues to be decided and their importance for the applicant. The above‑mentioned considerations are also applicable in respect of proceedings which concern an appeal on points of law (see Faig Mammadov v. Azerbaijan, no. 60802/09, §§ 26-27, 26 January 2017, with numerous further references).
129. In the present case it is undisputed by the parties that on 15 August 2006 the Supreme Court heard the first applicant’s cassation appeal in his absence, but with the participation of the prosecutor.
130. The Court observes that, according to the Government, it was the first applicant’s own fault that he missed the opportunity to be present at the cassation hearing, because he failed to inform the authorities of his wish to take part in the hearing by lodging a special request within the established time-limit.
131. The Court will first examine whether the departure from the principle that an accused should be present at the hearing could, in the circumstances of the case, be justified at the cassation stage by the special features of the domestic proceedings viewed as a whole. It will then determine whether the first applicant can indeed be regarded as having lost his right to be present at that hearing through his own fault.
132. The Court observes that, under the Ukrainian legal system, the Supreme Court, acting as a second-instance court, had jurisdiction to deal with questions of law, as well as questions of fact pertaining both to criminal liability and to sentencing. It was empowered to examine evidence and additional materials submitted by the parties directly, with the effect that it could uphold, quash or amend a first-instance judgment, or remit the case for a fresh trial (see paragraph 75 above).
133. Furthermore, the Court attaches importance to the fact that the first applicant was facing a life sentence, which points to the great importance of the proceedings for him.
134. Accordingly, in view of the nature of the proceedings in question and their importance for the first applicant, the Court considers that the Supreme Court could not properly determine the issues before it without a direct assessment of the evidence given by the first applicant in person. Neither could it ensure equality of arms between the parties without giving the first applicant the opportunity to reply to the observations made by the prosecutor at the hearing. It follows that in the circumstances of this case, it was important for the fairness of the proceedings that the first applicant be present at the cassation hearing.
135. It remains to be determined whether, as argued by the Government, the first applicant missed that opportunity by failing to submit a request in a timely manner.
136. The Court observes that under Ukrainian law, convicted defendants who are held in custody have the right to be summoned to submit observations in the course of cassation proceedings if they concern the review of a judgment delivered by an appeal courtacting as a first-instance court. The only precondition is that a request to that effect must be submitted within the time-limit for lodging a cassation appeal (see paragraph 75 above).
137. The Court considers that the requirement to make such a request would not in itself contradict the guarantees of Article 6 if the procedure were clearly set out in domestic law and complied with by all participants in the proceedings, including the courts (see, for example, Sibgatullin v. Russia, no. 32165/02, § 45, 23 April 2009).
138. In the present case the first applicant has not submitted that the existing procedure for requesting his participation in the cassation hearing was unclear, cumbersome or otherwise difficult to comply with (compare Sobko v. Ukraine, no. 15102/10, § 82, 17 December 2015). He did submit a cassation appeal in due time and nothing prevented him from requesting to be present at the hearing at the same time. Instead, the first applicant had let three months elapse between lodging the cassation appeal and his request to heard by the Supreme Court (see paragraphs 50 and 51 above).
139. It is also noteworthy that the first applicant did not comment on the Government’s observation about his failure to comply with the procedural rules (see paragraphs 126-127 above).
140. The Court therefore agrees with the Government’s argument that the first applicant’s inability to participate in the cassation hearing resulted from his failure to comply with the existing procedural formalities, which had not been excessive or unclear to him (seeSobko, cited above, § 82).
141. Accordingly, the Court concludes that this complaint is also manifestly ill-founded and that it must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
- ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
142. The first applicant complained that his correspondence had been subjected to routine monitoring in detention. He relied on Article 8 of the Convention, reading as follows in the relevant part:
“1. Everyone has the right to respect for his ... correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
143. The Government submitted that the first applicant had failed to specify what correspondence had allegedly been subjected to monitoring and in which detention facilities that had occurred.
144. They further observed that, while all prisoners’ correspondence had indeed been subject to automatic monitoring prior to 1 December 2005 (see paragraph 77 above), the first applicant’s complaint did not concern that period.
145. Relying on the above considerations, the Government suggested that the present case was to be distinguished from Vintman v. Ukraine (no. 28403/05, 23 October 2014), in which the Court found a violation of Article 8 of the Convention on account of the routine monitoring of the applicant’s correspondence in prison.
