{"id":1013,"date":"2019-04-17T08:42:03","date_gmt":"2019-04-17T08:42:03","guid":{"rendered":"https:\/\/laweuro.com\/?p=1013"},"modified":"2019-11-04T19:55:46","modified_gmt":"2019-11-04T19:55:46","slug":"case-of-yakuba-v-ukraine","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1013","title":{"rendered":"CASE OF YAKUBA v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF YAKUBA v. UKRAINE
\n(Application no. 1452\/09)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n12 February 2019<\/p>\n

This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n

In the case of Yakuba v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n

Paulo Pinto de Albuquerque, President,
\nGanna Yudkivska,
\nFaris Vehabovi\u0107,
\nIulia Antoanella Motoc,
\nGeorges Ravarani,
\nMarko Bo\u0161njak,
\nP\u00e9ter Paczolay, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n

Having deliberated in private on 22 January 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 1452\/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Vasyl Ivanovych Yakuba (\u201cthe applicant\u201d), on 10\u00a0March 2009.<\/p>\n

2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0E.\u00a0Markov, a lawyer admitted to practice in Odessa. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr I.\u00a0Lishchyna.<\/p>\n

3.\u00a0\u00a0The applicant alleged, in particular, under Article 3 of the Convention that he had been ill-treated by the police in the course of his arrest, under Article 6 of the Convention that he had not been allowed to examine the video recording which documented the purchase of drugs from him by an undercover agent and that the domestic courts had failed to ensure his right to examine that agent and, under Article 34 of the Convention, that the authorities had refused to allow him to obtain copies of documents he needed for substantiation of his application to the Court.<\/p>\n

4.\u00a0\u00a0On 11 January 2011 notice of the application was given to the Government. At that stage of the proceedings the Government were not invited to submit observations on the case. On 9 October 2013 the Court invited the Government to submit observations on the admissibility and merits of the application.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicant was born in 1971 and, at the time of his latest communication with the Court, was detained in Kirovograd.<\/p>\n

A.\u00a0\u00a0The test purchase operation against the applicant and his arrest<\/strong><\/p>\n

6.\u00a0\u00a0The applicant, who had a number of prior drugs-related convictions, was targeted in an undercover operation in the form of a test purchase of drugs.<\/p>\n

7.\u00a0\u00a0According to the decisions of the domestic courts, P., apparently a private individual recruited by the police as an undercover agent, was supplied with cash in front of attesting witnesses and, subsequently, out of their sight, made three purchases from the applicant and returned with syringes filled with opium, which he handed over to the police in the presence of the witnesses. The first purchase was video-recorded, apparently with a hidden camera (see paragraph 15 below).<\/p>\n

8.\u00a0\u00a0The applicant was subsequently convicted of selling P. small quantities of an opioid substance on three occasions, namely on 26 February and 6 and 9 March 2007 (see paragraph 21 below).<\/p>\n

9.\u00a0\u00a0On 9 March 2007 the applicant was arrested. At the opening of his subsequent trial the applicant admitted that at the time of his arrest he had had a drug-filled syringe in his sleeve and, in trying to get rid of the drug, had ejected the liquid over his sweater and had thrown it on the ground near him. At some point in the proceedings he started denying that he had a syringe on him at the moment of arrest, even though he continued to admit that that day he had purchased drugs for his own consumption (see\u00a0paragraph 19 below).<\/p>\n

10.\u00a0\u00a0The police had pushed the applicant to the ground and handcuffed him. According to the applicant, after he had been immobilised on the ground the police had continued to drag him around, causing him pain and humiliation.<\/p>\n

