CASE OF LOBODA v. UKRAINE

FIFTH SECTION

CASE OF LOBODA v. UKRAINE

(Application no. 8865/06)

JUDGMENT

STRASBOURG

17 November 2016

FINAL

24/04/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Loboda v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 18 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 8865/06) 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 Grygoriy Ivanovych Loboda (“the applicant”), on 14 February 2006.

2. The applicant was represented by Mr T.O. Kalmykov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Agent, Mr I. Lishchyna.

3. The applicant alleged, in particular, that criminal proceedings against him had been unfair as his defence rights had been breached and the Supreme Court of Ukraine had examined his cassation appeal in his absence but in the presence of the prosecutor, in violation of the principle of equality of arms.

4. On 2 January 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, who was born in 1952, is a farmer and the head of a farming company, A. He lives in Borzna.

6. In the winter of 2001, S.Sh., the newly-appointed head of a private agricultural company, D., requested that the law-enforcement authorities investigate the suspected misappropriation of D.’s property. In particular, S.Sh. stated that in the autumn of 2000, K., another agricultural company, had written off a debt of 15,517 Ukrainian hryvnyas (UAH) owed to his company, although the latter had not received any payment.

7. On 17 and 21 March 2001 the applicant, interviewed in connection with the inquiry into the case, informed the police that in the autumn of 2000 he had received twenty concrete slabs from K. in settlement of a debt to D., of which he was a shareholder. The applicant said he had used the slabs to construct a trench for A., to which D. had also owed money. D.’s former director had been aware of that fact. The transaction had not been finalised on the books as there had been disagreements between the parties over the price of the slabs and on various procedural issues.

8. On 3 May 2001 the Borznyanskiy district prosecutor (the “district prosecutor”) instituted criminal proceedings against the applicant on suspicion of fraudulently appropriating slabs that he had received on D.’s behalf.

9. On 6 June 2001 a police investigator called the applicant in for questioning as a witness in connection with the case, but rejected his request to be assisted by a lawyer during the questioning. According to the applicant, his lawyer had accompanied him to the investigator’s office but had not been allowed to be present during the questioning.

10. In the course of the questioning the applicant again admitted to receiving the slabs and using them on his farm. He also explained that the transaction had not been finalised in the accounts because the parties had had debts to each other and had still been negotiating over how to write those debts off. In any event, the directors of K. and D. had been well aware that the applicant had used the slabs on his own farm and had never objected to that use. As can be seen from the copy of the record of the questioning submitted to the Court, it was apparently filed as pages 82 and 83 in the domestic case file.

11. On 5 July 2001 the applicant was officially indicted for the fraudulent appropriation of twenty concrete slabs transferred by the K. company to the D. company in payment of a debt. On the same date, the applicant was questioned as a defendant in the presence of his lawyer but he refused to testify and relied on his right to silence.

12. On 11 July 2001 the applicant was informed of the completion of the pre-trial investigation and committed to stand trial in the Borznyanskiy District Court (“the District Court”).

13. On an unspecified date the applicant presented the authorities with an agreement dated 14 April 2001 and signed by the directors of K., D. and himself. According to that document, the three parties had agreed that the value of the twenty slabs received by the applicant was UAH 2,000 and that the transfer of the slabs to the applicant covered the relevant portion of K.’s debt to D. and D.’s debt to the applicant’s farm.

14. By September 2001 the above agreement had been reflected in all three parties’ documents relating to accounting, tax and other matters.

15. In the course of the trial, the District Court questioned the applicant and numerous other individuals, including the directors and accountants of D. and K., and examined various documents. As can be seen in the minutes of the court hearings submitted by the Government, the documents examined in the course of the trial included “a letter from the farming company”, included as page 65 in the domestic case file.

16. During the trial, the applicant, represented by a lawyer of his own choice, reiterated that he had had no fraudulent intent in taking possession of the slabs and that the three parties had decided on all the details of the transaction in April 2001 (that is, before the criminal proceedings had been instituted against him). The transaction had also been properly accounted for in all the paperwork by September 2001 (that is, before the trial had commenced). The delay in finalising the papers had been due to various objective circumstances, including initial disagreements between the parties concerning the scope of the transaction and a fair price for the slabs, the replacement of D.’s director in November 2000, and a lengthy break in the functioning of D.’s accounts office.

