FIFTH SECTION
CASE OF ROMANOV v. UKRAINE
(Application no. 63782/11)
JUDGMENT
This version was rectified on 24 August 2020
under Rule 81 of the Rules of Court.
STRASBOURG
16 July 2020
This judgment is final but it may be subject to editorial revision.
In the case of Romanov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Ganna Yudkivska,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 23 June 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 63782/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ilya Eduardovich Romanov (“the applicant”), on 30 December 2005.
2. The applicant was initially represented by Mr V. Chernikov, who was succeeded by Mr V. Komarov, both lawyers practising in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. On 9 February 2012 the Government were given notice of the applicant’s complaints concerning the conditions of his detention in Odessa SIZO and conditions of his transfer to Polytska[1] Prison, the right to have adequate facilities for the preparation of his defence and right to effective participation in person and legal representation in his criminal trial, his conviction for his political beliefs, and the lack of effective remedies for his complaints about the conditions of his detention and transfer.
4. The Government of the Russian Federation did not make use of their right to intervene (Article 36 § 1 of the Convention).
THE FACTS
5. The applicant was born in 1967 and lives in Nizhniy Novgorod.
6. In 2001 Ya. formed a group consisting of former Komsomol members, whose aim was to revive the communist State through a communist revolution. Following arrangements between Ya. and his counterpart in Russia, different material was printed out in Russia, delivered to Ukraine and disseminated in different towns during protest meetings taking place at that time in the context of a mass protest campaign calling for the resignation of President Kuchma. The material included, inter alia, issues 5 and 6 of the Soviet of Workers’ Deputies (Совет рабочих депутатов) and issue 1 of the Rada of Workers’ Deputies (Рада робітничих депутатів) newspapers. The latter was a Ukrainian supplement to issue 5 of the Soviet of Workers’ Deputies newspaper. Its front page suggested that it was the newspaper of revolutionary communists in Ukraine.
7. Issue 6 of the Soviet of Workers’ Deputies newspaper contained, inter alia, the following articles, some of which had been written by Ya. using different pseudonyms:
“Ukraine: from the tribunal to the revolution or the people will not be fooled!”(“Украина: от трибунала к революции, или народ не пидмануть!”) referred to the undergoing protest movement against the President and contained the following passages:
“... But is it not Kuchma who should be found guilty for the genocide [of the Ukrainian people] but the whole capitalist order ... Only the creation of a Soviet of workers’, peasants’ and soldiers’ deputies and an armed revolt will make it possible to overthrow the Kuchma regime and thereafter [the capitalist] order. And the opposition leaders, who are planning a perfunctory coup d’état, are well aware of this. But they are pretending that once Kuchma has gone, the sun of freedom will rise over Ukraine. However, the majority [of the protesters] understand that is not about Kuchma. The people cannot be fooled. This is why it is too early to say what the eventual outcome of an anti-Kuchma movement will be ...”
“Is the Ukrainian opposition capable of winning?” (“Может ли украинская оппозиция добиться победы?”). This article was critical of the leaders of the opposition, mainly for their vague action against the current political regime, with the following passages:
“... This is why S. [the leader of the communist party] sided with the evident criminal. He believed he could use her [the criminal’s] energy and the people’s hate towards [the current President] to be ushered into power...Yes, just ushered, as to seize the power and create new State bodies one would have to be a very brave and talented person. And if the creation [of new State bodies] necessitates starting a civil war ... one would also have to be a GREAT STATE FIGURE ... Unfortunately, neither S. nor... any other opposition leader is this sort of character ...
During the meetings on 16 and 24 September the revolutionists disseminated a large amount of reading material calling people for a real revolt. Unfortunately, this call has not been heard ... But we remain optimistic ...
Looking at how the protests are organised, Kuchma couldn’t care less about those meetings and collected signatures. In his address to the people he had already clearly stated that he would not resign. He submitted that no revolution was possible in Ukraine as the people did not want unrest. Is it possible that [he] was right? Is it possible that the people are ready to die ... but are not taking arms in their hands? We don’t believe that! Unfortunately, the people have not yet got it that only in severe bloody fights would they gain real Freedom. But they will get it for sure!”
“This crazy, crazy...” (“Этот безумный, безумный...”). Referring to hard living under capitalism and providing some illustrative examples, the article ends with the following passage:
“... What would you call it? Outrage of those in power. Carefully analysing the situation, one would understand that capitalism in Ukraine has become unstable; the power of Kuchma has almost gone ... Our main task now is to stay strong and focused. Although this it not an easy task! ... Many of my friends and comrades think I am out of my mind. That is because what I suggest is to eliminate the current regime of genocide by means of a strong armed revolt of the people as, on the one hand, there is no sense in the current impotent protests and on the other – we cannot stand [the situation] anymore. And this is not just me and my comrades, but 90% of Ukrainians. But they are afraid of admitting it.”
“...Genocide” (“... Геноцид”) talked about the alleged overpricing of medication by the State and included the following passage:
“... The answer [why the overpricing was happening] is clear: capitalism and genocide are twin brothers in our country and therefore accusations of genocide [by those in power] of our own people are logical ... There is only one solution –overthrow the power of capitalism as a whole, set up a people’s court and thereafter prosecute officials for the genocide of [their] own people ....”
“Great job” (“Замечательная работа”) referred to the low level of living in Ukraine after the collapse of the Soviet Union and, in particular, people’s unhappiness in the workplace. It included the following passages:
“... The life of workers in the Soviet Union had been too free and easy, which resulted in the loss of the notion of a class system. Having all of a sudden found themselves in conditions of capitalism, the people ... felt like [they had been] knocked down. However, they still have the force to rise and fight. What you need is to just be willing and determined ...
I am a professional revolutionist, a new generation of fighters against the capitalist order. We are in fact the same professionals as ... but we are illegal. And this is why we can call in a more open way for an overthrow of the regime by means of an armed revolt. You cannot do that! ... The joy we get from realising that we are prompting the fall of the capitalist order in the country is enormous! We are not afraid of any repression. We are ordinary people though, just a bit more determined. Everybody who is striving for the victory of workers in the State can do it. The axiom is simple: the more of us there are, the faster we will destroy the capitalist order. We have experienced that happiness [from fighting] ... in practice. And we hope you feel the same.”
8. The Rada of Workers’ Deputies contained the following articles, with Ya. being the author of two of them:
“What the communist revolutionists of Ukraine want” (“Чего хотят коммунисты-революционеры Украины”) was an introductory article, which contained the following passages:
“This new newspaper ... is a printed platform of revolutionary communists whose aim is to develop the Soviet movement in Ukraine, organise a victorious revolt of the people and declare Ukraine a republic of the Soviets of Workers’, Soldiers’, and Peasants’ Deputies.
A nation which is subjected to tyranny and oppression has the right to revolt. This long-forgotten by the “civilised world” international legal rule must become law for the working people of Ukraine towards the Kuchma regime. Why one would need it?
It is important that the working people: workers, peasants, soldiers and honest officers realise the full extent of the situation in Ukraine ... We declare that only the Soviets, elected by the working class and supported by armed working people, have the right to rule their country and govern its assets created by the work of many generations of workers and peasants.
One needs to understand that elections are conducted under the rules drafted by the CIA and Mossad – this is a deception of the people by those in power. The working class have never and nowhere managed to substantially improve their life in a peaceful way ...Therefore, all parties which assure the people that the problem of a predatory government can be resolved by means of a “democratic election” are lying ...
Poor hard workers must get that only a nationwide revolt can seize the power of ... the capitalist oligarchs... The truth is that it is impossible to eliminate those parasites hanging on our neck without [there being] blood and victims. Therefore, there is only one way to save our children and grandchildren from death and shame – shed the blood of the parasites and your own in a civil war, win the war and establish firm revolutionary power. This is the hard truth, but we do not want to fool the dying people that S. [the leader of the communist party] will come and put things right. The capitalists will not give back what they have stolen without a fight.
... Therefore, the task for the honest communists is to take the initiative from the capitalists, once the President has resigned, and turn “the democratic coup” into a socialist revolution. This means that the revolutionists [will] have to use the crisis of those in power and the frustration of the people to organise the victorious revolt.
How to win?
... Secondly, urgently create armed groups. These groups must include former soldiers and officers capable of keeping weapons in their hands and obeying discipline and having knowledge of the art of war. [Then] find out information about ammunition and weapon warehouse locations ...
Thirdly, immediately start widespread propaganda, advocating a revolt and calling on the working people to join the armed groups ...
Fourthly, not be afraid of criminal responsibility and be prepared for unavoidable losses ...
[There is] no other way in which communists can get rid of the stigma of traitors ... and say to the people: “this is our task to fight for the happiness of the working class, and we are doing so by putting in all our efforts and lives!”.
“Kuchma regime – regime of genocide” (“Pежим Kучмы – режим геноцида». In that article, the author mainly addressed the airshow disaster in Sknyliv, suggesting that it had happened because of the financial greed of those in power. It contained the following passage:
“People have to clearly understand that their enemies are not military officers ... Their enemy has settled in Kyiv... Its name is the capitalist criminal order. There is only one way to overcome this enemy – a determined and offensive revolt. If we do not destroy this regime – it will slowly but steadily destroy all of us ...”
