FASOLKO AND MATYCH v. UKRAINE

FIFTH SECTION

DECISION

Applications nos. 30256/15 and 59524/15
Artem Vasylyovych FASOLKO against Ukraine
and Mavilye Abdulivna MATYCH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 January 2021 as a Committee composed of:

Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to the above applications lodged on 3 June 2015 and 17 November 2015 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant in the first case, Mr Artem Vasylyovych Fasolko, is a Ukrainian national, who was born in 1980 and lives in Polonne in the Khmelnytsk Region. He was represented by Mr A.V. Yakovlyev and Ms A.A. Shyrant, lawyers practising in Kyiv, and also by Mr M.V. Kikkas, a lawyer practicing in Chabany in the Kyiv Region.

2.  The applicant in the second case, Ms Mavilye Abdulivna Matych, is a Ukrainian national, who was born in 1966 and is currently imprisoned in Odessa. She was represented before the Court by Ms A.R. Martynovska, a lawyer practising in Kyiv.

3.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.The circumstances of the case

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

5.  On 14 May 2012 the first applicant, at the time an information protection officer and a major in the Ukrainian Navy, was arrested in the Autonomous Republic of Crimea (“the ARC”, see paragraph 56 below) on suspicion of selling secret information to unidentified individuals.

6.  On 18 May 2013 the Simferopol Zaliznychny District Court of the ARC convicted the applicant of espionage, an offence under Article 111 of the Criminal Code (punishable by up to fifteen years’ imprisonment) and of abuse of power or office by a military officer, at the time an offence under Article 423 of the Criminal Code (punishable by up to three years’ imprisonment). The applicant was sentenced to ten years’ imprisonment in respect of the former offence and to three in respect of the latter, but pursuant to domestic law the latter sentence was subsumed by the former. The court found it established that the unidentified individuals and the applicant had established contact through electronic means and the applicant had met them in 2012 and provided one of them with an electronic file containing the information. All the relevant events occurred in the ARC.

7.  The applicant lawyer’s appealed. She argued in particular that the applicant had been entrapped into committing the offence by the Security Service of Ukraine and that he could not be convicted of espionage because he had not collected the information in question but had had access to it in the course of his normal duties, and because it could not be considered proven that he had sold information to foreign nationals since the identity and nationality of the individuals had not been established. The lawyer also alleged procedural irregularities, such as the fact that the first interview with the applicant had been conducted without providing him with access to a lawyer. A written waiver by the applicant of his right to a lawyer had been invalid since he had not been sufficiently advised, in the presence of a lawyer, of its consequences. The lawyer also contended that the applicant’s detention in solitary confinement in the course of the pre-trial investigation and his night-time questioning had constituted a form of duress on him in order to break his resistance.

8.  On 19 September 2013 the ARC Court of Appeal upheld the trial court’s judgment. It noted in particular that certain evidence, including audio and video recordings, indicated that the applicant had known that the individuals involved were Israeli nationals and represented an Israeli organisation. Contrary to the appellant’s submissions, criminal liability for espionage was possible even if the defendant did not actively collect the secret information but had access to it by virtue of his position.

9.  The applicant was transferred to a prison in the Kmelnytsk Region to serve his sentence.

10.  On 18 December 2013 the applicant’s lawyer lodged an appeal on points of law with the High Specialised Court for Civil and Criminal Matters (“the High Specialised Court”). She repeated the same arguments as before the Court of Appeal. In particular she made extensive and detailed submissions alleging that the applicant had been the victim of entrapment on the part of the Security Service officers who, according to the applicant, had merely pretended to be Israeli spies. She cited the case-law of the European Court of Human Rights under Article 6 of the Convention concerning the use of evidence obtained through the use of agents provocateurs. She alleged that the authorities had failed to demonstrate that they had taken any steps to identify the spies with whom the applicant had allegedly been in contact, and that was because it had been Ukrainian counterintelligence officers who had posed as those spies. The lower courts had failed to respond to the defence arguments in that respect, confining themselves to stating that there had been no violations of the law in the course of the covert investigation.

11.  On 8 January 2014 a High Specialised Court judge returned the lawyer’s appeal without examining it on the merits considering that it did not meet the procedural requirements.

12.  On 18 January 2014 the applicant lodged his own separate appeal on points of law but on 17 February 2014 the High Specialised Court judge returned it as lodged out of the three-month time-limit for appeal. The judge noted that the applicant was asking for extension of the time-limit for appeal but it could only be extended by the trial court.

