FIFTH SECTION      CASE OF KARPYUK and others v. Ukraine (Applications nos. 30582/04 and 32152/04)      JUDGMENT     STRASBOURG 6 October 2015  FINAL 06/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karpyuk and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Josep Casadevall, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 8 September 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in two applications (nos. 30582/04 and 32152/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Ukrainian nationals on 11 August 2004 (application no. 30582/04) and 20 August 2004 (application no. 32152/04). Their names and years of birth are as follows:-  Mr Mykola Andronovych Karpyuk, born in 1964 (“the first applicant”);-  Mr Mykola Petrovych Lyakhovych, born in 1976 (“the second applicant”);-  Mr Igor Petrovych Mazur, born in 1973 (“the third applicant”);-  Mr Sergiy Volodymyrovych Galchyk, born in 1982 (“the fourth applicant”);-  Mr Oleg Anatoliyovych Buryachok, born in 1979 (“the fifth applicant”);-  Mr Andriy Vasylyovych Kosenko, who was born in 1980 and died in 2009 (“the sixth applicant”); and-  Mr Grygoriy Petrovych Lyakhovych, born in 1982 (“the seventh applicant”).2. The applicants were represented by Mr Y.O. Nikolenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Agent, Mr Y. Zaytsev.3. The applicants alleged, in particular, that their confinement in a metal cage during their trial constituted degrading treatment, that they had not had a fair trial, and that their conviction for mass disorder in connection with their participation in events on 9 March 2001 in Kyiv had violated their rights to freedom of expression and peaceful assembly.4. On 10 November 2008 the applications were communicated to the Government.5. On 24 June 2009 Mr Nikolenko informed the Court that the sixth applicant had died on 22 May 2009. His father, Mr Vasyl Mykolayovych Kosenko, expressed the wish to pursue the application on his behalf.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. According to the applicants, at the relevant time the first three applicants were leaders, the fourth, fifth and seventh applicants were members, and the sixth applicant was a supporter of the Ukrainian National Assembly (“the UNA”), a nationalist party. At the relevant time, the UNA was associated with an unregistered organisation known as the Ukrainian National Solidarity Organisation or Ukrainian National Self-Defence Force (“the UNSO”).7. In late 2000 and early 2001 a group of politicians and organisations who were in opposition to the then President of Ukraine Leonid Kuchma launched a series of large-scale rallies and demonstrations and a civil campaign known as “Ukraine without Kuchma” movement.8. According to media reports, on 8 March 2001, the organisations engaged in the movement publicly announced that protesters were planning not to let President Kuchma come to the monument to Taras Shevchenko, a famous Ukrainian poet, in Kyiv (“the Shevchenko monument”) and lay flowers there the next day, 9 March 2001, the 187th anniversary of Taras Shevchenko’s birth.A. Events of 9 March 2001 and their aftermath9. On 9 March 2001 at about 8 a.m. the applicants and other UNA and UNSO supporters participated in a political rally near the Shevchenko monument announced by the opposition forces on 8 March 2001. As established by the domestic courts, the organisers failed to give advance formal notice to the authorities about the rally, as provided by Article 39 of the Constitution of Ukraine (see paragraphs 60 and 86 below).10. Prior to the arrival of protesters, the police and troops of the Ministry of the Interior (“the police”) formed a cordon, and for some time did not allow the participants of the rally to approach the monument. The cordon had been formed to allow President Kuchma and other State officials to lay flowers at the monument. As established by domestic courts, the protesters attempted to break through the cordon to disrupt the flower-laying ceremony and attacked the police (see paragraph 52 below). The police moved on protesters seeking to control and break up the crowd. No information has been provided by the parties as to whether the police explicitly ordered the protesters to disperse. It is undisputed that clashes between the police and protesters ensued and as a result of the events a number of police officers were injured.11. In the course of events near the Shevchenko monument several protesters were arrested. At around 2 p.m. the same day a column of protesters, including the applicants, marched to the Ministry of the Interior building to demand their release. They dismantled a wooden barrier nearby, pelted the building with eggs and then left.12. At about 3 p.m. the same day a group of protesters, including the applicants, marching away from the Ministry of the Interior building to the center of the city arrived at Bankova Street, where they clashed with police officers who had cordoned off the street to block access to the President’s Administration building located there. The police officers were attacked with stones and a metal street barrier, and a Molotov cocktail was thrown at them. As the domestic courts established in convicting the applicants, as a result of the clashes forty-nine police officers were injured, including fourteen