17. On 13 August 2003 the District Court found the applicant guilty of the charges. It found that although the case had eventually been settled, there was sufficient evidence that the applicant’s initial intent had been fraudulent. In justifying that finding, the court noted, in particular, as follows:

“As regards the arguments by the defendant Loboda G.I. that ... the three-party agreement had been concluded ... before the initiation of the criminal case, and that the managers of the three entities had agreed on the price and procedure for the transfer of the concrete slabs, the court cannot accept them, as they contradict the case file materials and the evidence examined in court. It appears from the case file materials that the above-mentioned agreement was submitted by Loboda G.I. at the end of the pre-trial investigation. It can be seen from the testimony of the witnesses ... that [K.’s debt to D.], amounting to UAH 15,517, had been reinstated after having been written off ... According to ... order no. 6 of August 2001 the slabs transferred were valued at UAH 2,000 and [K.’s] debt to D. as of 1 September 2001 remained at UAH 13,517.

The aforementioned evidence shows that an understanding between the managers of [K.], [D.] and [A.] concerning the price and procedure for the transfer was reached after the criminal case had been instituted, in the course of the pre-trial investigation. These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001”.

18. The District Court then granted the applicant an amnesty and released him from any punishment.

19. On the same date the court issued a separate ruling (окрема постанова) in which it drew the attention of the district prosecutor to various procedural shortcomings in the preparation of the case for trial. It noted, in particular, as follows:

“On 3 May 2001 the [district prosecutor] initiated criminal proceedings against [the applicant]. On 6 June 2001 the [police investigator] ... questioned [the applicant] as a witness, despite ... sufficient evidence ... for him to be questioned as a defendant, in compliance with all the requirements of the Code of Criminal Procedure of Ukraine ...

With regard to the said breaches, the testimony [of the applicant] given ... during his questioning as a witness on 6 June 2001 was not taken into account by the court as evidence in the present case ....”

20. It appears from the case-file materials that on an unspecified date the applicant filed an appeal against his conviction, which was accepted for examination. No copy of this appeal has been provided to the Court.

21. On 27 August 2003 lawyer I. also filed a separate appeal in the applicant’s interests. In this appeal he challenged, primarily, the substantive conclusions of the trial court and contended that the applicant’s actions had not been criminal.

22. On 23 October 2003 the Chernigiv Regional Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. Referring to statements by various witnesses and the documentary evidence on file, it concluded that the applicant had not made any reasonable and meaningful efforts to regularise his appropriation of the slabs until the criminal proceedings had been instituted.

23. The applicant lodged a cassation appeal, in which he complained, in particular, that his right to mount a defence had been breached on account of his being questioned without a lawyer on 6 June 2001. He argued that it was clear from the phrase, “These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001” in the District Court’s judgment of 13 August 2003, that the testimony he had given on 6 June 2001 had in fact been relied on for his conviction, in spite of the District Court’s formal decision to exclude the record of that questioning from the case file.

24. On 28 October 2004 the Supreme Court of Ukraine examined submissions by the applicant, in the absence of both the applicant and his lawyer. However, the prosecutor was present and advised the Panel to reject the applicant’s arguments.

25. On the same date the Supreme Court rejected the applicant’s cassation appeal, finding that the lower courts had correctly assessed the facts and applied the law. Without addressing directly the applicant’s complaint concerning the breach of his right to defence, it made the following general remark concerning the procedural fairness of the proceedings:

“... no breaches of the provisions of the criminal-procedure law in the course of pre-trial investigation as well as during the court proceedings can be identified”.