13.  The applicant’s lawyer resubmitted the appeal but on 3 March 2014 a High Specialised Court judge again decided that it did not meet the requirements of the Code of Criminal Procedure. The judge considered that, even though the lawyer framed her complaints as directed against procedural irregularities and errors of substantive criminal law, in fact she was contesting matters of fact established by the lower courts, which could not be grounds for review on points of law.

14.  The Government submitted that in February and March 2014 the Russian Federation seized control over Crimea and the Ukrainian Government authorities ceased to operate in the peninsula and lost access to the case files stored there, including the case file in the applicant’s case. The Government described the events of 2014 in the following terms:

“2.  In late February – March 2014 the Russian Federation occupied the territory of the Crimea peninsula.

...

4.  On 16 March 2014 there was illegitimate and unrecognised by international community and overtly falsified referendum, unrecognised by the international community, in Crimea and the city of Sevastopol, which Russia organised and used for justification of the occupation.

5.  On 17 March 2014 the Supreme Council of ARC proclaimed the independence of the Republic of Crimea... According to this decision Ukrainian legislation should not be applied in the territory of the ‘Republic of Crimea’; decisions of the Verkhovna Rada of Ukraine and of other State authorities, adopted after 21 February 2014, would not be complied with. The decision also purported to terminate the authority of the State bodies of Ukraine on the territory of Crimea. Their powers, property and facilities were passed onto the State authorities of the ‘Republic of Crimea’, which were recognised by the Government of the Republic of Crimea. The State property of Ukraine, located in the territory of the ‘Republic of Crimea’ was to become the State property of the ‘Republic of Crimea’... Furthermore, by this decision the Supreme Council of ARC applied to the Russian Federation with a proposal to accept the Republic of Crimea and Sevastopol (again without its consent) as new members of the Federation.

6.  On 20 March 2014 the State Duma of the Russian Federation voted for the acceptance’ of Crimea and Sevastopol and ratified the Agreement of 18 March 2014 to this effect.

7.  On 21 March 2014 the Council of the Federation ‘joined’ the Crimea and Sevastopol to the Russian Federation and ratified the Agreement of 18 March 2014. 155 members of the Council of the Federation voted to adopt the appropriate decision.”

15.  A law enacted by the Ukrainian Parliament on 21 February 2014 repealed Article 423 of the Criminal Code and in so doing decriminalised one of the offences of which the applicant was convicted, the offence of abuse of power or office by a military officer. Accordingly, on 25 April 2014 a court in the Zhytomyr Region released the applicant from serving the sentence imposed on him under that provision. Since that term of imprisonment was subsumed by the term of imprisonment for espionage, the decision had no practical implications for the time left to be served by the applicant.

16.  On 30 July 2014 the General Prosecutor’s Office (“the GPO”) lodged an appeal on points of law against the lower courts’ decisions in the applicant’s case. It did so after having examined the applicant’s situation in response to a letter from a Member of Parliament and having concluded that the lower courts’ decisions were tainted by error of fact and law. In its appeal the GPO argued that the applicant’s actions had been incorrectly classified as espionage since his intention to damage Ukraine’s defence (which the GPO believed was a requisite element for that offence) had not been proven. Moreover, because the applicant had actually transmitted the secret document to Ukrainian counterintelligence officers acting undercover and not to foreign agents, his actions could not be classified as a complete act of espionage and could only be classified as an attempt to commit that offence.

17.  The GPO also lodged an application seeking an extension of the time-limit for appeal.

18.  The Kyiv Court of Appeal designated the Kyiv Pechersky District Court as the court competent to examine the GPO’s application for the extension of the time-limit for appeal, in lieu of the trial court which would normally be competent to examine such applications but which was no longer functioning due to the situation in Crimea. The designation procedure is envisaged by Law No. 1207-VII of 15 April 2014 (see paragraph 60 below).

19.  On 22 August 2014 the Pechersky District Court extended the time‑limit for the GPO to appeal, referring to the situation in the Crimea as the reason (see paragraph 14 above),

20.  On 29 September 2014 the High Specialised Court decided to order the Simferopol Zaliznychny District Court of the ARC (the trial court) to send the High Specialised Court the case file. There is no information as to by what means or to whom specifically that order was transmitted, if at all.

21.  In January and February 2015 the High Specialised Court informed the applicant, in response to his requests for information about the progress in the case, that the case could be examined once the High Specialised Court received the case file.

