issued by the Registrar of the Court

ECHR 063 (2017)

16.02.2017

Judgments and decisions of 16 February 2017

The European Court of Human Rights has today notified in writing 23 judgments¹and 75 decisions²:

five Chamber judgments are summarised below;

18 Committee judgments, concerning issues which have already been submitted to the Court, and

the 75 decisions can be consulted on Hudoc and do not appear in this press release.

The judgments in French below are indicated with an asterisk (*).

D.M. v. Greece (application no. 44559/15)*

The applicant D.M. is a Georgian national who was born in 1976 and is currently serving a sentence

in Nigrita prison in Serres. He is disabled and was complaining about the conditions in that prison.

On 24 July 2013 D.M. was sentenced to eight years’ imprisonment. On 22 August 2014 he sought the

recalculation of the term. An expert’s assessment was ordered and it concluded D.M. had a 70%

level of disability on account of orthopaedic problems. On 4 June 2015 D.M. was convicted again and

sentenced to a term of 17 years and nine months. On 16 June 2015 the prosecutor supervising

Nigrita prison decided that one day served would equal two days of the remaining sentence.

D.M. stated that, in addition to his orthopaedic problems, he suffered from an intestinal irritation

and pharyngitis. He said that he could not walk, remained standing or carried out day-to-day tasks.

Relying on Articles 3 (prohibition of inhuman or degrading treatment) and 13 (right to an effective

remedy) of the European Convention on Human Rights, he complained about the conditions of his

detention and about the lack of an effective remedy.

No violation of Article 3

Violation of Article 13 combined with Article 3

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just

satisfaction for the non-pecuniary damage sustained by D.M.

Gavrilov v. Ukraine (no. 11691/06)

The applicant, Vladimir Vasilyevich Gavrilov, was born in 1947. Mr Gavrilov is a retired military

officer. The case concerned civil proceedings relating to a dispute about his pension.

Mr Gavrilov instituted proceedings before the Simferopol Garrison Military Court against a local

military enlistment office, seeking an order to recalculate his pension. In May 2005 the court found

against him. The decision was upheld on appeal by the Navy Court of Appeal on 11 August 2005.

On 30 August 2005 Mr Gavrilov appealed on points of law to the Higher Administrative Court of

Ukraine. On 17 October 2005, the court set Mr Gavrilov the time-limit of 1 November 2005 to rectify

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber

judgment’s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a

panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and

deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the

Convention, judgments delivered by a Committee are final.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

Inadmissibility and strike-out decisions are final.

the procedural shortcomings of his appeal. Mr Gavrilov submitted a rectified appeal, which was still

dated 30 August 2005. According to the acknowledgment of receipt form, it was received by the

court registry on 27 October 2005.

However, the Higher Administrative Court then adopted two decisions refusing to examine the

appeal. The first stated that Mr Gavrilov had failed to rectify the appeal within the time-limit set by

the court in its decision of 17 October. The second held that the appeal had been lodged outside the

statutory time limit for lodging an appeal, and noted that Mr Gavrilov had failed to submit a request

for an extension to the time-limit.

Relying on Article 6 § 1 (access to court), Mr Gavrilov complained that he had been arbitrarily denied

access to the Higher Administrative Court of Ukraine. He argued that the court had refused to

examine his appeal on the grounds that it had been submitted out of time – even though the court

had already granted him additional time, and he had duly lodged his amended appeal before the

court’s deadline.

Violation of Article 6 § 1 (access to court)

Just satisfaction: 1,500 euros (EUR) (non-pecuniary damage) and EUR 13 (costs and expenses)

Andriy Karakutsya and Nadiya Karakutsya v. Ukraine (no. 18986/06)

The applicants, Andriy Karakutsya and Nadiya Karakutsya, husband and wife, are Ukrainian

nationals. The case concerned their eviction from their family home.

Whilst Mr Karakutsya was serving in the military, he was allocated a studio in a residence hall of the

National Defence Academy of Ukraine. He lived there with his wife and their daughter. In December

2001 Mr Karakutsya resigned from military service, citing family circumstances. The Defence

Academy and Office of the Prosecutor General then instituted proceedings to recover possession of

the studio, claiming that the family was no longer entitled to accommodation after Mr Karakutsya

had left military service. In response, the applicants argued that the State had a special duty to

Mr Karakutsya to continue providing him with housing.

In November 2003, the Shevchenkivskyy District Court found in favour of the claimants, holding that

the applicants were legally obliged to vacate the property. Mr Karakutsya lodged an appeal. The first

instance judgment was upheld by the Court of Appeal in January 2004, after a hearing held in

Mr Karakutsya’s absence. According to the applicants, they were evicted from the studio three

months later.

