FOURTH SECTION        CASE OF MALOV v. UKRAINE (Application no. 55876/08)        JUDGMENT       STRASBOURG 18 December 2018   This judgment is final but it may be subject to editorial revision.In the case of Malov v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President, Carlo Ranzoni, Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 27 November 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 55876/08) 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 Yevgeniy Ivanovich Malov (“the applicant”), on 31 October 2008.2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. 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 application.4. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government’s objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018, and Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1950 and, at the time of the last communication from him to the Court, was detained in Torez Correctional Colony.A. Criminal proceedings against the applicant6. The applicant, represented by a lawyer, stood trial before the Kerch Court on charges of engaging in sexual intercourse with his stepdaughter, A. (born in 1999), over the period between March 2006 and April 2007. The applicant denied the charges, asserting that he may have broken A.’s hymen by accident while bathing her.7. On 27 July 2007 the trial court found the applicant guilty of rape and sentenced him to eleven years’ imprisonment.8. The judgment was based, in particular, on(i) the victim’s statements made at the pre-trial stage;(ii) the statements of a number of witnesses (comprising nannies, a classmate and a psychologist) made during the court hearings, who had reported incriminating statements that A. had made to them. Witness K. had testified that, in the relevant period, she had had sexual relations with the applicant;(iii) the conclusions of experts who had examined the applicant and the victim. The experts had concluded that the victim’s hymen had been broken and it was unlikely that that had been caused by unintentional actions; the victim and the applicant both had a fungal infection on their genitalia; the examination of the applicant’s genitalia had not revealed any obstacle to his having sexual relations; the victim suffered from a light mental retardation and the applicant did not suffer from any psychiatric illness.According to the applicant, the trial court had refused to order an additional expert examination to determine whether, because of any disease of his “internal sexual organs”, he had been unable to engage in normal sexual intercourse at the relevant time.9. On 11 September 2007 the Crimea Court of Appeal upheld the applicant’s conviction.10. The applicant lodged an appeal in cassation with the Supreme Court. He argued that there had been insufficient evidence of his guilt. The appeal contained the following statement:“The court’s conclusion as to my guilt is based only on indirect evidence and on the statement of a minor [A.], made in the course of the pre-trial investigation and who, according to a psychiatric expert’s analysis, was suffering from mental retardation” (Вывод суда о моей виновности сделан судом только на основании косвенных доказательств, а так же [sic] на показаниях малолетней [A.], которые она дала на досудебном следствии, и которая, согласно заключению судебно-психиатрической экспертизы, страдает умственной отсталостью).11. The applicant submitted that the breaking of A.’s hymen was explained by the fact that he had accidentally penetrated her with his finger while bathing her. However, even if such a penetration had been intentional, it would not have constituted the offence of rape.12. The applicant further complained of the trial court’s refusal to order an additional expert examination to determine whether he had any diseases of his “internal sexual organs” which would have prevented him from sustaining an erection and engaging in sexual intercourse.13. The applicant asked the Supreme Court to reclassify his actions as “abuse of a minor” (розбещення неповнолітніх), a lesser offence than rape, and to impose a non-custodial sentence.14. On 9 June 2008 the Supreme Court refused to consider the case in cassation and upheld the lower courts’ findings.B. The applicant’s efforts to obtain copies of documents for his application to the Court15. On 27 November 2008 the Court’s Registry asked the applicant to provide copies of his appeal, his appeal in cassation and the decision of the Supreme Court in his case, to supplement his application.16.

Outcome for Article 34: violation