CONCURRING OPINION OF JUDGE YUDKIVSKA

I fully subscribe to the Court ' s reasoning and conclusion as to the core issue of the present judgment – violation of Article 34 of the Convention.

I also agree that the complaint under Article 3 is inadmissible, though for a different reason. I shall attempt to explain why I am unable to accept that the applicant did not exhaust domestic remedies for this grievance, as suggested in paragraph 46.

Firstly, I find it established that the applicant had complained to the prosecution authorities and that the latter had rejected his complaint as unsubstantiated on 12 April 2000. Although he was unable to provide the Court with this decision, he clearly referred to it in his submissions, which the Government did not contest. Moreover, in his pleas before the domestic courts he specified the page number in the case file where this decision could be found. It remains unclear whether the applicant received a copy of this decision or whether he found out about it only when he was given access to the case materials. Given the Court ' s findings under Article 34 we cannot conclude that the applicant had a copy of the decision of 12 April 2000 or even that he was timely informed about it and thus could challenge it before the courts as suggested in paragraph 46.

Furthermore, the remedy suggested in paragraph 46 remains questionable. In the recent judgment Davydov and Others v. Ukraine , which concerned ill ‑ treatment in prison, the Court rejected the Government ' s plea of non ‑ exhaustion and concluded that the applicants were not required to challenge the prosecution authorities ' refusal to institute criminal proceedings before the courts as “[s]uch an application would have required the applicants to produce relevant medical evidence to the courts, which they were not in a position to do because no medical records were available... Moreover, a court review would only have considered compliance with the substantive and procedural grounds for instituting proceedings, and in the absence of medical evidence (i.e. substantive grounds)... would have been limited to whether the prosecutor had respected the time-limits and taken a decision which was open to him...” [1] . I believe that similar reasoning is applicable in the instant case, since “the applicant did not have access to a doctor and the alleged injuries were not recorded” ( paragraph 5).

In addition, the Court recently cast doubt on the effectiveness of the proposed remedy, having communicated to the Ukrainian government the case of Kaverzin v. Ukraine with the question on the effect of a court ' s ruling to quash a decision of the prosecution authorities to refuse the institution of criminal proceedings [2] . Without any intention to prejudge the outcome, I find it inconsistent to question the same remedy in one case and insist on its exhaustion in the other.

The applicant, however, raised the complaint of ill-treatment in the course of the criminal proceedings against him, which were rejected for being unsubstantiated.

In the case of Vladimir Fedorov v. Russia [3] the Court found that “by raising, before the trial and appeal courts, a complaint about ill-treatment and the authorities ' failure to investigate, the applicant provided the domestic authorities with the opportunity to put right the alleged violation”. The same conclusion was reached in several other cases in which the trial courts examined the defendants ' complaints of ill-treatment and rejected them [4] . The Court was left “unconvinced that having additional recourse [to challenge a refusal to institute criminal proceedings before the courts] would have made any difference and yielded a different result from the one obtained by the applicant in this respect in the main set of criminal proceedings against him” [5] .

Yet in the present case the Court departed from the above-described approach and found that the manner in which the applicant raised the issue in the domestic courts was insufficient to exhaust domestic remedies on the ground that “the criminal proceedings against the applicant... were aimed at finding him innocent or guilty of the criminal charges levelled against him, rather than attributing responsibility or affording redress for the alleged ill ‑ treatment”.

In my view, this is an excessively formalistic application of the rule of exhaustion of domestic remedies, atypical for this Court. It is true, stricto sensu , that the criminal proceedings in which the applicant was a defendant could not provide the required redress – to bring those responsible for the ill ‑ treatment to account. But the same applies to the remedy proposed in paragraph 46 – a court can only quash the prosecutor ' s decision not to institute criminal proceedings against alleged perpetrators and remit the matter for additional investigation. Such “ping-pong” can last for years (see, for example, Vergelskyy v. Ukraine , in which the prosecutors ' decision not to institute criminal proceedings was quashed 13 (!) times [6] ). On the other hand, in the trial proceedings the courts do examine the defendants ' complaints of ill ‑ treatment in the context of alleged self-incrimination, and are empowered either to send a case for additional investigation [7] or to issue a separate ruling drawing the attention of the prosecution authorities to the allegations of ill ‑ treatment [8] .

Thus, in the absence of the court ' s power to institute criminal proceedings - whether an applicant appeals against a decision not to institute criminal case into his complaints of abuse or raises this issue during his trial - the role of the judicial authorities is limited in both situations. Following the line adopted in the above-mentioned cases, I find that the applicant made the domestic courts sufficiently aware of his grievances in respect of the alleged ill-treatment and thus had exhausted the available domestic remedies.

Nevertheless, the applicant ' s inability to substantiate his claims creat es obvious difficulties in determining whether they are well-grounded. There is no evidence before the Court that he was ill-treated, and for this reason I would conclude that this complaint is inadmissible as being manifestly ill ‑ founded . However, to the extent that the absence of such evidence is attributable to the authorities ' failure to provide him with the requested documents, this failure is addressed by the finding of a violation of Article 34.

[1] . Davydov and Others v. Ukraine , nos. 17674/02 and 39081/02 , § 252, 1 July 2010.

[2] . http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=kaverzin&sessionid=5 729972&skin=hudoc-cc-en .

[3] . V ladimir Fedorov v . Russia , no. 19223/04, § 50, 30 July 2009.

[4] . Akulinin and Babich v. Russia , no. 5742/02, 2 October 2008; Lopata v. Russia , no. 72250/01, 13 July 2010.

[5] . Dmitrachkov v. Russia , no. 18825/02, 16 September 2010.

[6] . Vergelskyy v. Ukraine , no. 19312/06, §§ 48-70, 12 March 2009.

[7] . See, for example, Suptel v. Ukraine , no. 39188/04, § 20, 19 February 2009.

[8] . See , Lopatin and Medvedskiy v. Ukraine , nos. 2278/03 and 6222/03 , § 18, 20 May 2010 ; Ismailov v. Ukraine, no. 7323/04, § 13, 27 November 2008; and, mutatis mutandis, Shalimov v . Ukraine , no. 20808/02, § 29, 4 March 2010.