FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 738/05 by Gennadiy Grigoryevich GOLOTA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 5 April 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Boštjan M. Zupančič , Isabelle Berro-Lefèvre , Ann Power , Ganna Yudkivska , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Genna diy Grigoryevich Golota , is a Ukrainian national who was born in 1961 and is currently serving a sentence in Kirovograd no. 6 Correctional Colony, Ukraine .

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

According to the applicant, in December 2002 he was held for one and a half hours in an unheated van, beaten in detention, forced to participate in court hearings while sick , and kept handcuffed during court hearings.

On 16 December 2002 the Pervomayskiy Town Court , in the presence of two advocates, Sh. and K., sentenced the applicant and three others to various terms of imprisonment for drug trafficking. In his appeal the applicant indicated that he had been “prevented from hiring a lawyer, who would have defended him properly, and had no opportunity to consult a lawyer during the breaks in the hearing”.

On 24 June 2003 the Mykolayiv Regional Court of Appeal , in the presence of advocate Sh. and in the applicant ’ s presence, upheld this decision. The applicant appealed in cassation.

On 28 April 2004 the Supreme Court of Ukraine, following the applicant ’ s complaints, returned the applicant ’ s case file to the first-instance court because the applicant wanted to study the case file materials.

In additional cassation appeals lodged on 20 June 2004 and 10 August 2004 the applicant submitted that the first-instance court had ignored his requests lodged between 1 and 13 June 2004 to have the opportunity to consult a lawyer. He further submitted that the first instance court ignored his complaints about pages missing from his appeal case-file.

Before this Court t he applicant explained that while studying case-file materials he had discovered that, according to him, the first-instance court judge had removed two pages from his appeal and that was the reason why he had wanted to meet with the lawyer. According to the applicant, the removed pages contained six requests addressed to the court of appeal and the applicant ’ s complaint to a prosecutor. The applicant did not specify either before the Supreme Court of Ukraine, or before this Court what were the subjects of his requests and complaints.

On 5 October 2004 the Supreme Court examined his appeal and found it unsubstantiated .

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated.

He further complains under Article 5 that his pre-trial detention was unlawful .

The applicant further complains under Article 6 § § 1 , 2 and 3 that his trial was unfair and that the courts assessed the evidence wrongly . In particular, the applicant complains that the court failed to call an independent chemist to verify the forensic expert ’ s conclusion; that he was not provided with a copy of the Court of Appeal decision , and received it only when consulting case file materials in 2004 ; that he was not given sufficient time to study the case file; that he had no access to a lawyer when he was studying the case materials in 2004, and that the Supreme Court failed to inform him of the date of the hearing.

The applicant further states, without providing details, that he is being persecuted for appl ying to th is Court , and refers to Articles 13, 17 and 34 of the Convention, Article 2 of Protocol No. 7 and Article 1 of Protocol No.12 in respect of the facts of the present case.

THE LAW

1. The applicant complains under Article 6 § 3 (c) of the Convention that he had no access to a lawyer in June 2004 when the applicant was studying the case materials.

The Court reiterates at the outset that although not absolute, the right of everyone charged with a criminal offence to an effective defence by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial ( see Poitrimol v. France , 23 November 1993, § 34, Series A no. 277 ‑ A, and Demebukov v. Bulgaria , no. 68020/01, § 50, 28 February 2008) . In particular, where deprivation of liberty is at stake, the interests of justice in principle call for legal assistance (see Benham v. the United Kingdom , 10 June 1996, § 61 , Reports 1996 ‑ III , and, Shabelnik v. Ukraine , no. 16404/03, § 58 , 19 February 2009 ), and require that such assistance is granted to the applicant for the purposes of his appeal on points of law (see Tsonyo Tsonev v. Bulgaria (no. 2) , no. 2376/03 , § 40 , 14 January 2010 ).

In the present case, it follows from the case-file materials that he was legally represented in the proceedings against him.

The applicant ’ s complaint to this Court under Article 6 § 3 (c) of the Convention is limited to the statement that he wished to consult a lawyer when his appeal on the points of law has been already pending before the third instance court. According to the applicant, he discovered that two pages of his appeal file to the second instance court containing his requests and complaints had been missing from the case-file. The applicant does not specify what kind of requests and complaints were missing. It appears that the applicant was seeking a lawyer in order to complain about the missing pages and not in order to lodge an appeal in cassation (see, a contrario , Tsonyo Tsonev v. Bulgaria (no. 2) , no. 2376/03 , 14 January 2010 ) . It is, therefore, unclear in what way the legal advice in these particular circumstances could have changed the applicant ’ s situation. The Court also notes that the applicant was present in the second instance court hearing and could raise all of his requests and complaints which he considered had been “removed”. However, he failed to do so.

In such circumstances, the Court considers that this part of the application must be rejected as manifestly il l-founded under Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant complains about ill-treatment, unlawful detention and unfair trial. He refers to Articles 3, 5, 6, 13, 17 and 34 of the Convention, Article 2 of Protocol No. 7 and Article 1 of Protocol No.12

The Court, having examined the remainder of the applicants ’ complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did 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 i ll-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Dean Spielmann              Registrar President