“How to turn Ukraine upside down” (“Как перевернуть Украину”). The article addresses the defeat of the communist party in the parliamentary elections. The relevant parts read as follows:
“What lesson is to be learned from the defeat of the communist party in the election? History gives a clear answer – we have to begin serious preparation works and propaganda for a revolt of the working people. We have to use any protest movement against the government for this purpose. Nobody should be afraid of the civil war. It is already under way! ... This is your fault as well. For all of ten years you were far behind your “communist” leaders! ...
Nowadays, the first groups of the military organisation of revolutionists are already operating in Ukraine. The aim of the organisation is to arrange an overthrow by armed working people of the regime of tyranny and oppression. It will be impossible to take power in the whole territory of Ukraine. Therefore, the first strategic goal ... is to devise from the capitalist centre the region (or regions) with the highest level of protests by the suppressed working people and to proclaim a Soviet republic of workers’, peasants’ and soldiers’ deputies ... ”
... thereafter [once the first-hand measures have been taken in the self-proclaimed Soviet Republic] groups of the revolutionary army will advance the attack on Kyiv in order to overthrow the anti-people regime and replace it with the power of the Soviets of Workers, Peasants and Soldiers.
The communists must be prepared for this, as well as prepare the suppressed working people of Ukraine!”
“For the Soviet republic of Crimea” (“За советскую республику Крым”). The article, which described current events in Crimea, included the following passages:
“... The communist party does not want to take power [in Crimea] other than by winning elections ...
As a result, notwithstanding the fact that the communist movement is very active in Crimea, its people continue to live in the terrible conditions of modern Ukraine. So the situation is this: the one who is more radical and determined will win. There is only one solution for ... the people: a revolt and proclamation of a Soviet republic.”
9. On 21 October 2002 an explosive device was detonated in a rubbish bin in front of the State Security Service (“the SBU”) headquarters in Kyiv. Criminal proceedings were instituted in connection with the incident.
10. According to official records, on 8 December 2002, when the applicant was fishing in Kakhovka (Kherson Region), fishery workers called the police as they had found a gun in the applicant’s jacket. Following an immediate search by the police, bullets and a handmade explosive device and detonator were found in the applicant’s bag, as well as a gun and two passports in his name in his jacket. The applicant was taken to a police station in Kakhovka.
11. According to the applicant, the events in question took place on 7 December 2002, and until 8 December he was held in unrecorded detention by the police.
12. On 8 December 2002 the applicant was arrested on suspicion of unlawful possession of firearms and explosives. The copy of the arrest report submitted to the Court was illegible. According to the applicant, he requested legal assistance in that record.
13. On 10 December 2002 the applicant was informed of his procedural rights and he expressed his wish to be assisted by a lawyer, Chet. On the same date Chet. was assigned to represent him in the proceedings. While being questioned in Chet.’s presence, the applicant submitted that he had come to Ukraine to collect material for “a journalism project”. He refused to give any further evidence, relying on his constitutional right to remain silent.
14. According to the applicant, the investigator had told him to request the assistance of Chet.
15. On 11 December 2002 the applicant was charged with unlawful possession of firearms and explosives and questioned. He denied his guilt and refused to give any evidence. It does not appear from the relevant interview record that Chet. was present.
16. On 13 December 2002 a number of individuals were arrested at a flat in Mykolayiv on suspicion of involvement in a number of crimes committed as part of a criminal group headed by Ya. (including unlawful possession of firearms, acts of terrorism, assault and robbery) with a view to starting a communist revolution. Firearms, ammunition, explosives, drugs, copies of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers and other printed material were seized by the police from the flat. At some point after their arrest, one of the suspects told the police that the applicant might have made the explosive devices found at the flat, as well as the device detonated near the SBU headquarters (see paragraph 9 above). Some of the bullets seized by the police from the flat were, as was subsequently established by the domestic courts, of the same calibre and identification code as those found in the applicant’s bag (see paragraph 10 above).
17. On 14 and 15 December 2002 Sm., the applicant’s acquaintance, who had been in police detention, was questioned as a witness by the Kakhovka police. During those interviews he explained, among other things, that he was a member of a Russian-based non-governmental organisation which advocated rights for political prisoners and propagated communist political views. He and two other members of the organisation had been sent to Ukraine to distribute the Soviet of Workers’ Deputies newspaper and other material, as well as to participate in public activities organised by opposition political forces in Ukraine and promote networking with local leftist groups.
18. On 19 December 2002 the applicant was transferred from Kherson to Mykolayiv, where members of the alleged criminal group headed by Ya. were being detained pending the outcome of investigations against them.
19. On 20 December 2002 criminal proceedings were instituted against the applicant by the SBU for membership of a criminal group. On the same date that case was joined to the proceedings against those arrested on 13 December 2002 (see paragraph 16 above).
20. On 21 December 2002, at the SBU premises in Mykolayiv, the applicant made a handwritten statement (known as an “explanation” (oбъяснение)) stating, among other things, that he had come to Ukraine from Moscow to participate in the protest movement against the current President, and that to show support for the protesters he had decided to carry out an explosion near the SBU headquarters in Kyiv. Another aim of the explosion, according to him, had been to divert suspicion from his wife, who was being prosecuted in Russia for carrying out a similar explosion near the Federal Security Service building in Moscow. The applicant provided details regarding how he prepared and carried out the explosion, including the technical characteristics of the explosive device he had used. In addition, he confessed to having manufactured other pieces of explosive material. He further stated that he had gone to Kakhovka to meet S., an activist from the communist movement, and to distribute the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers at a protest meeting there. The applicant concluded by stating that he believed he had done nothing criminal, as his actions had been taken in the interests of the Ukrainian Soviet Socialist Republic, of which he believed he was a citizen, and which had been temporarily under the reign of global, mostly American, imperialism. He also wished to prevent the genocide of the people of Ukraine by the current political regime in the country.
21. According to the applicant, the text of the “explanation” was dictated to him by the investigator. He agreed to make the statement because a day earlier, at the detention facility, he had been subjected to psychological ill‑treatment.
22. According to the applicant, at 4.40 p.m. on 21 December 2002, after drafting the “explanation”, he was informed of his procedural rights. He submitted that, in principle, he had wished to be represented by a lawyer during the investigation but had been ready to give some evidence, at his own discretion, in the absence of a lawyer. At 5 p.m. he repeated that statement when informed again of his defence rights, this time in the presence of a lawyer, Cheb.
23. At 5.10 p.m. the applicant was questioned by the SBU investigator as an accused. It appears from the relevant record that no lawyer was present during the interview as the applicant had expressed his wish to be questioned without a lawyer before it had started. Apart from that, the record represents a printed version of the applicant’s “explanation” given earlier that day. It was signed by the applicant without remarks and contained a handwritten declaration that all the evidence had been given of his own free will without any pressure by the authorities.
24. On 22 December 2002 the applicant engaged two lawyers, Sk. and K., from a private law firm. On the same date they were assigned to represent him in the proceedings. According to the applicant, they were chosen by the investigator and, given his particular situation, he had no other choice than to enter into an agreement with them.
25. On the same date a crime scene reconstruction was conducted with the applicant’s participation and in the presence of Sk. The applicant confirmed his earlier statements related to his involvement in the explosion near the SBU headquarters. He refused to answer certain questions, including about his accomplices. The reconstruction record was signed by the applicant and Sk. without remarks.
26. On 23 December 2002 Sm., in the absence of a lawyer, provided a handwritten statement to the investigator of the SBU admitting, in particular, to distributing the Soviet of Workers’ Deputies newspaper and other printed material in Ukraine and blowing up the rubbish bin near the SBU headquarters in Kyiv in October 2002 together with the applicant and another accomplice.
27. On 25 December 2002 the applicant was questioned as an accused by the SBU investigator. No lawyer was present as the applicant had said, as was noted in the relevant record, that he did not wish to be assisted by a lawyer during the interview. The applicant confirmed that he had manufactured and detonated the explosive device near the SBU headquarters alone. When shown a number of items seized from the flat in Mykolayiv on 13 December 2002 (see paragraph 16 above), he confirmed that some of them belonged to him and had been used by him when manufacturing different types of explosives. He said that he did not have any information as regards the ammunition and drugs found at the flat.
The applicant further denied the allegations of unlawful possession of firearms and explosives for which he had initially been arrested and submitted that the material evidence against him had been planted by the police. He also complained that he had been ill-treated by the police, who had tried to force him to confess to that crime, and that he had instructed his lawyers to lodge a complaint against the officers concerned. Lastly, he stated that he was ready to cooperate with the authorities as regards the crimes he had committed on the territory of Ukraine but refused to give any evidence as regards his accomplices.
28. On 29 December 2002, after being informed of his right to legal assistance in the presence of Sk., the applicant expressed his wish to retain Sk. as his lawyer. Thereafter, in Sk.’s presence, he was charged with membership of a criminal group headed by Ya. whose aim had been to overthrow the constitutional order in Ukraine, including by means of terrorist acts, such as that which had occurred near the SBU headquarters. The applicant, in turn, challenged the legal classification given to his actions and submitted that they should have been classified either as a terrorism offence or hooliganism. In doing so, he reiterated that his actions had been aimed at preventing a more serious crime – the genocide of the Ukrainian people.
