FIFTH SECTION
\nCASE OF GRABOVSKIY v. UKRAINE
\n(Application no. 4442\/07)<\/p>\n
JUDGMENT
\nThis version was rectified on 8 January 2019
\nunder Rule 81 of the Rules of Court<\/p>\n
STRASBOURG
\n29 November 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Grabovskiy v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Andr\u00e9 Potocki, President, Having deliberated in private on 6 November 2018,<\/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. 4442\/07) 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 Nikolay Aleksandrovich Grabovskiy (\u201cthe applicant\u201d), on 18 December 2006.<\/p>\n 2.\u00a0\u00a0The applicant was granted leave to present his own case in accordance with Rule 36 \u00a7 2 in fine of the Rules of Court. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr\u00a0I.\u00a0Lishchyna.<\/p>\n 3.\u00a0\u00a0The applicant complained, in particular, that he had not been provided with legal assistance in the course of criminal proceedings against him, that he had been detained in degrading conditions and that the domestic authorities had failed to provide him with copies of certain documents for 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 22 June 2011 the Court invited the Government to submit observations on the admissibility and merits of the present application. On 12 September 2012further observations were requested from the Government.<\/p>\n 5.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1969 and is detained in Verona, Italy, in connection with criminal charges unrelated to the present case.<\/p>\n A.\u00a0\u00a0Criminal proceedings against the applicant<\/strong><\/p>\n 7.\u00a0\u00a0In the early morning of 22 July 2005a sales clerk, G., was attacked in a shop in Kharkiv where she worked.She suffered multiple cuts, including a penetrating chest wound,which led to pneumothorax. She was hospitalised in an intensive-care unit.<\/p>\n 8.\u00a0\u00a0According to the subsequent findings of the domestic court which convicted the applicant of aggravated robbery (see paragraph 18below), the applicant had attacked G., whom he had known previously, and seized a certain amount of cash belonging to her employer, the company that ran the shop.<\/p>\n 9.\u00a0\u00a0According the applicant\u2019s account, which he maintained throughout the proceedings before the domestic courts and before this Court, G. owed him money and he had gone to the shop to collect the debt. However, G. had attacked him with scissors and, trying to defend himself, he had hit her back, seized the scissors from her and stabbed her with them.When the shop\u2019s alarm had gone off,he had taken the money and run away.<\/p>\n 10.\u00a0\u00a0According to the applicant, late on 22 July 2005 he was arrested by the police and taken to a police station where he was questioned about the incident. Allegedly, his request for a lawyer was ignored.<\/p>\n 11.\u00a0\u00a0In a statement (\u043e\u0431\u044a\u044f\u0441\u043d\u0435\u043d\u0438\u0435) dated 22 July 2005 taken by a police officer, the applicant gave the account of events as set out in paragraph 9above.<\/p>\n 12.\u00a0\u00a0On 23 July 2005 a number of reports were drawn up: (i) an arrest report according to which the applicant was arrested on suspicion of robbery; (ii) a record stating that the applicant\u2019s procedural rights as a suspecthad been explained to him, including the right to remain silent, to have a legal aid lawyer appointed and to consult him prior to the first questioning; (iii) a record stating that the applicant, having been informed of the right to legal assistance, had decided to waive it; (iv) a transcript of the applicant\u2019s questioning as a suspect:the applicant\u2019s account of events was as set out in paragraph 9 above.<\/p>\n 13.\u00a0\u00a0On 25 July 2005 the applicant was examined by a forensic medical expert. He repeated his account of the fight with the victim (see paragraph\u00a09 above),adding that in the course of the fight the victim had hit him in the jaw with a mug. He stated that he had not been ill-treated by the police. The expert noted that the applicant had a hematoma on his jaw and a number of cuts on his right hand, and concluded that the injuries were consistent with the applicant\u2019s account.