with concussion.13. According to the findings of the domestic courts, the first three applicants played a leading role in inciting and directing attacks on the police near the Shevchenko monument and Bankova Street. The fourth, fifth, sixth and seventh applicants participated in the attacks on police on Bankova Street (see paragraphs 51-57 below). According to the applicants, they participated in the protests but behaved peacefully.14. According to the applicants, more than 200 individuals were arrested in connection with the events.15. Between 9 and 14 March 2001 the first six applicants were arrested. On various dates they were remanded in custody pending investigation and trial. On 16 March 2001 the seventh applicant was arrested and on 19 March 2001 released on an undertaking not to abscond pending investigation and trial. It appears that none of the applicants was arrested at the scene of the events of 9 March 2001.16. The applicants were charged with organising and participating in mass disorder.17. A number of law enforcement officers who had participated in crowd control on the day in question, and had been assaulted or injured as a result, were later recognised as aggrieved parties in the proceedings against the applicants.B. The applicants’ trial18. On 1 October 2001 the case against the applicants and their co-defendants was referred to the Golosiyivsky District Court of Kyiv (“District Court”) for trial before a panel composed of Judge V. as the presiding judge and two other judges.19. In the course of the trial and subsequent proceedings before the Kyiv Court of Appeal thirteen defendants, including the first six applicants, were kept in a metal cage.20. According to the Government, the presiding judge issued warnings to the second applicant in connection with his conduct in the courtroom on ten occasions between 18 December 2001 and 14 March 2002.21. On 16 May 2002 all the defendants unsuccessfully challenged Judge V. because he had disallowed a question that defendant Z. sought to put to one of the aggrieved parties. The other judges sitting on the panel were also challenged without success on the grounds that Judge V. and the prosecutor had allegedly been in the deliberations room with the other judges when they had decided on the previous challenge.22. On 19 June 2002 the defendants challenged Judge V. on the grounds that he had allegedly disallowed certain questions the defence had sought to put to the aggrieved parties and a witness. The other two judges on the panel rejected the challenge, stating that the disallowed questions had been irrelevant, repetitive or leading.23. On the same day the trial court found that the second applicant was behaving disruptively and decided to exclude him from the courtroom. According to the applicant, on the basis of that ruling he was also excluded from hearings held on 20 and 21 June 2002.24. On 20 June 2002 lawyer Ya. unsuccessfully challenged Judge V. on the grounds that he had allegedly disallowed certain questions put to witnesses, rejected other evidentiary requests by the defence, and held meetings with the prosecutors in his chambers. No details as to the nature and circumstances of the alleged meetings were provided.25. On 8 July 2002 witness I.Tr. addressed a letter to the trial court, claiming that the statement he had given to the investigating authorities during the pre-trial investigation was untrue and given under pressure from the authorities. He sought to be examined during the applicants’ trial, indicating that he was being held at the Kherson Pre-Trial Detention Centre.26. On 24 July 2002 Mr Nikolenko, then acting as a lawyer for the defence, unsuccessfully challenged Judge V. mainly on the grounds that in his remarks he, as the lawyer believed, had insulted the sixth applicant by implying that his health problems had been related to drug use.27. On 15 August 2002 lawyer Ya. unsuccessfully challenged all the judges of the panel, complaining about the rejection of the defence’s request to extend the examination of a witness, other evidentiary requests by the defence, and the court’s decision to keep the defendants in the metal cage.28. According to the first applicant, from 2 to 4 September 2002 the trial court decided to appoint a legal aid lawyer for him and a number of the other defendants. The appointed lawyers were then frequently replaced until the end of the trial.29. On 2 September 2002 the trial court considered removing the second applicant from the courtroom for laughing. Another defendant stated that it was he, and not the second applicant, who laughed.30. According to the Government, on 3 September 2002 the trial court granted the second applicant’s request for a recess to allow him to consult his lawyer.31. On 5 September 2002, in the course of examination of video recordings of the events of 9 March 2001, the second applicant stated that he could not recognise himself on the video and added that the person on it looked like Judge V. The court considered this remark disrespectful and decided to remove the second applicant from the courtroom for the duration of the trial, until the parties’ closing statements.32. On 9 September 2002 some of the defendants and their lawyers unsuccessfully challenged Judge V. on the grounds that he had excluded the