B.\u00a0\u00a0The applicant\u2019s allegations of ill-treatment<\/strong><\/p>\n

11.\u00a0\u00a0On the day of the arrest the two arresting officers filed reports with their superiors, stating that because the applicant had attempted to destroy evidence during the arrest they had deployed force (\u201c\u0431\u0443\u043b\u0438 \u0437\u0430\u0441\u0442\u043e\u0441\u043e\u0432\u0430\u043d\u0456 \u0437\u0430\u0445\u043e\u0434\u0438 \u0432\u043f\u043b\u0438\u0432\u0443\u201d) to prevent him from doing so, and had handcuffed him.<\/p>\n

12.\u00a0\u00a0On 15 March 2007 the applicant\u2019s lawyer requested the investigator to order a medical examination for the applicant. The lawyer stated that the applicant had been beaten up by the police while being arrested, and also subsequently at a police station. On the same day the applicant was examined by a medical expert, who noted that the applicant had abrasions on his right hand and shin and on both knees, which could have been sustained on 9 March 2007. Abrasions on his legs could have been caused by a fall.<\/p>\n

13.\u00a0\u00a0On 8 May 2007 the prosecutors refused to institute criminal proceedings against the police officers who had taken part in the applicant\u2019s arrest. The applicant did not appeal against that decision but continued to allege, before the courts which were dealing with his criminal case, that he had been ill-treated by the police at the time of his arrest. The text of his submissions in that respect has not been submitted to the Court. Those courts (see paragraphs 21, 24 and 26 below) rejected the complaints as unsubstantiated, finding that the police had used force against the applicant during his arrest lawfully, and that the prosecutors had examined the applicant\u2019s complaints in proper fashion.<\/p>\n

C.\u00a0\u00a0The criminal proceedings against the applicant<\/strong><\/p>\n

14.\u00a0\u00a0On the day of the arrest and on several other occasions in the course of the investigation the applicant\u2019s rights as a criminal suspect were explained to him and the investigator attempted to question him. However, the applicant stated that he wished to remain silent.<\/p>\n

15.\u00a0\u00a0On 20 April 2007 the police investigator, in the presence of two attesting witnesses, watched a videotape and noted in a report that the tape showed the applicant selling drugs to P. as part of the test purchase. The applicant\u2019s lawyer asked to watch the tape. On 27 April 2007 the investigator refused this request on the grounds that P.\u2019s real identity was being protected and the showing of the tape would lead to the disclosure of P.\u2019s identity and put his life and health in danger.<\/p>\n

16.\u00a0\u00a0The applicant submitted to the investigating authority that a certain B. had been with the applicant on the day of his arrest and could confirm that he had bought drugs for his own consumption. The applicant asked for B. to be found and examined as a witness. The applicant identified him by his first and last name and stated that B. lived in \u201cone of the neighbouring streets\u201d but that he did not know the exact address. The investigator ordered the police to search for B. The police reported that their search had been unsuccessful.<\/p>\n

17.\u00a0\u00a0P. was questioned by the investigator. He described how he had purchased drugs from the applicant on three occasions as part of a test purchase operation.<\/p>\n

18.\u00a0\u00a0The bill of indictment against the applicant, sent to the Kirovograd Kirov District Court as the trial court, identified P. as one of the witnesses to be summoned in the course of the trial. It also identified the police report summarising the video recording of the first test purchase (see paragraph\u00a015 above) as one of the elements of proof against the applicant.<\/p>\n

19.\u00a0\u00a0The applicant admitted that he had bought and kept drugs for himself, but not for sale, on 9 March 2007, and that on that occasion he had been accompanied by B. The applicant denied buying or selling drugs on two other occasions. At the opening of the trial the applicant admitted that at the time of his arrest he had had a drug-filled syringe on him and, in trying to get rid of the drug, had ejected the liquid over his clothes. At a later point in the proceedings he started denying that he had had a syringe on him at the time of his arrest.<\/p>\n

20.\u00a0\u00a0It appears that during the trial the applicant asked the trial court to disclose to the defence the video recording of the first test purchase and to call and examine P. (the undercover agent), B. (see paragraph 16 above), and the forensic expert who had compiled a report stating that the applicant\u2019s clothes and a syringe found on him on the day of the arrest contained traces of an illegal drug. Those requests were refused, for unknown reasons.<\/p>\n