29. Later that day the applicant was questioned as an accused in Sk.’s presence. During the interview he again confirmed that he had carried out the explosion near the SBU premises and had manufactured the explosive material found at the flat in Mykolayiv. He maintained that he had done it through his own initiative and alone. The applicant also submitted that Ya. had been aware of his intention to carry out the explosion and could have used this knowledge for his own purposes as a writer. According to the interview record, which was signed by the applicant and Sk. without remarks, the applicant, at his request, had had a confidential meeting with Sk. before the interview started. In his submissions to the Court, the applicant denied that such a meeting had taken place.
30. On 3 February 2003 the applicant requested that Chep., a lawyer engaged by the applicant’s relatives, be assigned to the proceedings as his defence counsel and refused the services of Sk. and K. His request was granted the same day.
31. On 16 and 18 February 2003 several notes addressed to different people were seized from the applicant during a routine search at Mykolayiv SIZO, where he was being held at the time. No copies of the notes were provided to the Court. It appears from the case material that in those notes the applicant, among other things, demanded witnesses in his wife’s case to change their testimony, gave instructions to different people about how to force the witnesses to change their testimony, and provided details as to what the new defence strategy by his wife should be in order to derail the investigation. He also asked that his lawyer Chep. be involved in the process, and that they send their messages to him via that lawyer. The applicant further assured the intended recipients of the notes that he was not a traitor, as he had only confirmed his own involvement in the explosion near the SBU headquarters and had refused to testify against anyone else. He also stated that the technical description of the explosive device had been wrong and that he would use this “tricky moment” in the future.
32. On 19 February 2003 the applicant was questioned in the presence of Chep. He refused to give any evidence before the trial.
33. On 3 March 2003 the applicant was transferred to Odessa.
34. On 24 April 2003 the applicant was questioned in connection with his membership of a terrorist group and distribution of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers. Before being questioned he agreed in writing to participate in the investigative activity without his lawyer present. During the interviews the applicant refused to answer any of the investigator’s questions, relying on his right to remain silent.
35. On 21 May 2003 the original charges against the applicant were changed to dissemination, as part of a criminal group, of printed material containing calls to violently overthrow the constitutional order and seize power; banditry; terrorism; illegal production and possession of drugs; and unlawful possession of firearms and explosives. The applicant was questioned in the presence of Chep. He admitted his guilt in part, but refused to give any evidence until the trial.
36. On 26 May 2003 the applicant was questioned about the notes seized from him at Mykolayiv SIZO on 16 and 18 February 2003 (see paragraph 31 above). He confirmed that he had written them, but refused to provide any further evidence.
37. On 27 May 2003 the pre-trial investigation was completed and from then until 24 July 2003 the applicant and Chep. studied the case file. Although the applicant signed a schedule confirming his familiarisation with the file, he refused to sign a report confirming that he had fully familiarised himself with it. According to the applicant, he had not been provided with sufficient time to familiarise himself with all the material. Chep. stated that he had familiarised himself with all the material and signed the report without making any remarks.
38. On unspecified date the applicant, along with ten other individuals implicated in the criminal activity committed as part of the group headed by Ya., were committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.
39. Between 2 and 11 September 2003 the applicant was given further time to study the case file.
40. On 24 September 2003 the Regional Court assigned A. (a lawyer engaged by the applicant to replace Chep., whose contract had come to an end) to represent him during the trial. She was given time until 13 October 2003 to familiarise herself with the case file.
41. During the trial the applicant submitted that he had shared communist beliefs with his co-defendants, whom he considered his political comrades, but denied committing any acts aimed at overthrowing the constitutional order. In doing so, he stated that he had taken eight issues of the Rada of Workers’ Deputies newspaper from Ya.’s flat in Mykolayiv, which he had intended to use for household purposes and give to Kakhovka residents as firelighters for their stoves. He stressed that he had given the newspaper to S., whom he had met by chance at a protest meeting and who had been interested in its content, as well as to M.
The applicant’s co-defendants, with the exception of Sm., admitted to distributing the newspapers at issue and other material as part of their activity aimed at restoring a Soviet republic. The editor of the newspapers and some other co-defendants admitted that the newspaper articles had contained incitement to violence, including calls for an armed revolt against the constitutional order in Ukraine and seizure of power by revolutionary communists.
The applicant further denied his involvement in any of the other criminal activity he had been charged with and submitted that all his self‑incriminating statements made during the pre-trial investigation had been given under duress and in breach of the privilege against self-incrimination. In particular, his “explanation” of 21 December 2002 had been dictated to him by the investigator, whom he had been afraid of. The investigator had also promised, if he provided a statement, to have him declared insane and admitted to a psychiatric institution instead of a prison, as had been the case in the criminal proceedings against him in Russia (for the relevant facts, see Romanov v. Russia, no. 63993/00, 20 October 2005).
He further submitted to the trial court that he had not given any evidence during the subsequent investigative activities, but had just signed all the documents that had been given to him by the investigator, without even reading them, as he had been afraid of ill-treatment. He also complained that Sk. had been an agent of the SBU and not a lawyer of his choice and that, accordingly, he had not represented his interests effectively.
42. In November 2003 B., one of the applicant’s co-defendants, died in detention. The remaining defendants alleged that he had died as a result of torture.
43. The trial court ordered an investigation into the circumstances of B.’s death. The prosecutor’s office reported that there was no torture case to answer, as B. had died of cancer.
44. On 19 July 2004 the Regional Court found the applicant guilty of terrorism, dissemination of printed material calling for an armed revolt against the constitutional order, banditry and unlawful possession of firearms and explosives. He was sentenced to ten years for terrorism, one year for disseminating the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers and five and six years respectively for the remaining offences. Using the rule of absorption of a more lenient punishment by a stricter one, the applicant’s final sentence was ten years’ imprisonment. He was acquitted of illegal production and possession of drugs for lack of evidence.
The Regional Court did not find the applicant’s arguments about his non‑involvement in the distribution of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers convincing and credible, providing detailed reasoning for its conclusion. It referred, among other things, to the testimony of S. and M. given at trial, who had confirmed that the applicant had participated in the protest events in Kakhovka and had visited them twice during that time (on one of these occasions he had been with Sm.); both times he had brought newspapers with him and discussed their content with them maintaining, among other things, that there could be no revolution without victims. The trial court also referred to the content of some letters sent by the applicant from detention, including to one of his co‑defendants, complaining that Kakhovka’s Bolsheviks S. and R., who had been recommended to him as potential partisans, appeared to be the wrong people who more than likely had assisted the police in arresting him. At the same time, the Regional Court held that there was insufficient evidence to find that the applicant had disseminated the material outside of Kakhovka, or that he had been acting on the instructions of Ya. or the editor of the newspapers.
Referring further to the content of the articles contained in the newspapers distributed by the applicant (see paragraphs 7 and 8 above) the Regional Court found it established that they clearly called for an armed revolt in Ukraine with a view to overthrowing the current legal order and a takeover of State power by Bolshevik revolutionists.
As regards the conviction for terrorism, the Regional Court referred in the most part to the applicant’s confessions made during the pre-trial investigation, including the “explanation” of 21 December 2002, and the testimony of Sm. which he had made during the pre-trial investigation but retracted during the trial. The court also referred to the content of the notes seized from him at Mykolayiv SIZO, the testimony of one of his co‑defendants given at trial that the applicant had confessed to him of having carried out the explosion near the SBU headquarters, and a forensic psychiatric report suggesting that the applicant had also confirmed his involvement in the crime during his forensic examination.
The court found no evidence that the self-incriminating statements, including his “explanation”, had resulted from any pressure by the investigating authorities, setting out in detail the facts which contradicted the applicant’s allegations. It noted, among other things, that at the time the “explanation” had been given by the applicant the investigator had not yet been aware of his psychiatric treatment in Russia, but had known the technical characteristics of the explosive device used near the SBU and thus could have ensured, had he so wished, that the applicant provide the correct description of the explosive device in his testimony and not the one he had made in his confession. It also noted that the applicant’s intentions to divert suspicion from his wife and the fact that he had intentionally provided the wrong description of the explosive device to the police had also been confirmed in his notes addressed to his friends, which had been seized from him at Mykolayiv SIZO.
As regards the applicant’s allegations against Sk., the trial court noted that, by signing the agreement with Sk. and the law firm, he had accepted Sk. as his legal representative. The court also pointed out that since the applicant had wished to keep Sk. as his lawyer during certain investigative activities, and had asked his friends to communicate with him via that lawyer in his letters sent from detention, this suggested that there had been a trust-based relationship between them.
Referring to the results of a medical examination of the applicant by a panel of experts, which it had ordered, the Regional Court also found unsubstantiated the applicant’s complaint that he had been unable to effectively participate in the hearings because of physical and mental exhaustion.[2]
45. The applicant appealed. Before lodging the appeal he was granted access to the case file. In his appeal, he admitted to giving out several copies of the Rada of Workers’ Deputies newspaper and discussing its content with those to whom he had given the material. However, he considered that those actions did not constitute a criminal offence because he had had no intention of overthrowing the constitutional order in Ukraine, and the newspaper was legally published in Russia and not banned in Ukraine. He submitted that it was only during the pre-trial investigation that he had started thinking that a change of the constitutional order in Ukraine – which he understood as a resignation of its President – would be a good thing.