22.  Also in February 2015, the Parliamentary Commissioner for Human Rights informed the applicant, in response to his complaint about the delay in the examination of his case, that the Commissioner was working with the Minister of Foreign Affairs and the Minister of Justice to develop strategies to defend the rights of citizens in Crimea.

23.  On 22 April 2016 the applicant’s lawyer applied to the Kyiv Podilsky District Court to have the criminal case-file in the applicant’s case restored.

24.  On 5 July 2016 the Kyiv Podilsky District Court held a hearing concerning the application by the applicant’s lawyer in the presence of the latter and a lay representative, together with a representative of the prosecutor’s office of the ARC, who did not oppose the application. The court decided to restore the file, including in it more than 110 documents furnished by the applicant’s lawyer.

25.  On 15 July 2016 the High Specialised Court requested the restored file from the Podilsky District Court for examination of the applicant’s case on points of law.

26.  On 24 November 2016 the GPO withdrew its appeal in the applicant’s case.

27.  On 2 February 2017 the Pechersky District Court allowed the applications by the applicant and his lay defender and granted them extensions to lodge appeals on points of law against the applicant’s conviction. In their appeals they complained in particular of a violation of the applicant’s right to a lawyer and alleged that he had been a victim of entrapment (see paragraph 10 above).

28.  On 20 April 2017 the High Specialised Court held a hearing in the presence of the applicant, his lawyer and lay defender. It examined the content of the file as restored (see paragraph 24 above) and decided that it was insufficient for a ruling on the appeals. Accordingly, it decided to postpone the examination of the case in the hope that in the meantime the full case file would be delivered to it. The High Specialised Court held a similar hearing on 15 June 2017 and came to the same conclusion.

29.  The 2016 Judicial Organisation Act provided for the termination of the High Specialised Court. Its functions were taken over by the newly established Supreme Court.

30.  On 3 January 2018 the High Specialised Court informed the parties that, due to the High Specialised Court’s termination, the applicant’s case was being transferred to the Supreme Court.

31.  On 22 May 2018 the Supreme Court decided to wait for the possible arrival of a more complete case file and asked the Parliamentary Commissioner for Human Rights for assistance in recovering the file from the Crimea (see paragraph 58 below).

32.  On 19 September 2018 the Supreme Court allowed the appeals by the applicant and his lay defender (see paragraph 27 above) in part, quashed the ruling of the ARC Court of Appeal and remitted the case to the Kyiv City Court of Appeal for re-examination. The court held that under the relevant rules of domestic law the appellate court had a duty thoroughly to examine the arguments raised in the appeal and address them, if need be by conducting its own examination of the evidence, and to give detailed reasons for its decision and for rejecting the appellant’s arguments. The ARC Court of Appeal’s ruling in the applicant’s case did not meet those requirements. Notably it had failed to give reasons for its decision and to provide a response to the arguments raised on appeal concerning the alleged entrapment and breach of the applicant’s defence rights.

33.  On 18 February 2019 the Kyiv Court of Appeal allowed the applicant’s application, changed the preventive measure from detention to an undertaking by him not to abscond, and released him. The court stated that the applicant was suffering from chronic diseases and that there was no evidence of a risk that he would abscond if released.

34.  According to the most recently available information, submitted by the first applicant on 27 February 2019, the case remained pending before the Kyiv Court of Appeal.The second applicant’s case

35.  On 14 March 2013 the police officers executing a search warrant stopped the second applicant near her home in Crimea and found her to be in possession of a number of pre-packaged doses of opium and of drug precursors.

36.  She stood trial on charges of possessing illegal drugs with intent to sell, an offence punishable by six to ten years’ imprisonment together with confiscation of all assets, and of possessing drug precursors with intent to sell, an offence punishable by up to five years’ imprisonment. She pleaded guilty to drug possession but denied that the drugs had been for sale. She claimed that the drugs had belonged to her brother who used to be an addict and had died in January 2013. She explained that on seeing the police coming to the house, she had hidden the drugs in her pockets with the aim of taking them outside and destroying them but had been stopped by the police in the process.

37.  On 18 October 2013 the Simferopol District Court of the ARC found the applicant guilty as charged and sentenced her to seven years’ imprisonment. The court relied on the evidence of police officers who had testified that they had seen the applicant trying to get away from the house, had stopped her and found drugs on her, together with the evidence of attesting witnesses who had witnessed the operation, the relevant police reports and forensic evidence identifying the substance seized from the applicant as opium.

