CASE OF UMNIKOV v. UKRAINE

FIFTH SECTION

CASE OF UMNIKOV v. UKRAINE

(Application no. 42684/06)

JUDGMENT

STRASBOURG

19 May 2016

FINAL

19/08/2016

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

In the case of Umnikov v. Ukraine,

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

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 29 March 2016,

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

PROCEDURE

1. The case originated in an application (no. 42684/06) 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 Sergey Anatolyevich Umnikov (“the applicant”), on 9 October 2006.

2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kiev. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Olga Davydchuk, of the Ministry of Justice.

3. On 9 November 2007 notice of the application was given to the Government. At that stage of the proceedings the Government were not invited to submit observations on the case pending the outcome of another case that partly concerned similar issue under Article 34 of the Convention (see Naydyon v. Ukraine, no. 16474/03, in which the Court delivered a judgment on 14 October 2010). On 11 January 2011 the Court invited the Government to submit observations on the admissibility and merits of the present application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. Before his arrest the applicant lived in Odessa region with his mother.

6. In April 2004 the applicant sustained a serious knee injury.

7. On 16 August 2004 a medical commission found that as a result of the knee injury, the applicant’s knee and thigh joints had become deformed. He was certified as third-degree disabled, the lowest category.

8. On 21 April 2005 the police arrested the applicant on suspicion of having raped a seven-year-old boy, P. They took him to a police station where, according to the applicant, he was beaten. In his initial application to the Court the applicant stated that a police officer “hit him once in the right side of his body” and after that several police officers started beating him. In his written observations submitted to the Court on 23 February 2012 in reply to those of the Government, the applicant’s lawyer stated that police officers had “wrung the [applicant’s] hands and feet and hit him on the body, including the areas of his liver and kidneys, and on [his] arms and legs”. The lawyer further stated that the applicant “was beaten in turn by two pairs of police officers until about midnight on 21 April 2005”. On 22 April 2005 the applicant was taken to the Kominternivskyy Police Temporary Detention Centre (“the ITT”) where he was held for the following twenty-eight days. According to the applicant, the conditions of detention in that facility were inhuman.

9. On 22 April 2005 the police questioned the applicant who said that he knew P. but had not raped him.

10. On 23 April 2005 P. told the police that the applicant had raped him on several occasions in the applicant’s apartment and near a pond. Once P. had come to a bank of the pond and had seen A. fishing there. The applicant had been fishing on the opposite bank of the pond. P. had approached the applicant who had taken him to some bushes and raped. During the rape P. had seen A. and E. passing by the bushes.

11. On 25 April 2005 the police questioned A. who said that on 10 April 2005 in the afternoon he and his brother E. had been fishing from the bank of the pond. The applicant had been fishing from the opposite bank of the pond. A. had seen that P. had approached the applicant and they had gone into some bushes. Later on A. and E. had been passing by the bushes and had seen the applicant raping P.

12. In April 2005 charges under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below) were brought against the applicant.

13. On 12 and 18 May 2005, respectively, the applicant was examined by a doctor and a TB specialist. Both doctors noted that the applicant was fit for detention in the ITT. No injuries were discovered on his body and the applicant did not raise any complaints about his state of health.

14. On 19 May 2005 the applicant was transferred to a SIZO (a pre-trial detention facility). On the same date and the following day he was medically examined and did not raise any complaints of ill-treatment or health problems. The doctors established that he was suffering from the consequences of a knee injury sustained before his arrest.

15. In June 2005 the applicant studied the indictment which indicated that he had been accused of having raped P. on 10 April 2005 and on unspecified dates between September 2004 and April 2005.

16. The applicant’s case was referred to the Kominternovskyy District Court of Odessa for trial. In July 2005 that court held the first hearing.

17. On 26 July 2005 the applicant asked the authorities to appoint him a lawyer. On 30 August 2005 he was assigned a lawyer under legal aid scheme.

18. On 15 August 2005 the applicant asked the Kominternovskyy District Court of Odessa to appoint his mother as his representative in the proceedings. This request was granted on an unspecified date still in August 2005.

19. During one of the hearings the trial court questioned the victim, P., who stated, without indicating the exact dates, that the applicant had raped him several times between September 2004 and April 2005. P. provided very detailed information about the circumstances of the rapes and about the events which had taken place before and after them. P. said that the applicant had raped him in his bedroom while the applicant’s mother and sister were in the adjacent room. He said that he had been raped only by the applicant and not by other persons.