second applicant from the courtroom and allegedly stated that the defendants’ behaviour in the courtroom would be taken into account in sentencing.33. According to the Government, on 17 September 2002 the first applicant’s lawyer, M., had informed the trial court that he would be unable to attend any hearings and did not appear before the trial court until 22 November 2002.34. During the trial, the sixth applicant pleaded guilty in part, admitting that he had been in the crowd on Bankova Street and thrown an egg at the police. The other applicants pleaded not guilty. They testified that they had been at the scene of the events and participated in a peaceful political rally and march, but had not committed any acts of violence. The first, second and third applicants testified that in the course of the events of 9 March 2001 they had attempted to prevent some of the other protesters from acting violently. The second applicant also testified, in particular, that he had indeed chanted “UNSO on the attack, UNA to power!” and “Impale the traitors!”, but not on Bankova Street.C. Witness testimony examined during the trial35. According to the trial court judgment, in the course of the trial the court read out the statements of several individuals given during the pre-trial investigation. In justifying its decision to admit these statements as evidence, the trial court stated that they had “valid reasons” for failing to appear in court.36. In particular, as regards the events of 9 March 2001 in general, I.Tr. stated during the pre-trial investigation that on 27 February 2001 the UNA leader A.Sh. had offered him a financial reward to come to the events of 9 March 2001 with as many UNA and UNSO supporters as possible. O.Dm. stated that when President Kuchma had arrived at the Shevchenko monument, the column of UNA and UNSO protesters had moved towards the police cordon and had tried to break through, pulling away the street barriers separating the crowd from the police. R.Tk., a protester, stated that he had seen the crowd dismantle a street barrier and throw it, as well as stones, wooden boards and other objects, at the police on Bankova Street.37. As regards the second applicant, M.Sh. stated during the pre-trial investigation that a group of protesters near the Shevchenko monument had attacked the police line in which he had been standing, and had hit him, pulled him from the line, pushed him to the ground and kicked him. M.Sh. identified the second applicant as the leader of the crowd, giving them instructions to move towards the police, telling them to move “Forward!” and offering a reward for any riot gear seized or police officer beaten up. S.Ko. stated that the second applicant had been an organiser and active participant in the riots. He commanded the crowd to move towards the police line near the Shevchenko monument. In the course of the attack he had shouted “UNA to power, UNSO on the attack!” and “Impale the traitors!” According to S.Ko., he had then shouted the same slogans during the clashes on Bankova Street, as the protesters were trying to break through to the President’s Administration building. According to the witness, these slogans were interpreted by the crowd as a call to action and to attack the police. V.Du. stated that the second applicant had lined up a column of UNA members near the Shevchenko monument. Somebody had then shouted “Forward!” and the column had attacked the police.38. As regards the third applicant, R.Py. stated during the pre-trial investigation that the UNA leader A.Sh. and the third applicant had directed the UNA and UNSO column to try to break through the police cordon near the Shevchenko monument and on Bankova Street. He had also seen people from the crowd kick a police officer lying on the ground. On Bankova Street he had seen UNSO members throw stones, eggs and a street barrier at the police. D.Ko. stated that the third applicant had told him before the events that the UNA and UNSO were gathering their members for a rally on 9 March 2001, that participants would be remunerated, and that it was important to ensure a large turnout. V.Ma. stated that his travel expenses for his return trip to Kyiv on 9 March 2001 had been paid. He also stated that the third applicant had given the command to line up near the Ministry of the Interior building and from time to time shouted “UNA to power, UNSO on the attack!” and slogans directed against President Kuchma. V.Ku. stated that the third applicant had been at the front of the UNA and UNSO column during the riots. M.Pe. stated that the UNA had paid the travel expenses of its members travelling to Kyiv on 9 March 2001, and that when the crowd had seen the police cordon on Bankova Street it had turned in the direction of the cordon and the third applicant had then lined up UNSO members there.39. As regards the fourth applicant, I.Gl. stated during the pre-trial investigation that he had been standing in the police cordon on Bankova Street when it had been attacked by a group of protesters. He stated that he in particular had been attacked by a man armed with a wooden stick and a shield, whom he had identified as the fourth applicant.40. According to the trial court judgment, in the course of the trial the court had also examined more than sixty aggrieved