Information Note on the Court’s case-law 209

July 2017

Khlebik v. Ukraine - 2945/16

Judgment 25.7.2017 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Access to court

Reasonable time

Delays in hearing appeal where case file was no longer in an area under Government control: no violation

Facts – In 2013 a court in the Luhansk Region of Ukraine convicted the applicant and four co-defendants of various offe nces following a series of armed attacks in the region and gave him a prison term. The applicant appealed. However, the court of appeal was unable to hear his appeal because the parts of the Luhansk Region where the case file was located were no longer und er Ukrainian government control following the creation of the self-proclaimed “Luhansk People’s Republic”. The applicant was released in March 2016 following on order of the domestic courts rejecting the prosecutor’s interpretation of the relevant legislat ion which would have required his continued detention. The applicant’s appeal was still pending at the date of the Court’s judgment.

Law – Article 6 § 1: The key reason why the applicant’s case had not yet been examined by the court of appeal was that his case file was no longer available as a result of hostilities in the areas the Government did not control. In the absence of any intentional restriction or limitation on the exercise of the applicant’s right of access to that court, the question was whether Ukraine had taken all the measures available to it to organise its judicial system in a way that would render the rights guaranteed by Article 6 effective in practice in the applicant’s case and, in particular, whether any practical avenues had been open to the Ukrainian authorities to proceed with the examination of the appeal. Three possible avenues had been suggested by the applicant: (i) requesting the assistance of the Parliamentary Commissioner for Human Rights to obtain the case file from the territ ory not under the Government’s control; (ii) conducting a new investigation and trial; and (iii) reviewing the judgment based on the basis of the available material.

In the Court’s view, none of these were viable options. As to the first, the effectiveness of the Parliamentary Commissioner’s intervention would depend on the goodwill and cooperation of the forces controlling the territory not under the Government’s control and not exclusively on the respondent Government’s efforts. The Commissioner had in fa ct been unable to provide any help in a context in which hostilities in the area were continuing and no stable and lasting ceasefire had been established. As to the second option – conducting a new investigation and trial – there was no reason to doubt the domestic court’s conclusion that no relevant material concerning the case was available as both the offences and the trial had taken place in the areas not currently under the Government’s control. The third option – a review of conviction and sentence ba sed on the available material – would entail an examination of questions of both law and fact and thus require access to the evidence. While the evidence was not currently available it might become so in the future. To examine the entirety of the issues in the case before such evidence was available might prejudice the possibility of a more informed review in the future.

The Court also reiterated that in determining the reasonableness of the length of proceedings in criminal cases, the question of whether the applicant is in detention is a relevant factor. It thus attached importance to the domestic courts’ decision to rel ease the applicant on the basis of an extensive interpretation of the relevant legislation.

In sum, the authorities had duly examined the possibility of restoring the applicant’s case file and done all in their power under the circumstances to address the applicant’s situation. Indeed, the Court welcomed the initiatives taken by the authorities to attempt to gather evidence in areas under their control, to solicit the help of the International Committee of the Red Cross in facilitating recovery of the files located in the territory not under their control, and legislative proposals intended to facilitate examination of appeals in situations where part of a case file remained unavailable.

Conclusion : no violation (unanimously).

© Council of Europe/European C ourt of Human Rights This summary by the Registry does not bind the Court.

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