The applicant also submitted that his conviction in respect of the other crimes had been based on inconsistent, partly falsified and insufficient evidence. In particular, as far as the conviction for terrorism was concerned, he challenged the admissibility of all his confessions made during the pre‑trial investigation, maintaining that they had been obtained under duress and in breach of his defence rights. He noted with respect to the latter issue that his “explanation” of 21 December 2002 had been obtained in the absence of a lawyer, despite the fact that shortly after his arrest he had explicitly expressed his wish to be represented by Chet., who had already been assigned to represent him in the proceedings. He further submitted that the following investigative activities had taken place either in the absence of a lawyer or in the presence of lawyers chosen for him by the investigator, including Sk. He also complained that during the trial his lawyer A. had been prevented by rules set by the convoy service from talking to him before the hearing of 24 September 2003, and that during the hearing of 5 February 2004 he had been told to keep his hands behind his back when replying to the prosecutor’s questions, without being able to use his notes.
Lastly, the applicant complained that he had not had sufficient time to study the case file.
46. On 26 July 2005 the Supreme Court of Ukraine, sitting as a last‑instance court, quashed the applicant’s conviction for banditry and acquitted him of that charge for lack of evidence. Otherwise, the court upheld his conviction and sentence. It found, in particular, that the testimony of various witnesses, including some of the applicant’s co‑defendants, given not only during the pre-trial investigation but also during the trial, as well as the applicant’s letters sent from detention, confirmed that the applicant had been involved in the dissemination of material unequivocally calling for the removal of the existing political regime by violent means.
The Supreme Court also found that there was sufficient evidence that the applicant had been in unlawful possession of firearms and explosives, including statements by lay witnesses present during the seizure of such items from him.
As regards the applicant’s involvement in a terrorist act, the Supreme Court found that his guilt was proven by the confessions he and Sm. had made during the pre-trial investigation, “including during the [crime scene] reconstruction [conducted] with [the applicant’s] participation and in the presence of a lawyer”. It ruled that those pieces of evidence had correctly been assessed and declared admissible by the Regional Court and supported the findings of the latter in this respect. The Supreme Court also noted that there had been other evidence of the applicant’s guilt, including the content of the notes seized from him in detention and implicating statements by his co-defendants given at trial.
The Supreme Court found no breach of the applicant and his co‑defendants’ defence rights, noting that the analysis of the case file suggested that all issues concerning access to lawyers in the proceedings and their replacement had been resolved by the authorities in accordance with the law. Taking note of the fact that some of the investigative activities had been conducted in the absence of lawyers, the Supreme Court found that the verbatim transcripts of the relevant activities suggested that the defendants had agreed to testify in the absence of a lawyer.
Lastly, the Supreme Court found that the applicant had had sufficient time to prepare his defence, which could be seen from the numerous references to various pages of the case file in his extensive appeal on points of facts and law. It also noted that the applicant and his lawyer had been provided access to the case file on a number of occasions, including at the applicant’s request.
47. On 7 December 2012 the applicant was released from prison after serving his sentence in full. The next day, following a decision by the SBU, he was expelled from Ukraine with a ban on re-entering the country for the following three years.
48. From 3 March 2003 to 3 November 2005 the applicant was detained in Odessa pre-trial detention facility no. 21 (“the SIZO”).
49. In his initial submissions, the applicant complained that upon his arrival at the detention facility he had been placed for two months in cell no. 4-133 which had been very cold as the window had not been glazed. The cell had accommodated five detainees, even though there had only been four sleeping places. As a result, he had had to sleep on a cold floor during this period. The SIZO had also had very poor sanitary facilities. In particular, detainees had had no access to washing facilities for two to three weeks in spring, and hot water had not always been available in summer. Apart from mattresses and covers, detainees had not had any other items in their cells. For seven days in September 2003 the applicant had been held in a disciplinary cell. It had been flooded and he had been up to his ankles in water.
50. The Government submitted that the conditions of the applicant’s detention had been fair. Relying on information provided by the relevant authorities on 14 May 2012, they submitted that he had never been held in a disciplinary cell, and had been detained in cells no. 4-133, 4-135, 4-249, 4‑244, 4-245, 4-261, 2-73, 2-74, 2-94, 2-303, 2-295, 2-296, 2-298, which were ordinary cells equipped with a toilet, central water and heating, as well as artificial and natural light. The cells measured between 7.6 and 8.5 sq. m and were designed to accommodate four inmates. Pursuant to the relevant regulations, detainees enjoyed a one-hour daily walk in the courtyard, and weekly access to the shower facility.
51. In his comments in reply to the Government’s observations, the applicant maintained his complaint, submitting in addition that the conditions of all the cells in which he had been detained had been poor. According to him, the cells measured between 8 and 10 sq. m with four sleeping places. The toilet was just a hole in the floor, which was not separated from the living area but located one metre away from the place where detainees would eat their food; there was no artificial ventilation and natural air was insufficient, which had resulted in the cell being thick with the smell of excrement, especially during summer; there was no water supply for most of the day; and detainees had no bedding, crockery or items of personal hygiene.
52. Documents provided by the Government show that upon his arrival at the SIZO the applicant underwent a medical examination which revealed no particular health problems. On a number of occasions during his detention there he was examined by different medical specialists, including by a panel of civilian doctors (comprising an ophthalmologist, a urologist, a general practitioner, a pulmonologist, a cardiologist and a neurologist) on 12 March 2004, following an order by the trial court. He was diagnosed with hypertension, chronic bronchitis (remission phase), neurocirculatory dystonia and chronic pharyngitis. The relevant treatment was prescribed and provided to him. He was also diagnosed with a congenital cataract, which was a hereditary condition not amenable to conservative treatment.
53. On 19 March 2004 the applicant made a written statement to the effect that he had no complaints about his state of health.
54. In October 2005, before being released from the SIZO, the applicant was examined and the previous diagnosis (see paragraph 52 above) was confirmed.
55. While in a prison, the applicant complained of back pain. On 14 February 2006, following an examination, he was found to be suffering from severe myopia, astigmatism, cataracts and the aftereffects of a spine injury sustained in 1980s. He was recognised as falling into the third (mildest) category of disability on account of his health conditions.
56. According to the applicant, his medical examinations in the SIZO were infrequent and superficial. While he had a long history of spine problems – for which he was later recognised as having a disability – his condition was not recorded and treated at the SIZO. Medical recommendations for other health problems were not followed by the authorities and no medical treatment was provided, which resulted in a deterioration of his health. No medication or equipment was available at the SIZO, with only blood and urine tests being performed. Detainees were required to provide paper and pens for keeping records.
57. Between 24 September 2003 and 2 July 2004, during the proceedings at the Regional Court, the applicant was taken from the SIZO to the court and back.
58. According to the applicant, on the days of the hearings, which were sometimes held several days in a row, and when familiarising himself with the case file, he was taken out of his cell at about 6 a.m., according to his initial submissions, and at 5 a.m., according to his comments in reply to the Government’s observations. He was then placed with other detainees in a special “assembly cell”, which had no windows or heating. They remained in that cell for more than three hours before being taken to the court. In the court building, after the hearings and until 3 to 4 p.m., the detainees were placed in a holding cell located in the basement. No hot meals were generally provided to them, except for during a short period, after detainees complained. The so-called “packed lunches” consisted of just bread. Following his return from the court, the applicant had to wait in the same “assembly cell” until 8 p.m. before being escorted to his usual cell. As a result, he missed mealtimes and could not wash himself as no water was available at that time of day. The conditions left him exhausted and hungry, and gave him no ability to properly prepare and participate in the court hearings.
59. According to the Government, the majority of the hearings in the applicant’s case lasted no more than three hours per day. As a rule, they were organised as hearings over three consecutive days, followed by three or four days’ rest. The SIZO administration always arranged for him to have three meals a day. Pursuant to an order of the SIZO governor of 11 August 2003, during the weeks of his trial where there were more than three consecutive hearing days, the applicant received hot lunches arranged on the court premises by officer K. When the court weeks were shorter, he received packed lunches. Other meals were served to him in the SIZO.
60. In the summer of 2006 the applicant was transferred from Yenakieve Correctional Colony in the Donetsk Region (“Yenakieve Prison”) to Polytska Correctional Colony no. 76 in the Rivne Region (“Polytska Prison”), a lower security facility, to continue serving his sentence.[3]
61. Having left Yenakieve Prison on 29 July 2006, the applicant arrived at Polytska[4] Prison on 22 September 2006. When in transit, he was held at Donetsk SIZO until 3 August 2006, Kharkiv SIZO from 3 to 14 August 2006, Dnipropetrovsk SIZO from 14 August to 14 September 2006, and Lviv SIZO from 14 September 2006 until his departure to the final destination prison.
62. According to the applicant, during the several weeks of the transfer, he suffered inhuman and degrading treatment. In particular, the train compartments were overcrowded and unventilated. He was given no food, drink or access to sanitary facilities for lengthy periods of time. The transit cells at the pre-trial detention facilities in which he was held in between trains, with the exception of Kharkiv SIZO, had inadequate sanitary conditions, with toilets not separated from the living area, and poor light and ventilation. He was often deprived of basic necessities, such as bedsheets. The staff of the detention facilities treated the prisoners without any respect, forcing them to mop the floor and squat when outside of the cells and beating them up for not shaving. Prisoners’ correspondence was often not sent out.