146. The Government therefore invited the Court to declare the first applicant’s complaint inadmissible as being manifestly ill-founded.
147. The first applicant maintained his complaint. In reply to the Government’s observations, he submitted that his private correspondence, as well as the correspondence with his representative before the Court, had been routinely monitored by the prison administration.
148. Having regard to the above-mentioned clarification by the first applicant, the Court considers his complaint to be limited to the alleged monitoring of his private correspondence and his correspondence with his representative before the Court.
149. The Court notes that prisoners’ correspondence with their lawyers became exempt from monitoring as of 9 February 2010 (see paragraph 78 above). It is not clear, however, whether that exemption extended in practice to prisoners’ correspondence with their representatives in the proceedings before the Court. As regards their private correspondence, it was and remains subject to routine monitoring (see paragraphs 76-79 above).
150. Overall, the Court does not consider the above complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It therefore declares it admissible.
151. The parties did not submit any submissions in addition to those summarised in paragraphs 143-147 above.
152. The Court notes that the Government did not specifically contest the first applicant’s submission that his correspondence with non-exempt entities had been routinely monitored by the prison administration, pursuant to the applicable domestic law (see, for a similar situation, Vintman, cited above, § 126).
153. That monitoring constituted an interference with the exercise of the first applicant’s right to respect for his correspondence under Article 8 § 1. Such interference will contravene Article 8 § 1 unless, among other conditions, it is “in accordance with the law” (seeEnea v. Italy [GC], no. 74912/01, § 140, ECHR 2009).
154. The Court has already found in Vintman (cited above, §§ 126, 129‑33) that, since the Ukrainian legislation required the blanket monitoring of all correspondence with non-exempted entities in the absence of appropriate safeguards, monitoring conducted under those domestic legal provisions had not been “in accordance with the law” for the purposes of Article 8 of the Convention.
155. The Court sees no reason to reach a different conclusion in the present case.
156. It follows that the interference complained of was not “in accordance with the law”. The Court therefore does not consider it necessary in the instant case to ascertain whether the other requirements of paragraph 2 of Article 8 of the Convention were complied with, and holds that there has been a violation of that provision.
- ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
157. The first applicant complained that his right to individual application has been undermined by the authorities’ failure to provide him with copies of relevant documents from his case file, which he had wished to submit to the Court to substantiate his application. 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.”
158. The Government observed that the domestic courts had allowed the first applicant’s administrative claim in respect of the above-mentioned complaint and that he had eventually received copies of all the documents he wished (see paragraphs 57-58 above).
159. The first applicant noted, in reply, that the domestic courts’ finding in his favour had only confirmed that there had been a violation of his right to individual application under Article 34 of the Convention.
160. The Court observes that the first applicant did not deny having obtained copies of documents from his case file, which he had intended to submit in substantiation of his application before the Court. Even if there was a delay, it did not affect his case before the Court.
161. It follows that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.
- ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 AND ARTICLE 13 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT
162. The second applicant complained under Article 1 of Protocol No. 1 about the seizure of her mobile telephone by the prosecuting authorities and its lengthy retention in the context of the criminal proceedings against her son. The provision in question provides:
Article 1 of Protocol No. 1 (protection of property)
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
163. The second applicant further complained that she had not had an effective domestic remedy at her disposal in respect of the alleged violation of her rights under Article 1 of Protocol No. 1, in breach of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
164. The Government argued that the second applicant did not suffer a significant disadvantage given that, firstly, the mobile telephone was not an expensive item of property and, secondly, it had eventually been returned to her. The Government also considered that there was no issue under Article 13 of the Convention.
165. The second applicant contested the Government’s arguments. She submitted that her only income was her modest pension and that she had also to care of her son, who was serving life imprisonment and thus had no income. She also maintained her complaint under Article 13 of the Convention.
166. Article 35 of the Convention provides as follows:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
167. In accordance with Article 20 of the Protocol, the new provision applies from the date of its entry into force to all applications pending before the Court, except those declared admissible (see Finger v. Bulgaria, no. 37346/05, § 68, 10 May 2011).
168. As pointed out in the Court’s case-law (see, for example, Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016), the purpose of the new admissibility rule in Article 35 § 3 (b) is to enable more rapid disposal of unmeritorious cases and thus to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explanatory Report to Protocol No. 14, CETS No. 194, §§ 39 and 77-79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (ibid., § 77).