The trial court stated that it distrusted the applicant’s evidence (as well as similar evidence from the applicant’s daughter, brother and nephew) to the effect that the drugs had belonged to her brother and that she had had no intention of selling them. The trial court noted that the applicant’s intent to sell was demonstrated by her conduct: she was in possession of a considerable amount of pre-prepared and pre-packaged drugs even though she herself was not suffering from drug addiction.

The court stated that in sentencing the applicant it was taking into account the fact that she had a positive reputation in the community, was caring for a minor son and had no criminal record (her old criminal record having been expunged). The court decided not to order the confiscation of all of her property, having regard to the lack of evidence of any actual sale of drugs.

38.  The applicant, who had been released on bail, was taken into custody in the Court of Appeal courtroom.

39.  The applicant and her lawyer appealed, arguing that the intent to sell had not been proven and that the trial court’s conclusion in that respect was based on a mere assumption rather than specific evidence. The mere fact that the drugs were pre-packaged could not serve as such proof. No evidence had been produced of any drug-making equipment or materials at the applicant’s house and there had been no witness evidence that the applicant had actually sold drugs. The evidence of the applicant’s relatives had been unjustifiably disregarded merely on the grounds that they were her relatives. The police officers had also confirmed, in their statements, that at the moment of arrest the applicant had given them the same account about the drugs belonging to her brother as she had given at the trial. The lawyer argued that the applicant’s acts had to be classified as acquisition of drugs without intent to sell, punishable by a term of two to five years’ imprisonment. The lawyer also contended that the sentence was excessively severe: the trial court had failed to take into account that the applicant had pleaded guilty in part, that she had a minor son and had a positive reputation in the community.

40.  On 9 January 2014 the ARC Court of Appeal upheld the trial court’s judgment. It endorsed the trial court’s assessment of the evidence. It pointed out that, according to the attesting witnesses, the applicant had explained, at the moment of the search, that the drugs had been for her personal consumption. The applicant, who had already been prosecuted for selling drugs, must have been aware of the risk of criminal prosecution for drug trafficking and yet had continued to store drugs at the house. The trial court had in fact fully taken into account the applicant’s situation in sentencing.

41.  The applicant was transferred to a correctional colony in Odessa to serve her sentence.

42.  On 6 March 2014 the applicant lodged an appeal on points of law (appeal in cassation) with the High Specialised Court. She raised the same arguments as in the first appeal (see paragraph 39 above). She stressed in particular that the police officers who had participated in the seizure of drugs had confirmed at the trial that she had told them right away that the drugs had belonged to her brother.

43.  On 8 April 2014 the applicant’s lawyer lodged another appeal on points of law. He raised the same arguments as in his first appeal (see paragraph 39 above). As required by domestic law, with his appeal he submitted the copies of the trial court’s judgment and of the Court of Appeal’s decision in the case.

44.  The applicant and the lawyer asked that the applicant’s actions be reclassified as possession of drugs without intent to sell, that proceedings in respect of the precursors offence be discontinued and that her sentence be reduced.

45.  On 13 March 2014 the High Specialised Court decided to initiate proceedings for review on points of law on the applicant’s appeal and ruled to request the case file from the trial court.

46.  On 28 March 2014 the head of department in the High Specialised Court’s secretariat drew up a cover letter for the court’s ruling of 13 March 2014. The letter was addressed to the trial court, the Simferopol District Court of the ARC and contained an instruction to urgently send the case file in the applicant’s case to the High Court. According to the Government, the letter was sent to the trial court’s email address on 28 March 2014. They have not submitted any evidence that the letter was dispatched, at that point, either by post or by email.

47.  According to the announcement published by the Ukrainian Post on 25 April 2014, from 27 March 2014 the post office in Crimea stopped accepting letters addressed to it from mainland Ukraine and the Ukrainian Post announced that it, in its turn, was no longer accepting correspondence addressed to the Crimean peninsula.

48.  On 26 May 2014 the High Specialised Court decided to initiate proceedings for review on points of law on the basis of the second appeal by the applicant’s lawyer (see paragraph 43 above).

49.  On 15 April 2015 a head of department in the High Specialised Court’s registry sent an electronic message to the address simpheropolskiy.krm@sudrf.ru. The message was addressed to the Simferopol Court of the ARC (Сімферопольський районний суд АРК) and contained a scanned copy of the High Specialised Court’s ruling of 13 March 2014 and a request to urgently send the case file to that court.

50.  On 1 May 2015 the High Specialised Court informed the applicant that since the Ukrainian Post had stopped accepting correspondence addressed to the ARC, a request for the case file had been sent to the email address of the Simferopol District Court of the ARC and that a hearing in the applicant’s case would be held once the court received the case file.

