FIFTH SECTION

DECISION

Application no. 36194/10 Igor Vladimirovich BABENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 December 2019 as a Committee composed of:

André Potocki, President, Mārtiņš Mits, Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 19 May 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Igor Vladimirovich Babenko, is a Ukrainian national who was born in 1962 and lives in Artemivsk.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

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

4 . On 3 August 2007 the applicant, who had a long history of criminal convictions, was arrested by the police at his place of residence on suspicion of rape and robbery. His house was searched, and the stolen belongings of the victim in question were found there. On the same day, criminal proceedings against him were instituted and he allegedly admitted his guilt in written “explanations” ( пояснення ) given to the police.

5 . On 4 August 2007 investigators appointed a lawyer to defend the applicant.

6 . On 22 July 2008 the Artemivsk District Court found the applicant guilty of several counts of rape and robbery and sentenced him to fourteen years ’ imprisonment, with confiscation of property.

7 . The applicant lodged an appeal, which he subsequently amended on a number of occasions. The amended appeal included allegations that he had been tried by a court with an unlawful composition; that his right to defence had been violated; that the judgment was based on unlawfully collected evidence; and that the court had failed to summon some of the witnesses on whose statements it had relied.

8 . The case was transferred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), and the composition of that court ’ s panel of judges was changed, as it had initially included judges who had dealt with the applicant ’ s appeals against the prosecutor ’ s decisions concerning his allegations of ill-treatment.

9 . In the course of the appeal proceedings, the applicant ’ s lawyer was replaced by another lawyer, for reasons which are unclear.

10 . On 3 February 2009 the Court of Appeal upheld the judgment of 22 July 2008, confirming the first-instance court ’ s factual findings and discerning that there had been no procedural violations at the pre-trial or trial stages.

11 . In an appeal on points of law the applicant mainly complained that the trial courts had committed a number of procedural violations, that there had been a number of such violations at the pre-trial stage, and that his legal representation had been ineffective.

12 . On 29 September 2009 the Supreme Court dismissed the applicant ’ s appeal on points of law as unsubstantiated. On 7 October 2009 that judgment was sent to the applicant. In his initial application the applicant submitted that he had been informed about the judgment of the Supreme Court on 14 January 2010. The Government stated that a copy of the judgment had been served on the applicant on 27 October 2009. In this connection, they relied on a document signed by the applicant on 27 October 2009 confirming that he had received the judgment; the document was available in his case file. In his reply to the Government ’ s observations, the applicant did not contest this factual submission, but stated that the Government ’ s argument did not disprove the fact that the trial in his case had been unfair.

13 . On 11 January 2016 the applicant was released from prison.

14 . According to the applicant, when he was arrested at home, and later while he was on police premises, the police beat him and fabricated the “explanations” (supposedly written by him) in which he confessed to the crimes (see paragraph 4 above).

15 . Following his arrest, on 3 August 2007 the applicant was examined by a forensic medical expert so that certain questions related to his possible involvement in the rape on the previous day could be resolved. The applicant did not raise any complaint of ill-treatment with the expert, and no injuries were recorded during the examination.

16 . On the evening of the same date, following the applicant complaining of pain in his back, ribs and groin area, the police called an ambulance for him. He told the ambulance team that the police had beaten him on the day of his arrest. The medical examination carried out revealed no visible injuries on him. The doctor who examined him suggested that the applicant should be examined by a surgeon so that it could be established whether he had any internal injury and, if so, whether his state of health was compatible with detention.

17 . On 4 August 2007 a surgeon from the local hospital examined the applicant and diagnosed him with renal colic.

18 . On the same date, following an order by an investigator, the applicant was examined by a forensic medical expert. The expert found no bodily injuries which could have been inflicted on him on 3 August 2007, or any physical after ‑ effects of such injuries.

19 . On 8 August 2007 the applicant complained to the local prosecutor that he had been physically ill-treated. He also complained of other violations which had occurred during the investigation.

20 . By a decision of 17 August 2007 the prosecutor rejected the applicant ’ s complaint, finding no elements of a crime in the actions of the police officers or the investigators. Another similar complaint by the applicant was rejected by the prosecutor on 21 September 2007, on the same grounds. The applicant appealed against both decisions.

