CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 janvier 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s65E06E64 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s499543FD { width:6.87pt; display:inline-block } .sFB58EDD8 { width:204.77pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION   CASE OF ALEKSANDROV v. UKRAINE (Application no. 56483/09)         JUDGMENT               STRASBOURG 9 January 2020       This judgment is final but it may be subject to editorial revision. In the case of Aleksandrov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 56483/09) 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 Ukrainian national, Mr Ruslan Alekseyevich Aleksandrov (“the applicant”), on 5 October 2009. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr   I.   Lishchyna of the Ministry of Justice. On 13 June 2019 the applicant was granted leave to present his own case. 3.     On 30   May 2018 the Government were given notice of the complaint under Article 34 of the Convention concerning the failure of the authorities to provide him with copies of documents from his case file and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1978 and is detained in Berdychiv. Criminal case against the applicant 5.     On 25 December 2008 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) convicted the applicant of two counts of rape and one of murder, sentencing him to fifteen years’ imprisonment. 6.     On 21 May 2009 the Supreme Court of Ukraine upheld the decision of the Crimea Court of Appeal. 7.     The applicant is serving his sentence at the Berdychiv correctional colony no. 70 in Zhytomyr Region. The application to the Court 8.     On 5 October 2009 the applicant informed the Court of his intention to file an application with the Court. 9.     In a letter dated 10 May 2010, the Court acknowledged the receipt of the application form with attachments and asked the applicant to submit copies of domestic courts’ decisions and other documents relevant to the applicant’s case before 10 August 2010. 10.     Between 2009 and 2013 on numerous occasions the applicant asked the Crimea Court of Appeal and the Supreme Court of Ukraine to provide him with access to his case file or to send him copies of procedural documents from his case file. He indicated that those documents were requested by the Court. 11.     On 2 February, 11 June, and 7 and 9 July 2009, 10 March, 28 April, 1   and 21 July, 4 August, and 5 November 2010, 16 March and 5 October 2011, and 10 May 2012 the Crimea Court of Appeal rejected the applicant’s applications to obtain access to his criminal case file. It explained that the applications had no legal basis, since the applicable law did not provide for the possibility to receive copies of documents from a criminal case file after a conviction had become final. 12.     On 17 February 2012 the applicant sent another application to the Crimea Court of Appeal, asking it to provide documents from his case file which he would then send to the Court. 13.     On 29 February 2012 Judge G. of the Crimea Court of Appeal replied to the above application, explaining that the applicant had received copies of all the documents allowed by law and that if he wished to receive additional copies of procedural documents in order to send them to the Court he should present to the Crimea Court of Appeal a confirmation that documents had been requested by the Court and a list of those documents, with both these texts drafted by an authorised person. 14.     According to the applicant, on 13 March 2012 he lodged a similar application, seeking to obtain access to his case file, with the Crimea Court of Appeal. He attached the Rules of the Court to it. 15.     On 22 March 2012 the Crimea Court of Appeal rejected the application since the proceedings in respect of the applicant had ended. 16.     On 19 November 2012 the applicant applied to the Crimea Court of Appeal to authorise his mother, Ms G., to study his criminal case file. 17.     On 4 December 2012 the Deputy President of the Crimea Court of Appeal rejected the application, as only participants in criminal proceedings had a right of access to the case file. 18.     On 24 June 2013 the applicant applied again to the Crimea Court of Appeal, asking it to send him copies of the documents in his case file, indicating that those documents had been requested by the Court. 19.     On 11 July 2013 Judge T. of the Crimea Court of Appeal replied to the above request, informing him that he had to pay a fee of 46 Ukrainian hryvnias (UAH) and send the confirmation of payment to the Crimea Court of Appeal after which it would send to the applicant the requested copies of the documents. The applicant did not do so. According to the applicant, he did not have sufficient funds to pay the fee, as he had no income. He had no legal counsel. RELEVANT DOMESTIC LAW 20.     The relevant provisions of domestic legislation are summarised in the cases of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14   October 2010) and Vasiliy Ivashchenko v. Ukraine (no. 760/03, §§   59 ‑ 61, 26 July 2012). THE LAW scope of the case 21.     In his submissions of 30 July 2019, made in reply to the Government’s observations, the applicant complained about conditions of his detention and treatment in prison. 22.     The Court notes that these new, belated complaints do not constitute an elaboration or elucidation of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Korneykova and Korneykov v. Ukraine , no.   56660/12, §§   95-96, 24   March 2016, and contrast Radomilja and Others v.   Croatia [GC], nos.   37685/10 and 22768/12, §§ 122 and 129, 20   March 2018). ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 23.     The applicant complained that the authorities had failed to provide him with copies of the documents from his case file which he had wished to submit to the Court in substantiation of his application. He relied on Article   34 of the Convention, which reads as follows: “The Court may receive applications from any person... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Submissions of the parties 24.     