FIFTH SECTION
CASE OF KOROSTYLYOV
v. UKRAINE
(Application no.
33643/03)
JUDGMENT
STRASBOURG
13 June 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Korostylyov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger,
President,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 21 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
33643/03) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Nikolay Aleksandrovich Korostylyov
(“the applicant”), on 24 September 2003.
The applicant, who had been granted legal aid,
was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy,
of the Ministry of Justice.
The applicant complained, in particular, that he
had been ill-treated by the police, that the conditions of his detention had
been inhuman, that his pre-trial detention had been unlawful and that his trial
had been unfair. He also alleged that he had not been able to obtain copies of
documents to substantiate his application.
On 11 January 2011 notice of the application was
given to the Government. On 22 June 2011 the Court invited the Government to
submit observations on the admissibility and merits of the application.
. Having
examined the applicant’s request for a hearing, the Chamber decided,
under Rule 54 § 3 of the Rules of Court, that no hearing was required in the
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and is currently
serving a prison sentence in Dnipropetrovsk Correctional Colony (“the prison”).
A. The applicant’s criminal prosecution
On 21 January 2000 the applicant was arrested by
the police on suspicion of the premeditated murder of two people in October 1999.
According to the applicant, in the course of his arrest he was severely beaten
by unspecified police officers. The applicant was not examined by a doctor.
The applicant also submitted that during his
questioning at the police station he had been subjected to psychological
pressure, which had included threats to his close family members’ life and
health. As a result of the ill-treatment he allegedly confessed to having
committed the murders. The applicant stated that he had not had access to legal
assistance during his police questioning. The applicant also stated that he had
been drunk during that questioning.
The Government contested the applicant’s
allegations, stating that he had not been subjected to the alleged
ill-treatment and that he had been questioned by the police in the presence of
a lawyer, Ms P., who had been called by the police to assist the applicant at
his own request. The Government submitted a copy of the verbatim record of the
applicant’s questioning on 21 January 2000, in which it was stated that Ms P. had
taken part in the questioning and that the applicant had confessed to having murdered
two people and robbed a third one, Ms T.
On 22 January 2000 the applicant was taken to
Odessa Police Temporary Detention Centre (“the ITT”), where, according to him, the conditions of his detention had been
inhuman and degrading. The applicant also alleged, in general terms, that he had
been beaten up during his detention in the ITT.
. On 9
February 2000 the applicant was transferred to Odessa Pre-Trial Detention
Centre (“the SIZO”), where he allegedly continued
to be subjected to inhuman conditions of detention.
The Government contested the trustworthiness of
the applicant’s allegations of ill-treatment in detention and noted that they
were not supported by any evidence.
In February 2000 the applicant was also charged
with the murder of Ms T.
During his subsequent pre-trial questioning, the
applicant made conflicting statements concerning his involvement in the crimes
of which he was accused, in some cases retracting his earlier statements. The
applicant was legally represented during the questioning.
The investigation was completed in June 2000,
with the applicant and several other persons being charged with a number of counts
of aggravated murder, robbery, banditry and unlawful possession of arms.
In the course of the investigation, the
applicant changed his lawyer several times. During the trial the applicant was
represented by Mr K., a lawyer who, according to the Government, was hired by
the applicant’s wife. The applicant did not give details of how that lawyer had
been appointed to represent him.
Although the applicant sought to have his wife defend him in the proceedings, she was not allowed to do so,
as she had been questioned as a witness in the case.
. During
the trial the applicant partly admitted his responsibility for some of the
crimes, excluding the murders. The applicant also raised complaints that his
self-incriminating statements had been obtained under duress.
On 27 June 2002 the Odessa Regional Court of
Appeal (“the Odessa Court”) found the applicant and three other persons guilty
of banditry, illegal possession of firearms, and several counts of robbery and
murder committed in 1999, and sentenced the applicant to life imprisonment and ordered
the confiscation of all his property. The Odessa Court based its judgment on
the testimony of a number of witnesses and victims of the crimes, partly on some
of the statements made by the applicant and his co-defendants in the
course of the investigation and during the trial, and also on the conclusions
of several forensic, ballistic and other expert examinations. The court further
noted that the applicant’s allegation that he had been drunk during his
questioning on 21 January 2000 was unsubstantiated.
In July 2002 the applicant lodged an appeal in
cassation with the Supreme Court, in which he mainly complained that his and
his co-defendants’ self-incriminating statements, on which the
first-instance court had relied, had been obtained under torture. Subsequently,
the applicant amended his appeal in cassation, alleging that the Odessa Court had incorrectly established the facts and had unlawfully sentenced him to life
imprisonment. According to the applicant, such a punishment could not have been
applied for crimes committed before 1 September 2001. The applicant also
complained that the first-instance court had prevented his wife from defending him
at trial and that there had been no video recording of the hearings.