21.\u00a0\u00a0On 26 June 2007 the trial court found the applicant guilty of drug trafficking and sentenced him to eight years\u2019 imprisonment. The court found that the applicant had sold drugs to P. on three occasions in February and March 2007. The court relied on:<\/p>\n

(i) the in-court statements by the police officer who had arranged the test purchase and one of the attesting witnesses who had certified the records of that operation (see paragraph 7 above). The witness had described the operation in detail, to the effect that, on three occasions, banknotes with certain numbers had been handed over to P. to buy drugs from the applicant; P. had then returned with filled syringes stating that he had purchased them from the applicant. The police officer gave largely similar evidence;<\/p>\n

(ii) written statements by P. and another police officer involved in the organisation of the test purchase, obtained at the pre-trial stage;<\/p>\n

(iii) the fact, documented in a police report, that a banknote used by the police for use in the test purchase had been found on the applicant at the time of arrest. It is not clear from the trial court\u2019s judgment on which of the three dates the banknote had been used;<\/p>\n

(iv) results of a forensic expert analysis showing that the applicant\u2019s sweater contained traces of drugs, as did the syringes the undercover agent had bought from the applicant.<\/p>\n

22.\u00a0\u00a0According to the decisions of the domestic courts, between September 2007 and January 2008, in preparation for his appeal the applicant examined the case file on at least twenty-one occasions.<\/p>\n

23.\u00a0\u00a0The applicant and his lawyer appealed, challenging the trial court\u2019s factual and legal findings. They also complained about the court\u2019s refusal to summon P., to order an inquiry into the applicant\u2019s complaints of ill\u2011treatment by the police, and to examine the video recording of the test purchase. They questioned whether the video actually existed and adequately reflected the events, given that neither P.\u2019s pre-trial evidence nor records connected to the test purchase indicated that it was video-recorded.<\/p>\n

24.\u00a0\u00a0On 25 March 2008 the Kirovograd Regional Court of Appeal upheld the applicant\u2019s conviction, finding that no serious procedural violations had been committed in the proceedings and that the conviction had been based on sufficient evidence. The Court of Appeal went on to note that, in addition to the evidence cited by the trial court, the applicant\u2019s guilt was also evidenced by the investigator\u2019s report on the examination of the video recording of the test purchase (see paragraph 15 above).<\/p>\n

25.\u00a0\u00a0The applicant appealed in cassation. The parties have not provided a copy of that appeal. The text of the Supreme Court\u2019s decision on the appeal indicates that the applicant raised arguments largely similar to those raised in his first appeal.<\/p>\n

26.\u00a0\u00a0On 4 September 2008 a judge of the Supreme Court found that the applicant\u2019s appeal was unsubstantiated, and refused to order a cassation review of the case. In particular, the judge noted that the witnesses on whose statements the conviction had been based had been duly questioned, and that the Court of Appeal had lawfully rejected the applicant\u2019s complaints of lack of access to the case file.<\/p>\n

D.\u00a0\u00a0The applicant\u2019s efforts to obtain copies of documents for his application to the Court<\/strong><\/p>\n

27.\u00a0\u00a0In order to substantiate his application, in particular as regards the complaints of an unfair trial, the applicant submitted a number of requests to the trial court, which had kept the case file, for copies of various procedural documents, including records of court hearings, and his cassation appeal.<\/p>\n

28.\u00a0\u00a0On 10 October 2008 the trial court rejected the applicant\u2019s request, stating that the domestic law did not provide for any procedure for a convict to examine a case file after completion of criminal proceedings, when the convict was already serving his sentence. The trial court gave similar responses to the applicant\u2019s new requests on 30 March 2009 and 27 May 2013. On 28 October 2008 the Court of Appeal also gave a similar response.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n