parties, namely officers who had participated in maintaining order during the events of 9 March 2001. They had testified in general terms that the protesters, many of whom had been wearing UNSO armbands and had had their faces covered, had behaved violently.41. In particular, S.Sy. had identified the second applicant as the individual who had given commands to the crowd and had been at the front of the crowd on Bankova Street, shouting “Forward!” and “On the attack!” At least three officers had identified the first applicant, two had identified the third applicant, three had identified the fourth applicant, two had identified the fifth applicant and one had identified the sixth and seventh applicants as individuals who had attacked the police on Bankova Street.42. According to the trial court judgment, in the course of the trial the court had also examined over thirty other eyewitnesses and a number of other witnesses who had recognised the defendants on video recordings of the events or had testified to the defendants’ character.43. In particular, N.Ma., a protester, had testified that the goal of the rally near the Shevchenko monument had been to prevent President Kuchma from being able to lay flowers there and that she had seen a column of about 150 people, almost all with UNSO armbands, run towards and attack the police cordon. S.Po. had testified that he had taken part in organising the rally near the Shevchenko monument and that the plan had been to form a circle around the monument to prevent President Kuchma from laying flowers there. When the protesters had arrived at the monument, they had discovered that it was already cordoned off by the police, and the third applicant had given the command to try to break through the police cordon, but “this could have been interpreted in various ways”. Shortly afterwards, the police had attacked the protesters. V.Ch., one of the organisers of the rally, testified that the protesters had planned to express their disagreement with President Kuchma, who on that day had planned to lay flowers at the Shevchenko monument. On Bankova Street he had seen the third applicant with a cut on his hand and the second applicant with a loudspeaker. As regards the third applicant, Gre., a police officer, testified that he had seen him direct the crowd on Bankova Street and organise it to try to break through the police cordon. Gro., a protester, testified that he had seen the third applicant direct the crowd to break the street barrier on Bankova Street and participate in the attack on the police there. Y.Yu., an officer of the Security Service of Ukraine (“the SBU”), testified that he had seen him attack the police on Bankova Street.D. Trial court judgment44. On 25 December 2002 the District Court found the applicants guilty of offences defined in Article 71 of the Criminal Code:(i)  the first and third applicants of organising and actively participating in mass disorder;(ii)  the second applicant of organising mass disorder; and(iii)  the fourth, fifth, sixth and seventh applicants of actively participating in mass disorder.45. The court also convicted eleven other defendants in connection with the same events.46. In convicting the applicants, the court relied on the statements of aggrieved parties and witnesses made during the pre-trial investigation and read out during the trial (see paragraphs 36-39 above), and on the testimony of a number of aggrieved parties and other witnesses heard and examined viva voce during the trial (see paragraphs 41 and 43 above).47. The trial court rejected witness I.Tr.’s letter of 8 July 2002 seeking to be questioned during the trial, on the grounds that his signature had not been certified.48. It relied on its own identification of the applicants in a number of video recordings of the events of 9 March 2001, filmed both by the law enforcement agencies and television channels.49. It also relied on medical evidence of injuries suffered by law enforcement officials on the day in question and on expert reports identifying several of the applicants on the video recordings. It also referred to physical evidence found at the scene of the events: stones, broken up pavement slabs, sticks and various other objects which could have been used to attack the police; as well as the applicants’ clothes which, according to the trial court, matched the clothes worn by the rioters on the video recordings.50. The court made the following findings regarding the events of 9 March 2001.51. As regards organisation of the rally, on 7 and 8 March 2001 UNA leaders including the first three applicants had organised the arrival of UNA and UNSO members and supporters in Kyiv and their gathering near the Shevchenko monument on 9 March 2001.52. As regards the events near the monument, the second and third applicants had organised a column of UNA and UNSO supporters and had called on them to attempt to break through the police cordon. As a result of these actions, clashes with the police had ensued, in the course of which acts of violence and resistance towards the police had been committed. The second applicant had incited disorder among the participants, in particular by chanting the slogans: “Form a column of six in line”, “There will be a reward for each trophy!”, “Impale the traitors!”, “UNSO on