20. The court questioned M., the applicant’s friend, who stated that on 9 and 10 April 2005 from 10 a.m. to 4 or 5 p.m. he and the applicant had sawn wood together.

21. Witness A. told the court that he had seen the applicant raping P. on 10 April 2005 in some bushes near the pond.

22. P.’s friends stated before the court that P. had talked to them about the rapes. The applicant’s mother was questioned during the trial and said that P. had never come to the apartment where she and the applicant lived.

23. P.’s mother and teacher stated that P.’s moods and behavior had changed since autumn 2004. P.’s mother also said that on 8 April 2005 P. had told her that on the same date the applicant had raped him near the pond. P.’s mother also said that the applicant’s mother had told her that P. had come to the apartment where the applicant lived and the applicant’s grandmother had ousted him. P.’s teacher said that P. had told her that the applicant had raped him.

24. All of those witnesses were questioned by the trial court in the presence of the applicant and his lawyer. The lawyer and the applicant were allowed to question the witnesses and ask for explanations regarding the facts of the case. During the trial the applicant did not complain of ill-treatment by the police.

25. Before the court the applicant pleaded not guilty.

26. On 3 January 2006 a surgeon examined the applicant’s knee and prescribed treatment for the knee joint deformation.

27. On 25 January 2006 the Kominternivskyy Court, in the presence of the applicant’s lawyer and mother, convicted the applicant of several counts of rape (gratification of unnatural sexual desires in respect of a person under fourteen years of age), committed on unspecified dates between autumn 2004 and April 2005 and notably on 10 April 2005. It sentenced him to ten years’ imprisonment under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below). The applicant was absent from that hearing. The court based his conviction mainly on the victim’s statements but also on the statements of P.’s friends, mother, teacher, and witness A. and on a report drawn up by a psychiatrist who had examined P. and concluded that he could not have made up his account of the rapes.

28. In February 2006 the applicant and his lawyer, B. appealed, arguing that the conviction was not based on sufficient evidence. In particular, the P., trial court had failed to establish on which dates P. had been raped, and the medical examination of the victim had revealed no injuries on the child’s body. The applicant also argued, without providing further details, that the police had beaten him on 21 April 2005. He stated that he could not rape P. on 10 April 2005 because on that day he had sawn wood with M. He also stated that A. had given false statements during the trial because he himself had raped P. The statements of P.’s mother were also false, the applicant had refused to give her money and she had wanted to take revenge. P. had made false statements during the trial because his mother had taught him to do so. The applicant submitted that A.’s statements concerning the date of the alleged rape near the pond contradicted the statements of P.’s mother (see paragraphs 21 and 23 above). He added that the trial court’s judgment had been unlawful because it contained excessive descriptions of the rape scenes.

29. Between May 2006 and March 2007 the applicant and his mother, acting on the applicant’s behalf, lodged ten complaints with the Prosecutor General’s Office which forwarded them to the Odessa Prosecutor’ Office. It remains unknown whether the complaints were examined. The copies of the complaints were not made available to the Court. In his application form the applicant stated, without elaborating further, that they concerned various “procedural violations” during the criminal proceedings.

30. On 9 October 2006 the applicant sent his first letter to the Court.

31. In November 2006 the Odessa Regional Court of Appeal (“Court of Appeal”) informed the applicant that it would hold a hearing in his case on 12 December 2006.

32. On 16 November 2006 the applicant requested the Court of Appeal to ensure his presence at that hearing. The court granted the request and ordered the bailiffs to bring the applicant to the court hearing.

33. On 12 December 2006 the applicant was taken to the court-house and kept there in a cell the entire day. In the evening he was taken back to the SIZO. It remains unknown why he was not brought to the court-room for the hearing.

34. In the meantime, on the same date the Court of Appeal, in the presence of the applicant’s lawyer, upheld the judgment of the first-instance court. On the basis of the findings made by the trial court, the Court of Appeal held that the arguments raised in the appeal by the applicant and his lawyer’s arguments were ill-founded because they had been refuted by evidential material in the applicant’s criminal case file. The trial court had fully and objectively assessed that material. The conclusions reached by the first-instance court had been supported by sufficient evidence, in particular the statements of P. and other persons questioned during the trial. The Court of Appeal did not question any witnesses; nor did it administer or assess any new evidence.