29.\u00a0\u00a0At the material time\u00a0Article 307 \u00a7 2 of the Criminal Code made repeated sale of drugs or their possession with intent to sell them punishable by five to ten years\u2019 imprisonment. Article 309 \u00a7 2 made repeated purchase and possession of drugs without intent to sell them punishable by two to five years\u2019 imprisonment.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n

30.\u00a0\u00a0The applicant alleges that he was ill-treated by the police, contrary to Article 3 of the Convention, which reads:<\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n

31.\u00a0\u00a0The Government contested that argument. They argued that, by failing to appeal against the decision not to institute criminal proceedings against police officers (see paragraph 13 above), the applicant had failed to exhaust effective domestic remedies. They also argued that the applicant\u2019s complaint was unsubstantiated: proportionate force had indeed been used against him in order to prevent him from destroying evidence.<\/p>\n

32.\u00a0\u00a0The Court notes that is has already held in Kaverzin v. Ukraine (no.\u00a03893\/03, \u00a7 97, 15 May 2012) that the remedies suggested by the Government were not effective. However, the applicant\u2019s complaint is, in any event, inadmissible for the following reasons.<\/p>\n

33.\u00a0\u00a0It appears from the arresting officers\u2019 reports that force was indeed used against the applicant on the day of the arrest (see paragraph 11 above). However, by his own admission (see\u00a0paragraph 19 above), the applicant had attempted to destroy evidence, and the police deployed force to prevent that destruction and arrest him. Therefore, there is no reason to cast doubt on the domestic authorities\u2019 conclusions in that respect (see paragraph 13 above). The case-file material, in particular the medical evidence, fully supports those findings (see paragraph 12 above). Under such circumstances, the Court finds no reason to doubt that that use of force was made strictly necessary by the applicant\u2019s own conduct.<\/p>\n

34.\u00a0\u00a0It follows that this part of the application is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 \u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION<\/p>\n

35.\u00a0\u00a0The applicant complained that admission in evidence of P.\u2019s untested pre-trial statements and non\u2011disclosure of the video recording of the test purchase to the defence breached his rights under Article 6 of the Convention, the relevant parts of which read:<\/p>\n

\u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…<\/p>\n

…<\/p>\n

3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n

…<\/p>\n

(b)\u00a0\u00a0to have adequate time and facilities for the preparation of his defence …<\/p>\n

(d)\u00a0\u00a0to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;<\/p>\n

…\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

36.\u00a0\u00a0The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0The parties\u2019 submissions<\/em><\/p>\n

37.\u00a0\u00a0The applicant submitted that there had been a violation of Article\u00a06\u00a0\u00a7\u00a7 1 and 3 (d) in that P. had not been examined during the trial. There had been no real danger for P., since the applicant\u2019s trial had not attracted any public attention. There had been no safeguards of any kind to ensure the rights of the defence.<\/p>\n

38.\u00a0\u00a0The applicant further submitted that there had been a violation of Article\u00a06 \u00a7\u00a7 1 and 3 (b) because, despite repeated requests, he had not been allowed to examine the video recording of the test purchase, one of the main pieces of evidence against him.<\/p>\n

39.\u00a0\u00a0The Government submitted that the applicant had been given sufficient time to examine the case file in the preparation of his defence, and that all witnesses whose evidence was relevant to the proceedings had been called and examined.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

(a)\u00a0\u00a0Scope of the complaints<\/strong><\/p>\n

40.\u00a0\u00a0The applicant denied having sold drugs and did not complain that he was the victim of entrapment (compare Lyubchenko v. Ukraine (dec.), no.\u00a034640\/05, \u00a7 33, 31 May 2016). His defence consisted in attempting to prove that he had purchased and carried drugs for his own and his friend\u2019s consumption on one occasion, on 9 March 2007. In other words, he attempted to prove that, while he had committed a drug offence, he had not been involved in selling drugs on three occasions, a much more serious charge (see paragraph 29 above). The issue before the Court, then, is whether the applicant was afforded a fair opportunity to make that case, on account of his inability to examine P. and to view the video recording of the test purchase.<\/p>\n

