FIFTH SECTION      CASE OF GRABOVSKIY v. UKRAINE (Application no. 4442/07)         JUDGMENT  This version was rectified on 8 January 2019under Rule 81 of the Rules of Court  STRASBOURG 29 November 2018   This judgment is final but it may be subject to editorial revision. In the case of Grabovskiy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President, Mārtiņš Mits, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 6 November 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 4442/07) 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 Nikolay Aleksandrovich Grabovskiy (“the applicant”), on 18 December 2006.2. The applicant was granted leave to present his own case in accordance with Rule 36 § 2 in fine of the Rules of Court. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. The applicant complained, in particular, that he had not been provided with legal assistance in the course of criminal proceedings against him, that he had been detained in degrading conditions and that the domestic authorities had failed to provide him with copies of certain documents for his application to the Court.4. On 11 January 2011 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. On 22 June 2011 the Court invited the Government to submit observations on the admissibility and merits of the present application. On 12 September 2012 further observations were requested from the Government.5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1969 and is detained in Verona, Italy, in connection with criminal charges unrelated to the present case.A. Criminal proceedings against the applicant7. In the early morning of 22 July 2005 a sales clerk, G., was attacked in a shop in Kharkiv where she worked. She suffered multiple cuts, including a penetrating chest wound, which led to pneumothorax. She was hospitalised in an intensive-care unit.8. According to the subsequent findings of the domestic court which convicted the applicant of aggravated robbery (see paragraph 18 below), the applicant had attacked G., whom he had known previously, and seized a certain amount of cash belonging to her employer, the company that ran the shop.9. According the applicant’s account, which he maintained throughout the proceedings before the domestic courts and before this Court, G. owed him money and he had gone to the shop to collect the debt. However, G. had attacked him with scissors and, trying to defend himself, he had hit her back, seized the scissors from her and stabbed her with them. When the shop’s alarm had gone off, he had taken the money and run away.10. According to the applicant, late on 22 July 2005 he was arrested by the police and taken to a police station where he was questioned about the incident. Allegedly, his request for a lawyer was ignored.11. In a statement (объяснение) dated 22 July 2005 taken by a police officer, the applicant gave the account of events as set out in paragraph 9 above.12. On 23 July 2005 a number of reports were drawn up: (i) an arrest report according to which the applicant was arrested on suspicion of robbery; (ii) a record stating that the applicant’s procedural rights as a suspect had been explained to him, including the right to remain silent, to have a legal aid lawyer appointed and to consult him prior to the first questioning; (iii) a record stating that the applicant, having been informed of the right to legal assistance, had decided to waive it; (iv) a transcript of the applicant’s questioning as a suspect: the applicant’s account of events was as set out in paragraph 9 above.13. On 25 July 2005 the applicant was examined by a forensic medical expert. He repeated his account of the fight with the victim (see paragraph 9 above), adding that in the course of the fight the victim had hit him in the jaw with a mug. He stated that he had not been ill-treated by the police. The expert noted that the applicant had a hematoma on his jaw and a number of cuts on his right hand, and concluded that the injuries were consistent with the applicant’s account.14. According to the applicant, at the close of the pre-trial investigation and then, subsequently, in preparation for his appeal, he had not been given sufficient time to study the case file.15. On 17 October 2005, at the opening of the trial before the Kharkiv Kyivsky District Court (“the trial court”) the applicant stated that he wished to defend himself and waived his right to legal assistance. He subsequently alleged that he had been forced to do so by the police guards present in the courtroom.16. In the course of the trial the applicant repeated the account of events set out in paragraph 9 above.17. Also in the course of the trial the applicant asked the trial court to call certain witnesses, without clearly identifying them. He claimed that they could have testified to the existence of the victim’s debt to