On 13 February 2003 the applicant asked the Odessa
Court to replace Mr K. with another lawyer, Mr M. The applicant stated that he
had had no contact with Mr K., “who had been appointed to [represent him] by
[the Odessa Court]” and that Mr K. had had to be disciplined for “a violation
of his duty to provide legal assistance”. The applicant did not give any
details of the alleged violation.
On the same date Mr K. submitted a statement to the
Odessa Court informing it that he had met with the applicant several hours
earlier at the SIZO in order to provide him with legal assistance. According to
the lawyer, during that meeting the applicant had refused to cooperate and had
made insulting statements. The lawyer also stated that he had previously helped
the applicant to prepare his appeal in cassation. The lawyer’s statement
contained two signatures which he claimed belonged to the SIZO guards in whose
presence he prepared that document.
On 17 March 2003 the Odessa Court refused the
applicant’s request, noting that during the trial the applicant had not raised
any complaints concerning his representation by Mr K. The court held that Mr M.
could not be appointed to represent the applicant, as M. had represented one of
the applicant’s co-defendants in the same case and the applicant and that co-defendant
had made conflicting statements concerning the circumstances of the case. The
court also noted that the applicant had completed familiarising himself with
the case materials.
On 14 April 2003 the applicant lodged a request
with the Supreme Court asking it to ensure that he was assisted by a lawyer pursuant
to the legal aid scheme in force. The same request was raised in the amended
appeal which the applicant submitted to the Supreme Court on that date.
By letter of 17 April 2003 the Supreme Court
informed the applicant that his request for a lawyer had been refused, as he
was already represented by Mr K., who had been duly informed of the hearing
before that court scheduled for 15 May 2003. The Supreme Court also noted that
if the applicant wished to hire another lawyer, he could do so pursuant to
Article 47 of the Code of Criminal Procedure of 1960, and that that court did
not, in general, deal with the issue of ensuring that prisoners had legal
representation. It is unclear if the hearing scheduled for 15 May 2003 actually
took place.
On 10 July 2003 the Supreme Court heard the case
on the merits in the applicant’s presence. The Supreme Court partly changed the
qualification of the applicant’s criminal actions, having upheld the majority
of the findings of the first-instance court and the applicant’s sentence. It
also rejected the applicant’s complaint that his penalty had not been based on
the law in force at the material time, finding that the applicant had been
convicted of crimes for which at the time of their commission the maximum
penalty had been death. After the Constitutional Court had declared the
provisions concerning the death penalty unconstitutional on 29 December 1999,
Parliament had replaced that sanction with life imprisonment by the Act of 22
February 2000.
The Supreme Court also noted that the hearings
before the first-instance court had been audio recorded and that the
applicant’s wife could not have been allowed to defend the applicant as she had
been questioned as a witness.
In 2004 the applicant was transferred to prison
to serve his sentence.
In 2005 the applicant lodged civil claims with
several courts against the police, prosecutors and the Odessa Court, seeking
compensation for his allegedly unfair conviction. The claims were dismissed for
the applicant’s failure to comply with procedural formalities.
B. The application to the Court
After the applicant lodged his application with
the Court, he was invited to submit copies of various documents pertinent to
his complaints, including a full copy of the judgment of 27 June 2002 and a
copy of his appeal in cassation. The applicant was not able to provide such
copies before November 2011, stating that the authorities had denied him the
opportunity to obtain them. According to the Government, the applicant made no
written request for copies of the judgment or of his appeal in cassation. Eventually,
copies of the judgment of 27 June 2002 and of the applicant’s appeal in
cassation were submitted by the parties.
On 25 October 2004 the applicant lodged a
written request with the Odessa Court for copies of the transcripts of the
court hearings in his criminal case, which he intended to submit to the Court
in support of his application. By letter of 12 November 2004 the Odessa Court refused the request, noting that domestic law did not provide for copies of
such documents to be furnished and that the applicant had previously been given
the opportunity to study the transcripts of the court hearings.
On 12 June 2006 the Odessa Court issued a copy
of the judgment of 27 June 2002 to the applicant’s wife upon her written
request.
II. RELEVANT DOMESTIC LAW
Domestic law pertinent to the applicant’s complaint
of the unlawful imposition of life imprisonment was summarised in Naydyon v.
Ukraine (no. 16474/03, §§ 33-34,
14 October 2010). The provisions of the Code of Criminal Procedure of
1960 relating to compulsory legal representation were set out in Dovzhenko v.