169. The question whether the applicant suffered any “significant disadvantage” represents the main element of the rule set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010, and Korolev v. Russia(dec.), no. 25551/05, ECHR 2010). Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court (see Ladygin v. Russia (dec.), no. 35365/05, 30 August 2011). The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (see Gagliano Giorgi v. Italy, no.23563/07, § 55, ECHR 2012 (extracts)). The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above; and Eon v. France, no. 26118/10, § 34, 14 March 2013). In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu, cited above). However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, Mura, cited above, §§ 21 and 24).
170. In the present case it is not disputed that the second applicant recovered her mobile telephone, which the police had seized in the context of the criminal proceedings against her son. Her complaint under Article 1 of Protocol No. 1 is therefore confined to her inability to use that telephone during the period when it remained in the possession of the police – namely, from 23 June 2005 to 2 August 2007 (see paragraphs 59 and 61 above).
171. The Court observes that the second applicant did not specify the value of the mobile telephone. It is therefore impossible to establish whether the financial impact of the interference was serious enough. Furthermore, she did not submit that she had no landline or other means of communication and that the seizure of the mobile telephone had seriously impaired her communication with the outside world. The Court would also note that the subject matter of the complaint does not give rise to an important matter of principle.
172. In these circumstances, the Court finds that the second applicant did not suffer any “significant disadvantage”.
173. The second element contained in Article 35 § 3 (b) obliges the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, such as, for instance, whether there is a need to clarify the States’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency.
174. Considering the present case in this way the Court does not discern any compelling reason to warrant its examination on the merits. It observes, in particular, that the impugned interference apparently concerned an isolated case and that the second applicant’s property rights were eventually restored. Thus, the Court finds that respect for human rights does not require an examination of this case.
175. Lastly, Article 35 § 3 (b) does not allow the rejection of an application under the new admissibility criterion if the case has not been duly considered by a domestic tribunal. The purpose of that rule, described by the drafters as a “second safeguard clause” (see the Explanatory report, § 82), is to ensure that every case receives a judicial examination, either at the national or at the European level, so as to avoid a denial of justice (see Korolev, cited above; and Finger, also cited above, § 73).
176. The Court observes that the second applicant’s attempts to bring a compensation claim were unsuccessful (see paragraphs62-65 above). This does not, however, mean the subject matter of her case was never examined at the domestic level. The Court observes in this connection that the issue of the allegedly unlawful seizure of the second applicant’s mobile telephone had been raised by her son, the first applicant, together with the seizure of a number of other valuables from him (see paragraph 21 above). The prosecution authorities and, later, the courts of two levels of jurisdiction examined his complaint (see paragraphs 22-26 above). The Court considers this to be a sufficient indication that there was no denial of justice in respect of the second applicant’s case, the ownership of the phone and the reasons for its seizure having been well-established before the domestic courts. Another confirmation of this is the fact that the mobile telephone was eventually returned to her.
177. Consequently, the second safeguard clause has been complied with.
178. The three conditions of the inadmissibility criterion having therefore been satisfied, the Court finds that the second applicant’s complaint under Article 1 of Protocol No. 1 must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.
179. In so far as the second applicant complained about the lack of an effective domestic remedy under Article 13 of the Convention, the Court notes that that provision requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see De Tommaso v. Italy [GC], no. 43395/09, § 180, 23 February 2017, with the references therein). If there is no significant disadvantage, there is no arguable claim (see Vasilchenko v. Russia, no. 34784/02, § 54, 23 September 2010).
180. Accordingly, the second applicant’s complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
- APPLICATION OF ARTICLE 41 OF THE CONVENTION
181. 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.”
182. The applicants claimed the following amounts in respect of non‑pecuniary damage: the first applicant – one million euros (EUR), and the second applicant – EUR 10,000.
183. The Government contested the above claims as exorbitant and unsubstantiated.
184. The Court considers that, in the circumstances of the case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the first applicant.
- Costs and expenses
185. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head.
- Default interest
186. 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,
- Declares the first applicant’s complaint concerning the routine monitoring of his correspondence in prison admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article 8 of the Convention on account of the routine monitoring of the first applicant’s correspondence in prison;
- Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention in respect of the first applicant;
- Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the first applicant;
- Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 7 November 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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