31 March 2010

FIFTH SECTION

Application no. 3547/06 by Ivan Mykhaylovych MUSHYNSKYY against Ukraine lodged on 24 December 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ivan Mykhaylovych Mushynskyy , is a Ukrainian national who was born in 1979 and is currently serving a prison sentence in Ukraine .

A. The circumstances of the case

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

1 . The applicant ’ s arrest and detention

On 29 October 2004 the applicant was arrested on suspicion of murder, robbery, and attempted murder. He remained in police custody until 17 January 2005.

The applicant alleges that during his stay in police custody between 29 and 31 October 2004 he was tortured by unspecified police officers, as a result of which he confessed to having committed the crimes of which he was suspected. In the course of his medical examination on 1 November 2004 the doctors noted a number of bruises and lesions on the applicant ’ s limbs, chest and back. No medical treatment was given to the applicant for his injuries.

The applicant maintains that he raised the matter of the alleged ill ‑ treatment by the police before the trial courts and that the courts did not respond to it.

On 1 November 2004 the applicant was taken to court; the court ordered his remand in custody pending the criminal investigation against him.

On 17 January 2005 the applicant was placed in a cell at the Kyiv Temporary Investigative Isolation Unit ( “ SIZO ”) No. 13. On 24 March 2005 he was found guilty and transferred to a cell of the highest level of security within the same SIZO, where persons sentenced to life imprisonment by a final judicial decision were held. From that day onwards the rules applicable to this latter category of detainees were applied to the applicant. In particular, his clothes were taken away from him and instead he was given special orange clothes bearing the words “life imprisonment” in large print on the front and back; at all times when leaving his cell the applicant was escorted by a special unit of guards in black uniform with masks covering their faces.

The applicant complained to the courts about the allegedly unlawful execution of his sentence. On 24 March 2006 the Shevchenkivskyy District Court refused to consider his complaint for lack of substantiation and failure to pay the court fee. The applicant did not appeal against that ruling.

On 14 December 2005 the applicant was placed in the Sokalska Correctional Colony no. 47 , in the Lviv Region (the “ Sokalska Colony”) , in which he is currently being held.

According to the applicant, the conditions of his detention in the colony are debasing. In particular, he alleges that the drinking water and food are of bad quality, that he does not receive adequate medical assistance, and that he is subjected to psychological pressure by the colony staff.

The applicant raised these allegations before the prosecutors. By letter of 23 June 2006, the deputy prosecutor responsible for supervising compliance by prison authorities with the law informed him that an inquiry had been carried out further to his allegations, but that it had not revealed any irregularities in the conditions of the applicant ’ s detention.

2. Restrictions on the applicant ’ s contacts with his family and counsel

The applicant alleges that in the course of the investigations and trial he was prohibited from corresponding by ordinary mail with his relatives and his counsel and from making telephone calls. The applicant did not raise these allegations before the authorities.

The applicant also submits that since his conviction on 24 March 2005 he has not been allowed to have long meetings with his relatives and that the duration and frequency of the short visits they are permitted to make have been considerably limited.

3 . The criminal investigation against the applicant and his trial

During his first interrogation, on 30 October 2004, the applicant was assisted by a lawyer of his own choosing. On the next day, due to the latter ’ s failure to appear, the applicant was assisted by a lawyer appointed for him by the authorities. On an unspecified date, the applicant hired a new lawyer who continued defending him during the investigation and trial. The applicant ’ s mother also took part in the proceedings in the applicant ’ s defence.

In the course of the investigation and trial, the applicant did not deny that he had committed the murders and the attempted murder of which he was suspected.

The criminal investigation in the applicant ’ s case was completed in January 2005. Subsequently, the criminal case was referred to the Kyiv Regional Court of Appeal for trial.