Ukraine (no. 36650/03, § 31,
12 January 2012).
THE LAW
I. SCOPE OF THE CASE
The Court notes that, after the communication of
the case to the respondent Government, the applicant lodged a new complaint under
Article 34 of the Convention. In particular, in his submissions dated 27 February
2012 the applicant complained that while in prison he had received a damaged
envelope, which had included a letter from the Court inviting the applicant to
comment on the Government’s observations and a copy of those observations
together with annexed documents. The applicant believed that the envelope had
been opened by the prison authorities. He also alleged that a copy of a document
to which reference had been made in the Government’s observations was missing.
In the Court’s view, the applicant’s new complaint
is not an elaboration of his original complaints to the Court on which the
parties have commented. The Court considers, therefore, that it is not
appropriate to take these matters up in the context of the present case (see Piryanik
v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the criminal
proceedings against him had been unfair. In particular, he alleged that the Odessa
Court had not had jurisdiction to try him, that the courts had incorrectly
applied the law and assessed the evidence in his case, that they had unlawfully
used self-incriminating statements obtained from him under torture, and
that his right to be assisted by a lawyer had been violated.
The applicant relied on Article 6 §§ 1 and 3 (c)
of the Convention which read, in so far as relevant, as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal
established by law ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
...”
The Government submitted that the applicant had
not raised the complaints of a violation of his right to be assisted by a
lawyer and of the Odessa Court’s non-compliance with the requirement of a “tribunal
established by law” before the Supreme Court and had therefore not exhausted
domestic remedies in that respect. According to the Government, the remainder
of the applicant’s complaints under Article 6 of the Convention were unsubstantiated.
The applicant did not contest the Government’s
submissions, except in so far as they concerned the alleged violation of his
right to be assisted by a lawyer during the proceedings before the Supreme
Court. In that regard, he stated that he had exhausted the domestic remedies
available to him. In particular, the applicant had asked the Supreme Court to
appoint him a lawyer to represent him in the proceedings before that court (see
paragraph 24 above). However, his request had not been allowed.
The applicant further argued that given his lack
of funds, the seriousness of the matters at stake and the nature of the cassation
appeal proceedings the authorities had been under a duty to provide him with free
legal aid at that stage. However, the Supreme Court had denied being under such
a duty. The applicant also argued that domestic law had not provided for a
procedure whereby a legal aid lawyer could have been appointed at that stage of
the proceedings.
The Court notes that the applicant failed to raise
some of his complaints under Article 6 of the Convention before the Supreme
Court, namely the complaint concerning the power of the Odessa Court to try him
and the complaint of a violation of his right to be assisted by a lawyer, in so
far as the latter complaint concerns the proceedings before the applicant’s
conviction on 27 June 2002. Thus those complaints must be rejected for
non-exhaustion of domestic remedies.
Even assuming that the applicant complied with
the requirement of exhaustion of domestic remedies as regards the complaint of
a violation of his right to be assisted by a lawyer in the proceedings before
the Supreme Court, the Court considers that this complaint is unsubstantiated.
In particular, the Court notes that Mr K., the lawyer who had represented the
applicant at trial, was apparently prepared to continue defending the applicant
in the subsequent proceedings. However, the applicant turned down his
assistance without providing an acceptable explanation and sought to have him
replaced by a lawyer who had previously represented one of the applicant’s
co-defendants. Both the Odessa Court and the Supreme Court examined the
applicant’s pleas in this regard and found that there were no grounds for
replacing Mr K. or for allowing the applicant’s wife to take part in the
proceedings as the applicant’s defence counsel. The Court does not discern any
reason to disagree with those findings (see, for instance, Vasiliy Ivashchenko
v. Ukraine, no. 760/03,
§ 91, 26 July 2012).
Although the applicant argued before this Court that he had not had sufficient
means to engage Mr K. for the proceedings on appeal in cassation, the Court
notes that the applicant did not make such a statement before the domestic
authorities (compare and contrast with Maksimenko v. Ukraine, no. 39488/07, § 26, 20 December
2011). The applicant did not
give any details of the arrangements on the basis of which Mr K. had
represented him, including the cost of the lawyer’s services. The fact that Mr
K. did not attend the hearing on 10 July 2003 before the Supreme Court might
have been linked to the applicant’s failure to cooperate with him and cannot be
imputable to the State. In any event, the Court notes that the
applicant was not precluded from obtaining legal advice prior to that hearing
from Mr K., who was familiar with the case and who had had sufficient access to
the case file. Although the Court has previously found that the Code of
Criminal Procedure of 1960 did not provide for a procedure
by which a lawyer providing free legal representation in proceedings before the
Supreme Court might be appointed (see Maksimenko, cited above, § 31), in the present case it
has not been demonstrated that this shortcoming led to any disadvantage for the
applicant’s defence.