51.  On 2 October 2015 the applicant’s lawyer asked the High Specialised Court for proof that the court ruling requesting the case file had been sent to Crimea and for information on the steps being taken to advance the examination of the case.

52.  On 22 October 2015 the High Specialised Court informed the applicant of the electronic request sent on 15 April 2015 (see paragraph 49 above) but stated that no file had been received. Review of the appeals on points of law was possible only once the High Court had the case file.

53.  On 29 November 2015 the applicant submitted a new appeal on points of law repeating the same arguments as in her previous appeal (see paragraph 42 above).

54.  On 23 December 2015 the High Specialised Court informed the second applicant that it had joined her new appeal to the proceedings previously initiated on her initial appeals and that the appeals would be examined once the court received the case file.

55.  According to the most recently available information, submitted by the second applicant on 4 February 2019, there were no further developments in the case.Relevant domestic law and practiceThe legal status of Crimea

56.  In the constitutional order of Ukraine the Crimean peninsula, except the city of Sevastopol, has the status of Autonomous Republic of Crimea. Sevastopol is a city with a particular administrative status. Due to the events described in paragraph 14 above, since June 2014 the ARC prosecutor’s office has been relocated to mainland Ukraine, as has the unit of the National Police responsible for the ARC. The Ukrainian courts which used to function in the ARC have not been relocated to the Ukrainian mainland. Their jurisdiction is reassigned to other courts as provided by Law no. 1207‑VII (see paragraph 60 below).Law and practice regarding restoration and recovery of lost case files

57.  The relevant procedure is set out in Articles 524 to 531 of the 2012 Code of Criminal Procedure. Under those provisions, any party to the proceedings may apply to the court which delivered the judgment for restoration of a lost case file. Article 527 of the Code requires persons applying for restoration to explain the purpose for which restoration is sought, to provide detailed information as to the specific material in the file, the names and addresses of parties to the proceedings, the possible location of the lost material and the circumstances in which it was lost, and to furnish the court with all documentation available to him or her. Article 529 provides that the court, having received the application, must ask the prosecutor’s office for information and documentation which may help in restoring the case file. Under Article 530, the court can examine as witnesses officials and other persons who took part in procedural actions and, where necessary, judges who examined the case. On the basis of the information and documentation thus collected, the court may either deem the file restored (in its entirety or in part) or, if it finds the information available insufficient, discontinue the proceedings and explain to the parties their right to reapply if and when the necessary documentation becomes available (Article 531).

58.  As described in Khlebik v. Ukraine (no. 2945/16, § 49, 25 July 2017), Ukraine’s Parliamentary Commissioner for Human Rights has organised the transfer of a number of case files concerning criminal defendants detained in the area under the Government’s control from non‑Government‑controlled territory in the Donetsk Region.Scope of review of cases on points of law (in cassation)

59.  Article 433 of the 2012 Code of Criminal Procedure provides that the court of cassation reviews whether the trial and appeal courts correctly applied substantive and procedural law and their legal classification of the facts; it may not examine the evidence, find established any circumstances which have not been established in the decision under review, or rule on the probative value of items of evidence.Law no. 1207-VII of 15 April 2014 on protection of the rights of Ukrainian citizens and legal regime of the temporarily occupied territory

60.  Law no. 1207-VII concerns the Autonomous Republic of Crimea and Sevastopol, which it defines as a territory temporarily occupied by Russia (sections 2 and 3). Section 12 reassigns jurisdiction over cases which would normally fall within the jurisdiction of the courts of the Autonomous Republic of Crimea and Sevastopol to courts in Kyiv designated by the Kyiv Court of Appel.

COMPLAINTS

61.  The applicants complained under Article 6 § 1 of the Convention of prolonged failure to examine their cases on appeal and the uncertainty concerning the prospects of progress in their cases and their status in this situation.

62.  The second applicant also formulated a complaint in that respect under Article 2 of Protocol No. 7 and complained, under Article 13 of the Convention, that she had no effective domestic remedies for his other complaints.

THE LAWJoinder of the applications

63.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Alleged violation of Article 6 § 1 of the Convention

64.  Article 6 § 1 of the Convention reads, insofar as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”The parties’ submissions

(a)   The Government

65.  The Government referred to the situation in the Autonomous Republic of Crimea (see paragraph 14 above) and submitted that, as in Khlebik (cited above), where the Court had found no violation of Article 6 § 1 on account of the complex situation in the Luhansk Region, the delay in the examination of the present applicants’ cases was likewise caused exclusively by the impossibility of obtaining the case-file material from Crimea. Accordingly, the length of proceedings could not be considered unreasonable. The Ukrainian authorities were undertaking all measures available to them to safeguard the rights of citizens who found themselves in a situation such as that of the applicants.