him and to his good character. The trial court refused his applications in that respect (see paragraph 19 below).18. On 18 October 2005 the trial court convicted the applicant of aggravated robbery and sentenced him to eight years’ imprisonment. The court relied on, inter alia: (i) the applicant’s admissions in the course of the trial; (ii) the victim’s court testimony, denying, in particular, having borrowed any money from the applicant, as well as her statements incriminating the applicant given in the course of a reconstruction of the crime scene and confrontation with the applicant; (iii) money and clothes with brown spots seized from the applicant on 22 July 2005;[1] (iv) testimony given by D., the applicant’s girlfriend, who denied any knowledge of the applicant having lent any money and stated, on the contrary, that he himself had been borrowing money from her; (v) the testimony of the victim’s sister and son, equally denying knowledge of any debt. The sister stated that at 7 p.m. on 22 July 2005 in the hospital, the victim had told her that she knew the attacker; (vi) the pre-trial statement of M., a sales clerk in a neighbouring shop, who had stated in the course of the pre-trial investigation that he had seen someone looking like the applicant enter the victim’s shop and then run away from it after the alarm had gone off; he had then discovered the victim injured.19. As far as the applicant’s requests to call additional witnesses were concerned, the trial court stated that he had failed to indicate the names and addresses of those individuals, whom he had supposedly informed about the debt and who could have overheard a telephone call he had had with the victim’s son in that connection. The trial court considered those allegations to be an obfuscation tactic on the part of the applicant and pointed out that his girlfriend, with whom he had lived for two years, did not know of any debt. On the contrary, she had testified that he had had no money to lend.20. On 14 November 2005 the applicant appealed to the Kharkiv Regional Court of Appeal (“the Court of Appeal”). He raised, notably, various matters concerning the assessment of the evidence. He asked the Court of Appeal to provide him with a lawyer.21. On 6 January 2006 the applicant reiterated the latter request.22. On 2 February 2006 the Vice-President of the Court of Appeal asked the regional Bar association to assign a lawyer for the applicant. There is no indication of any follow-up.23. On 20 July 2006 the Court of Appeal held a hearing in the presence of the applicant and the prosecutor, and upheld the applicant’s conviction.24. On 21 July 2006 the applicant asked the trial court to appoint a lawyer for him, for the preparation of an appeal on points of law to the Supreme Court. On 28 August 2006 the trial court replied that, as his conviction had been upheld on appeal, there were no lawful grounds for appointment of a legal aid lawyer. The applicant was free to hire such a lawyer himself.25. On 4 December 2006 the applicant lodged a handwritten appeal on points of law with the Supreme Court. He raised various matters of fact, disagreeing with the lower courts’ assessment of the evidence. He also complained that he had not been provided with a lawyer before the first police interview on 22 July 2005, had been forced to waive his right to legal assistance on 17 October 2005 under duress from the police (see paragraphs 10 and 15 above), and that the Court of Appeal had failed to appoint a lawyer for him.26. On 28 February 2007 a Supreme Court judge, sitting in private, rejected the applicant’s request for leave to appeal on points of law. The judge considered that the applicant’s appeal concerned only matters of fact and assessment of the evidence, which were not grounds for the opening of proceedings.B. The applicant’s detention27. Following his arrest, in July and August 2005 the applicant was allegedly held in a police station, a hospital and a police temporary detention facility.28. On 17 August 2005 the applicant was transferred to the Kharkiv pre‑trial detention centre (“SIZO”). According to him, he was held in a cell that had twenty-four sleeping places, with more than fifty other inmates.29. According to the Government, at the SIZO the applicant was held in the following cells:Cell no.Dates Cell area, in square metresNumber of sleeping placesSquare metres per sleeping place65717/08/05-18/08/0515.491.7114419/08/05-26/12/0571.1342.0927627/12/05-06/06/0656.3421.3425007/06/06-16/07/06no information as that cell no longer existed at the time when the Government submitted their observations276 17/07/06-28/08/0605/10/06-14/12/0656.3421.3430. On 28 August 2006 the applicant was transferred from the SIZO to Kharkiv correctional colony no. 18, where he served the rest of his sentence until being released on 3 October 