On 24 March 2005 the court found the applicant guilty of the aggravated murder of two persons, one of whom was a minor, and of the attempted murder of one person, with the aim of stealing the victims ’ property. The court based its judgment on the applicant ’ s statements made during the investigation and at the trial, the testimonies of a victim and six witnesses, one whom had caught the applicant at the scene of the crime, and on the conclusions of several forensic examinations, including a psychiatric examination, according to which the applicant had been aware and in control of his actions at the time of the offen c e s . The applicant was held to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property.

By the same judgment of the Court of Appeal, he was ordered to remain in detention at the Kyiv SIZO.

The applicant appealed in cas sation. He contended that he had committed the crimes in a state of unsound mind and requested an additional psychiatric examination.

In his appeal in cassation, the applicant ’ s lawyer contested the first-instance court ’ s finding that the applicant had committed the murders with the aim of stealing the victims ’ property.

On 4 August 2005 the Supreme Court upheld the judgment of 24 March 2005.

4 . The application to the Court

In December 2005 the applicant requested the Kyiv Regional Court of Appeal to provide him with copies of certain documents from his case file, including verbatim records of his interviews during the investigation, decisions concerning his detention, and various procedural decisions adopted in the course of the investigation and trial, which he intended to submit to the Court in support of his application. By letter of 19 January 2006, a judge of the Court of Appeal informed the applicant that his request was refused. The judge stated that according to the procedure before the European Court of Human Rights, the submission of the documents of which the applicant had sought copies was not required.

On an unspecified date the applicant ’ s mother, acting on his behalf, made similar requests, which were refused by the Deputy President of the Court of Appeal on 14 and 30 March 2006, on the same grounds.

B. Relevant domestic law

Article 150 of the Code on the Execution of Sentences of 2003 provides that detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security.

Pursuant to Article 151, they are placed in cells, as a rule, for two persons. Under certain circumstances, they may be placed in solitary confinement. Detainees sentenced to life imprisonment are allowed to have a one-hour daily walk and a short (up to four-hour) meeting with relatives or other persons once every six months. They are not entitled to the long meetings with relatives (up to three days every month) which detainees serving fixed-term prison sentences are allowed to have.

All detainees, including those sentenced to life imprisonment, are allowed to have four fifteen-minute telephone conversations once a year under the supervision of the prison administration; the cost of the calls is borne by the detainees (Article 110).

COMPLAINTS

The applicant complains of a violation of Article 3 of the Convention. In particular, he alleges that he was tortured by the police during his stay in police custody and that his allegations of torture were not duly examined, that the authorities did not provide him with adequate medical assistance, and that the conditions of his detention in the colony are debasing.

The applicant also complains under Article 5 § 1 (c) of the Convention that his pre-trial detention was unlawful and that he was not brought promptly before the court, within the meaning of Article 5 § 3 of the Convention.

The applicant further complains that the criminal proceedings against him were unfair. In particular, he argues that his right of defence was infringed, as the SIZO authorities prevented him from seeing his lawyer; that the principle of the presumption of innocence was not respected, given that the authorities started to enforce his sentence before his appeal in cassation was determined; and that the courts dealing with his case based their decisions on an incorrect assessment of the facts and on statements made by the applicant under duress. He invokes Article 6 §§ 1, 2, and 3 (c) and Articles 7 and 13 of the Convention.

The applicant alleges that the restrictions applied in respect of his contacts with relatives and his counsel were contrary to Article 8 of the Convention.

He submits that there was violation of Articles 13, 14, 17, and 18 of the Convention, stating that the authorities, including the courts, refused to examine his complaints about the conditions of his detention and about the allegedly unlawful execution of his sentence before the final determination of his criminal case.

Finally, the applicant complains under Article 34 of the Convention t hat 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 .

QUESTION S TO THE PARTIES

1 . Do the limitations on the duration and frequency of family visits to which the applicant is entitled during his post-conviction detention interfere with his right under Article 8 § 1 of the Convention to respect for his private and family life? If so, is that interference in accordance with the law and necessary within the meaning of Article 8 § 2?

2. Has there been any hindrance by the State in the present case of the effective exercise of the applicant ’ s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the possibility to obtain copies of documents from his case-file and to send them to the Court in order to pursue his application?