(b)\u00a0\u00a0Relevant general principles<\/strong><\/p>\n

41.\u00a0\u00a0According to the Court\u2019s well-established case-law, the guarantees contained in paragraph 3 of Article 6 are specific aspects of the general concept of a fair trial set forth in paragraph 1. The various rights, of which a non-exhaustive list appears in paragraph 3, reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots. The Court therefore considers complaints under Article 6 \u00a7 3 under paragraphs 1 and 3 of Article 6 taken together (see\u00a0Correia de Matos v. Portugal [GC], no. 56402\/12<\/a>, \u00a7 119, 4\u00a0April 2018).<\/p>\n

(i)\u00a0\u00a0Witnesses for the prosecution<\/em><\/p>\n

42.\u00a0\u00a0The Court formulated the general principles to be applied in cases where a prosecution witness had not attended a trial and statements previously made by him or her had been admitted in evidence in Al\u2011Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766\/05 and 22228\/06, \u00a7\u00a7 119-47, ECHR 2011), and Schatschaschwili\u00a0v.\u00a0Germany ([GC], no.\u00a09154\/10, \u00a7\u00a7 110-31, ECHR 2015). A restatement of those principles can be found in Seton v. the United Kingdom (no.\u00a055287\/10, \u00a7\u00a7\u00a057-59, 31\u00a0March 2016), and Boyets\u00a0v.\u00a0Ukraine (no.\u00a020963\/08<\/a>, \u00a7\u00a7\u00a074-76, 30 January 2018).<\/p>\n

(ii)\u00a0\u00a0Disclosure of evidence<\/em><\/p>\n

43.\u00a0\u00a0As a rule, Article 6 \u00a7 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see Rowe and Davis v. the United Kingdom [GC], no.\u00a028901\/95, \u00a7 60, ECHR 2000\u2011II). The Court notes that an issue with regard to access to evidence may arise under Article 6 in so far as the evidence at issue is relevant for the applicant\u2019s case, specifically if it had an important bearing on the charges held against the applicant. This is the case if the evidence was used and relied upon for the determination of the applicant\u2019s guilt, or it contained such particulars which could have enabled the applicant to exonerate himself or herself or have his or her sentence reduced with regard to the charges held against him or her. It should be also noted that the relevant evidence in this context is not only evidence directly relevant to the facts of the case, but also other evidence that might relate to the admissibility, reliability and completeness of the former (see\u00a0Matanovi\u0107\u00a0v. Croatia, no.\u00a02742\/12, \u00a7 161, 4 April 2017, with further references).<\/p>\n

44.\u00a0\u00a0However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 \u00a7 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Rowe and Davis, cited above, \u00a7 61).<\/p>\n

45.\u00a0\u00a0In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the European Court\u2019s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (ibid., \u00a7 62).<\/p>\n

46.\u00a0\u00a0More specifically, Article 6 \u00a7 3 (b) guarantees the accused \u201cadequate time and facilities for the preparation of his defence\u201d and therefore implies that the substantive defence activity on his behalf may comprise everything which is \u201cnecessary\u201d to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction of opportunity to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. Furthermore, the facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see Leas v. Estonia, no. 59577\/08, \u00a7\u00a080, 6\u00a0March 2012, with further references). Failure to disclose to the defence material evidence which contains such particulars as could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 \u00a7 3 (b) of the Convention (ibid., \u00a7 81).<\/p>\n

(c)\u00a0\u00a0Application of the above principles to the present case<\/strong><\/p>\n

(i)\u00a0\u00a0Whether there was a good reason for the non-attendance of P.<\/em><\/p>\n