66.  Concerning the first applicant’s case, the Government considered that the period to be taken into account in assessing the length of proceedings started on 22 August 2014, when the Kyiv Pechersky District Court extended the time-limit for appeal against the ARC Court of Appeal’s decision (see paragraph 19 above). The Government pointed out that the domestic court had restored the case file in the applicant’s case (see paragraph 24 above).

67.  In the second applicant’s case, the High Specialised Court had promptly reacted to the appeals by the applicant and her lawyers and had initiated proceedings for review of her case on points of law. The High Specialised Court had also ordered the trial court in Crimea to produce the case file but owing to the disruption of postal communication with that region the High Court’s decision had not been sent by post but rather by email on 28 March 2014 (see paragraph 46 above). Another request for the case file had been sent by email on 15 April 2015 (see paragraph 49 above). Thus the High Court had taken all steps possible under domestic law to obtain the file.

(b)   The first applicant

68.  The first applicant commented on the length of the proceedings in question since 30 July 2014 (see paragraph 16 above). He submitted that, by the time the High Specialised Court for Civil and Criminal Matters (“the High Specialised Court”) on 29 September 2014 had ordered the trial court in Simferopol (Autonomous Republic of Crimea) to send it the file (see paragraph 20 above), it was clear that that order would be futile. Subsequently the case had remained unexamined until the case file had been restored on the applicant’s initiative on 5 July 2016 (see paragraph 24 above). In the end, the restored materials had proved sufficient for the Supreme Court to examine the case on 19 September 2018 (see paragraph 32 above) and in fact there had been no reason not to examine the case earlier, from 5 July 2016 onwards.

(c)   The second applicant

69.  The second applicant submitted that the case had to be distinguished from Khlebik v. Ukraine (no. 2945/16, 25 July 2017) since in her case the authorities had not done everything in their power to address her situation. For the applicant, the relevant question was not only whether the authorities had done everything possible to recover her case file, but also whether they had taken the necessary steps to mitigate the negative consequences of the loss of access to the case file. They should have determined her legal status with precision instead of keeping the proceedings “frozen” due to the loss of the file. It was not for the applicant but for the authorities to devise and suggest possible solutions.

70.  The applicant submitted that the authorities of the respondent State, contrary to their obligations, had failed to use the mechanisms of international cooperation available to them in order to recover her case file or material from it. She made the following points in this connection:

(i)  The Ukrainian authorities could have requested mutual legal assistance from the Russian authorities (notably, evidence concerning the applicant’s case available in Crimea) under the Commonwealth of Independent States Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 (the Minsk Convention).

(ii)  They could have directly cooperated with the de facto authorities in the Crimea: the Ukrainian authorities had not only been required to do so (the applicant cited in particular Ilaşcu and Others v. Moldova and Russia [GC], ECHR 2004‑VII, and cases concerning Northern Cyprus, such as Foka v. Turkey, no. 28940/95, 24 June 2008) but had actually taken a step in that direction by sending an email to the court in Simferopol established by the Russian Federation (see paragraph 49 above). Since the only reason why the High Specialised Court could not send the request for the file to the Crimea was that the Ukrainian postal service had suspended its acceptance of correspondence addressed to the peninsula (see paragraphs 47 and 50 above), it could have used other postal services to have the request delivered.

(iii)  The Ukrainian authorities could have requested the assistance of the International Committee of the Red Cross that operated both in mainland Ukraine and in the Crimean peninsula.

(iv)  Ukraine could have raised the matter through diplomatic channels and fora such as the Parliamentary Assembly of the Council of Europe, the United Nations and the contact channels created within the framework of the Tripartite Contact Group composed of representatives of Ukraine, Russia and the Organisation for Security and Co-operation in Europe under the Minsk Agreements of September 2014 and February 2015 (see Khlebik, cited above, § 12).

71.  The authorities had also failed to take all the measures available to them under the existing domestic legal framework to secure the applicant’s rights. In particular, the Code of Criminal Procedure allowed all parties to the proceedings to apply for restoration of case files (see paragraph 57 above). Accordingly, the prosecutor’s office could have investigated whether any case-file material was available in the Government-controlled territory and, if so, applied for restoration of the file. The prosecutor’s office was supposed to have an electronic documentation system and certain documents related to the applicant’s case could have been found there. There was also a possibility that the General Prosecutor’s Office could have requested some documents in preparation for the hearing before the High Specialised Court.

