Communicated on 5 August 2014

FIFTH SECTION

Application no. 34590/06 Vladimir Aleksandrovich MATYUSHONOK against Ukraine lodged on 1 August 2006

STATEMENT OF FACTS

The applicant, Mr Vladimir Aleksandrovich Matyushonok , is a Ukrainian national who was born in 1985 and is currently serving a life sentence in Prison no. 39 .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 19 September 2003 the Ukrainian authorities instituted a criminal investigation into a murder of two persons. In the context of these proceedings, the applicant was arrested in Belarus on 15 October 2003 and transported to Ukraine. His detention on remand was ordered in his absence; a copy of the order was not served on the applicant. It appears that he did not have access to the investigation file and that he was questioned in the absence of a defence lawyer.

By a judgment of 31 May 2005 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) found the applicant and his three co-accused guilty of aggravated murder of two persons and of other crimes, and sentenced them to life imprisonment ordering confiscation of all their property. The court also awarded compensation to a victim to be paid jointly by the accused.

The applicant, his three co-accused and their lawyers appealed. It appears from the cassation appeals of the applicant and his lawyer that they challenged the severity of the applicant ’ s punishment, having admitting the lawfulness of the trial court ’ s conclusions as to the applicant ’ s guilt. According to the applicant, during the proceedings he additionally filed a number of requests to the Supreme Court asking ( i ) to provide him with access to the case-file, (ii) to arrange interpretation of the proceedings from the Ukrainian into Russian as he did not understand the former, and (iii) to provide him legal assistance at the hearing before it, given the severity of his sentence.

On 9 February 2006 the Supreme Court, having examined the case in the presence of the prosecutor, all four co-accused and a defence lawyer of one of them, reduced the sentences for two co-accused of the applicant to fifteen years ’ imprisonment and ordered the confiscation of all their property. It upheld the remainder of the judgment. The applicant was unrepresented at the hearing.

On 24 October 2007 the Supreme Court of Ukraine allowed the prosecutor ’ s request for review of the case under exceptional circumstances and deleted one of the crimes for which the applicant and his co-accused had been convicted from the operative part of the judgment; the sentences were not affected.

2. Conditions of the applicant ’ s detention

After being apprehended on 15 October 2003 in Belarus and prior to his imprisonment, the applicant was detained in several institutions ( temporary detention centres , pre-trial detention centres (“the SIZOs”) in Chernigiv , Simferopol, Vinnytsya , Dnipropetrovsk and Kyiv, a psychiatric hospital, etc.).

a. Kyiv SIZO no. 13 from 27 October 2005 to 14 February 2006

On 27 October 2005 t he applicant was transported to the Kyiv SIZO in order to take part in the proceedings before the Supreme Court of Ukraine. Having arrived at 9.00 am, he was put, according to him, into a reception cell measuring 1.20x1.50 m, called by him “box”, pending arrangement of his further detention. He remained there until 5.00 pm, being handcuffed behind his back and not being allowed any toilet visits during the whole period.

After being transferred to a normal cell which he shared with two other persons, he was not provided with bedclothes for the first night. As his cellmates refused sometimes to leave the cell for a walk, the applicant was not allowed to go for a walk either because walks were taken in groups and not individually. The applicant ’ s cellmates were heavy smokers and the applicant was forced to become a passive smoker . His requests to be transferred to another cell were ignored by the SIZO authorities.

The cell had no ventilation and daylight because the windows had thick glass in them and, additionally, were fitted on the outside with shutters made of steel plates with small holes in them; the artificial light was not sufficient. The toilet was not separated from the living area and, therefore, a person using the toilet was in the view of his cellmates. The cell was not equipped with a table and chairs, so the detainees could not have a meal conveniently or study their case-files and write. The cell was not sufficiently heated during the winter period. As an example, the applicant submits that water in a cup on the window sill froze.

As to the medical services, the applicant alleges that almost all his requests to be consulted by, inter alia , ophthalmologist were ignored by the SIZO authorities.

b. Transportation to and detention in Dnipropetrovsk SIZO no. 3 from 14 to 19 February 2006

During his transportation to the Dnipropetrovsk SIZO the applicant was handcuffed behind his back, making his arms swollen and numb. His requests to take off the handcuffs or to have his hands cuffed in front of him were disregarded by the convoy officers.