26. A copy of the Supreme Court’s ruling of 28 October 2004 was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005.

27. At various times the applicant made unsuccessful attempts to institute criminal proceedings against the investigator who had questioned him on 6 June 2001, and to begin administrative and civil proceedings to challenge various purported procedural omissions on the part of the District Court judge in his case.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine of 1996

28. The relevant provisions of the Constitution read as follows:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in the cases provided for by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant shall have the right to mount a defence.

A convicted person shall enjoy all human and citizens’ rights, subject to the restrictions determined by law and established in court judgments.”

B. Code of Criminal Procedure of 1960 (repealed in 2012)

29. The relevant provisions of the Code in respect of the examination of a case by a court of cassation, as read at the material time, are set out in the cases of Arkhipov v. Ukraine ((dec.), no. 25660/02, 18 May 2004); and Zhuk v. Ukraine (no. 45783/05, § 18, 21 October 2010).

THE LAW

I. ALLEGED BREACH OF THE APPLICANT’S RIGHT TO DEFENCE

30. The applicant complained that his questioning on 6 June 2001 had taken place in breach of his right to mount a defence. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads 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. ...”

31. The Government argued that the complaint was incompatible ratione personae with the provisions of the Convention. In particular, they submitted that the facts of the present case were similar to those in Shalimov v. Ukraine (no. 20808/02, judgment of 4 March 2010), where the Court had found that a breach of the applicant’s right to mount a defence had been duly acknowledged and redressed at national level (ibid., § 62). In both that case and the present application, evidence obtained in breach of the applicants’ procedural rights had been excluded from their criminal case files and the breaches of their right to defence had been acknowledged by the domestic judicial authorities in separate rulings. In the present case, the applicant’s conviction had been based on ample evidence that had been obtained and examined with due respect for his procedural rights. The applicant himself had been present at the trial, at which he had also been represented by legal counsel of his own choice and had had every opportunity to state his case, to question witnesses and to challenge documentary evidence. His complaints of a purported breach of his rights had also been examined by courts of appeal and cassation, which had found them to be without merit. Lastly, it was also important that the investigative officers involved in the applicant’s case had received a preventive warning and that it also remained open to the applicant to institute civil proceedings to claim compensation from the police for the breach of his right to defence.

32. The applicant disagreed. He submitted that redress for the breach of his right to defence had not been adequate. Among other things, unlike in the Shalimov case, where the breach of the applicant’s right to defence had taken place after he had already confessed, in a proper procedural setting, to having committed the offence he had been charged with, in the case at issue, the questioning of 6 June 2001 had been the first and only time the applicant had been questioned after the institution of criminal proceedings against the applicant and before he had been indicted. Therefore, the statements he had made during that questioning had greatly affected the course of the entire investigation and had influenced the manner in which other evidence had been taken and interpreted by the investigative and judicial authorities. More so, the record of the applicant’s questioning of 6 June 2001 had, in fact, not been excluded from the case file and had materially affected the ultimate findings of the domestic courts concerning his guilt. In particular, in its judgment of 13 August 2003, the District Court had expressly relied on the statements given by the applicant to the police on 6 June 2001. More specifically, in the text of its judgment, it referred to the applicant’s “declarations ... dated June 2001”. The two higher courts had not reacted to that breach, when reviewing the applicant’s conviction.

33. The Court reiterates from its jurisprudence that the right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of the notion of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001‑II). As a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008 and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 257, 262 and 265, 13 September 2016). As the Court has recently clarified, the Salduz test, assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial, comprises two stages. In the first stage, the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair (see Ibrahim and Others cited above, § 257).

34. As to the first stage of the test, the criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular when a suspect is first questioned, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. It is of relevance, when assessing whether compelling reasons have been demonstrated, whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (ibid., § 258).

35. Where compelling reasons are established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (ibid., § 264).

36. Where compelling reasons are not established, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus is 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 access to legal advice (ibid., § 265).

37. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:

(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.

(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.

(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.

(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.

(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.

(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.

(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.

(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.

(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.

(j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).