the attack, UNA to power!” The third applicant had actively taken part in the attempt to break through the police cordon, and had thrown a riot helmet at it, previously seized from the police. At least three times he had punched M.Sh., who had been pulled away from the police line by the protesters.53. As regards the events on Bankova Street, the first three applicants had organised the mass disorder there. The protesters had attacked the police cordon with the aim of breaking through to the President’s Administration building throwing stones at the police and attacking them with sticks. They had also pulled away the metal street barrier separating them from the police line and had thrown it at the police.54. The first applicant had chanted “On the attack!”, “UNSO on the attack!” and had directed the crowd which had pulled the street barrier away and attacked the police. He had taken part in dismantling the barrier, had attempted to take away riot shields, had hit and kicked the police, had pulled from the police line and repeatedly hit officer O.Ma., and had thrown a piece of wire at the police.55. The second applicant had directed and helped the protesters pull the metal street barrier away from the police cordon and had chanted “Forward!”, “UNSO on the attack, UNA to power!”.56. The third applicant had chanted “UNSO on the attack, UNA to power!” and had helped pull the street barrier away from the police cordon, which he had thrown at the police twice. He had also hit police officers, and had attempted to take away riot shields and truncheons.57. The fourth applicant had thrown a street barrier at the police four times, as well as stones and a wooden stick. He had also kicked and hit officers with a wooden stick and pipe. The fifth applicant, acting with others, had thrown the street barrier at the police twice, and had attempted to take away a riot shield and truncheon. The sixth applicant had thrown the street barrier and an egg at the police, had hit officers, and had attempted to take away a riot shield. The seventh applicant had helped pull the street barrier away from the police line and had thrown it at the police.58. The court found the applicants’ arguments that the events had been provoked unsubstantiated. While it acknowledged that the third applicant in particular had been observed trying to stop violent protesters on Bankova Street, in the trial court’s view this only occurred at the end of the clashes once the protesters had realised they could not break through the police line.59. The applicants received the following sentences: four years and six months (the first applicant), five years (the second applicant), four years (the third and fourth applicants), three years (the fifth applicant), and two years (the sixth applicant). The seventh applicant was sentenced to two years, suspended for two years with probation.60. In convicting the applicants the trial court observed that Article 11 of the Convention did not apply to manifestations which were not peaceful and observed that the participants in the mass disorder on 9 March 2001, including the applicants, had not behaved peacefully. The court further observed that the actions of the police on 9 March 2001 had not breached Article 11 of the Convention because police cordons had only been installed temporarily, to allow the President and other State officials to lay flowers at the Shevchenko monument and to protect the public buildings on Bankova Street. The trial court went on to find that the applicants’ right to peaceful assembly under the Constitution of Ukraine had not been breached by the police because the authorities had not been notified about the manifestations planned for 9 March 2001, as required by Article 39 of the Constitution (see paragraph 86 below).61. On 27 January 2003 lawyer Ya., acting on behalf of the first two applicants, submitted to the trial court a number of proposed corrections to the trial record. The case file does not indicate what decision was made pursuant to this request.E. Appeals and attempted reopening of proceedings62. All the applicants appealed, arguing in particular that the trial court had erred in the assessment of evidence and that, in fact, the evidence did not support the finding of their guilt. They also argued that the trial court had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video evidence.63. In their appeals, the first two applicants also argued that the trial court had not been impartial and had been biased towards the prosecution, had removed the second applicant from the courtroom without sufficient grounds, and had refused the second applicant’s request to discontinue his and other defendants’ confinement in the metal cage. They also argued that the authorities had provoked the protesters by placing large police contingents in riot gear in their path. In his appeal, the second applicant also complained that he had been ill-treated by the police after his arrest, and that he saw his sentence as recognition of his role in the struggle of the Ukrainian nation against President Kuchma’s “criminal regime” engaged in the “genocide” of Ukrainians.64. On 16 May 2003 the Kyiv City Court of Appeal (“Court of Appeal”) upheld the applicants’ conviction, striking out certain statements from the judgment, and reduced