FIFTH SECTION

CASE OF GERBEY AND OTHERS v. UKRAINE

(Applications nos. 23265/05, 19017/06, 29820/10 and 48107/10)

JUDGMENT

STRASBOURG

21 July 2016

This judgment is final but it may be subject to editorial revision.

In the case of Gerbey and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Faris Vehabović,
	Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 30 June 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in four applications (nos. 23265/05, 19017/06, 29820/10 and 48107/10) 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 national of Ukraine and Romania, Mr Denis Valeryevich Gerbey (“the first applicant”), and three Ukrainian nationals, Mr Vyacheslav Viktorovich Korobov (“the second applicant”), Mr Petro Petrovych Khyzhnyak (“the third applicant”) and Mr Aleksandr Viktorovich Bagatskiy (“the fourth applicant”) on 30 May 2005, 27 April 2006, 14 May and 23 September 2010 respectively.
2.  The second, third and fourth applicants, who had been granted legal aid, were represented by different lawyers admitted to practice in Ukraine. Specifically, the second applicant was represented by Ms Y. Zayikina, the third applicant by Mr E. Markov and the fourth applicant by Ms N. Okhotnikova. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.
3.  The applicants complained, inter alia, under Article 34 of the Convention of a hindrance of the effective exercise of their right of individual application.
4.  On 9 October 2013 the Court invited the Government to submit observations on the applicants’ above complaints under Article 34 of the Convention; it ruled the remainder of the applications inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5.  In accordance with Article 36 § 1 of the Convention, the Romanian Government were informed of their right to intervene in the proceedings, in so far as application no. 23265/05 was concerned, but they did not exercise that right.
THE FACTS
6.  The applicants were born in 1983, 1966, 1961 and 1969 respectively.
I.  Facts relating to the first applicant
7.  On 13 October 2003 the first applicant was arrested by the police. On 25 March 2005 the Primorskyy District Court convicted him of robbery and sentenced him to five years’ imprisonment with confiscation of all his property. He lodged two appeals, which were dismissed by the Odesa Regional Court of Appeal on 12 July 2005 and by the Supreme Court on 14 March 2006.
8.  During the pre-trial investigation and the trial the first applicant was detained at a detention facility in Odesa. In 2006 he was transferred first to the Pivdenna Correctional Colony and then to the Shyryayevskyy Correctional Centre to serve his sentence. In March 2007 the applicant was released from detention.
9.  In 2005, after the first applicant had introduced his application, the Court invited him to submit copies of various documents from his domestic case file, including court decisions and his appeals. The first applicant, while still detained, made a number of unsuccessful attempts to obtain copies of the required documents. In December 2007 and February 2008, when he was at liberty, the first applicant obtained some of the documents, except his cassation appeal, and submitted copies of them to the Court.
10.  According to the Government, after his release from detention in March 2007, the first applicant had been informed that he could come to the court holding the case file in order to obtain copies of the documents he had wished to obtain. The first applicant had not done so.
II.  Facts relating to the SECOND applicant
11.  On 6 July 2004 the second applicant was arrested by the police on suspicion of murder. He remained in detention for the entire duration of the criminal proceedings against him. Subsequently, he served his prison sentence at the Simferopolska Correctional Colony.
12.  The second applicant was tried by the Simferopol Court, which on 7 October 2004 found him guilty of murder and sentenced him to fifteen years’ imprisonment.
13.  By decisions of 23 November 2004 and 1 December 2005 the Crimea Court of Appeal and the Supreme Court, respectively, rejected appeals lodged by the second applicant.
14.  In order to substantiate his application the second applicant submitted a number of requests to the authorities, including the Simferopol Court, for him to be given access to his criminal case file and be provided with the possibility to obtain copies of various procedural documents. His requests were refused as having no legal basis. Eventually, copies of some of the requested documents, principally court decisions, were given to the second applicant.
III.  Facts relating to the THIRD applicant
15.  On 11 March 2008 the third applicant was arrested by the police. He remained in detention for the entire duration of the criminal proceedings against him. Subsequently, he served his prison sentence at the Berdychivska Correctional Colony.
16.  On 25 November 2008 the Bila Tserkva Court found the third applicant guilty of murder and inflicting bodily injuries and sentenced him to fifteen years’ imprisonment.
17.  On 10 June and 18 November 2009, respectively, the Kyiv Regional Court of Appeal and the Supreme Court rejected appeals lodged by the third applicant.
18.  In 2010 the Court invited the third applicant to submit copies of several documents from his criminal case file, including his appeals. Between June 2010 and April 2011 the third applicant submitted to the Bila Tserkva Court several requests for such copies. In November 2011 the Bila Tserkva Court sent him a copy of his appeal. It also informed him that the case file did not contain his cassation appeal.
IV.  Facts relating to the FOURTH applicant