<\/p>\n 14.\u00a0\u00a0According to the applicant, at the close of the pre-trial investigation and then, subsequently, in preparation for his appeal, he had not been given sufficient time to study the case file.<\/p>\n 15.\u00a0\u00a0On 17 October 2005, at the opening of the trial before the Kharkiv Kyivsky District Court (\u201cthe trial court\u201d) the applicant stated that he wished to defend himself and waived his right to legal assistance. He subsequently alleged that he had been forced to do so by the police guards present in the courtroom.<\/p>\n 16.\u00a0\u00a0In the course of the trial the applicantrepeated the account of events set out in paragraph 9 above.<\/p>\n 17.\u00a0\u00a0Also in the course of the trial the applicant asked the trial court to call certain witnesses, without clearly identifying them.He claimed that they could have testified to the existence of the victim\u2019s debt to him and to his good character. The trial court refused his applications in that respect (see paragraph 19 below).<\/p>\n 18.\u00a0\u00a0On 18 October 2005 the trial court convicted the applicant of aggravated robbery and sentenced him to eight years\u2019 imprisonment. The court relied on, inter alia: (i) the applicant\u2019s admissions in the course of the trial;(ii) the victim\u2019s court testimony, denying, in particular,having borrowed any money from the applicant, as well as her statements incriminating the applicantgiven in the course of a reconstruction of the crime scene and confrontation with the applicant; (iii) money and clothes with brown spots seized from the applicant on 22 July 2005;[1] (iv)\u00a0testimony given by D., the applicant\u2019s girlfriend, who denied any knowledge of the applicant having lent any money and stated, on the contrary, that he himself had been borrowing money from her; (v)the testimony of the victim\u2019s sister and son, equally denying knowledge of any debt. The sister stated that at 7 p.m. on 22 July 2005 in the hospital,the victim had told her that she knew the attacker; (vi) the pre-trial statement of M., a sales clerk in a neighbouring shop, who had stated in the course of the pre-trial investigation that he had seen someone looking like the applicant enter the victim\u2019s shop and then run away from it after the alarm had gone off;he had then discovered the victim injured.<\/p>\n 19.\u00a0\u00a0As far as the applicant\u2019s requests to call additional witnesses were concerned, the trial court stated that he had failed to indicate the names and addresses of those individuals, whom he had supposedly informed about the debt and who could have overheard a telephone call he had had with the victim\u2019s son in that connection. The trial court considered those allegations to be anobfuscation tactic on the part of the applicant and pointed out that his girlfriend, with whom he had lived for two years, did not know of any debt.On the contrary, she had testified that he had had no money to lend.<\/p>\n 20.\u00a0\u00a0On 14 November 2005 the applicant appealed to the Kharkiv Regional Court of Appeal (\u201cthe Court of Appeal\u201d). He raised, notably, various matters concerning the assessment of the evidence. He asked the Court of Appeal to provide him with a lawyer.<\/p>\n 21.\u00a0\u00a0On 6 January 2006 the applicant reiterated the latter request.<\/p>\n 22.\u00a0\u00a0On 2 February 2006 the Vice-President of the Court of Appeal asked the regional Bar association to assign a lawyer for the applicant. There is no indication of any follow-up.<\/p>\n 23.\u00a0\u00a0On 20 July 2006 the Court of Appeal held a hearing in the presence of the applicant and the prosecutor, and upheld the applicant\u2019s conviction.<\/p>\n 24.\u00a0\u00a0On 21 July 2006 the applicant asked the trial court to appoint a lawyer for him, for the preparation of an appeal on points of law to the Supreme Court.On 28 August 2006 the trial court replied that, as his conviction had been upheld on appeal, there were no lawful grounds for appointment of a legal aid lawyer. The applicant was free to hire such a lawyer himself.<\/p>\n 25.