the first applicant’s sentence to three years and six months, the second applicant’s sentence to four years, the third and fourth applicant’s sentences to three years, and the fifth applicant’s sentence to two years and six months.65. The first two applicants appealed in cassation, arguing in particular that the trial court had not been impartial and had been biased towards the prosecution, expressing this by denying the second applicant’s request to discontinue his and other defendants’ confinement in the cage and removing him from the courtroom on 19 June 2002. They further stated that the trial court had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video evidence.66. The remaining applicants also appealed in cassation, arguing in particular that the trial court had not been impartial, had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video and physical evidence.67. On 4 March 2004 the Supreme Court upheld the judgment of 25 December 2002 and ruling of 16 March 2003, finding the applicants’ appeals unsubstantiated. It reduced the first applicant’s sentence to two years and six months. The Supreme Court stated, among other things, that the planned and organised nature of the events of 9 March 2001 had been proven by the testimony of a number of witnesses, including D.Ko., V.Ma., M.Pe. and N.Ma. (see paragraphs 38 and 43 above)68. On an unspecified date the Deputy Prosecutor General (“the DPG”) requested that the Supreme Court review the applicants’ conviction and sentences by way of extraordinary review proceedings. He argued that the authorities had neglected to investigate the possibility that the clashes between the participants of the rally had been provoked by the law enforcement agencies or third parties, and that this information had not been known to the courts which had examined the case. The DPG also pointed to certain evidence which had been in the possession of the investigating authority, the SBU, but had not been examined during the pre-trial investigation or trial. In particular, he referred to video recordings which, in his opinion, could have shed light on the possibility of provocateurs, and to other evidence that prior to the events of 9 March 2001 the UNA and UNSO headquarters had been wiretapped, possibly with the aim of disrupting the rally.69. On 7 April 2006 the Supreme Court decided not to reopen the proceedings, holding that it had no jurisdiction to quash the judgment based on the arguments put forward by the DPG. Those facts had to be considered newly discovered circumstances, which first had to be investigated by the prosecutor’s office and then brought to the attention of the trial court and Court of Appeal, in accordance with the procedure for review of final judgments in such circumstances. The case file shows no steps to follow up on the matter.F. The second applicant’s alleged ill-treatment and detention70. According to the second applicant, following his arrest on 9 March 2001 he received serious injuries as a result of ill-treatment by the police and was taken to hospital.71. Between 9 and 15 March 2001 he underwent inpatient treatment for his injuries, in particular concussion and a fractured rib.72. On 17 March 2001 an SBU investigator ordered that the applicant be placed in pre-trial detention, a decision endorsed by a prosecutor. The applicant was placed in SBU Pre-Trial Detention Centre (SIZO) and then transferred to Kyiv SIZO.73. On 18 June 2001 an SBU investigator decided to disjoin the ill‑treatment complaint from the criminal case against applicants and send the material concerning the complaint to the Prosecutor General’s Office for investigation. The case file does not indicate whether the matter was followed up in any way.74. On 22 May 2003 the second applicant was transferred to a correctional colony to serve the rest of his sentence.75. From 20 June 2003 until his release the second applicant was treated for tuberculosis.76. On 3 October 2003 he was released from serving the remainder of his sentence by virtue of an amnesty law.II. RELEVANT LAW AND PRACTICEA. Relevant domestic law and practice1. Code of Criminal Procedure 1960 (repealed with effect from 19 November 2012)(a)  Rules concerning the summoning of witnesses and admission of absent witness testimony77. Article 70 of the Code required a witness summoned by an investigating authority, prosecutor or a court to appear at the time and place indicated and give truthful testimony. Failure to appear without a valid reason could result in the witness being fined by the relevant summoning authority and escorted to the hearing by the police.78. Article 135 stipulated that “valid reasons” for failure to appear could include delayed receipt of the summons, illness or any other circumstances which made it impossible to appear on time.79. Article 306 provided that in the course of the trial the court could read out the statements of a witness given during the pre-trial investigation in the following cases:(i)  where a substantial contradiction was discovered between the witness’s testimony during the trial and pre-trial testimony;(ii)  where it was impossible for the witness to appear in person; or(iii)  where a witness under a witness protection programme had reaffirmed his out-of-court testimony in writing.80. Under Articles 72 and 308 the above-mentioned rules concerning the summoning of witnesses and the use of out-of-court testimony also applied to aggrieved parties.