72.  Finally, the second applicant complained that no comprehensive legislative solution had been adopted to address the problem of case files in non-Government-controlled territory that affected her case.The Court’s assessment

(a)   Relevant general principles

73.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, for example, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II). However, certain cases may call for a global assessment in this respect without separate examination of each of those criteria (see, for example, Mączyński v. Poland, no. 43779/98, § 33, 15 January 2002).

74.  It is an established principle of the Court’s case-law that only the periods when proceedings are actually pending can be taken into account for the purpose of determining the length of proceedings (see, for example, Prescher v. Bulgaria, no. 6767/04, §§ 33 and 34, 7 June 2011).

(b)   Application of the above principles to the present cases

(i)      The Court’s approach

75.  The Court is not convinced by the second applicant’s argument (see paragraph 69 above) that her case should be distinguished from Khlebik and considers that the approach established in that case is applicable in both applicants’ cases. As in Khlebik (cited above, § 71, with further references), the Court takes the view that the relevant question is whether the respondent State has taken all the measures available to it to organise its judicial system in a way that would render the rights guaranteed by Article 6 effective in practice, in the present applicants’ situation, in the light of the long‑established principle that the Convention is intended to guarantee rights that are practical and effective, not theoretical and illusory, but also taking into account the context in which a given case arose.

76.  In assessing the respondent State’s compliance with that obligation, it is relevant to consider whether the authorities have taken reasonable measures available to them to mitigate, to the extent possible, the negative consequences for the applicants resulting from the lack of access to the case file. That obligation, however, must be exercised in a manner consistent with the public interest involved in ensuring the proper administration of justice as well as the respondent State’s obligations under other provisions of the Convention, most notably vis-à-vis victims of crime under Articles 2 and 3 of the Convention.

(ii)    The first applicant’s case

77.  The proceedings in the first applicant’s case were terminated by 3 March 2014 at the latest, when the High Specialised Court judge rejected the appeal by the applicant’s lawyer for failure to meet the procedural requirements (see paragraph 13 above), and no proceedings were pending until 30 July 2014, when the General Prosecutor’s Office lodged its appeal against the applicant’s conviction and the domestic court, having extended the time-limit for appeal, accepted it for examination on the merits (see paragraphs 16 and 19 above and, for relevant principles concerning the applicability of Article 6, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 60, 11 July 2017).

78.  It is relevant, in this context, that the proceedings had initially been completed prior to the events of 2014 in Crimea. It was on the applicant’s initiative and for his benefit that the General Prosecutor’s Office had initiated the reopening of proceedings following those events (see paragraph 16 above). However, by that time the case-file had become inaccessible to the Ukrainian authorities, thus creating an obstacle to those proceedings. For the proceedings to advance, the case file had to be restored.

79.  Under domestic law, the restoration procedure could be initiated by any party to the proceedings, both the defence and the prosecution (see paragraph 57 above). In the present case it was the applicant and not the authorities who possessed most documents from the file. Despite being represented and having at his disposal a considerable volume of copies from the file, he remained passive and did not apply for restoration of the file until 22 April 2016 (see paragraphs 23 and 24 above).

80.  An additional delay in the proceedings had been caused by the applicant and his lay defender, by the lodging of new appeals as late as early 2017 (see paragraph 27 above). The domestic authorities permitted these appeals to be lodged despite the fact that they had been lodged with a considerable delay and following the rejection of the applicant’s previous appeals.

81.  There was a period of inaction on the part of the authorities from 2 February 2017, when the domestic first-instance court allowed the applicant and his lay defender to lodge new appeals, to 3 January 2018, when the High Specialised Court transferred the case to the Supreme Court (see paragraphs 27 and 30 above). That delay was caused by the High Specialised Court’s assessment that it was unable to examine the case in the absence of a more complete case file.

82.  That assessment turned out to be erroneous and was rectified by the Supreme Court which, shortly after taking over the case, reactivated the proceedings by requesting the assistance of the Parliamentary Commissioner for Human Rights in obtaining a full file (see paragraph 31 above). While that request to the Commissioner appears to have ultimately been unsuccessful, it was reasonable for the Supreme Court to allow some time for a possible evolution in the case before proceeding to examine it based on the available fragmentary material.