63. According to the Government, the travel documents containing information relevant to the conditions of the applicant’s transit were destroyed. However, they asserted that the conditions of his transport and detention at transit points had been reasonably adapted to meet his needs. Prison train carriages were of a standard size, designed to accommodate up to eighty people. They contained large compartments measuring 3.5 sq. m, designed to accommodate twelve people, and smaller compartments of 2.5 sq. m, designed to accommodate five people. It was possible to put sixteen people in the large compartments and six in the smaller compartments during trips that took less than four hours. All train carriages had artificial ventilation, and it was also possible to open the windows.
64. The relevant provisions of the Code of Criminal Procedure of 1960 governing the review of criminal cases by the Supreme Court, as in force at the material time, can be found in the Court’s judgment in the case of Sobko v. Ukraine (no. 15102/10, § 41, 17 December 2015).
65. Article 109 of the Criminal Code of 2001 (as in force at the time) provided that actions aimed at forcefully changing or overthrowing the constitutional order or taking over the government were a criminal offence. The relevant part (Article 109 § 3) provided that public calls to violently change or overthrow the constitutional order or take over the government, as well as dissemination of printed material containing calls to commit such actions, if committed by an organised group or through the mass media, was punishable by deprivation of liberty or imprisonment of up to five years.
66. Extracts from the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) following the Committee’s visits to Ukraine in 1998 to 2002 concerning the conditions in which detainees were being transferred from one place of detention to another can be found in the judgment in the case of Andrey Yakovenko v. Ukraine (no. 63727/11, §§ 70-73, 13 March 2014).
THE LAW
67. The applicant complained that the conditions of his detention, including the physical, sanitary and healthcare arrangements in the SIZO, the conditions in which he was taken to the court and back, as well as the conditions of his transfer from Yenakieve Prison to Polytska[5] Prison, had been incompatible with human dignity. 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.”
68. The applicant maintained that the conditions of his detention had been incompatible with Article 3 of the Convention.
69. Referring to the applicant’s initial description of the conditions of his detention in the SIZO (see paragraph 49 above), the Government submitted that as his complaint concerned only a few specific aspects of his detention, they could only assume that he had been satisfied with the remaining conditions in which he had been detained. They claimed that the applicant’s allegations raised before the Court were not supported by any evidence and were therefore wholly unsubstantiated. In addition, he had failed to show that any of the conditions about which he had complained to the Court – or even their cumulative effect – had been such as to subject him to distress of an intensity exceeding the unavoidable level of suffering inherent in deprivation of liberty.
70. The Government further submitted that the applicant, who had been represented by a lawyer at domestic level, should have raised his complaints about the material conditions of his detention with the prosecutor’s office and the SIZO administration. His detention problems had not been of a structural nature and thus could have been resolved. They concluded by stating that, in any event, the applicant’s complaint should be rejected for non-exhaustion of domestic remedies.
71. Lastly, the Government submitted that the applicant had not complained of overcrowding in his cells either to the domestic authorities or the Court, and that this part of his application was therefore incompatible ratione personae with the Convention provisions.
72. In his reply to the Government’s observations, the applicant, in addition to his initial submissions, raised the issue of poor material conditions in his cells, providing a rather detailed account in this regard (see paragraph 51 above). He also referred to numerous online and other public sources describing conditions of detention at the SIZO, arguing that the information was sufficient to draw the conclusion that the conditions were incompatible with Article 3 of the Convention and were indicative of a structural problem.
73. The applicant maintained that he had not been required to exhaust the domestic remedies suggested by the Government, as they were ineffective and, given that he had been a detainee, could also have resulted in repercussions. He submitted, without providing details, that when he had complained about the conditions of his detention to the SIZO administration, he had either been offered only a partial solution to his problems – as it had not been possible in practice to resolve them in full – or forced to withdraw his complaints.
74. Lastly, the applicant submitted that during the trial in his criminal case he and his co-defendants had complained about the conditions of their detention in the SIZO and the trial court had ordered the prosecutor to check these allegations. The only improvement that this had led to was the ability for detainees to take a shower once a week.
(a) Admissibility
75. The Court notes at the outset that in his initial submissions before the Court, the applicant complained of overcrowding in his cell during the first two months of his detention in the SIZO. He maintained and elaborated on this complaint in his observations in response to those of the Government. This complaint cannot therefore be rejected as incompatible ratione personae.
76. It further notes that in his initial application the applicant did not complain about the conditions of the cells in which he had been detained, with the exception of the cell referred to in the preceding paragraph and the solitary confinement cell (see paragraph 49 above). Such a complaint was only raised for the first time on 30 January 2013, in his reply to the Government’s observations. The Court therefore considers that this additional complaint, although pertinent to the conditions of detention, is not an elaboration on his original allegations – the only exception being cell no. 4-133 in which he was initially detained at the SIZO – and must be rejected as belated, given that he was transferred from the SIZO to a prison in 2005.
77. As regards the conditions of the applicant’s detention in solitary confinement, the Court notes that he failed to provide any evidence that he had actually been subjected to this disciplinary measure, while the Government denied that he had been placed in a disciplinary cell at all. There is nothing in the case file to suggest that the applicant, who was legally represented, could not have access to his detention record, which, according to his own observations, should have contained the relevant evidence. In the absence of any evidence in this regard, the Court is unable to reach any conclusion as to the reliability of the applicant’s contentions.
78. As to the applicant’s allegations concerning the lack of access to washing facilities, the lack of hot water in summer and the lack of provision to detainees of basic items, the Court finds that he did not provide a sufficiently detailed account of events, supported by evidence, to suggest that the extent of his suffering reached a threshold of severity that brought the matter within the ambit of Article 3 of the Convention (compare Rodzevillo v. Ukraine, no. 38771/05, §§ 45‑47, 14 January 2016). The Court therefore finds that the applicant has not sufficiently substantiated his allegations in this regard.
79. By contrast, the applicant’s factual submissions concerning his detention in cell no. 4-133, as elaborated upon in his comments in reply to the Government’s observations, are sufficiently detailed and cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
80. Nor can the relevant complaint be dismissed for non-exhaustion of domestic remedies, as suggested by the Government. The Court notes in this connection that in a number of cases against Ukraine it has already dismissed the Government’s objections concerning the failure of applicants to address their complaints of poor physical conditions of detention to the prosecutor’s office, concluding that the problems complained of were of a structural nature (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69‑71, 28 March 2006; Logvinenko v. Ukraine, no. 13448/08, §§ 57-58, 14 October 2010; Petukhov v. Ukraine, no. 43374/02, §§ 76-78, 21 October 2010; and Komarova v. Ukraine, no. 13371/06, § 50, 16 May 2013). In the light of the material before it, the Court finds no reason to depart from its earlier approach and dismisses the Government’s objection.
81. Accordingly, it declares admissible the applicant’s complaint about conditions of his detention in cell no. 4-133 in the SIZO and the remainder of his allegations concerning his detention in that facility inadmissible.
(b) Merits
82. The relevant principles of the Court’s case-law in relation to overcrowding are summarised in Muršić v. Croatia ([GC], no. 7334/13, §§ 137-41, 20 October 2016). In particular, when the personal space available to a detainee falls below 3 sq. m of floor surface in multi‑occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (§ 137). In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances, a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention (§ 139). Where a detainee had more than 4 sq. m of personal space at his or her disposal in multi-occupancy accommodation in prison, and where therefore no issue arises with regard to the question of personal space, other aspects of physical conditions of detention remain relevant for the Court’s assessment of the adequacy of an applicant’s conditions of detention under Article 3 of the Convention (§ 140).
83. Turning to the present case, the Court notes that it was not disputed by the Government that for his first two months at the SIZO the applicant was detained in cell no. 4-133. However, they did not deny or confirm the allegation that there were five inmates in the cell. The Court does not find it necessary to go into the matter as, even assuming that there were four detainees in the cell, as suggested by the Government, it appears that each of them had less than 3 sq. m of floor space (see paragraph 50 above). Moreover, based on the material in the case file concerning the SIZO regime, the applicant and his inmates had no freedom of movement and were confined to their cells for most of the day.
84. Furthermore, it was also not disputed by the Government that the sanitary facilities in the cell were not separated from the living quarters, and their submissions concerning the adequacy of the other conditions were couched in general terms and not supported by evidence.
85. In addition, the Court has already found a violation of Article 3 of the Convention on account of poor conditions of detention in the SIZO during the relevant period of time (see Zinchenko v. Ukraine, no. 63763/11, §§ 65-68, 13 March 2014, and Andrey Yakovenko, cited above, §§ 93-97). On the basis of the case file before it, the Court finds no reason to depart from its earlier findings.
86. In the light of the foregoing, the Court concludes that in the present case there has been a violation of Article 3 of the Convention on account of the inadequate conditions of the applicant’s detention in the SIZO’s cell no. 4‑133.
87. Referring to his submissions as to the facts (see paragraph 56 above), the applicant maintained that he had not been provided with adequate medical assistance in the SIZO. He submitted that the records provided by the Government were inaccurate and incomplete. In his view, they should have provided a full copy of his medical file, which should have followed him from one detention facility to another. He also pointed out that one of his co-defendants had died as a result of a lack of prompt and adequate medical assistance in the SIZO, and that a complaint lodged by him in respect of that person’s death had had no results. A complaint as regards his own state of health would therefore not have been effective. He submitted at the same time that he and his co-defendants had complained of a lack of medical assistance to the trial court.