(b)  Rules concerning removal of defendants from the courtroom81. Article 272 authorised the presiding judge to issue a warning to any defendant behaving in a disorderly fashion during a hearing or failing to obey his or her instructions. In cases of repeated disorderly conduct, the same provision of the Code authorised the court to order the defendant’s removal from the courtroom for a specific period of time or for the entire duration of the proceedings.(c)  Rules concerning proceedings on appeal82. Article 362 provided that appellate courts could conduct a judicial investigation, that is examination and evaluation of evidence, in respect of the parts of judgments challenged on appeal in accordance with the rules of criminal procedure applicable to the trial proceedings. According to Articles 303, 310, 313 and 314, in the course of judicial investigation the court had the power to call witnesses, appoint experts, examine physical evidence and documents.83. Article 367 provided that a judgment could be quashed or amended by an appellate court in the event of:(i)  a substantial breach of the criminal procedure law;(ii)  incorrect application of the criminal law;(iii)  an error in sentencing; or(iv)  an error of fact, namely where a pre-trial or judicial investigation had been biased, incomplete or where erroneous conclusions had been drawn by the trial court from the facts of the case.2. Criminal Code 1960 (repealed with effect from 1 September 2001)84. Under Article 71 of the Code organisation or active participation in mass disorder accompanied by violence against the person, riots, arson, destruction of property or armed resistance towards a public official was punishable by two to twelve years’ imprisonment.3. Police Act of 20 December 1990 (as in force at the material time)85. Section 14 of the Act authorises the police to use special tools to stop mass disorder, such as handcuffs, rubber truncheons and tear-provoking substances.4. Rules concerning rallies and demonstrations86. Article 39 of the Constitution of Ukraine provides:“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand.Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.”87. Other relevant Ukrainian domestic law and practice concerning the procedure for holding peaceful demonstrations can be found in the Court’s judgment in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 25-39, 11 April 2013).B. Relevant international material88. PACE Resolution 1346 (2003) “Honouring of obligations and commitments by Ukraine” reads in the relevant part as follows:“... 5. The Assembly recognises that legal reforms have advanced in many areas, but is preoccupied by the lack of enforcement and recalls the need for a proper implementation of existing legislation. In particular, it expresses its deep concern with the slow progress made by the Ukrainian authorities in the implementation of the principles and standards of the Council of Europe, which is demonstrated by:...5.3.  the application of disproportionate penalties to persons who participated in the political demonstration on 9 March 2001 and who are still in prison and, therefore, could be considered as political prisoners in Ukraine; ...”THE LAWI. JOINDER OF THE APPLICATIONS89. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.II. LOCUS STANDI OF THE SIXTH APPLICANT’S FATHER90. The Court notes that the sixth applicant died after lodging his application under Article 34 of the Convention (see paragraph 5 above). It is not disputed that his father is entitled to pursue the application on his behalf, and the Court sees no reason to hold otherwise (see, for example, Solomakhin v. Ukraine, no. 24429/03, § 20, 15 March 2012; Szerdahelyi v. Hungary, no. 30385/07, § 22, 17 January 2012; and Eerikäinen and Others v. Finland, no. 3514/02, § 1, 10 February 2009). However, reference will still be made to the sixth applicant throughout the ensuing text.III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION91. The first six applicants complained about their confinement in a metal cage in the courtroom during their trial and proceedings before the Court of Appeal, alleging that this amounted to treatment prohibited by Article 3 of the Convention. The second applicant also complained that he had been subjected to ill-treatment in police custody, and that his complaint in this respect had not been investigated. He also complained about the conditions of his detention in the SIZO from March 2001 to May 2003 and of a lack of adequate medical treatment for his tuberculosis from summer 2002 to June 2003. The applicants relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. The parties’ submissions1. Confinement of the first six applicants in a metal cage in the courtroom92. The Government submitted that the applicants had been held in a cage until 16 May 2003, when the Court of Appeal had delivered its ruling in their case. They had subsequently sought no compensation for the alleged violation of their rights, thereby acknowledging in the Government’s view that no effective remedy existed at the national level.

Article of the Convention at issue: Article 11
Outcome: violation