19.  In 2009 the fourth applicant was prosecuted for illegal possession of arms and drug dealing and eventually sentenced to five years’ imprisonment with confiscation of all his property. The final decision in his criminal case was given by the Supreme Court, of which he was informed on an unspecified date in November or December 2009. The fourth applicant was not allowed to keep a copy of that decision.
20.  On 11 March 2011 he was released from detention.
21.  In 2010 and 2011, prior to and after the fourth applicant’s release from detention, the Court invited him to submit copies of various documents from his criminal case file. He was not able to provide copies of any of the required documents, as the Amur Nyzhnyodnirpovskyy District Court in Dnipropetrovsk, which held his case file, had refused to give him access to it.
THE LAW
I.  JOINDER OF THE APPLICATIONS
22.  The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
II.  ALLEGED INTERFERENCE WITH THE APPLICANTS’ RIGHT OF INDIVIDUAL APPLICATION
23.  The applicants complained that the authorities had refused to provide them with a possibility of obtaining copies of the documents they needed for the substantiation of their applications. They relied on Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organization or group of individuals 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.”
24.  The Government stated that there had been no hindrance of the effective exercise by the applicants of their right of individual application. As to the first and fourth applicants, the Government argued that they had had an opportunity to obtain copies of the documents they needed after their release from detention. As to the second applicant, the Government claimed that he had obtained copies of a number of the principal decisions in his case and that he could have made copies of other necessary documents when familiarising himself with the file, that is to say prior to the completion of the criminal proceedings in respect of his case. As to the third applicant, the Government argued that he had received copies of all the documents he had requested, except for his cassation appeal, which was missing from the case file.
25.  The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine (see, among others, Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 103-110, 26 July 2012, with further references; Savitskyy v. Ukraine, no. 38773/05, §§ 152, 157-159, 26 July 2012; Korostylyov v. Ukraine, no. 33643/03, §§ 46-50, 13 June 2013; and Andrey Zakharov v. Ukraine, no. 26581/06, §§ 66-70, 7 January 2016). In particular, in the case of Vasiliy Ivashchenko (cited above, § 123) the Court found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case-file documents after the completion of criminal proceedings, either by making such copies themselves (whether by hand or using appropriate equipment), or by having the authorities make copies for them.
26.  In the present case, the Government did not provide any reason for the Court to depart from its findings under Article 34 of the Convention in the case of Vasiliy Ivashchenko or other cases cited above in so far as the alleged hindrance of the effective exercise of the applicants’ right of individual application concerned the time during which they were serving their prison sentences. Accordingly, the Court concludes that the respondent State failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicants in order not to hinder the proper and effective examination of their applications by the Court during that time.
27.  In so far as the first and fourth applicants can be understood as complaining of a hindrance of the effective exercise of their right of individual application after their release from detention, the Court notes that those applicants did not demonstrate that they had no practical opportunity to obtain copies of the documents they needed. Accordingly, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention as regards the first and fourth applicants after their release from detention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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.”
A.  The first applicant
29.  The first applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
B.  The second, third and fourth applicants
1.  Damages
30.  The second, third and fourth applicants claimed different sums in respect of non-pecuniary damage.
31.  The Government disputed those claims.
32.  The Court finds that the applicants must have suffered non‑pecuniary damage as a result of Ukraine’s failure to comply with its obligation under Article 34 of the Convention. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants concerned.
2.  Costs and expenses
33.  The third applicant also claimed different sums for the costs and expenses he and his lawyer allegedly incurred at the domestic level and before the Court.
34.  The Government disputed those claims.
35.  According to the Court’s 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, and bearing in mind that the third applicant’s lawyer has already been paid 850 euros under the Court’s legal aid scheme, the Court rejects the third applicant’s claim under this head.
36.  The second and fourth applicants did not submit a claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications;

2.  Holds that the respondent State failed to comply with its obligations under Article 34 of the Convention as regards the applicants during the time they served their prison sentences;

3.  Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention as regards the first and fourth applicants after their release from detention;

4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second, third and fourth applicants;

5.  Dismisses the remainder of the third applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Khanlar Hajiyev
	Deputy Registrar	President