The Government argued that the applicant had known that he had had to apply to the Court while the decision in the criminal proceedings had been pending, and that he should have made copies of the relevant documents before the completion of those proceedings. The Government further argued that the Crimea Court of Appeal in its letter of 29 February 2012 (see paragraph 13 above) had explained to the applicant the procedure for obtaining documents. In particular, he could have authorised a representative who could have applied, enclosing a list of requested documents, to the Crimea Court of Appeal in order to receive them. They maintained that the applicant had not followed the indicated procedure and that it had been his fault that he had not obtained the documents he had sought. Lastly, they argued that on 11 July 2013 the Crimea Court of Appeal had agreed to provide documents against the payment of the court fee of 46 Ukrainian hryvnias (UAH), which could not be considered excessive. The Government asked the Court to hold that there had been no hindrance of application within the meaning of Article 34 of the Convention. 25.     The applicant maintained his complaint. In his observations in reply to those of the Government, the applicant claimed that he had paid UAH   46 and still has not received the requested documents. He did not provide evidence in support of this allegation nor did he state the date of alleged payment. The Court’s assessment 26.     The Court reiterates that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see, among other authorities, Rasul Jafarov v. Azerbaijan , no. 69981/14, § 176, 17 March 2016, with further references). 27.     This being so, the Court observes that the issue in the present case is similar to other cases where it had delivered judgments against Ukraine. For instance, in the case of Naydyon v. Ukraine (cited above, §§ 64-69) the Court found a violation of Article 34 of the Convention on the grounds that the authorities had failed to ensure that the applicant, who had been dependent on them (a prisoner without a lawyer), had been provided with the opportunity to obtain copies of documents which he had needed to substantiate his application before the Court. In the case of Vasiliy Ivashchenko v. Ukraine (cited above, § 123) the Court also found that the   Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case documents after the completion of criminal proceedings. The Court later reaffirmed its conclusions in various cases, most recently, in the case of Yakuba v.   Ukraine (no.   1452/09, §§ 54-57, 12 February 2019). 28.     In the present case, like in the above cited ones, the applicant introduced his application after the criminal proceedings against him had been completed while in prison. His criminal case file was being kept at the trial court. 29.     As to the Government’s argument that the applicant could have made copies of the documents required for his application before the domestic proceedings were completed, the Court notes that it has already rejected a similar argument in the Naydyon case (cited above, §§ 59 and 67). It sees no grounds to depart from that finding in the present case. 30.     Furthermore, contrary to the Government’s contention, the Court is not convinced that the Crimea Court of Appeal in its letter of 29 February 2012 explained the procedure enabling the applicant to obtain documents from his case file. The Court observes that the letter does not mention a possibility of authorising a representative who in his or her turn could have obtained documents from the applicant’s case file. The Court notices that the explanations at issue were written in a rigid legal language, which prevented the applicant from understanding its contents. In particular, the applicant interpreted those explanations as if the Crimea Court of Appeal had asked for the Rules of the Court, which he attached to his request of 13   March 2012. The Court concludes that the Crimea Court of Appeal failed to explain clearly the procedure which the applicant should have followed and that the Government’s argument related to the letter of 29 February 2012 should be dismissed (compare Vasiliy Ivashchenko , cited above, §   105). 31.     Lastly, the Court observes that between 2009 and 2012 the applicant was denied access to the case file and in 2013 he was asked to pay a court fee in return for the copies of the requested documents. The Court notes that the applicant had no source of income, no legal aid was available to him and that, according to his initial submissions, he could not afford to pay that fee at the relevant time.   The Government did not provide any evidence to the contrary. The Court further notes that for a considerable period of time the domestic authorities, without any valid excuse, refrained from taking measures which were indispensable for the effective exercise by the applicant of his right of application under Article 34 of the Convention (compare Savitskyy v. Ukraine , no. 38773/05, §§ 157-59, 26 July 2012). 32.     In the light of the foregoing, the Court concludes that Ukraine has failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicant in order to make possible a proper and effective examination of his application by the Court. APPLICATION OF ARTICLE   41 OF THE CONVENTION 33.     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.” Damage 34.     The applicant claimed 600,000 euros (EUR) in respect of non ‑ pecuniary damage. He argued that his inability to obtain documents caused him psychological trauma. 35.     The Government contested the amount claimed, arguing that the sum was exorbitant and unsubstantiated. They asked the Court to dismiss the applicant’s claim. 36.     Having regard to the particular circumstances of the case, the Court considers that the finding a violation constitutes in itself sufficient just satisfaction in respect of non-pecuniary damage sustained by the applicant. Costs and expenses 37.     The applicant did not submit any claim under this head. The Court therefore makes no award in this respect. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Holds that the respondent State has failed to comply with its obligations under Article   34 of the Convention with respect to the failure of the authorities to provide the applicant with copies of documents for his application to the Court; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. Done in English, and notified in writing on 9 January 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   André Potocki Deputy Registrar   President