35. On 16 January 2007 the applicant and his lawyer, B., lodged two separate appeals in cassation with the Supreme Court, raising the same arguments as those raised before the Court of Appeal. They also complained that the applicant had not been taken to the appeal court hearing, despite his request. However, they did not specify how the applicant’s absence from the Court of Appeal had prejudiced his defence or the overall fairness of the proceedings.

36. According to the applicant, on the same date, after the cassation appeals had been sent to the Supreme Court, lawyer B. stopped representing him. The reason was not notified to the Court. The applicant did not seek the assistance of any other lawyer.

37. On 19 February 2007 the applicant lodged his application with the Court. He stated, in particular, that he had appealed in cassation, however did not provide a copy of his and his lawyer’s appeals in cassation.

38. On 2 April 2007 the Court requested the applicant to provide: (i) documentary evidence supporting his allegations of ill-treatment; (ii) copies of the complaints of ill-treatment lodged with the domestic authorities; (iii) copies of the applicant’s and his lawyer’s appeals in cassation, stamped by the Supreme Court to prove their receipt; and (iv) a copy of the Supreme Court’s decision as soon as it would be available.

39. On 25 June 2007 the applicant sent to the Supreme Court a supplement to his appeal in cassation together with a request for the said copies of documents without, however, indicating why he needed them. The Supreme Court received the request but did not reply to it for unknown reasons. The applicant did not follow up on the request.

40. On 6 September 2007 the applicant informed the Court that the Supreme Court had left his request for copies of documents unanswered.

41. On 15 November 2007 the Supreme Court dismissed the cassation appeals lodged by the applicant and his lawyer. Without referring separately to each argument raised in those appeals, the Supreme Court noted that the criminal proceedings against the applicant were not plagued by procedural violations which would justify quashing of the lower courts’ decisions. The conclusion concerning the applicant’s guilt had been sufficiently supported by evidence to which the trial court had referred in its judgment. The Supreme Court noted, in particular, that the applicant’s request to take part in the appeal hearing had been made after that hearing had been held. The applicant did not attend the hearing before the Supreme Court and had not asked for permission to do so.

42. On 27 November 2007 the Court asked the applicant to send to the Supreme Court a repeated request for copies of the same documents (see paragraphs 38 and 40 above), indicating that he needed them to support his application before the Court. The Court also asked the applicant to provide a copy of such request and a copy of the Supreme Court’s reply to it. The applicant did not follow the Court’s instructions and did not make any further attempts to obtain the copies.

43. In December 2007 the applicant received a copy of the Supreme Court’s decision and submitted it to the Court on 27 April 2008.

II. RELEVANT DOMESTIC LAW

44. Under the Code of Criminal Procedure of 1960 as worded at the material time, an accused, a defendant, their defence lawyers or non-legal representatives may familiarise themselves with materials in the criminal case file at various stages of the proceedings until their completion (Articles 43, 48, 218, 219, 222, 255, 349, 362, 384 of the Code). When studying the case file they are allowed to take notes.

45. According to paragraph 3 of Article 153 of the Criminal Code of 2001 as worded at the material time, gratification of unnatural sexual desires in respect of a person under fourteen years of age was punishable by imprisonment for a term of eight to twelve years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

46. The applicant complained that on 21 April 2005 he had been beaten by the police and this had not been duly investigated. He also complained about poor conditions of his detention in the ITT. He invoked Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

47. The Government submitted that the applicant’s allegations were unsubstantiated. The applicant had not exhausted domestic remedies because he had not raised his allegation of ill-treatment before the prosecutors. If the applicant believed that there were no effective remedies for him at the national level, he should have submitted this complaint to the Court no later than 21 October 2005.

48. The applicant stated that he had raised his allegations of beating by the police in his appeal lodged with the Court of Appeal in February 2006 and his complaints lodged with the prosecutors between May 2006 and March 2007. According to the applicant, he raised an arguable complaint of ill-treatment before the authorities, but they had failed to investigate it.

49. The Court considers that pursuant to Article 35 § 1 of the Convention it cannot examine the merits of the applicant’s complaint about the conditions of his detention in the ITT because that detention ended in May 2005, that is, more than six months before the application was submitted to the Court.

