FIFTH SECTION
CASE OF GEMU v. UKRAINE
(Application no. 16025/06)
JUDGMENT
STRASBOURG
22 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Gemu v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 16025/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 April 2006 by a Moldovan national, Mr Constantin Nikolayevich Gemu, who was born in 1973 and is imprisoned in Temnivka (“the applicant”), and who was granted legal aid and was represented by Mr T.O. Kalmykov, a lawyer practising in Kharkiv;
the decision that notice of the complaints alleging inadequate medical treatment, unfair proceedings and the hindrance of his right of individual application be given to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchina, of the Ministry of Justice, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 9 June 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s allegations that the criminal proceedings against him were unfair (Article 6 of the Convention), that the medical treatment he received while in detention was inadequate (Article 3) and that the exercise of his right of individual application was hindered (Article 34).
Criminal proceedings against the applicant2. On 21 June 2005 the applicant and Mr G. confessed to the double murder of their landlords, Ms N. and Mr M., on 25 May 2005.
3. On 22 June 2005 the applicant was provided with a legal representative, Mr K., and was questioned in the latter’s presence. He confirmed his confessions. By agreement between the parties, given that the applicant and Mr G. did not speak Ukrainian, and upon their request, all investigative acts and the trial itself were conducted in Russian, a language in which they were fluent.
4. After several requests for the assistance of a Romanian interpreter had been rejected on the grounds that the applicant understood the language of the case file, namely Russian, he and his lawyer studied the file on 14 September 2005 and made no complaints, requests or objections.
5. On 25 November 2005 the Odessa Regional Court of Appeal, sitting as a first-instance court, sentenced the applicant to life imprisonment for murder, theft and robbery, and Mr G. to fifteen years’ imprisonment for theft and murder. The court delivered its judgment in Russian. It further ordered the confiscation of property which had been acquired by the applicant with money that he had found in the house of the murdered landlords.
6. On 26 December 2005 the applicant lodged his cassation appeal, written in Romanian, with the Supreme Court. On 20 January 2006 the Odessa Regional Court of Appeal decided to dispose of the applicant’s appeal without examination. The court noted that by agreement the trial had been conducted in Russian (see paragraph 3 above) and that the appeal therefore had to be drafted in Russian. The applicant then submitted his appeal in Russian, complaining mainly about the severity of his punishment and seeking mitigation owing to his state of health and family situation.
7. On 16 May 2006 the Supreme Court, in the presence of the public prosecutor but in the absence of the applicant, his lawyer and his co‑defendant, upheld the judgment of 20 January 2006.
APPLICANT’S Medical treatment8. Upon his arrest in June 2005, the applicant was diagnosed with tuberculosis and other illnesses and was prescribed appropriate treatment. Between 1 July and 3 November 2005, he received treatment in Odessa City Tuberculosis Hospital No. 1.
9. On 3 November 2005 he was moved to an isolation block (“the SIZO”), in which he continued receiving treatment for tuberculosis. On 1 December 2005 he was moved to the building for prisoners serving a life sentence, in which he continued receiving his treatment.
10. On 15 August 2006 the applicant refused to continue his medical treatment as he believed that he should receive medical assistance in the SIZO and not in the building for life-sentenced prisoners. He resumed treatment on 6 September 2006.
11. On 13 November 2006 the applicant was found to have been cured of tuberculosis.
12. On 3 December 2006 the applicant was transferred to Kharkiv Temnivska correctional colony no. 100. There he was periodically prescribed treatment to avert any relapse of tuberculosis.
Right to lodge an application13. The applicant requested on several occasions to be provided with the case-file materials to support his submissions to the Court. These requests were satisfied, and the applicant was provided with the requested materials on 24 April 2008, 18 January 2010, and 13 July 2011.
14. On 7 November 2008 Prison Officer K. reported to his superior that he had held discussions with the applicant. He stated as follows:
“[The applicant] tries to draw the attention of the European Court and other human rights organisations to his criminal case through allegations of poor conditions of detention in the establishments of the prison system. The prisoner Gemu K. M. is deliberately misleading the Euro[pean] Court and other human rights organisations and he insists on his position.
He doesn’t react to educational influences and doesn’t engage in any constructive discussion about his problems.”
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION15. The applicant complained that the conditions of his medical treatment, as a prisoner sentenced to life imprisonment, were worse than those of other prisoners.
16. The Government contested the applicant’s complaint and presented documents to demonstrate that he had received adequate medical treatment.
17. The applicant objected.
18. The Court has examined this complaint and considers that, in the light of all the material in its possession, it is unsubstantiated and must therefore be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION19. The applicant complained that he had not had an opportunity to study the case file, that his lawyer had not defended him properly, that he had not been provided with an interpreter, and that he had been absent from the hearing before the Supreme Court.
20. The Government considered all but the last complaint unsubstantiated. The applicant disagreed.
21. The Court notes that the applicant’s complaint about his absence from the hearing before the Supreme Court is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
22. As to the remainder of the applicant’s complaints under this head, in the light of all the material in its possession, the Court finds them unsubstantiated. They must therefore be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
23. The Government argued that the absence of the applicant from the hearing before the Supreme Court had not affected the fairness of the proceedings as a whole. The applicant disagreed. He considered that he had been deprived of a possibility of participating in the hearing while the public prosecutor had been present.
24. The general principles concerning the absence of a convicted person from a hearing in the higher courts have been summarised in Eftimov v. the former Yugoslav Republic of Macedonia (no. 59974/08, §§ 38-41, 2 July 2015).
25. The Court notes that in the present case the Supreme Court was sitting as both the court of appeal and the court of cassation and thus had full jurisdiction to examine the case as to both the facts and the law, thus calling for the applicant’s participation in the hearing. However, he was not present at the relevant hearing (see paragraph 7 above).
26. In view of the above, the Court considers that there has been a violation of Article 6 § 1 of the Convention on account of a lack of equality of arms in the proceedings before the Supreme Court.
ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION27. The applicant complained that he had encountered difficulties in obtaining documents to substantiate his application before the Court and that he had thus been hindered in the effective exercise of his right of individual application.
28. The Government submitted that the applicant had had access to the case file and that his subsequent requests for documents had been satisfied.
29. The applicant maintained his complaint and further submitted that his communication with the Court had been subjected to the strict control of the prison officers (see paragraph 14 above).
30. The Court notes that in the light of the parties’ submissions and available material, it appears that the applicant was provided with the documents to substantiate his case. However, the Court considers that the interest of the prison administration in his communication with the Court, which was described in paragraph 14 above, can be characterised as psychological pressure in relation to the present application. The general principles concerning such hindrance of the right of individual application have been summarised in Sergey Antonov v. Ukraine (no. 40512/13, §§ 105‑07, 22 October 2015).
31. In these circumstances the State has failed to fulfil its obligation under Article 34 not to hinder the effective exercise of the right of individual application.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,300 in respect of the costs and expenses incurred before the Court.
33. The Government submitted that those claims should be rejected.
34. The Court considers that in the circumstances of the case the finding of violations constitutes in itself sufficient just satisfaction.
35. Having regard to the documents in its possession and the fact that the applicant received legal aid in the amount of EUR 850, the Court dismisses the claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning the applicant’s absence from the proceedings in the Supreme Court admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that the State has failed to fulfil its obligation under Article 34 of the Convention not to hinder the effective exercise of the right of individual application;Holds that the finding of violations constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Lado Chanturia
Deputy Registrar President