21 . On 29 November 2007 the applicant also complained to the Office of the Prosecutor General that he had been ill-treated during his arrest. On 25 January 2008 the Donetsk regional prosecutor ’ s office informed him that similar complaints by him had already been subjected to a prosecutor ’ s inquiry and had been dismissed as unsubstantiated by the decisions of 17 August and 21 September 2007.

22 . On 14 April 2008 the Artemivsk District Court dismissed the applicant ’ s appeal against the prosecutor ’ s refusal to institute criminal proceedings of 17 August 2007. Having examined the material of the prosecutor ’ s inquiry, the court noted that the prosecutor ’ s decision was based on: the statements of the police officers, who denied any ill-treatment; the statements of the applicant ’ s mother, who had witnessed his arrest and did not confirm his allegations; and the conclusions of the forensic medical expert, who had not noted any injuries on his body. The court also noted that, according to the police report, the officers had used a fighting technique and measures of restraint when arresting the applicant. It held that the application of these measures had been lawful and justified by the applicant ’ s attempt to escape. On 20 May 2008 the Court of Appeal upheld the decision of 14 April 2008.

23 . According to the Government, on 5 August 2008 the Supreme Court rejected an application by the applicant for leave to appeal on points of law. They provided the Court with a copy of the relevant decision. According to the applicant, he did not appeal to the Supreme Court against the decision of 14 April 2008. In this connection, he relied on an information note issued by the Artemivsk District Court in reply to a request by the Government, which states that the case file was not sent to the Supreme Court, as no appeal on points of law was lodged by the applicant.

24 . In May 2010, in his first letter to the Court, the applicant complained principally of ill-treatment by the police and the unfairness of the criminal proceedings against him. He attached no documents to his complaint, but asked the Court for advice on how to request documents from the authorities.

25 . In August 2010, in his application form, to which many copies of various documents were attached, the applicant stated that on 1 April 2010 he had unsuccessfully asked the Artemivsk District Court, which had kept the case file, to provide him with copies of certain documents that he wished to attach to his application to the Court. He provided a handwritten copy of his request, bearing no stamp of the detention facility where he was held or an outgoing mail number. The applicant did not provide the Court with a copy of the Artemivsk District Court ’ s reply.

26 . By a letter of 19 November 2010 the Court asked the applicant to provide copies of documents pertaining to his ill-treatment complaint, as well as copies of the judgment of the Court of Appeal of 3 February 2009 and his appeals against his conviction.

27 . From 6 December 2010 onwards, relying on the above-mentioned letter from the Court, the applicant repeatedly asked the Artemivsk District Court to provide him with copies of a number of documents from the case file.

28 . On 22 December 2010 and 14 April 2011 the Artemivsk District Court informed the applicant that it was not able to send the copies which had been requested, as the case file was being examined by the prosecutor ’ s office following the applicant raising a number of complaints; accordingly, the court had asked the prosecutor to return the file.

29 . On 16 March 2011 Artemivsk District Court informed the applicant that, in accordance with the domestic law, only copies of procedural decisions from the case file could be sent to him, and copies of other documents could be provided to him only if they were specifically requested by the Court in order to ensure the proper examination of his complaint.

30 . According to the material provided by the parties, on 28 April 2011 the applicant ’ s request was eventually granted, and on 16 May 2011 the applicant submitted copies of various documents to the Court, including: records of court hearings, medical evidence, his complaints to different authorities and the decisions taken as a result, information about his personality from his places of work and his place of residence, and so on. According to the applicant, not all the documents which he had requested had been provided to him by the authorities.

COMPLAINTS

31 . The applicant complained under Article 3 of the Convention of his ill-treatment by the police and his poor conditions of detention.

32 . The applicant complained under Article s 6 §§ 1 and 3 (c) and (d) of the Convention that there had been a number of violations during the investigation and trial stages of the criminal proceedings against him, and that the proceedings had been excessively long.

33 . The applicant also complained under Article 34 of the Convention of an interference with his right to individual application, on account of the authorities ’ refusal to provide him with copies of the material from his case file. He further complained under the same Article that the prison administration at his prison facility had delayed and retained letters sent to him by the Court, and had failed to ensure that they were translated into Ukrainian.