50. The Court further considers that, given its approach in similar cases against Ukraine and the circumstances of the present case, the applicant’s allegation of police ill-treatment may not be rejected for non-exhaustion of domestic remedies or for having been lodged out of time (see Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012).

51. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

52. The Court notes that the applicant did not provide any evidence, for example, witness statements or medical certificates, to support his allegations of ill-treatment and from the material in the case file it does not follow that any such evidence existed. The Court further notes that in his initial application to the Court the applicant stated that he had been hit once in the right side of his body and after that he had been beaten by several police officers, but provided no other details about his alleged ill-treatment. It was only in his observations lodged with the Court on 23 February 2012 that he provided some further details about the manner in which he had allegedly been beaten.

53. The Court notes that for the first time the applicant raised his allegations of beating by the police before the domestic authorities in his appeal lodged in February 2006, that is to say, about ten months after the date when the beating had allegedly taken place (21 April 2005). Such a delay undoubtedly undermined the authorities’ chances of collecting any evidence in support of the applicant’s allegations; furthermore, the applicant did not suggest that he had been prevented from raising this issue earlier. Having regard to the above circumstances, the Court finds that the applicant has not made out an arguable claim concerning the ill-treatment.

54. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

55. Referring to Article 2 of Protocol No. 7, the applicant complained that he had not been able to defend himself because he had not been present in person at the hearing held before the Odessa Regional Court of Appeal.

He further complained under Article 6 § 1 of the Convention that his conviction had been based on insufficient evidence and the courts had not given due consideration to his arguments, in particular, those raised in his appeals (see paragraph 28 and 35 above). The exact dates of the alleged rapes had not been established and for that reason he could not defend himself effectively, for example, by providing an alibi. The applicant also stated that: (i) he had not been given an opportunity to challenge the authenticity of evidence; (ii) he had not been given enough time or facilities to prepare his defence; and (iii) he had had to prove his innocence.

56. The Court, which is master of the characterisation to be given in law to the facts of the case, considers that all these complaints fall to be examined under Article 6 §§ 1 and 3 c) and d) of the Convention, which read, so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

...

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”

A. Admissibility

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

B. Merits

1. The parties’ arguments

58. The Government submitted that the applicant’s presence before the Court of Appeal had not been mandatory under national law and the applicant had not demonstrated that he had requested the Court of Appeal for permission to attend the hearing. They also maintained that the courts’ decisions were duly reasoned.

59. The applicant stated that he had requested the authorities to take him to the Court of Appeal. His physical presence before that court was in the interests of justice: he could have provided explanations about the factual details of the case had the court needed them. In addition, he had wanted to examine witnesses appearing before the Court of Appeal. He also argued that the courts should have addressed separately each argument which he and his lawyer had raised in their appeals. Referring to the case Mattoccia v. Italy (no. 23969/94, ECHR 2000‑IX), he stated that the accusations against him were vague, in particular, they did not contain any information about the dates on which he had allegedly raped between September 2004 and April 2005. For this reason he could not provide an alibi for those dates. The applicant submitted that the courts had disregarded the statements of M. (see paragraph 20 above).

2. The Court’s assessment

(a) The applicant’s absence at the hearing before the Court of Appeal

60. The Court’s task is to ascertain whether the proceedings in their entirety were fair (see, inter alia, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B). Article 6 of the Convention, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general, that includes, inter alia, his right to be present. That right is implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6 - to defend himself in person, to examine or have examined witnesses, and to have the free assistance of an interpreter if he cannot understand or speak the language used in court (see, inter alia, Lazariu v. Romania, no. 31973/03, § 159, 13 November 2014).

61. Turning to the circumstances of the present case, the Court notes that the first-instance court adopted its judgment following a number of public hearings. The applicant attended those hearings and was given the opportunity to question witnesses and provide explanations. During the hearing before the Court of Appeal the applicant was represented by a lawyer, who acted on his instructions and had ample opportunity to present all his arguments to the court. Although the necessity to question the applicant during the hearing before the Court of Appeal could have arisen, the applicant has not demonstrated that that was actually the case. Moreover, the Court of Appeal did not question any witnesses; nor did it administer or assess any new evidence. In such circumstances, the Court considers that the applicant has not demonstrated that his absence from the Court of Appeal prejudiced his defence or the overall fairness of the proceedings.