\u00a0\u00a0On 4 December 2006 the applicant lodged a handwritten appeal on points of law with the Supreme Court. He raised various matters of fact, disagreeing with the lower courts\u2019 assessment of the evidence. He also complained that he had not been provided with a lawyer before the first police interview on 22 July 2005,had been forced to waive his right to legal assistance on 17 October 2005 under duress from the police (see paragraphs\u00a010 and 15above),and that the Court of Appeal had failed to appoint a lawyer for him.<\/p>\n 26.\u00a0\u00a0On 28 February 2007 a Supreme Court judge, sitting in private, rejected the applicant\u2019s request for leave to appeal on points of law. The judge considered that the applicant\u2019s appeal concerned only matters of fact and assessment of the evidence, which were not grounds for the opening of proceedings.<\/p>\n B.\u00a0\u00a0The applicant\u2019s detention<\/strong><\/p>\n 27.\u00a0\u00a0Following his arrest, in July and August 2005 the applicant was allegedly held in a police station, a hospital and a police temporary detention facility.<\/p>\n 28.\u00a0\u00a0On 17 August 2005 the applicant was transferred to the Kharkiv pre\u2011trial detention centre (\u201cSIZO\u201d). According to him, he was held in a cell that had twenty-four sleeping places, with more than fifty other inmates.<\/p>\n 29.\u00a0\u00a0According to the Government, at the SIZO the applicant was held in the following cells:<\/p>\n <\/td>\n 05\/10\/06-14\/12\/06<\/td>\n 30.\u00a0\u00a0On 28 August 2006 the applicant was transferred from the SIZO to Kharkiv correctional colony no. 18, where he served the rest of his sentence until being released on 3 October 2012. From 5 October to 14 December 2006 he was returned to the SIZO to enable him to study the case file in preparation for his appeal on points of law.<\/p>\n 31.\u00a0\u00a0On arrival at the SIZO, the applicant was examined by a doctor, who noted that he had no health problems at the time. The doctor noted, however, that in 1999 the applicant had been treated for tuberculosis,which was currently inactive. The applicant was recommended periodic courses of prophylactic treatment to prevent the reactivation of his tuberculosis, which he subsequently underwent in the course of his detention.In September 2011 he was diagnosed with the first signs of a cataract in the left eye. Glasses were prescribed and issued to him.On one occasion in October 2011 he was diagnosed with high blood pressure and was given the relevant medication. No other complaints in this respect were recorded.On several occasions in the course of his detention the applicant was treated for seasonal influenza, back pain and headaches.<\/p>\n C.\u00a0\u00a0The applicant\u2019s efforts to obtain certain documents for his application to the Court<\/strong><\/p>\n 32.\u00a0\u00a0On 28 January 2008 the applicant\u2019s representative engaged a lawyer practising in Kharkiv to visit him in prison and advise him on legal matters. From 6 to 18 February 2008 the lawyer examined the applicant\u2019s criminal casefile.<\/p>\n 33.\u00a0\u00a0In a letter to the Court of 12 December 2008,the applicant submitted that the domestic authorities were refusing to provide him with certain documents, which could prove his innocence, for his application to the Court, namely:<\/p>\n (i)\u00a0\u00a0the statement by M. and documents concerning the court\u2019s efforts to summon that witness (see paragraph 18 (vi) above);<\/p>\n (ii)\u00a0\u00a0the statement of the victim;<\/p>\n (iii)\u00a0\u00a0documents concerning a civil claim for damages made by the shop that had been robbed;<\/p>\n (iv)\u00a0\u00a0the transcript of a particular hearing before the trial court;<\/p>\n (v)\u00a0\u00a0statements made by the applicant in the course of the investigation on 22\u00a0and 23 July 2005;<\/p>\n (vi)\u00a0\u00a0search and seizure records of 22 July 2005.<\/p>\n The applicant added that he did have copies of the documents from the criminal case file but they were of poor quality, preventing him from sending them to the Court.<\/p>\n 34.\u00a0\u00a0On 23 August 2010 the Registry pointed out to the applicant that his application was incomplete and asked him to provide copies of:<\/p>\n (i)\u00a0\u00a0his first appeal;<\/p>\n (ii)\u00a0\u00a0his requests for the appointment of a legal aid lawyer;<\/p>\n (iii)\u00a0\u00a0his appeal on points of law.