Upon his arrival in Dnipropetrovsk SIZO, the applicant was not examined by physicians notwithstanding his complaints concerning pain in his arms.

c. Dnipropetrovsk SIZO no. 3 from 3 to 24 February 2007

According to the applicant, he was put in a cell without daylight. The water supply to the cell was limited in revenge for his numerous complaints about the Dnipropetrovsk SIZO. In the same vein, the authorities installed a video-camera in his cell and, as there were women among surveillance officers, the applicant felt it degrading. The SIZO authorities also routinely searched his cell dispersing his personal effects and documents.

The applicant ’ s requests for medical assistance, in particular for his eye problems were disregarded by the SIZO staff.

d. Transportation to and detention in Vinnytsya SIZO no. 1 from 8 to 16 March 2007

When transported to the Vinnytsya SIZO, the applicant had a meal on 8 March 2007 at 6.50 am. He did not eat until the next day at 12.30 pm. According to him, the convoy officers also disregarded his requests to give him drinking water.

Upon his arrival in the Vinnytsya SIZO at 6.10 pm the applicant remained handcuffed behind his back until the next morning.

Cell no. 26, in which the applicant was detained, had wet walls, ceiling and floor, insufficient artificial light and lacked the daylight and ventilation at all. The cell was heated insufficiently and the applicant had to sleep dressed. The cell also lacked basic furniture (table, chairs and cupboards) and the toilet was not separated from the living space. The only bedclothes were a mattress and a pillow.

e. Ladyhzynska Prison no. 39 from 16 March 2007 till now

Cell no. 29, in which the applicant was detained from 16 March to 26 November 2007, lacked proper ventilation, daylight and artificial light. Furniture (bed, table and chairs) was made of iron and that caused inconveniences to the applicant. According to the applicant, he and other prisoners made contributions from their own money for renovation of their cells. No personal-care items (e.g. toilet paper, soap, shaving accessories, razors, shaving and after-shave cream, toothpaste and toothbrush, shampoo) and other hygienic products (laundry and dishwashing detergents, cleansers), stationery, were provided by the authorities. The prisoners had to purchase them at their own expense. The food provided was of poor quality and stank.

The prisoners were not allowed to stay in bed beyond the period between 10.00 pm and 6.00 am, even if they were sick, or they would be beaten by the guards.

During the periods from 7 to 19 August 2008 and from 9 June to 16 September 2009 the applicant shared the cell with persons infected with tuberculosis.

According to the applicant, no proper medical care was provided in the prison and medical officers tested medicines on him, damaging his health. According to extract from the applicant ’ s out-patient medical record issued by the prison medical officer on 27 May 2009, the applicant periodically requested medical care and received relevant treatment. In particular, on 19 March 2007, upon his arrival in the prison, he underwent a general medical examination and was diagnosed with a light myopia. Later, he was also diagnosed with acute rhinitis and on several occasions with cardiac neurosis. On that account, a number of medicines were prescribed (for example, validol , nitroglycerine, corvalol , naphthazoline nitrate and many others), herbal remedies, vitamins, etc.

On 11 September, 26 October, 6 and 9 November 2009 and 8 January 2010 respectively, the applicant requested dental treatment. However, according to him, he was refused as there was no money on his account and in such situation no dental treatment was available, except for teeth extraction.

Since 4 December 2009 the applicant has been detained in cell no. 13 measuring seven square metres . He shares it with another inmate who is the heavy smoker. The toilet is not separated from the rest of the area and, therefore, a person using the toilet is in the view of his cellmate. One prison uniform is given for the whole year and it is too cold for winter and too hot for summer. In winter, it is very cold in the cell and the applicant has to sleep totally dressed to keep warm. The food is of very poor quality and smells badly.

3. Ill-treatment of the applicant and the subsequent investigations

a. Dnipropetrovsk SIZO

According to the applicant, during his stays in the Dnipropetrovsk SIZO he was subject to ill-treatment by the SIZO staff. In particular, upon his arrival in the SIZO in 2004 he was ill-treated in order to extract confessions. In particular, he was placed to the “torture room” for the whole night where he was beaten up, strangled with a plastic bag, and his joints were twisted until he lost consciousness. In October 2005 the applicant was beaten up and placed in solitary confinement for relieving himself in a reception cell after he had been refused to be taken out to the toilet. In February 2006 and February 2007, the applicant was subject to inhuman treatment which mainly consisted of poor conditions of detention and psychological pressure upon him.

On numerous occasions the applicant complained to different State authorities, including the prosecutor ’ s office, about his ill-treatment. No copies of the complaints are available and it is therefore unclear what particular account of ill-treatment had been complaint of by the applicant.