88. The Government submitted that the applicant’s complaint was unsubstantiated and not supported by evidence. He had failed to show that his state of health had required any other supervision or treatment beyond that which had been available to him and that his health conditions had deteriorated considerably during his detention in the SIZO as result of the alleged lack of medical assistance. There was also no evidence that he had raised any complaints related to the medical assistance provided to him in detention with the relevant authorities. His complaint could therefore also be rejected on non-exhaustion grounds.
89. The Court considers that the applicant has not complied with his duty to substantiate his complaints concerning the inadequacy of the medical assistance available to him in the SIZO. A credible complaint under this head should normally include, among other things, sufficient reference to the medical condition in question; the medical treatment that was sought, provided, or refused; and some evidence – such as expert reports –capable of disclosing serious failings in the medical care (see, for example, Krivolapov v. Ukraine, no. 5406/07, § 76, 2 October 2018, with further references). It is not apparent from the applicant’s submissions to the Court what, if any, particular course of treatment was required by his medical conditions and was not made available to him in the SIZO (contrast Logvinenko v. Ukraine, cited above, §§ 68-69, and Barilo v. Ukraine, no. 9607/06, §§ 69-71, 16 May 2013).
90. To the extent that the applicant may be understood as complaining that he was not given a prompt diagnosis and treatment for his spine problems, there is no evidence in the file that the applicant, who, according to his own submissions, had started feeling back pain as far back as in 2000, raised this issue with the SIZO medical staff, like he did in the prison in 2006 (see paragraph 55 above).
91. Otherwise, the evidence provided by the Government suggests that during his detention in the SIZO the applicant was examined by the SIZO medical staff and, on one occasion, by outside consultants, including a cardiologist and neurologist. While it is true that some health problems were revealed during the applicant’s detention in the SIZO, there is no evidence that his health conditions were threatening or deteriorating or that the relevant recommendations were not followed.
92. As regards the applicant’s allegation that the information provided by the Government was incomplete and inaccurate, there is nothing in the case file to suggest that the applicant, who was represented by a lawyer at domestic level and before the Court, could not have access to his medical file, which, according to his own observations, should have contained the relevant records (see Zinchenko, cited above, § 57).
93. Regard being had to the material in the case file, the Court considers that the applicant has failed to formulate an arguable claim that the medical assistance available to him in the SIZO was incompatible with his human dignity within the meaning of Article 3 of the Convention.
94. This aspect of the case must therefore be rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
95. The Court notes that the parties submitted different accounts of the conditions in which the applicant was taken to the court and back (see paragraphs 58 and 59 above).
96. The Court reiterates that it must be satisfied, on the basis of the material before it, that the conditions of the applicant’s detention constituted treatment which exceeded the minimum threshold for Article 3 of the Convention to apply (see Seleznev v. Russia, no. 15591/03 § 61, 26 June 2008).
97. It notes in this connection that while the applicant provided some factual details as regards the conditions of his detention on the days he was taken to the court and back, he failed to furnish any detailed information as to the dates on which those journeys took place, the distance between the SIZO and the court, the duration of each journey, and the conditions of the means of transport used to take him to the court and back.
98. Moreover, he did not either specify the number of detainees held with him in the “assembly cell” in the SIZO or the size of this cell. He was also inconsistent as regards the times at which he had to wake up on hearing days (see paragraph 58 above).
99. As regards the detention conditions in the court cell, the applicant likewise provided no information about its size, the number of detainees held with him there or the length of time he was held; nor did he describe the sanitary and other conditions in that cell and how they had affected him personally.
100. The Court notes, in addition, that the applicant’s submissions are not supported by evidence, such as, for example, statements of other detainees.
101. In view of the foregoing, the Court is unable on the basis of the evidence before it to establish that the conditions in which the applicant was taken to the court and back were unacceptable from the standpoint of Article 3 and, in particular, that the distress and hardship he endured on those days attained a minimum level of severity sufficient to bring the complaint within the scope of Article 3 of the Convention (contrast Yaroslav Belousov v. Russia, no. 2653/13 and 60980/14, §§ 106 to 111, 4 October 2016).
102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
103. The Government did not submit any objections concerning the admissibility of this part of the application.
104. The Court notes that the applicant’s factual description of his ill‑treatment in the “transit” detention facilities is limited to rather general allegations of being degraded and made to mop the floor and squat when outside of the cell, of detainees being beaten up by the guards for not shaving and of unspecified instances of correspondence not being sent (see paragraph 62 above). It is notable that it does not appear from the case file that the applicant raised these complaints with the competent domestic authorities.
105. Given the lack of details in the applicant’s factual account and the evidence provided, the Court is unable to conclude that the treatment complained of caused him suffering that reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention (see, for example, Kobernik v. Ukraine, no. 45947/06, § 37, 25 July 2013).
106. The Court therefore finds that the applicant has not made out an arguable claim concerning his purported ill-treatment in the detention facilities during his transit to Polytska[6] Prison. This part of the application must therefore be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
107. As regards the remaining allegations, in particular concerning conditions of the applicant’s transport and the treatment to which he was subjected while on journey, the Court finds that they are sufficiently specific and detailed. The relevant complaints are not manifestly ill-founded within the meaning of Article 35 §§ 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
108. The applicant referred to his factual submissions (see paragraph 62 above) and maintained that the conditions in which he had been transported from Yenakieve Prison to Polytska[7] Prison and detained while in transit had been incompatible with Article 3 of the Convention.
109. The Government referred to their factual submissions (see paragraph 63 above) and submitted that the conditions of the applicant’s transit had been adequate.
110. The Court notes that the conditions of transportation, which the applicant complained about, appear to have been similar to those which were sharply criticised by the CPT following its visits to Ukraine (see paragraph 66 above). Similar factual submissions also gave rise to the finding of a violation of Article 3 of the Convention in a number of Court’s judgments against Ukraine (see, for instance, Yakovenko v. Ukraine, no. 15825/06, §§ 105-13, 25 October 2007, and Andrey Yakovenko, cited above, §§ 100-03). The Court notes the structural nature of this problem and does not find any reason to depart from its earlier findings in the present case.
111. It therefore considers that the conditions of the applicant’s transport were in breach of Article 3 of the Convention. In view of the above finding, the Court does not find it necessary to examine the remainder of the applicant’s complaint under this head.
112. The applicant also complained that the criminal proceedings against him had been unfair. In particular, his right to legal assistance had been restricted at the initial stage of the investigation, and his ability to participate in his trial had been impeded as a result of the conditions of his detention and the transport and catering arrangements on trial days, as well as the fact that he had had insufficient time to study the case file and consult his lawyer. He relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
(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; ...”
(a) The applicant
113. The applicant complained that the criminal proceedings against him had been unfair, stating as follows.
(i) In his initial application, he submitted that no lawyer had been provided to him until 21 December 2002; in his reply to the Government’s observations, he indicated that he had not had a lawyer until 10 December 2002.
(ii) The confessions obtained from him during the pre-trial investigation, including his “explanation”, had been made under duress and in the absence of a lawyer or a lawyer of his choice. The self-incriminating statements contained therein had been used to secure his terrorism conviction.
(iii) The waivers of the right to legal assistance which he had given on a number of occasions had not been valid.
(iv) From 7 December 2002 to 3 February 2003 he had been deprived of his right to effective legal representation as the lawyers Cheb., Chet. and Sk. who had represented him during that period had been chosen for him by the investigator and had taken the prosecution’s side by encouraging him to incriminate himself, which he had done.
114. Accordingly, the applicant submitted that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
(b) The Government
115. The Government submitted that the applicant had been provided with access to a lawyer of his choice before he had first been questioned by the police, and that he had been legally represented by lawyers of his choice throughout the investigation. They pointed out that no questioning had taken place with the applicant’s participation until 10 December 2002, and that no incriminating statements had been made by him before that date. In so far as certain investigative activities had taken place in the absence of a lawyer, this had been the applicant’s deliberate choice. The charges against him had not required compulsory legal representation, and his waivers of his right to legal assistance had therefore been permissible.
116. As regards Sk., the content of the applicant’s correspondence while in detention and his wish to retain the services of that lawyer on 29 December 2002 showed that he had accepted him as his lawyer. The State could not therefore be held responsible for the alleged deficiencies in the applicant’s legal representation, if any.
117. The Government claimed that by the time he had been questioned by the SBU on 21 December 2002 the applicant had been well aware of his procedural rights as they had already been explained to him on a number of occasions before that date. Moreover, he had successfully exercised those rights during his interviews on 10 and 11 December 2002 by refusing to give evidence. In these circumstances, the Government suggested that the fact that the applicant had decided to give evidence on 21 December 2002 with no lawyer present in itself constituted a valid waiver of his right to legal assistance.
118. They stressed that the absence of a lawyer during certain investigative activities had not affected the outcome of the proceedings against the applicant as he had repeated his self-incriminating statements in the presence of a lawyer. His complaint concerning a breach of his defence rights had been duly examined by the domestic courts. Moreover, his conviction had been based on the totality of the evidence.
119. Accordingly, the Government submitted that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
(a) Admissibility
120. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b) Merits
121. The general principles with regard to access to a lawyer and the relationship of this right with the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018), and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016).