38. As follows from the facts of the present case, there were no compelling reasons to restrict the applicant’s right to legal representation during his questioning on 6 June 2001. On the contrary, in its separate ruling of 13 August 2003 the District Court expressly acknowledged that on 6 June 2001 the applicant had been questioned in breach of his right to legal assistance and the privilege against self-incrimination (see paragraph 19 above). The Government likewise acknowledged in their observations that the applicant’s procedural rights were not observed in the course of that questioning.

39. It therefore falls on the Court to examine whether or not the breach at issue irretrievably prejudiced the applicant’s rights under Article 6 in the determination of the criminal charge against him.

40. In this connection, the Court notes, firstly, that in addition to acknowledging the breach of the applicant’s right to defence in a separate ruling, the District Court expressly excluded the testimony given by the applicant to the police on 6 June 2001 from its assessment of the facts. The applicant claims that the trial court relied on this testimony by referring to “the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001”. The Court does not find this claim to be established on the facts. In the first place, the applicant failed to submit pages 65 and 67 of the domestic case file. The Court also observes that, as follows from the minutes of the District Court’s hearings, page 65 of the domestic criminal case file contained a “letter from the farming company” (see paragraph 15 above). It further notes that, as appears from the copy of the record of the questioning of 6 June 2001 submitted to the Court, this document was given page numbers 82-83 in the domestic criminal case file and not 65 and 67. In light of these circumstances and in particular in the absence of any evidence from the applicant that pages 65 and 67 of his criminal case file contained indeed any material related to his questioning of 6 June 2001, the Court cannot conclude that the disputed phrase in the District Court’s judgment referred to the applicant’s statements given to the police during the questioning at issue. Accordingly, the Court concludes that the applicant failed to substantiate his claim that the disputed testimony was in fact used in the assessment of facts by the trial court.

41. The Court will now turn to the applicant’s argument that the questioning of 6 June 2001 had a profound impact on the manner in which other evidence had been taken and interpreted by the investigative and judicial authorities, as it was his first and only questioning before he had been indicted and as this testimony remained de facto in the case file. The Court notes in that respect that, according to the case file, the applicant had been informed by the police about the subject matter of their inquiry into the disappearance of the slabs already in March 2001 (see paragraph 7 above). He must have had ample opportunities to consult a lawyer by June 2001 and there is no basis to conclude that the questioning of 6 June 2001 had caught him by surprise. The applicant then, had yet another opportunity to make a statement in the course of the investigation, in the presence of his lawyer, but he deliberately decided not to make use of that opportunity (see paragraph 11 above). As to the fact that the record of the testimony of 6 June 2001 has in fact remained, rather than being taken out of the case file, the Court notes that this violation of the applicant’s defence rights was indeed recognized by the trial court, and that the trial court explicitly alerted the investigation authorities as to this failure to observe the applicant’s defence rights (see paragraph 17 above).

42. Turning to the applicants’ claim that these two failures of the investigating authorities, the fact that he was questioned without a lawyer and the fact that the record of his testimony remained in the case file, had materially affected the ultimate findings of the domestic courts, this Court does not find it substantiated. The Court sees no evidence that this testimony played a role in the domestic courts’ assessment of the relevant facts and the finding of guilt. It notes that the domestic courts substantiated the applicant’s conviction by ample array of witness, documentary and other evidence. There is no basis to conclude that the applicant, who took part at the trial personally and was also represented by a legal counsel of his choice, was in any way restricted in adopting a defence strategy at variance with his testimony, which indeed he did. Neither was he restricted in his rights to state his case, question witnesses or challenge documentary evidence during the proceedings. He also had his appeals examined by the higher courts at two instances, which found them to be ill-founded.

43. Having assessed the above facts in the light of the principles established in its case-law (see, in particular, Salduz, cited above, no. 36391/02, §§ 54-57, ECHR 2008; Smolik v. Ukraine, no. 11778/05, §§ 54-55, 19 January 2012; mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, §§ 182-188, ECHR 2010; and compare with Panovits v. Cyprus, no. 4268/04, §§ 84-86, 11 December 2008; and Todorov v. Ukraine, no. 16717/05, §§ 78-81, 12 January 2012), the Court considers that the applicant has failed to provide the necessary substantiation for his allegation that the statements made by him on 6 June 2001 were, in fact, used for his conviction or that they had otherwise affected the conclusions ultimately reached by the domestic judicial authorities concerning his guilt.