On 18 July 2006, 30 March and 6 November 2007 the prosecutors refused to institute criminal proceedings as no instances of ill-treatment had been established in the course of the preliminary inquiries or the complaints raised by the applicant lacked details and, accordingly, were not sufficient to initiate an inquiry (no copies of the resolutions are available). On unspecified date, t he applicant challenged the resolutions of 30 March and 6 November 2007 to the Ladyzhyn Town Court which on 29 January 2008 declined its jurisdiction, finding that a court in Dnipropetrovsk was the proper forum for the applicant ’ s complaints. Information on further progress in these proceedings, if any, is not available.

b. Kyiv SIZO

According to the applicant, on a number of occasions during the period from 27 October 2005 to 14 February 2006 he was subject to beatings and moral pressure by the SIZO staff, for example, when he requested to be taken out for a walk separately from his cellmates who did not wish to go out.

On an unspecified date, the applicant complained to the Kyiv prosecutors ’ office about ill-treatment by the Kyiv SIZO officials and of his conditions of detention (no copy of the complaint is available). In a letter of 7 July 2006 the applicant was informed about the prosecutor ’ s refusal to institute criminal proceedings. It was noted that no evidence of ill-treatment had been found in the course of preliminary inquiry. The applicant challenged this reply before the Office of the Prosecutor General. This complaint was apparently considered by the Penitentiary Department and dismissed on 31 August 2006 as no account of ill-treatment had been established by an inquiry.

On 20 March 2007 the prosecutor, having held a preliminary inquiry upon another complaint of the applicant ’ s (no copy of the complaint is available), refused to institute criminal proceedings against the relevant officials of the Kyiv SIZO. The applicant was informed about this refusal by a simple letter; no details were mentioned in this letter and no copy of the decision to refuse was attached. The applicant further requested the prosecutor to provide him with the copy of the decision. Having obtained the requested copy, the applicant challenged the prosecutor ’ s decision before the domestic courts. On 20 November 2007 the Pechersky District Court of Kyiv found that the applicant had missed the seven-day time-limit which started to run upon the reception of the letter informing him of the refusal. On 21 May 2008 and 31 March 2009 the Kyiv City Court of Appeal and the Supreme Court of Ukraine respectively upheld that decision.

c. Ladyhzynska Prison no. 39

From the arrival in the prison on 16 March 2007 and until the present, the applicant has allegedly been subjected to ill-treatment by the prison staff. He says that he was beaten up on 16 and 21 March, 25 May, 28 June and 8 August 2007 as well as on a number of occasions in 2008, on 24 April and 27 May 2010. According to the applicant, all his requests for forensic medical examinations following the beatings were rejected. He also states that during his daily walks a guard dog was set on him for training purposes and that his complaints in this respect were ignored by the prison authorities.

On 14 May 2007 the applicant complained for the first time (orally) about his ill-treatment to the prosecutor visiting the prison but to no avail. On 8 December 2007, 3 June and 15 August 2008, 23 December 2009, 4 May and 9 June 2010 the applicant complained again, either orally or in writing, to the prosecutor. However, no response was given to those complaints. The applicant also drew up written complaints to other state authorities, but prison officials allegedly did not send them out.

On 15 March 2010 he filed a complaint with the Ombudsman about his ill-treatment in prison, poor material conditions of detention, the prison authorities ’ failure to send out his correspondence at the prison ’ s expense, and the prosecutor ’ s failure to carry out effective investigations upon prisoners ’ complaints. This complaint was transferred to the prosecutor ’ s office which, on 28 April 2010, replied that his allegations had not proved to be truthful noting, inter alia, that the applicant had not reported any bodily injuries to the medical unit of the prison.

On 28 April 2010 the applicant made another complaint to the prosecutor about his ill-treatment in prison in 2007-2008, following which forensic medical examination of the applicant was ordered and carried out on 9 and 10 June 2010. A number of injuries (multiple scars on the abdomen, arms and legs as aftereffects of stab and contused wounds) were revealed on his body. According to the expert ’ s conclusion, all these injuries were rather old and it was not possible to establish the date of their infliction. As regards their gravity, the majority of these injuries were of light character. As for a stab wound of the left shoulder, the expert concluded that it was not possible to define the level of gravity, as there had been no information available regarding the mode of damage of the tissue and blood vessels. It was also noted in the report that the applicant stated that he had no chances to be examined earlier as the authorities had disregarded all his ill-treatment complaints.

The applicant disagreed with the expert ’ s conclusion and submitted the relevant submissions to the prosecutors ’ office. No information on the outcome, if any, of the prosecutor ’ s investigation into his ill-treatment complaint of 28 April 2010 is available. The applicant was allegedly not provided with any resolution of the prosecutor.