122. The relevant principles concerning the right to a lawyer of own choice are summarised in Dvorski v. Croatia ([GC], no. 25703/11, § 76-82, ECHR 2015).
123. Turning to the circumstances of the present case, the Court observes that on 21 December 2002 at the SBU premises the applicant made, for the first time, a self-incriminating statement to the effect that he had committed the explosion near the SBU headquarter in Kyiv (see paragraph 20 above). No lawyer was present when the applicant had drafted that “explanation”.
124. The Court observes that there is no information in the case file regarding the precise time the “explanation” was given by the applicant. However, given that his version of the events of 21 December 2002 has not been contested by the Government, the Court will proceed on the understanding that he first gave his “explanation” in the absence of a lawyer and was then formally informed of his right to legal assistance.
125. The Court notes in this connection that the day before the applicant provided the “explanation” at issue the SBU had instituted criminal proceedings against him for membership of a criminal group (see paragraph 19 above). He thus had the formal status of a suspect at the time of his communication with the SBU on 21 December 2002 and therefore had the right to have access to a lawyer before first being questioned on the relevant charges. However, there is no indication that the investigator took any measures to ensure that the applicant’s defence rights were respected before obtaining the “explanation” from him.
126. Even assuming, as was asserted by the Government in their submissions, that the applicant had been well aware of his procedural rights and had effectively used them in the past and, accordingly, that there had been no need for him to be informed of those rights again on 21 December 2002, there is no evidence that he explicitly waived his right to be represented by a lawyer prior to giving his “explanation”. Likewise, there is no evidence in the case file, and it has not been suggested by the Government, that the meeting with the SBU on the relevant date took place at the applicant’s suggestion and that the confession made by him in the “explanation” in the absence of a lawyer was thus initiated by him.
127. Moreover, as soon as the “explanation” had been obtained, the applicant was informed of his defence rights, twice, and he confirmed his wish to be assisted by a lawyer (see paragraph 22 above). The Government have not explained either the need for him to be informed of his rights at that time (given their position mentioned in the paragraph above) or the change in his wishes with regard to his defence within such a short interval.
128. In view of the foregoing, the Court considers that the very fact that the applicant did not use his right to remain silent but made self‑incriminating statements on 21 December 2002 is not sufficient for an assumption to be made that he had effectively waived his right to counsel. The authorities were therefore under an obligation to ensure a defence lawyer’s presence at the taking of the “explanation” on 21 December 2002. It does not appear from the Government’s submissions that there were any compelling reasons for restricting the applicant in his rights.
129. Turning to the question whether the absence of a lawyer adversely affected the fairness of the proceedings as a whole, the Court is guided in its assessment by the criteria set out in the case of Ibrahim and Others (cited above, § 274), as far as is appropriate in the circumstances of the present case. Owing to the lack of compelling reasons for restricting the applicant’s right to a lawyer, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on the applicant’s access to legal advice (ibid., § 265, and Beuze, cited above, § 145).
130. In the present case, the Government argued that the absence of a lawyer at the taking of the “explanation” from the applicant had not affected the fairness of the trial as (a) a lawyer had been present when the applicant had confirmed his initial confession to committing a terrorist offence; (b) there had been other evidence proving his guilt in that crime; and (c) he had been able to raise the relevant complaint during his trial and his complaint had been duly examined by the domestic courts.
131. Turning first to the last mentioned argument, the Court notes that in Ibrahim and Others (cited above, § 274, point (c)) an important factor considered by it in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings was whether the applicant “had the opportunity to challenge the authenticity of the evidence and oppose its use”.
132. It does not appear from the judgment of the Regional Court, which is well detailed, or from the applicant’s submissions, that he specifically complained to the trial court about the absence of a lawyer at the taking of the “explanation” from him. However, he presented a detailed complaint in this regard in his appeal to the Supreme Court and also requested that his self-incriminating statements be excluded from the body of evidence on these grounds.
133. The Court observes that, under the Ukrainian legal system, the Supreme Court, acting as a second-instance court, had jurisdiction to deal with questions of law, as well as questions of fact pertaining both to criminal liability and sentencing. It was empowered to examine evidence and additional material submitted by the parties directly, with the effect that it could uphold, quash or amend a first-instance judgment, or remit the case for a fresh trial (see paragraph 64 above).
134. However, it appears from the relevant judgment that the Supreme Court, when deciding on the applicant’s case with final effect, did not address the applicant’s specific allegation and merely mentioned, in a general manner with respect to all the defendants, that all issues concerning access to lawyers in the proceedings and their replacement had been resolved by the authorities in accordance with the law, and that it had been the defendants’ choice to give evidence in the absence of a lawyer during certain investigative activities (see paragraph 46 above).
135. The Court considers that in making only general statements the domestic court did not repair the consequences resulting from the absence of a lawyer during the applicant’s initial communication with the SBU (see, mutatis mutandis, Sîrghi v. Romania, no. 19181/09, § 52, 24 May 2016; contrast Ibrahim and Others, cited above, §§ 282-84).
136. While it is true that, as pointed out by the Government, the applicant confirmed his initial confession in the presence of a lawyer, the Court cannot ignore the fact that once he obtained the assistance of a lawyer hired by his family, he stopped giving any evidence to the investigating authorities and during the trial consistently denied his previous self‑incriminating statements, alleging that this evidence had been obtained from him by coercion and in breach of his defence rights.
137. Nevertheless, the domestic courts chose to disregard this retraction of evidence and relied on the applicant’s pre-trial statements, including his “explanation” of 21 December 2002, as a basis for his conviction. In doing so, they rejected his allegation of coercion in a detailed manner, and the Court finds no grounds to put into doubt the domestic court’s findings on that matter (see paragraphs 44 and 46 above). However, as mentioned above, no appropriate assessment was made by the Supreme Court in respect of the specific argument raised by the applicant before it concerning the absence of a lawyer at the time when his confession to committing a terrorist offence was obtained from him and its impact on the following investigation.
138. While the Government also suggested that, apart from the applicant’s confession, there had been other evidence which sufficiently proved his guilt, the Court notes that the applicant’s initial statement nevertheless formed part of the probative evidence being specifically referred to by the trial court and confirmed by the Supreme Court (see paragraphs 44 and 46 above). As did the confessions of Sm., the applicant’s co-defendant. As far as the latter evidence is concerned, the Court cannot but note that in the case brought before it by Sm. in relation to his conviction in the same criminal proceedings, it found that the confessions at issue had been obtained from Sm. in breach of his defence rights and that there had been a breach of Article 6 §§ 1 and 3 (c) of the Convention in this respect (see Aleksandr Vladimirovich Smirnov v. Ukraine, no. 69250/11, §§ 70-74, 13 March 2014).
139. The Court reiterates that in cases such as the present one, where there were no “compelling reasons” to restrict access to a lawyer at the early stages of the proceedings, it can only in exceptional circumstances find that the overall fairness of the proceedings has not been prejudiced by that initial failure to observe the accused’s rights (see the case-law referred to in paragraphs 121 and 122 above, as well as Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). Thus, while finding the elements referred to by the Government relevant, applying the requisite strict scrutiny, the Court concludes that they are insufficient to tip the balance in favour of a finding that the proceedings in the present case were fair.
140. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the absence of a lawyer at the taking of the “explanation” from the applicant by the SBU on 21 December 2002.
141. Having regard to this finding, the Court considers that there is no need to give a separate ruling on the merits of the remaining allegations of the breach of the applicant’s right to legal representation which are listed in paragraph 113 above.
142. The applicant also complained, under Article 6 of the Convention, that his ability to participate in his trial had been impeded as a result of the conditions of his detention and the transport and catering arrangements on trial days, as well as the fact that he had had insufficient time to study the case file and consult his lawyer.
143. In the light of its findings under Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention (see paragraph 140 above), the Court considers that no separate examination of the complaints referred to in the preceding paragraph is necessary (see, mutatis mutandis, Boyets v. Ukraine, no. 20963/08, § 97, 30 January 2018).
144. The applicant also alleged that he had not had an effective domestic remedy at his disposal for his complaints under Article 3 concerning the conditions of his detention and the standard of medical assistance available to him in the SIZO and during his transit to Polytska[8] Prison, as required by Article 13 of the Convention. This provision reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
145. The Government argued that the applicant’s submissions did not give rise to an arguable claim.
146. The applicant disagreed.
147. The Court refers to its findings (see paragraphs 86 and 111 above) and observes that the applicant has made out arguable claims under Article 3 of the Convention concerning the physical conditions of his detention in cell no. 4-133 in the SIZO and conditions of his transfer to Polytska[9] Prison. It finds, therefore, that his complaint under Article 13 of a lack of effective remedies for the above complaints must be declared admissible.
148. As to the lack of effective remedies in respect of the other issues linked to conditions of detention raised by the applicant, including medical assistance, the Court, having declared the relevant issues under Article 3 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine, no. 32362/02, § 75, 20 May 2010). It follows that this aspect of the applicant’s complaint under Article 13 of the Convention should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
149. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik, cited above, §§ 113-16, and Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant in practice had an opportunity to obtain effective remedies for his complaints, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant any other appropriate redress.
150. The Court concludes, therefore, that there has been a violation of Article 13 in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention in the SIZO and conditions of his transfer to Polytska[10] prison..