<\/p>\n 35.\u00a0\u00a0On 4 September 2010 the applicant responded by providing copies of his first appeal and his request of 6 January 2006 to the Court of Appeal that a lawyer be appointed for him (see paragraph 22 above). He added that the trial court and the Supreme Court had not provided him with the remaining documents he had requested.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 36.\u00a0\u00a0The relevant provisions of domestic law can be found in the following judgments:<\/p>\n (i)\u00a0\u00a0appointment of defence lawyers \u2013 Dovzhenko v. Ukraine(no.\u00a036650\/03, \u00a7\u00a7 31 and 32, 12 January 2012);<\/p>\n (ii)\u00a0\u00a0proceedings on appeal \u2013 Karpyuk and Others v. Ukraine(nos.\u00a030582\/04 and 32152\/04, \u00a7\u00a7 82 and 83, 6 October 2015). In accordance with the domestic legal provisions summarised in that judgment, the courts of appeal had jurisdiction to review cases on matters of fact, law and sentencing;<\/p>\n (iii)\u00a0\u00a0reopening of proceedings following a judgment of the Court \u2011Rostovtsev v. Ukraine(no. 2728\/16, \u00a7\u00a7 16, 19-21, 25 July 2017). In accordance with the domestic legal provisions summarised in that judgment, a judgment of the European Court of Human Rights finding a violation of the Convention constituted grounds for review by the Supreme Court of final judicial decisions in criminal cases.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 37.\u00a0\u00a0The applicant complained that at the Kharkiv pre-trial detention centre (SIZO) he had been subjected to conditions of detention contrary to Article 3 of the Convention, on account primarily of overcrowding and inadequate material conditions. That provision reads:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 38.\u00a0\u00a0The Court notes that this complaint 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 39.\u00a0\u00a0The relevant elements of the parties\u2019 submissions are set out in paragraphs 28 and 29 above. In addition, the applicant complained that the physical conditions of his detention had been inadequate in that the cells had been infested with bugs and the food had been \u201cdisgusting\u201d.The Government contested those allegations.<\/p>\n 40.\u00a0\u00a0The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are \u201cdegrading\u201d from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Mur\u0161i\u0107 v. Croatia [GC], no.\u00a07334\/13, \u00a7\u00a7 96\u2011101 and 136-41, ECHR 2016).<\/p>\n 41.\u00a0\u00a0In the leading case of Melnik v. Ukraine(no. 72286\/01, \u00a7\u00a7 102, 103 and 112, 28 March 2006), the Court found a violation in respect of issues of overcrowding similar to those in the present case. A violation was also recently found in Zakshevskiy\u00a0v.\u00a0Ukraine (no.\u00a07193\/04, \u00a7\u00a7 64-69, 17\u00a0March 2016) on account of overcrowding in the Kharkiv SIZO. As in the latter case (ibid., \u00a7 64), in the present case the Government failed to specify how many inmates had actually occupied the cells with the applicant (see, for another example, Aleksandr Vladimirovich Smirnovv. Ukraine, no.\u00a069250\/11, \u00a7 60, 13 March 2014). Nor did they rebut the applicant\u2019s allegation that he had been held in severely overcrowded conditions. In fact, their submissions tend to support his allegations in that respect.<\/p>\n 42.\u00a0\u00a0A strong presumption of a violation of Article 3 thus arises (see Mur\u0161i\u0107, cited above, \u00a7\u00a0137) and the Government have not rebutted that presumption by showing that there were factors capable of adequately compensating for the scarce allocation of personal space.<\/p>\n 43.\u00a0\u00a0There has accordingly been a violation of Article 3 of the Convention.<\/p>\n 44.\u00a0\u00a0The above finding makes it unnecessary for the Court to address separately the applicant\u2019s remaining allegations concerning the material conditions of his detention (see, for example, Eze v. Romania, no. 80529\/13, \u00a7\u00a061, 21 June 2016, and Igbo and Others v. Greece, no. 60042\/13, \u00a7 46, 9\u00a0February 2017).