THE LAW

34 . The applicant complained that the police had beaten him on the day of his arrest. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

35 . The Government contended that the applicant had not respected the six-month time-limit when lodging the present complaint with the Court, as he had not raised the complaint within six months of the final decision of the Supreme Court delivered following his appeal against the prosecutor ’ s refusal to institute criminal proceedings following his ill-treatment complaint (see paragraph 23 above).

36 . The applicant disagreed. He submitted that he had not appealed on points of law against the judgment at all. At the same time he stated that, in any event, the Government had failed to provide evidence showing that a copy of the judgment of the Supreme Court had ever been delivered to him.

37 . The Court does not find it necessary to resolve the above disagreement between the parties. It notes that, in any case, the applicant ’ s allegation of ill-treatment is set out in brief and general terms and is not supported by any evidence. In particular, there is no evidence that he suffered any injuries in police custody: in this connection, it is notable that the applicant was examined by an ambulance team on the day of his arrest, and by a surgeon from a local hospital and a forensic medical expert on the two days following his arrest. No injuries were recorded (see paragraphs 15 to 18 above). Moreover, as suggested by the case file, the applicant ’ s mother, who witnessed her son ’ s arrest, did not confirm his allegations during the prosecutor ’ s inquiry into the matter (see paragraph 22 above). The applicant ’ s complaint is therefore wholly unsubstantiated.

38 . This part of the application should therefore be rejected as being manifestly ill-founded, pursuant to Article s 35 §§ 3 (a) and 4 of the Convention.

39 . The applicant complained that there had been a number of violations of Article 6 during the criminal proceedings against him. He relied in particular on Article s 6 §§ 1 and 3 (c) and (d), the relevant parts of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial 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;

(d) to 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...”

40 . The Government argued that the present complaint had been lodged too late.

41 . The Court reiterates that pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the final decision in the process of exhaustion.

42 . Turning to the facts of the present case, the Court observes that the applicant has not disputed that he was informed of the final judgment in his criminal case on 27 October 2009, as argued by the Government (see paragraph 12 above), that is, more than six months before he lodged his application with the Court.

43 . In view of the foregoing, the Court concludes that the applicant ’ s complaint under Article 6 of the Convention must be rejected in accordance with Article s 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time-limit.

44 . The applicant complained that the authorities had failed to provide him with copies of the documents in his case file which he had wished to submit to the Court in order to substantiate his application. He also alleged that the prison administration at his prison facility had delayed and retained letters sent to him by the Court, and had failed to ensure that they were translated into Ukrainian. He relied on Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

45 . The Government stated , inter alia , that eventually the authorities had provided the applicant with copies of the relevant documents. Copies of those documents, including the documents requested by the Court, had also been submitted to the Court by the Government.

46 . In reply to the Government ’ s observations, the applicant maintained that the copies of the documents had been provided to him following a delay, and not all of the documents which he had requested had been provided.

47 . The Court observes that on 19 November 2010 it asked the applicant to provide copies of documentary evidence supporting his allegations of ill ‑ treatment and certain procedural documents from his case file (see paragraph 26 above). These documents and other documents were provided to the applicant and he successfully sent them to the Court, albeit after a three-month delay caused by, inter alia , the case file not being at the relevant court (see paragraph 30 above).

48 . It is not clear from the applicant ’ s submissions which copies were allegedly not sent to him. Similarly, the applicant did not demonstrate how those missing documents were significant for the proceedings before the Court.

49 . In such circumstances, and i n the light of the documents before it, the Court does not consider that the applicant was effectively prevented from substantiating his application, even though there was a delay in his being provided with copies of the requested documents .

50 . To the extent that the applicant also complained that the authorities had hindered his communication with the Court by delaying or retaining letters from the Court and by failing to ensure their translation into Ukrainian, the Court finds, on the basis of the available documents, that those allegations are wholly unsubstantiated.

51 . The Court therefore concludes that that there are no reasons to pursue examination of the complaints under Article 34 of the Convention.

52 . The Court has examined the rest of the applicant ’ s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that 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 this part of the application must be rejected as being manifestly ill ‑ founded, pursuant to Article s 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides not to pursue the examination of the complaints raised under Article 34 of the Convention;

Declares the application inadmissible.

Done in English and notified in writing on 9 January 2020 .

Milan Blaško André Potocki Deputy Registrar President