2012. From 5 October to 14 December 2006 he was returned to the SIZO to enable him to study the case file in preparation for his appeal on points of law.31. On arrival at the SIZO, the applicant was examined by a doctor, who noted that he had no health problems at the time. The doctor noted, however, that in 1999 the applicant had been treated for tuberculosis, which was currently inactive. The applicant was recommended periodic courses of prophylactic treatment to prevent the reactivation of his tuberculosis, which he subsequently underwent in the course of his detention. In September 2011 he was diagnosed with the first signs of a cataract in the left eye. Glasses were prescribed and issued to him. On one occasion in October 2011 he was diagnosed with high blood pressure and was given the relevant medication. No other complaints in this respect were recorded. On several occasions in the course of his detention the applicant was treated for seasonal influenza, back pain and headaches.C. The applicant’s efforts to obtain certain documents for his application to the Court32. On 28 January 2008 the applicant’s representative engaged a lawyer practising in Kharkiv to visit him in prison and advise him on legal matters. From 6 to 18 February 2008 the lawyer examined the applicant’s criminal case file.33. In a letter to the Court of 12 December 2008, the applicant submitted that the domestic authorities were refusing to provide him with certain documents, which could prove his innocence, for his application to the Court, namely:(i)  the statement by M. and documents concerning the court’s efforts to summon that witness (see paragraph 18 (vi) above);(ii)  the statement of the victim;(iii)  documents concerning a civil claim for damages made by the shop that had been robbed;(iv)  the transcript of a particular hearing before the trial court;(v)  statements made by the applicant in the course of the investigation on 22 and 23 July 2005;(vi)  search and seizure records of 22 July 2005.The applicant added that he did have copies of the documents from the criminal case file but they were of poor quality, preventing him from sending them to the Court.34. On 23 August 2010 the Registry pointed out to the applicant that his application was incomplete and asked him to provide copies of:(i)  his first appeal;(ii)  his requests for the appointment of a legal aid lawyer;(iii)  his appeal on points of law.35. On 4 September 2010 the applicant responded by providing copies of his first appeal and his request of 6 January 2006 to the Court of Appeal that a lawyer be appointed for him (see paragraph 22 above). He added that the trial court and the Supreme Court had not provided him with the remaining documents he had requested.II. RELEVANT DOMESTIC LAW36. The relevant provisions of domestic law can be found in the following judgments:(i)  appointment of defence lawyers – Dovzhenko v. Ukraine (no. 36650/03, §§ 31 and 32, 12 January 2012);(ii)  proceedings on appeal – Karpyuk and Others v. Ukraine (nos. 30582/04 and 32152/04, §§ 82 and 83, 6 October 2015). In accordance with the domestic legal provisions summarised in that judgment, the courts of appeal had jurisdiction to review cases on matters of fact, law and sentencing;(iii)  reopening of proceedings following a judgment of the Court ‑ Rostovtsev v. Ukraine (no. 2728/16, §§ 16, 19-21, 25 July 2017). In accordance with the domestic legal provisions summarised in that judgment, a judgment of the European Court of Human Rights finding a violation of the Convention constituted grounds for review by the Supreme Court of final judicial decisions in criminal cases.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION37. The applicant complained that at the Kharkiv pre-trial detention centre (SIZO) he had been subjected to conditions of detention contrary to Article 3 of the Convention, on account primarily of overcrowding and inadequate material conditions. That provision reads:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility38. 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. Merits39. The relevant elements of the parties’ submissions are set out in paragraphs 28 and 29 above. In addition, the applicant complained that the physical conditions of his detention had been inadequate in that the cells had been infested with bugs and the food had been “disgusting”. The Government contested those allegations.40. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101 and 136-41, ECHR 2016).41. In the leading case of Melnik v. Ukraine (no. 72286/01, §§ 102, 103 and 112, 28 March 2006), the Court found a violation in respect of issues of overcrowding similar to those in the present case. A violation was also recently found in Zakshevskiy v. Ukraine (no. 7193/04, §§ 64-69, 17 March 2016) on account of overcrowding in the Kharkiv SIZO. As in the latter case (ibid., § 64), in the present case the Government failed to specify how many inmates had actually occupied the cells with the applicant (see, for another example, Aleksandr Vladimirovich Smirnov v. Ukraine, no. 69250/11, § 60, 13 March 2014). Nor did they rebut the applicant’s allegation that he had been held in severely overcrowded conditions. In fact, their submissions tend to support his allegations in that respect.42. A strong presumption of a violation of Article 3 thus arises (see Muršić, cited above, § 137) and the Government have not rebutted that presumption by showing that there were factors capable of adequately compensating for the scarce allocation of personal space.43. The above finding makes it unnecessary for the Court to address separately the applicant’s remaining allegations concerning the material conditions of his detention (see, for example, Eze v. Romania, no. 80529/13, § 61, 21 June 2016, and Igbo and Others v. Greece, no. 60042/13, § 46, 9 February 2017).II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION45. The applicant complained of a number of violations of Article 6 of the Convention, which reads, in so far as relevant:“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ......3. Everyone charged with a criminal offence has the following minimum rights:(b)  to have adequate time and facilities for the preparation of his defence;(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;...”A. Admissibility46. The Court notes that this part of the application 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. Merits1. The parties’ submissions47. Under Article 6 § 3 (b) the applicant complained that the time allowed for him to study the file in the course of the proceedings had been insufficient. Under Article 6 § 3 (c) he complained that, despite a request to that effect, he had not been provided with a lawyer prior to the police interview on 22 July 2005, that he had waived his right to a lawyer at the trial as a result of intimidation from the police, and that he had not been provided with a lawyer for the preparation of his appeal, despite his requests.48. The Government submitted that the applicant had had sufficient time to study the case file. As to the right to legal assistance, the applicant had never denied that he had attacked the victim. The domestic courts had relied on various pieces of evidence to convict him, but his pre-trial statements had not been among that evidence. The fact that the applicant had not had a lawyer in the course of the judicial proceedings had not prevented him from lodging his first appeal, which had been examined on the merits. Thus, his situation had not been affected by the absence of defence counsel.2. The Court’s assessment(a)  Relevant general principles49. The Court reiterates that the right of an accused to free legal assistance, laid down in Article 6 § 3 (c) of the Convention, is one of the elements inherent in the notion of a fair trial. That provision attaches two conditions to this right. The first is lack of “sufficient means to pay for legal assistance”, the second is that “the interests of justice” must require that such assistance be given free (see R.D. v. Poland, nos. 29692/96 and 34612/97, § 43, 18 December 2001, with further references).50. Although the manner in which Article 6 is to be applied to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that a State which does institute such courts is required to ensure that persons amenable to the law enjoy before them the fundamental guarantees of a fair trial contained in that Article, including the right to free legal assistance. In discharging that obligation, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (ibid., § 44).51. 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 guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017, with further references).52. It is inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 has the right to be notified of these rights (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 272, ECHR 2016).53. The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the general concept of a fair trial set forth in paragraph 1. The Court will, therefore, consider the applicant’s complaints under both provisions taken together (see Correia de Matos v. Portugal [GC], no. 56402/12, § 119, 4 April 2018).