47.\u00a0\u00a0There appears to be a contradiction between the investigating authority\u2019s insistence that there was a need to protect P.\u2019s identity and its own proposal, in the bill of indictment, to call him as a witness at the trial (see paragraphs 15 and 18 above respectively). The domestic courts did not comment on the matter explicitly. The Court concludes that it has not been convincingly established that there was a good reason for P.\u2019s absence.<\/p>\n

(ii)\u00a0\u00a0Whether the evidence of P. was the sole or a decisive basis for the conviction<\/em><\/p>\n

48.\u00a0\u00a0The domestic courts did not comment on the relevant weight of various elements of evidence against the applicant; they simply listed P.\u2019s pre-trial statement among other evidence against the applicant (see\u00a0paragraph 21 above). However, P. was the only person who directly participated in the sale of drugs which gave rise to the applicant\u2019s conviction. Therefore, his evidence appears to have been decisive for the applicant\u2019s conviction.<\/p>\n

(iii)\u00a0\u00a0Whether there were sufficient counterbalancing factors to compensate for the handicap under which the defence laboured<\/em><\/p>\n

49.\u00a0\u00a0As far as counterbalancing factors were concerned, the applicant enjoyed an opportunity to give his own version of the events and to cast doubt on the credibility of the absent witness and point out any possible incoherence in his statements. There was also some corroborative evidence, at least in respect of some of the three alleged drug transactions, most notably the in-court testimony of one of the attesting witnesses, who had observed the test purchase process, and the discovery of the banknote used in the test purchase operation in the applicant\u2019s possession (see paragraph\u00a021 (i) and (iii) above).<\/p>\n

50.\u00a0\u00a0However, the Court considers that those elements were clearly insufficient to compensate for the handicap under which the defence laboured, especially on account of the procedure followed by the domestic authorities in respect of the video recording of the same events to which P.\u2019s statements related.<\/p>\n

(iv)\u00a0\u00a0Non-disclosure of the video recording and its treatment by the domestic courts<\/em><\/p>\n

51.\u00a0\u00a0That procedure was such that it permitted the prosecution to determine the meaning of that incriminating material, outside of any scrutiny not only by the defence but also by the domestic courts (see,\u00a0mutatis mutandis, Rowe and Davis, cited above, \u00a7 63, and contrast Jasper v. the United Kingdom [GC], no. 27052\/95, \u00a7 56, 16 February 2000). The summary of the video used in the proceedings was prepared by the investigator rather than by an independent party under judicial supervision (contrast Matanovi\u0107, cited above, \u00a7\u00a0164). The domestic courts showed no consideration for the interests of the defence, engaged in no apparent examination of the question of whether there was real need to protect P.\u2019s identity, and based the applicant\u2019s conviction, in part, on undisclosed material which the prosecution alone was allowed to see and the meaning of which the prosecution was allowed to determine outside of any control (see\u00a0paragraphs 18 and 24 above).<\/p>\n

(v)\u00a0\u00a0Conclusion<\/em><\/p>\n

52.\u00a0\u00a0The above considerations are sufficient for the Court to conclude that the proceedings overall were not fair.<\/p>\n

53.\u00a0\u00a0There has, accordingly, been a violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention on account of the admission of P.\u2019s untested pre-trial statements in evidence against the applicant and the non-disclosure of the video recording of the test purchase.<\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION<\/p>\n

54.\u00a0\u00a0The applicant complained that the authorities had refused to provide him with copies of the documents which he needed to substantiate his complaint before the Court. The Court considers it appropriate to examine this complaint under Article 34 of the Convention, which reads as follows:<\/p>\n

\u201cThe Court may receive applications from any person, non\u2011governmental 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.\u201d<\/p>\n

55.\u00a0\u00a0The Government stated that during the criminal proceedings the applicant and his lawyer had had access to the case file and could make the necessary copies.<\/p>\n