151. The applicant complained that the Ukrainian courts had interfered with his freedom of expression by convicting him to one year’s imprisonment for distributing the newspapers at issue. He relied on Article 10 of the Convention, the relevant parts of which provide:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder ... [or] ... for the protection of the ... rights of others ...”
152. In his application form of 24 January 2006, the applicant submitted that the 1,500 copies of the newspaper distributed by him and his co‑defendants had not been capable in reality of leading to a violent revolt against the constitutional order. He also pointed out that the newspaper was legally published in Russia and not banned in Ukraine. His conviction for distributing them had therefore interfered with his right to freedom of expression.
153. In his observations in response to those of the Government, the applicant denied his involvement in “distributing” the newspaper. He submitted, in particular, that he had done nothing more than take several copies of it from Ya.’s flat to use for household purposes, giving them to three people at their request and discussing their content with those people. He emphasised that he had been neither the author of the relevant articles nor the editor of the newspapers at issue and furthermore had not played any part in transporting them to Ukraine.
154. He further maintained that the constituent elements of the criminal offence prohibited by Article 109 § 3 of the Criminal Code had not been made out by the domestic authorities and that the courts had failed to cite the relevant passage from the newspaper in their judgments and to carry out a forensic linguistic examination in this respect. According to the applicant, the articles contained no more than a critical view of the ruling President, which he shared.
155. Citing passages from the articles contained in the newspaper distributed by the applicant, the Government submitted that his conviction had been based on Article 109 § 3 of the Criminal Code, which had been introduced to suppress actions aimed at violently overthrowing the constitutional order. The wording of that provision satisfied the conditions of clarity and foreseeability. The applicant had therefore been able to manage his conduct and foresee the relevant consequences.
156. In the Government’s view, the measures taken against the applicant had been within the authorities’ margin of appreciation in relation to the type of activity which endangered the vital interests of the State, and the taking of these measures in the instant case had been justified under Article 10 § 2. They also stated that the applicant’s sentence had not been the most severe under Article 109 § 3 of the Criminal Code.
157. The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self‑fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 101, ECHR 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts); and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016).
158. The Court reiterates that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention (see, among other authorities, Delfi AS v. Estonia [GC], no. 64569/09, ECHR 2015, § 136). The decisive point when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17, is whether the statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, and whether by making the statement, the author attempted to rely on the Convention to engage in an activity or carry out actions aimed at the destruction of the rights and freedoms laid down in it (see, for example, Perinçek v. Switzerland [GC], no. 27510/08, § 115, ECHR 2015 (extracts).
159. Turning to the circumstances of the present case, the Court observes that the applicant and his co-defendants were given different prison sentences for posing a threat to national security by distributing material calling for a violent destruction of the current political regime and restoration of a Soviet Republic. The applicant, in particular, was sentenced to one year’s imprisonment for distributing the newspaper mentioned in paragraphs 44 and 46 above.
160. In the light of the material in its possession, the Court finds no indication that the trial court’s conclusion about the applicant’s involvement in the distribution of the newspaper at issue was based on an unacceptable assessment of the relevant facts. Moreover, in his initial application to the Court, unlike in his submissions during the domestic proceedings, he did not appear to deny the fact that he had disseminated the relevant material but submitted that his right to freedom of expression had allowed him to do so and that such actions could not have led to any harm to the State (see paragraph 152 above).
161. In view of this, and regard being had to the relevant case-law principles summarised in the case of Perinçek (cited above), the Court will first determine whether in the instant case the statements contained in the newspaper distributed by the applicant should be excluded from the scope of Article 10 on the basis of Article 17 of the Convention, notwithstanding the fact that the respondent Government did not submit a request to that effect.
162. In doing so, it is not required to determine whether the applicant’s actions were given the correct legal classification under domestic law. This point concerns the interpretation and application of Ukrainian law, and was for the Ukrainian courts to determine (see Perinçek, cited above, § 229). What is relevant here is whether the nature of the statements contained in the newspapers distributed by the applicant attracted protection under Article 10 of the Convention, which is ultimately for the Court to decide, while having regard to the findings of the Ukrainian courts in this connection (see, mutatis mutandis, Toranzo Gomez v. Spain, no. 26922/14, § 54, 20 November 2018).
163. The Court observes that the Soviet of Workers’ Deputies newspaper and its Ukrainian supplement contained articles, which were referred to by the domestic court, with various ideas which could have contributed to tensions within the population. It is quite apparent from the content of the articles (see paragraphs 7 and 8 above) that some went far beyond simply criticising the current President. They openly called for an armed civil conflict within the country aimed at the seizure of State power by the proletariat and establishing the domination of that social class over the others. Some articles also called for a gradual division of the Ukrainian territory.
164. In the Court’s opinion, those messages constituted a threat to public order and to democracy which is a fundamental feature of the European public order (see, mutatis mutandis, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports of Judgments and Decisions 1998‑I). They ran counter to the fundamental ideals and values underpinning the Convention and a democratic society, including justice, free elections and peace (see, for instance, German Communist Party v. Germany, no. 250/57, Commission’s report of 20 July 1957, Yearbook 1, pp. 222-225).
165. The Court also notes in this connection that during the trial the editor of the newspapers at issue, the author of the articles and other co‑defendants, with the exception of Sm., acknowledged their guilt under the same charge as the applicant’s, having thus agreed with the authorities’ assessment as regards the substance of the material they had distributed.
166. Regard being had to the above, the Court finds that, in accordance with Article 17 of the Convention, the applicant may not benefit from the protection afforded by Article 10 of the Convention in the present case (compare Molnar v. Romania (dec.), no. 16637/06, 23 October 2012).
167. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
168. The Court notes that on various dates the applicant lodged a number of other complaints under Articles 2, 3, 5, 8, 9, 10, 13, 14 and 34 of the Convention with respect to the facts of the present case.
169. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of were substantiated and are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
170. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
171. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
172. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
173. The Government alleged that this claim was exorbitant and unsubstantiated.
174. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the above violations of his rights. Ruling on an equitable basis, the Court awards him EUR 9,500 in respect of non-pecuniary damage.
175. The applicant also claimed 4,045.60 Russian roubles (RUB) for postal expenses and RUB 30,000 for the legal fees of himself and his three co-defendants in the criminal proceedings who had also lodged applications with the Court and had initially been represented by Mr V. Chernikov and subsequently by Mr V. Komarov, lawyers practising in Moscow. To support his claim for postal expenses, the applicant submitted postage receipts. One of these receipts indicated that the relevant payment had been made by Mr Zh., while several others indicated that the payments had been made by Mr V. Komarov. The remaining receipts did not indicate who had paid them.
176. To support his claim in respect of legal fees, the applicant submitted a copy of the first page of a contract for legal services of 20 January 2009 concluded between the lawyer Mr V. Komarov and an individual, Mrs G., for representation of the applicant and his three co‑defendants mentioned above in exchange for the sum of RUB 30,000, excluding expenses, which were also to be paid by Mrs G.
177. The Government submitted that they would leave it to the Court’s discretion to decide on the postal expenses. As regards legal fees, they challenged the validity of the contract concluded by Mrs G. on behalf of the applicant and his co-defendants. In particular, they noted that only the first page of the contract, which contained no signatures, had been provided. Moreover, no power of attorney or any other document authorising Mrs G. to conclude a contract for the applicant or his co-defendants’ legal representation had been submitted. They also noted that the relevant documents were insufficiently detailed, and that with respect to the payment to Mr G. Zhuravlev, neither an invoice nor any contract whatsoever had been provided.
178. The Court observes that, based on the documents provided, it does not appear that the applicant has borne any legal fees, postal or other expenses in connection with the present application or that he has an outstanding obligation in this regard to Mr V. Komarov, Mrs G. or any other individual or entity. It further notes that, according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court is unable to determine the amount of fees and expenses paid or owed by the applicant. It therefore makes no award.
179. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 9,500 (nine thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 16 July 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{Anne-Marie Dougin Mārtiņš Mits
Acting Deputy Registrar President
[1] Rectified on 24 August 2020: the text was “Ivanychy”.
[2] Rectified on 24 August 2020: the text was “Referring to the results of a medical examination of the applicant by a panel of experts, which had been ordered by the trial court, the Supreme Court also found unsubstantiated the applicant’s complaint that he had been unable to effectively participate in the hearings because of physical and mental exhaustion”.
[3] Rectified on 24 August 2020: the text was “In the summer of 2006 the applicant was transferred from Yenakieve Correctional Colony in the Donetsk Region (“Yenakieve Prison”) to Ivanychy Correctional Colony in the Rivne Region (“Ivanychy Prison”), a lower security facility, to continue serving his sentence”.
[4] Rectified on 24 August 2020: the text was “Ivanychy”.
[5] Rectified on 24 August 2020: the text was “Ivanychy”.
[6] Rectified on 24 August 2020: the text was “Ivanychy”.
[7] Rectified on 24 August 2020: the text was “Ivanychy”.
[8] Rectified on 24 August 2020: the text was “Ivanychy”.
[9] Rectified on 24 August 2020: the text was “Ivanychy”.
[10] Rectified on 24 August 2020: the text was “Ivanychy”.
[11] Rectified on 24 August 2020: the text was “Ivanychy”.
[12] Rectified on 24 August 2020: the text was “Ivanychy”.