(b)  Application of the above principles to the present case54. There is no reason to doubt the validity of the applicant’s waivers of the right to legal assistance after he was assigned the formal status of a suspect on 23 July 2005 and at the trial (see paragraphs 12 and 15 above).55. By contrast, there was no question of waiver at the appeal stage: the applicant repeatedly asked for a lawyer to be appointed (see paragraphs 20 and 21 above).56. The fact that the Court of Appeal asked the Bar association to assign a lawyer for the applicant (see paragraph 22 above) indicates that it did not doubt that the applicant was entitled to free legal assistance and considered that he was unable to present his case on appeal. Therefore, despite the relevant simplicity of the case (compare Maxwell v. the United Kingdom, 28 October 1994, § 38, Series A no. 300‑C, and Shekhov v. Russia, no. 12440/04, § 45, 19 June 2014), the Court has no reason to doubt that the applicant could not have adequately represented himself on appeal. This demonstrates that the “interests of justice” required that a legal aid lawyer be provided to him (see R.D. v. Poland, cited above, § 49).57. However, there is no indication of any follow-up on the part of the Court of Appeal. It is a long‑established principle of the Court’s case-law that the Convention is intended to guarantee rights that are practical and effective, and not theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Ibrahim, cited above, § 272). Sending a letter without making any effort to verify whether the applicant was actually provided with a lawyer did not meet that requirement.58. The applicant was sentenced to eight years’ imprisonment and the Court of Appeal had broad powers to dispose of his appeal (see paragraph 36 (ii) above and compare Shulepov v. Russia, no. 15435/03, § 34, 26 June 2008, and Dovzhenko v. Ukraine, no. 36650/03, § 64, 12 January 2012). For the applicant, therefore, the issue at stake was an important one (see Maxwell, cited above, § 38, where a five-year sentence was considered to raise a very important issue).59. It is true that, contrary to some other cases where the Court found violations of the right to legal assistance at the appeal stage, the decision of the Court of Appeal in the present case was not final (ibid., § 38). However, the situation did not change at the stage of the appeal to the Supreme Court, where the applicant again unsuccessfully requested a lawyer (see paragraph 24 above). The Supreme Court did not examine the applicant’s appeal on the merits, considering that he had raised only matters of fact and assessment of the evidence, even though he had in fact raised a number of procedural matters, including the Court of Appeal’s failure to ensure that a lawyer be assigned for him (see paragraph 25 above).60. The Court has already found violations of Article 6 §§ 1 and 3 (c) on account of similar situations as regards the right to legal assistance at the appeal stage in Ukraine (see Maksimenko v. Ukraine, no. 39488/07, §§ 26‑32, 20 December 2011; Dovzhenko, cited above, §§ 62-65; Iglin, cited above, §§ 70-73; and Nikolayenko v. Ukraine, no. 39994/06, §§ 64-67, 15 November 2012).61. In the present case, the applicant was ultimately not represented at any stage of the proceedings. It is true that, as the Court has concluded at paragraph 54 above, from the start of the formal criminal proceedings against him on 23 July 2005 until his conviction at first instance, that lack of representation was based on valid waivers.62. However, the same cannot be said of the time when the applicant was first interviewed by the police on 22 July 2005. The case-file material indicates that, even though he was not formally a suspect until the next day, 23 July, by the end of the police interviews on 22 July, the authorities apparently already had sufficient grounds to suspect him of the attack on the victim (see, in particular, the relevant elements in the trial court’s judgment at paragraph 18 (iii) and (v) above). The police nevertheless proceeded to interview him without advising him of his right to consult a lawyer. The Court is conscious of the fact that the applicant’s statement made on that occasion played no role in his conviction and, despite the fact that it was made at an early stage of the proceedings, it does not appear that it provided the authorities with the narrative of what happened or framed the process of evidence gathering (see Artur Parkhomenko v. Ukraine, no. 40464/05, § 87, 16 February 2017, and contrast Ibrahim, cited above, § 309). Moreover, the applicant never retracted that initial account (compare Bandaletov v. Ukraine, no. 23180/06, § 67, 31 October 2013), but maintained it throughout the proceedings (compare Zherdev v. Ukraine, no. 34015/07, § 167, 27 April 2017). Be that as it may, the Court does not consider it necessary to examine in detail the impact of that statement, taken separately, on the overall fairness of the proceedings. It is sufficient for the Court to observe that that limitation of the applicant’s right to legal assistance at the early stage of the proceedings should be seen in combination with the limitation of the same right at the stage of appeal. In neither instance did the domestic authorities indicate any reasons for those limitations.63.

Outcome for Article 6: violation