44. Given this finding, the Court does not consider it necessary to analyse any of the other arguments submitted by the parties and concludes that it is appropriate to dismiss the present complaint as manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED BREACH OF THE PRINCIPLE OF EQUALITY OF ARMS IN THE CASSATION PROCEEDINGS

45. The applicant also complained under Article 6 § 1 of the Convention that the principle of equality of arms in the criminal proceedings against him had not been observed in the cassation proceedings.

A. Admissibility

46. The Government did not file any submissions concerning the admissibility of this complaint.

47. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

48. The applicant submitted that the principle of equality of arms had been breached in the cassation proceedings because, in accordance with the relevant legal provisions, the cassation review had taken place in his absence, but with the prosecutor being present. The applicant noted that the procedure complained of had already been found to be in breach of the guarantees of a fair trial in the Court’s judgment in Zhuk (cited above, §§ 29-35).

49. The Government contested those arguments. They observed, in particular, that the procedure before the Supreme Court had concerned points of law only and that the prosecutor’s presence had been of a purely formal nature.

50. The Court notes that although in the present case the proceedings were limited to points of law, the applicable legal provisions, which did not envisage the applicant’s participation in the procedure, required the prosecutor’s presence. It further observes that the prosecutor made oral submissions before the panel, arguing that the applicant’s request for leave to appeal should be rejected. The applicant, however, was denied any opportunity to present his side of the case. In Zhuk (cited above), the Court found that the same procedure was in breach of Article 6 of the Convention (ibid., §§ 29-35). It does not find any reason to depart from its previous conclusion in the present case.

51. Accordingly, it finds that the principle of equality of arms was breached in the present case.

52. There has therefore been a violation of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53. The applicant also complained under Article 6 § 1 of the Convention that he had not been apprised of the nature of the accusations against him immediately upon the initiation of the criminal proceedings in May 2001; that the judicial authorities had wrongfully rejected evidence in support of his innocence and had decided that his failure to regularise his acquisition of the concrete slabs had been indicative of a criminal offence; and that the proceedings as a whole had been excessively long. In addition, the applicant complained, without reference to any Convention provisions, about the outcome of the administrative and civil proceedings instituted by him in connection with the alleged misconduct of the District Court judge, and that those proceedings had been unfair. He also referred to Article 2 of Protocol No. 7 in respect of the facts of the present case.

54. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as they are within its competence, the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

55. 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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. Damage

57. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

58. The Government alleged that this claim was excessive and unsubstantiated.

59. The Court considers that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient compensation for any non‑pecuniary damage suffered by the applicant as a result of the breach of his right to equality of arms.

B. Costs and expenses

60. The applicant also claimed EUR 2,400 for the costs and expenses incurred before the Court, to be transferred to the account of Mr T. Kalmykov, his legal representative. He noted that this amount corresponded to legal fees of EUR 2,250 (25 hours at EUR 90 per hour) for the preparation of observations in response to those of the Government, and EUR 150 for administrative expenses (telephone calls, postal expenses, photocopying and other costs). He presented no documents in support of his claims and noted that he had not yet paid the legal fees as he lacked financial resources.

61. The Government submitted that the applicant’s claim should be rejected, as he had failed to present any documents in justification of the expenses claimed.

62. 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 they have been actually and necessarily incurred and are reasonable as to quantum. Not having been provided with any documents to justify the amounts claimed by the applicant in expenses or to elucidate the scope and nature of the applicant’s agreement with Mr T. Kalmykov, the Court is unable to establish an amount for those expenses and fees. The Court therefore makes no award under this head.

C. Default interest

63. 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,

1. Declares the complaint concerning a breach of the equality of arms principle in the cassation proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the alleged breach of the equality of arms principle in cassation proceedings;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4. Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
              Deputy RegistrarPresident

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