<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 45.\u00a0\u00a0The applicant complained of a number of violations of Article 6 of the Convention, which reads, in so far as relevant:<\/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 (b)\u00a0\u00a0to have adequate time and facilities for the preparation of his defence;<\/p>\n (c)\u00a0\u00a0to 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;<\/p>\n …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 46.\u00a0\u00a0The Court notes that this part of the application is not manifestly ill\u2011founded 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.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 47.\u00a0\u00a0Under Article 6 \u00a7 3 (b) the applicant complained that the time allowed for him to study the file in the course of the proceedings had been insufficient.Under Article 6 \u00a7 3 (c) he complained that, despite a request to that effect, he had not been provided with a lawyer prior to the police interview on 22 July 2005, that he had waived his right to a lawyer at the trial as a result of intimidation from the police, and that he had not been provided with a lawyer for the preparation of his appeal, despite his requests.<\/p>\n 48.\u00a0\u00a0The Government submitted that the applicant had had sufficient time to study the case file. As to the right to legal assistance, the applicant had never denied that he had attacked the victim. The domestic courts had relied on various pieces of evidence to convict him, but his pre-trial statements had not been among that evidence. The fact that the applicant had not had a lawyer in the course of the judicial proceedings had not prevented him from lodging his first appeal, which had been examined on the merits. Thus, his situation had not been affected by the absence of defence counsel.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0Relevant general principles<\/p>\n 49.\u00a0\u00a0The Court reiterates that the right of an accused to free legal assistance, laid down in Article 6 \u00a7 3 (c) of the Convention, is one of the elements inherent in the notion of a fair trial. That provision attaches two conditions to this right. The first is lack of \u201csufficient means to pay for legal assistance\u201d, the second is that \u201cthe interests of justice\u201d must require that such assistance be given free (see R.D. v. Poland, nos. 29692\/96 and\u00a034612\/97, \u00a7 43, 18 December 2001, with further references).<\/p>\n 50.\u00a0\u00a0Although the manner in which Article 6 is to be applied to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that a State which does institute such courts is required to ensure that persons amenable to the law enjoy before them the fundamental guarantees of a fair trial contained in that Article, including the right to free legal assistance. In discharging that obligation, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (ibid., \u00a7 44).<\/p>\n 51.\u00a0\u00a0Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980\/04, \u00a7 115, 12 May 2017, with furtherreferences).<\/p>\n 52.\u00a0\u00a0It is inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person \u201ccharged with a criminal offence\u201d for the purposes of Article 6 has the right to be notified of these rights (see Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08, 50571\/08, 50573\/08 and 40351\/09, \u00a7 272, ECHR 2016).<\/p>\n
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n\n\n
\n Cell no.<\/strong><\/td>\n Dates <\/strong><\/td>\n Cell area, in square metres<\/strong><\/td>\n Number of sleeping places<\/strong><\/td>\n Square metres per sleeping place<\/strong><\/td>\n<\/tr>\n \n 657<\/td>\n 17\/08\/05-18\/08\/05<\/td>\n 15.4<\/td>\n 9<\/td>\n 1.71<\/td>\n<\/tr>\n \n 144<\/td>\n 19\/08\/05-26\/12\/05<\/td>\n 71.1<\/td>\n 34<\/td>\n 2.09<\/td>\n<\/tr>\n \n 276<\/td>\n 27\/12\/05-06\/06\/06<\/td>\n 56.3<\/td>\n 42<\/td>\n 1.34<\/td>\n<\/tr>\n \n 250<\/td>\n 07\/06\/06-16\/07\/06<\/td>\n no information as that cell no longer existed at the time when the Government submitted their observations<\/td>\n<\/tr>\n \n 276<\/p>\n 17\/07\/06-28\/08\/06<\/p>\n 56.3<\/td>\n 42<\/td>\n 1.34<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n