4. Applicant ’ s requests for access to the case file

On a number of occasions, the applicant requested the domestic authorities to grant him access to the case file and to provide him with copies of certain documents, which he was requested to adduce by the Court ’ s Registry or which he intended on his own to submit to the Court in support of his application . The authorities rejected his requests, having stated that all necessary documents had been served on him in the course of the criminal proceedings against him and that the Ukrainian legal system did not enable prisoners to have access to the case file and obtain copies of case documents after the conviction had become final and the proceedings had been completed.

5. Applicant ’ s correspondence

According to the applicant, the prison administration refused (for example on 12 March 2010) to send his correspondence to the Court and to State bodies at the prison ’ s expense when the applicant had no money to send it at his own expense.

On several occasions, the prison authorities refused to provide the applicant with the bills from the post office to confirm sending of his letters to the Court (for example, letters of 12 May 2011, 27 January 2011 and 7 November 2011) or to the state authorities (for example, letters of 10 August 2007 and 27 January 2011 to Ombudsman, 23 February 2011 to the prosecutor, 27 July 2007 and 24 February 2011 to the Prosecutor General, and 15 March 2011 to the Government Agent before the Court) that made the applicant concluding that these letters had not been sent out.

The correspondence to the Court was often sent out with a delay from 2 to 25 days after the applicant had submitted it to the prison administration.

The Court ’ s letters to the applicant dated 14 February and 12 October 2007, 1 February 2008 and 1 April 2010 were handed to him in opened envelopes.

The applicant states that the prison authorities monitored his correspondence as they were aware of the content of his submissions to the Court and to the State bodies and he was permanently intimidated by prison officers and prosecutors for the complaints lodged (for example, during a meeting with the prison governor on 15 March 2011).

On a number of occasions, the applicant complained to the prosecutor and to other State bodies about the interference with his right to correspondence but to no avail.

B. Relevant domestic law

The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, §§ 32 ‑ 33).

The relevant provisions of the domestic law on prisoners ’ correspondence are set out in Chaykovskiy v. Ukraine (no. 2295/06 , §§ 37 ‑ 40, 15 October 2009),

As regards access to the criminal case file and to copies of the case documents see Vasiliy Ivashchenko v. Ukraine ( no. 760/03 , § 123, 26 July 2012) and Naydyon v. Ukraine (no. 16474/03, §§ 64-69, 14 October 2010 .

According to sections 44 and 45 of the Code of Criminal Procedure the participation of defence counsel in the pre-trial investigation and the proceedings before a court of first instance is obligatory if, inter alia , a life sentence is the possible penalty. In the appeal proceedings such participation is not obligatory unless the appealing party applies for the situation of the convicted or exonerated person to be worsened.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his detention on remand and after conviction and that there was no effective investigation into his complaints in that regards. He also complains about the conditions of his detention and transportation.

2. Relying on Article 6 of the Convention, the applicant challenges the fairness of the proceedings in his criminal case in that he was not represented by a lawyer during the hearing before the Supreme Court of Ukraine .

3. The applicant further alleges under Articles 10 and 34 of the Convention that his correspondence with the Court and the domestic authorities was monitored by the prison administration and that some of his letters were not forwarded at all or were sent out with delay. He also states that the authorities obstructed his access to the criminal case file and refused to provide him with copies of the documents he had requested to substantiate his application to the Court.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment in the Dnipropetrovsk and Kyiv SIZOs as well as in Prison no. 39 in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation undertaken by the domestic authorities into the applicant ’ s allegation of ill-treatment in breach of Article 3 of the Convention?

3. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, were the general conditions of the applicant ’ s detention in the Dnipropetrovsk, Vinnytsya and Kyiv Pre-Trial Detention Centres and in Prison no. 39, as well as conditions of his transportation to/from the establishments, compatible with Article 3 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints about conditions of detention, as required by Article 13 of the Convention?

5. Was the applicant ’ s right to legal assistance within the meaning of Article 6 § 3 (c) of the Convention, taken in conjunction with Article 6 § 1 of the Convention, respected in the proceedings before the Supreme Court? In particular, did the interests of justice require that the applicant had legal assistance during those proceedings?

6. Was there a violation of the applicant ’ s right to respect for his correspondence, contrary to Article 8 of the Convention?

7. Was there any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have a possibility to access his case file, to obtain copies of the documents from it and to send letters to the Court in order to pursue his present application?

The Government are requested to submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant, as well as copies of all relevant documents, including but not limited to:

- the applicant ’ s complaints regarding his alleged ill-treatment;

- all relevant medical reports;

- the relevant decisions of the prosecutors and the courts.