In 2005 Mr Karakutsya submitted written complaints to the President of the Court of Appeal, asking

why the hearing of his appeal was being delayed. He was informed that the appeal had already

taken place, and that the court had upheld the judgment which had been made at first instance. The

applicants then lodged an appeal with the Supreme Court of Ukraine for leave to appeal in cassation

out of time, claiming that the Court of Appeal had failed to notify them of the date and time of their

appeal, or of the court’s judgment. In December 2005 the Supreme Court rejected the request, on

the grounds that leave to appeal could only be granted within one year of the pronouncement of the

decision being appealed.

Relying notably in substance on Article 6 § 1 (access to court), the applicants complained that they

had been arbitrarily denied access to the Supreme Court. In particular, they alleged that the Court of

Appeal’s failure to notify them of the hearing of their case, or its judgment on it, had prevented

them from making a cassation appeal within the time limit applied by the Supreme Court.

No violation of Article 6 § 1

Artur Parkhomenko v. Ukraine (no. 40464/05)

The applicant, Artur Parkhomenko, is a Ukrainian national who was born in 1971 and lives in

Zaporizhzhya (Ukraine). The case concerned criminal proceedings brought against him for armed

robbery.

Mr Parkhomenko was arrested and placed in pre-trial detention on 15 June 2001 on suspicion of

having attempted to rob a couple in their apartment at gunpoint. He was questioned on 16 and

18 June, and on both occasions admitted that he had attacked the couple at the instigation of La., a

former inmate with whom he had served a prison sentence between 1993 and 1999. La. had

provided him with the pistol and waited nearby while he had carried out the attack, driving him

home and reclaiming the gun afterwards. Before making both of those statements, Mr Parkhomenko

had been informed of his right to legal counsel and his right to remain silent but signed written

waivers of those rights. However, after confrontations with La. and another former cellmate also

allegedly involved in the attack on the couple, Mr Parkhomenko stated that he had acted alone. He

also refused to have any further confrontations with his former cellmates. On 9 October 2001

Mr Parkhomenko asked the authorities to assign him a lawyer. However, he was questioned without

a lawyer being present, and changed his statement again, alleging that he had indeed committed the

attack with the help of his former prison inmates but had felt obliged to say he had committed the

attack alone out of fear of reprisals.

The case was subsequently submitted for trial to the Kyiv Court of Appeal. In July 2002

Mr Parkhomenko complained to that court that the police had tortured him during his initial

questioning (in June 2001) in order to make him incriminate his former cellmate, La.. He repeated

this allegation when questioned in court and stated that he had acted alone when carrying out the

attack.

Mr Parkhomenko was convicted in December 2004 and sentenced to seven years’ imprisonment for

having attacked the couple in conspiracy with two of his former prison cellmates. In reaching that

conclusion, the court relied on his various statements made in the course of the pre-trial

investigation, the statements made by the investigator who had questioned him on 9 October 2001

confirming that Mr Parkhomenko had lied during the confrontations with his former cellmates

because he had been threatened and the fact that the bullet found at the crime scene had been shot

from the gun later found in La.’s apartment. It found that Mr Parkhomenko’s submissions regarding

police pressure were unsubstantiated. The Supreme Court upheld this first-instance judgment in

May 2005.

Mr Parkhomenko was released on parole in May 2007.

Relying notably on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own

choosing), he alleged that the criminal proceedings against him had been unfair, submitting in

particular that he had been convicted of robbery in conspiracy with others only on the basis of

confessions obtained in the absence of a lawyer. He also complained under Article 34 (right of

individual petition) that the authorities had refused to provide him with a copy of his request for a

lawyer of 9 October 2001 which was necessary for the proceedings he had brought before the

European Court of Human Rights.

No violation of Article 6 §§ 1 and 3 (c)

Violation of Article 34

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just

satisfaction for the non-pecuniary damage sustained by Mr Parkhomenko.

Kryvenkyy v. Ukraine (no. 43768/07)

The applicant, Volodymyr Kryvenkyy, is a Ukrainian national who was born in 1934 and lives in Velyki

Gadomtsi (Ukraine). The case concerned his complaint about losing his title to a plot of farmland.

In 1997 Mr Kryvenkyy was allocated some farmland in-kind as a share in a plot of land co-owned by

members of a collective farm. Subsequently, in June 2003 he was officially issued with an individual

land-ownership certificate for the land. However, he had to stop farming the land in August 2006

when his title to the land was annulled by the civil courts. This was because of a mistake that had

occurred in attributing the land; namely, in a decision made by Parliament, a portion of

Mr Kryvenkyy’s land had already been expropriated and attributed in 1999 to a company for the

exploitation of kaolin deposits. Mr Kryvenkyy’s request for leave to appeal in cassation, arguing that

he had obtained the land lawfully and in good faith, was rejected by the Supreme Court of Ukraine in

April 2007.

Relying in particular on Article 1 of Protocol No. 1 (protection of property), Mr Kryvenkyy

complained that he had been deprived of his farmland, without compensation or the courts making

any effort to strike a fair balance between the competing interests at stake.

Violation of Article 1 of Protocol No. 1

Just satisfaction: EUR 10,000 (pecuniary and non-pecuniary damage)

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.