DISSENTING OPINION OF JUDGE DEDOV

1 . I regret that I cannot agree with my colleagues as regards the violation of Article 34 of the Convention. My disagreement is not based on principles, but rather pursues the aim of triggering a broader discussion of the problem raised by the applicant. I believe that the present case concerns a misunderstanding between the post-sentencing judge and the applicant more than any arbitrariness and abuse of power.

2 . I must say that the Convention does not impose a general obligation on the authorities to provide an applicant prisoner with a complete judicial file. The member States “undertake not to hinder in any way the effective exercise” of the right to individual petition under Article 34 of the Convention. The central problem in the present case is whether the above provision should be interpreted more broadly in favour of the applicants, so that the authorities would have to be flexible enough for any inactivity on their part not to be considered a hindrance. The criteria for examination would be the reasonability of the request for documents, and good governance (no excessive burden on the applicant).

3 . According to the facts, the applicant requested the complete case file. Although he may have had his own reasons for doing so, i t is clear that the applicant was not asked by this Court to submit any particular document in addition to the domestic decisions as proposed by the Court in its letter of 3 March 2011, as indicated in paragraph 24 of the judgment (see a contrario , Naydyon v. Ukraine , cited in the draft, § 65).

4 . When the applicant applied to the national judge again, he referred to the Court ’ s above-mentioned letter (see paragraph 26 of the judgment) indicating that this Court had requested documents. The applicant did not specify what precise material (in addition to those decisions) he wished to submit to the Court in support of his application (see Chaykovskiy v. Ukraine , §§ 94-97).

5 . At all events, the Rules of Court (Rule 47) (in force at the relevant time or as consequently amended) would not require the applicant to provide the Court with the complete judicial case file. Yet on each occasion he requested the complete file instead of starting with copies of domestic decisions.

6 . As to the relevant domestic decisions, the applicants in the case of Naydyon v. Ukraine and in the more recent case of Vasiliy Ivashchenko v. Ukraine were not faulted for failing to obtain copies of the relevant domestic decisions during their domestic proceedings, as they could not have foreseen that they would later make an application to this Court (see Naydyon v. Ukraine , § 67, and Vasiliy Ivashchenko v. Ukraine , § 108). However, in the present case, it would appear that the authorities had already supplied the applicant with copies of all the relevant domestic decisions, and the applicant fails to explain why he did not retain this material (see § 47 of the judgment).

7 . This Court is not a court of fourth instance, and so it is not authorised to establish the facts in ordinary criminal or disciplinary cases. Indeed, the domestic decisions would, in my view, constitute a solid ground for communicating the case and starting a written adversarial procedure to examine the complaints regarding the alleged violations of the presumption of innocence and freedom of expression on the basis of the parties ’ observations. I am not sure that the Court should expect flexibility from the authorities in cases where the applicant has submitted a rigid request for a copy of the complete file without informing the post-sentencing judge about particular documents (that is to say decisions) requested by this Court. Otherwise t he applicant would have had to substantiate his personal need for the complete file. Moreover, the applicant himself referred to the domestic decisions only in the application form (see § 21 of the judgment).

8 . After the court registrar replied that the case file had been transferred to the Constitutional Court, the applicant failed to forward his request to that court, but instead informed this Court of the alleged hindrance and then reapplied to the same court (see §§ 23, 25 and 26 of the judgment). On the other hand, the national judge might take into consideration the applicant ’ s vulnerable position, having been deprived of his liberty and being unable to engage a lawyer in order to obtain the documents, so the national judge, for the sake of a good governance, could ask the applicant for a copy of this Court ’ s letter in order to clarify which particular documents were requested

9 . In general, I see that both parties were not flexible enough, and in situations of that kind the Court prefers to decide in favour of the petitioner even if no explicit obligation to do so is set out in Article 34 and there was no impediment or pressure on the part of the domestic authorities in relation to the applicant in the present case. Flexibility is a sign of humanity, and therefore the foundation of the human rights concept. But I believe that this value should be respected by all participants (including this Court).