(b) The remaining complaints

62. The Court observes that the accusations against the applicant were not changed at the final stage of the trial as in the case of Mattoccia v. Italy (see §§ 66-68, cited above). In the present case, unlike in the case of Mattoccia v. Italy, on one occasion witnesses saw the applicant raping the victim. The Court notes that the applicant was convicted under paragraph 3 of Article 153 of the Criminal Code which established punishment for engaging into sexual activity with a person under fourteen years of age irrespective of whether such activity took place on one or several occasions. The Court notes that the applicant did not provide any evidence that he had not been given opportunity to challenge the authenticity of the evidence. There is no indication in the case file that he had to prove his innocence.

63. The Court further notes that it is not called upon to examine alleged errors of facts and law committed by the domestic judicial authorities insofar as no unfairness of the proceedings can be detected and the decision reached is neither arbitrary nor otherwise manifestly unreasonable. The Court finds that the applicant enjoyed the right to adversarial proceedings with the participation of interested parties and within the framework of those proceedings he was able to raise all his arguments. On the whole, the Court finds no fault with the way in which the courts dealt with the evidence before them or with the adequacy of the reasons on which they based their decisions in the applicant’s case.

(c) The overall conclusion

64. In the light of the foregoing considerations, the Court finds that, taken as a whole, the proceedings in issue were fair for the purpose of Article 6 §§ 1 and 3 c) and d) of the Convention. Accordingly, there has been no violation of this provision.

III. ALLEGED NON-COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION

65. The applicant complained that the authorities had not reacted to his request for copies of documents which the Court had asked him to provide. He relied on Article 34 of the Convention, which provides as follows:

“The Court may receive applications from any person, non-governmental organisation 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.”

66. The Government submitted, providing documentary evidence, that the applicant and his lawyer had several times studied the case file in 2006 and could make handwritten copies of the material contained there. The applicant could ask his relatives or a lawyer to obtain the copies for him. The national legislation allowed the applicant to access his case file and make copies of it, but it did not oblige the authorities to send such copies to persons who could not arrive to the court house where the case file was kept. The Government did not provide any information concerning the fate of the applicant’s request for copies of 25 June 2007.

67. The applicant stated that his lawyer had stopped representing him on 16 January 2007 so she could not assist him in obtaining the copies. He could not afford to hire another lawyer and his relatives had not had a right to access his case file. In any case he had not kept close contact with them. He had been thus fully dependent on the authorities to receive the copies. The Court had asked the applicant to provide the copies after the consideration of the case by the Supreme Court while the national legislation did not allow him to access the case file after completion of the criminal proceedings.

68. The Court reiterates that in Vasiliy Ivashchenko v. Ukraine (no. 760/03, § 110, 26 July 2012) it found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure to enable them to obtain copies of case documents after conclusion of criminal proceedings.

69. The situation in the present case is different from the situation in Vasiliy Ivashchenko in that the proceedings against the applicant were pending before the Supreme Court when he asked it to send him copies of documents which the Court had requested him to provide. Thus, the applicant and his mother, in her capacity as the applicant’s representative, were entitled to access the case file.

70. The Court observes that on 25 June 2007 the applicant informed the Supreme Court of his wish to obtain copies of documents from his case file, but received no reply and gave up further attempts to obtain the copies. It is not excluded that the Supreme Court overlooked the applicant’s request for copies because it was sent together with the supplement to his appeal in cassation. It is also notable that the applicant did not inform the Supreme Court that he needed the copies because the Court had asked him to provide them. In view of the above, the Court finds that there is insufficient factual basis to conclude that Ukrainian authorities deliberately denied the applicant’s wish to obtain the copies which he requested to support his application before the Court and their inaction thus amounted to «hindrance» within the meaning of Article 34 (see, mutatis mutandis, Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 115-116, 26 July 2012).

71. The Court notes that the applicant was not prevented from requesting the authorities to bring him to the court house where the case file was kept so that he could make the copies himself. He could also ask his mother to assist him in obtaining the copies. She acted as the applicant’s representative in the proceedings and lodged complaints with the prosecutors on his behalf, which proves that the applicant kept sufficiently close contact with her and she did not object to assisting him in the proceedings.

72. The Court observes that it asked the applicant to provide copies of documentary evidence supporting his allegations of ill-treatment, however, from the material in the case file it does not follow that any such evidence actually existed.