The Court further notes that the applicant’s other
complaints are unsubstantiated. In particular, there is no evidence that the
applicant’s self-incriminating statements were obtained under duress or
in violation of the applicant’s right to be assisted by a lawyer. The courts’
findings of fact and law were based on a substantial amount of evidence and do
not appear to be arbitrary or manifestly unreasonable.
In the light of the foregoing, the Court finds
that this part of the application must be declared inadmissible pursuant to
Article 35 §§ 1, 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE
CONVENTION
The applicant complained that the authorities
had denied him of the opportunity to obtain copies of documents from his case
file which he had wished to submit to the Court in substantiation of his application.
He relied on Article 34 of the Convention, which provides as follows:
“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.”
The Government contended that Ukraine had complied
with Article 34 of the Convention. They argued that while a copy of the
judgment convicting the applicant had been issued to the applicant’s wife upon
her request (see paragraph 32 above), neither the applicant nor his relatives had
lodged a written request with the courts for a copy of his appeal in cassation.
The Government further stated that during the criminal proceedings against him,
the applicant had been assisted by several lawyers who had been given the
opportunity to make copies of all documents included in the case file. The
Government also noted that a copy of the applicant’s appeal in cassation had
been joined to their observations on the case.
The applicant contested the Government’s
submissions. In particular, he stated that his wife had only been provided with
a copy of the judgment convicting him, while other documents he had needed for
the application had not been made available to her, and that he had not had the
money to hire a lawyer to help him obtain copies of other documents from his
case file.
The Court notes that it has already dealt with
similar allegations of hindrance of the right of individual petition in a
number of cases concerning Ukraine. In particular, in Vasiliy Ivashchenko
(cited above, § 123) the
Court found that the Ukrainian legal system did not provide prisoners with a
clear and specific procedure enabling them to obtain copies of case documents after
the completion of criminal proceedings, either by making such copies
themselves, by hand or using appropriate equipment, or by having the
authorities make copies for them.
In the present case the applicant lodged the
application after the domestic proceedings against him had been completed.
Although it remains unclear whether he actually asked the authorities to give
him a copy of his appeal in cassation, it is common ground between the parties
that his request for copies of other documents needed to substantiate his
application was refused as having no legal basis. Thus, the Court finds no reason
to depart, in the present case, from its findings under Article 34 of the
Convention in Vasiliy Ivashchenko (cited above). The Government’s
argument concerning the possibility of making copies of case documents during
the criminal proceedings cannot be accepted (see Vasiliy Ivashchenko,
cited above, § 108).
Accordingly, the Court concludes that the
respondent State has failed to comply with its obligation under Article 34 of
the Convention to furnish all necessary facilities to the applicant in order to
make possible a proper and effective examination of his application by the
Court.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 3 of
the Convention of his ill-treatment by unspecified police officers with the aim
of extracting a confession from him and that the conditions of his detention in
the ITT had been inhuman. Relying on Article 5 § 1 (c) of the Convention, the
applicant complained that he had been unlawfully detained between 21 January
and 9 February 2000. The applicant stated that he had been unlawfully
sentenced to life imprisonment, as in 1999, when he had committed the crimes,
such a punishment had not existed. The applicant cited Article 7 of the
Convention in that regard.
In his submissions made in 2006, the applicant further
complained that the conditions of his detention in the SIZO had been inhuman.
The Court, having examined the remainder of the applicant’s
complaints, considers that, in the light of all the material in its possession
and in so far as the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that the remainder of the application
must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 1, 3
(a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 50,000 euros (EUR) in
respect of non-pecuniary damage.
The Government did not comment.
The Court, ruling on an equitable basis, awards
the applicant EUR 3,000 under this head.
B. Costs and expenses
The applicant also claimed 26,426.40 Ukrainian
hryvnias (UAH)
for legal costs incurred before the Court. The applicant asked for this sum to
be paid directly into the bank account of his representative. The requested sum
was based on a rate of UAH 1,540
per hour, though it was not specified whether it included taxes. According to
the applicant, his representative had had to spend over seventeen hours
studying the case materials and preparing observations and just satisfaction
claims.
The Government did not comment.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that the only
arguable complaint concerned a straightforward matter, which did not require
extensive legal research or reasoning (see paragraphs 48-50 above). The Court
further notes that the applicant’s representative has already been paid
EUR 850 under the Court’s legal aid scheme. Regard being had to the nature
of the factual and legal issues examined and the representative’s involvement
in the case, the Court considers that it is not necessary to award any
additional sum under this head.
C. Default interest
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 applicant’s complaints under
Articles 3, 5, 6 and 7 of the Convention inadmissible;
2. Holds that the respondent State has failed
to comply with its obligations under Article 34 of the Convention with
respect to the refusal of the authorities to provide the applicant with copies
of documents for his application to the Court;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at
the rate applicable at 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