56.\u00a0\u00a0The Court observes that it has already dealt with similar situations in a number of cases concerning Ukraine. In particular, in Vasiliy Ivashchenko\u00a0v. Ukraine (no. 760\/03, \u00a7 123, 26 July 2012) it 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. Since then the Court reaffirmed this conclusion in numerous judgments (see, for example, Andrey Zakharov\u00a0v.\u00a0Ukraine, no. 26581\/06, \u00a7 69, 7 January 2016, and Mushynskyy\u00a0v.\u00a0Ukraine [Committee], no. 3547\/06, \u00a7 48, 15 September 2016, with further references therein). In the present case, the Government have not provided any reason for the Court to depart from its previous findings; the domestic courts\u2019 responses to the applicant\u2019s requests (see paragraph 28 above) illustrate that the same problem manifested itself in his case.<\/p>\n

57.\u00a0\u00a0Accordingly, the Court concludes that the authorities of the respondent State have failed to comply with their obligations under Article\u00a034 of the Convention on account of their refusal to provide the applicant with copies of documents for his application to the Court.<\/p>\n

IV.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n

58.\u00a0\u00a0The applicant also complained:<\/p>\n

(i) under Article 6 of the Convention that the authorities had failed to ensure the presence of B. at the trial so that the defence could examine him; that he had not had the opportunity to examine the expert who analysed the drugs found on him; that he had not been allowed sufficient time to study the case file after the trial, in preparation for his appeal; that the domestic courts had erred in their assessment of the evidence against him, having convicted him of a crime he had not committed; that, in the course of pre-trial investigation, the investigators had refused to allow him to undergo medical treatment for his drug addiction, thus hindering the preparation of his defence, and that some of the case documents had been drafted in Ukrainian, which the applicant did not understand;<\/p>\n

(ii) under Article 13 of the Convention that the courts dealing with his criminal case had not remedied the alleged violation of his rights;<\/p>\n

(iii) under Article 2 of Protocol No. 7 the applicant complained that the Supreme Court had unlawfully refused to examine his second appeal in cassation, after having rejected his first one.<\/p>\n

59.\u00a0\u00a0Having considered the applicant\u2019s submissions in the light of all the material in its possession, the Court finds that, 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. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

60.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

61.\u00a0\u00a0The applicant claimed 20,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n

62.\u00a0\u00a0The Government contested that claim.<\/p>\n

63.\u00a0\u00a0The Court, ruling on an equitable basis, awards the applicant EUR\u00a02,500 in respect of non-pecuniary damage.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

64.\u00a0\u00a0The applicant also claimed EUR 3,600 for the costs and expenses incurred before the Court, to be paid to the bank account of the applicant\u2019s representative. He submitted documentary evidence in support of his claim, representing his representative\u2019s legal fees and postal expenses.<\/p>\n

65.\u00a0\u00a0The Government contested that claim, considering the applicant\u2019s representative\u2019s fees excessive.<\/p>\n

66.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria and the fact that the applicant has benefitted from legal aid in the amount of EUR 850 which has already been paid to his representative, the Court considers it reasonable to award the sum of EUR\u00a01,500 for the proceedings before the Court, to be paid to the bank account of the applicant\u2019s representative.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

67.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declares the complaints under Article\u00a06\u00a0\u00a7\u00a7 1 and 3\u00a0of the Convention, in respect of the admission of P.\u2019s untested pre-trial statements in evidence against the applicant and in respect of the non-disclosure of the video recording of the test purchase to the defence admissible, and the remainder of the application inadmissible;<\/p>\n

2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds that the authorities of the respondent State have failed to comply with their obligations under Article\u00a034 of the Convention on account of their refusal to provide the applicant with copies of documents for his application to the Court;<\/p>\n

4.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the bank account of the applicant\u2019s representative;<\/p>\n

(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

5.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 12 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Marialena Tsirli\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

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FOURTH SECTION CASE OF YAKUBA v. UKRAINE (Application no. 1452\/09) JUDGMENT STRASBOURG 12 February 2019 This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision. In the…<\/p>\n

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