73. In so far as the copies of the complaints of ill-treatment lodged with the domestic authorities are concerned, the Court does not consider that they were essential for consideration of the present application.

74. In his application form the applicant submitted that he and his lawyer had challenged the Court of Appeal’s decision before the Supreme Court but did not provide copies of the appeals in cassation, the Court could not thus verify whether the applicant and his lawyer had indeed lodged such appeals and the domestic remedies in the applicant’s case had been duly exhausted. In order to clarify this issue the Court requested the applicant to provide copies of the appeals in cassation and a copy of the Supreme Court’s decision as soon as it would be available. The applicant did not obtain copies of the appeals when he requested them on 25 June 2007; however, in December 2007 he received a copy of the Supreme Court’s decision and submitted it to the Court which was sufficient for it to establish whether the applicant had exhausted the domestic remedies.

75. Having regard to the nature of the documents at issue and the applicant’s lack of rigor in his efforts to obtain copies of them, the Court concludes that on the part of the authorities there was no “hindrance” within the meaning of Article 34 of the Convention. The State has not thus failed to comply with its obligations under that provision.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the complaints under Article 6 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, by four votes to three, that there has been no violation of Article 6 §§ 1 and 3 c) and d) of the Convention;

3. Holds, unanimously, that the State has not failed to comply with their obligations under Article 34 of the Convention.

Done in English, and notified in writing on 19 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nußberger, Møse and Grozev is annexed to this judgment.

A.N.
C.W.

JOINT DISSENTING OPINION OF JUDGES
NUSSBERGER, MØSE AND GROZEV

1. We respectfully disagree with the majority that there has been no violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.

2. It is settled case-law that in the interest of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297‑A; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005, and Hermi v. Italy [GC], no. 18114/02, § 58, ECHR 2006‑XII).

3. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168). The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115; Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134; and Hermi, cited above, § 60). Nevertheless, the Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani, cited above, § 32; Dondarini v. San Marino, § 27, 6 July 2004; Marcello Viola v. Italy, § 58, 5 October 2006; Popovici v. Moldova, nos. 289/04 and 41194/04, § 68, 27 November 2007; and Selwiak v. Poland, no. 3818/04, §§ 55-57, 21 July 2009).

4. Furthermore, the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, and Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

5. In the present case the applicant appealed to the Court of Appeal following his conviction at first instance and requested that his presence be ensured at the hearing. The Court of Appeal granted his request and ordered the bailiffs to bring him to the court hearing. He was taken to the court-house and kept there in a cell the entire day of the appeal hearing, but was not brought to the hearing itself. On the same date, the Court of Appeal, in the presence of the applicant’s lawyer, upheld the first-instance judgment (see paragraphs 31-33 of the judgment).

6. It is true that the applicant had attended several first-instance hearings (but not the hearing in which he was sentenced to ten years’ imprisonment, see paragraph 26 of the judgment) and had been given the opportunity to question witnesses and provide explanations (see paragraph 61 of the judgment). However, the Court of Appeal was called upon to make a full assessment of the question of the applicant’s guilt or innocence. In our view, it follows from the Court’s case-law that this required a direct assessment of the evidence given in person by the applicant, who claimed that he had not committed the acts of which he had been convicted, and that the Court of Appeal was under a duty to guarantee his right to be present in the courtroom (see paragraphs 2 and 3 above). This was important in view of contradictions in the evidentiary material, such as in the exact dates of the rapes, which had not been clarified (see paragraph 27 of the judgment). It is not for the applicant to demonstrate that there was any necessity to question him during the hearing or that his absence from the courtroom prejudiced his defence. As he had clearly expressed his wish to personally participate, it was not sufficient for the lawyer alone to be present.

7. It should be added that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantee of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 200l, and Hermi, cited above, § 73). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol, cited above, § 31). In the present case there is no statement to that effect and no information as to why the applicant was not brought from the cell in the court-house to attend the hearing in the courtroom.

8. Finally, in assessing the overall fairness of the proceedings it is also worth noting that the Court of Appeal did not refer separately to each of the arguments raised in the applicant’s appeal, which highlighted contradictions requiring clarification, but simply referred to the evidence in his criminal case file. Furthermore, the Court of Appeal did not question any of the witnesses whose credibility the applicant had challenged in his appeal (see paragraphs 27 and 33 of the judgment).

9. We therefore conclude that there has been a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.

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