83.  The Supreme Court then examined the applicant’s case based on the fragmentary material available and decided it on the merits. As a result of the Supreme Court’s decision, the applicant, despite having been convicted of a most serious offence against national security, at two levels of jurisdiction, was released after serving less than seven years out of his ten-year sentence (see paragraph 33 above).

84.  The authorities have, therefore, taken reasonable steps to mitigate, to the extent possible, the negative consequences sustained by the applicant on account of the unavailability of the full case file concerning his case.

(iii)   The second applicant’s case

85.  The relevant period for the purpose of assessing the length of the criminal proceedings against the second applicant started on 14 March 2013 (see paragraph 35 above). Since then the proceedings have been pending at three levels of jurisdiction.

86.  Concerning the authorities’ conduct, there is no indication that the authorities in mainland Ukraine had any case-file material other than the appeals by the applicant and her lawyer and the decisions of the trial and appellate courts in her case.

87.  The Court, therefore, does not find convincing the applicant’s argument (see paragraph 71 above) that the prosecutor’s office was at fault for having failed to initiate restoration of the case file. She never asked the prosecutor’s office to do so and, in any event, the Court does not consider it would be reasonable to demand that the authorities, who had been displaced from Crimea, should look for material concerning the applicant’s case without her assistance.

88.  The applicant and her lawyers were more likely than the authorities, in their particular situation of losing access to the territory, to have the most material concerning her case and were at least in a better position to try to find it (for example, through the assistance of the applicant’s lawyer who practiced in Crimea or her relatives who may continue to reside there). Therefore, if for some reason she considered it impossible or impractical to apply for the case-file restoration herself, it was incumbent on her at least to request that the prosecutor’s office do so and to volunteer any materials that she and her lawyers may have possessed.

89.  Moreover, the applicant formulated her claims before the High Specialised Court in a manner that made it difficult for that court to address her arguments without evidential material from her case file being available to it.

90.  As late as November 2015, when it was clear that the case file was inaccessible, she continued to insist that the High Court take into account witness evidence (the records of which had been stored in the inaccessible file) in contradiction with the factual findings of the ARC Court of Appeal concerning the content of her statements in the course of the search. She also raised such matters, related to the reassessment of the evidence, as the trustworthiness of her relatives as witnesses (see paragraphs 40 and 53 above).

91.  In other words, the applicant neither used the procedure envisaged under domestic law to seek restoration of the file, nor attempted to circumscribe her claims before the court of cassation in a way that might conceivably have allowed that court meaningfully to examine them without the benefit of the full file, based solely on the content of the lower courts’ decisions.

92.  The applicant’s arguments to the effect that the respondent State was required to trigger certain mechanisms of international cooperation with the Russian authorities to attempt to recover the case-file material (see paragraph 70 above) are formulated in general terms, she did not explain how those potential mechanisms were supposed to operate and be triggered in her specific case. She also did not provide any specific examples of similar mechanisms proving effective in cases similar to hers. Moreover, her arguments in that respect were raised for the first time before the Court and therefore the domestic authorities had been given no opportunity to explore whether various potential avenues identified by the applicant were indeed available, practical in her case and acceptable to them. The Court, therefore, rejects the applicant’s arguments in this respect as unsubstantiated.

(iv)  Overall conclusion

93.  In view of the above-mentioned considerations, and taking into account the objective obstacles that the Ukrainian authorities had to face, the Court finds that the applicants did not put forward and substantiate an arguable case that the authorities of the respondent State failed to take sufficient steps to advance the examination of the applicants’ cases in the situation where the authorities had no access to the relevant case files (see Khlebik, cited above, §§ 79 to 81).

94.  It follows that this part of both applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Alleged violations of Article 13 of the Convention and of Article 2 of Protocol no. 7 in respect of the second applicant

95.  Article 13 of the Convention and Article 2 of Protocol No. 7 read, insofar as relevant:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 2 of Protocol No. 7

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

96.  The Court has concluded that the second applicant’s complaint under Article 6 § 1 was ill-founded. For the same reasons her complaint under Article 2 of Protocol No. 7 is likewise ill-founded (see Khlebik, cited above § 83).

97.  The above finding means that, for the purposes of Article 13 of the Convention, the second applicant had no “arguable claim” of a breach of any provision of the Convention (see Shari and Others v. Italy (dec.), no. 57/03, 5 July 2005).

98.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 11 February 2021.

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Martina KellerArnfinn Bårdsen
Deputy RegistrarPresident

Full & Egal Universal Law Academy