FIFTH SECTION

CASE OF MUSHYNSKYY v. UKRAINE

(Application no. 3547/06)

JUDGMENT

STRASBOURG

15 September 2016

This judgment is final but it may be subject to editorial revision.

In the case of Mushynskyy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	André Potocki, President,
	Ganna Yudkivska,
	Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 23 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 3547/06) 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 Ivan Mykhaylovych Mushynskyy (“the applicant”), on 24 December 2005.
2.  The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.
3.  On 29 March 2010 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1979 and is currently serving a prison sentence in Ukraine.
Section 1.01	A.  The applicant’s arrest and detention
5.  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.
6.  The applicant alleged that during his stay in police custody between 29 and 31 October 2004 he had been tortured by unspecified police officers, as a result of which he had confessed to having committed the crimes of which he was suspected. In the course of a medical examination on 1 November 2004 the doctors noted a number of bruises and lesions on the applicant’s limbs, chest and back The applicant alleges that no medical treatment was given to him for his injuries.
7.  The applicant stated that he had subsequently brought his allegation of ill-treatment by the police before the trial courts but the courts had not responded to it. He provided no copy of his complaints.
8.  On 1 November 2004 the applicant was taken to court; the court ordered his remand in custody pending completion of the criminal investigation against him.
9.  On 17 January 2005 the applicant was placed in a cell in Kyiv Temporary Investigative Isolation Unit (“SIZO”) no. 13.
10.  On 24 March 2005, following his conviction (see paragraph 21 below), he was transferred to a high-level security cell within the same SIZO for detainees sentenced to life imprisonment by a final judicial decision. From that day onwards the rules applicable to this latter category of detainees had also been 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; when leaving his cell the applicant had at all times been escorted by a special unit of guards in black uniforms with masks covering their faces.
11.  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.
12.  On 14 December 2005 the applicant was placed in Sokalska Correctional Colony no. 47 (the “Sokalska Colony”). In March 2012 the applicant was transferred to the SIZO in Lviv, which was later reorganised as a detention centre for convicted prisoners.
13.  According to the applicant, the conditions of his detention in the colony were debasing. In particular, he alleged that the drinking water and food had been of poor quality, that he had not received adequate medical assistance and that he had been subjected to psychological pressure by the colony staff.
14.  The applicant raised those allegations before the prosecutors. On 23 June 2006, the deputy prosecutor responsible for supervising prison authorities’ compliance with the law informed him by letter that an inquiry had been carried out into his allegations but that it had not revealed any irregularities in his conditions of detention. According to the medical information submitted by the applicant, while in detention he had been medically examined and had been given the necessary treatment.
Section 1.02	B.  Restrictions on the applicant’s contact with his family and counsel
15.  The applicant alleged that in the course of the investigations and the trial he had been prohibited from corresponding by ordinary mail with his relatives and his counsel and from making telephone calls. The applicant did not raise those allegations before the authorities.
16.  Between 24 March and 4 August 2005 the applicant had four one‑hour visits from his mother and father.
17.  The applicant stated, in general terms, that following his conviction on 24 March 2005 he had not been allowed to have long meetings with his relatives and that the duration and frequency of the short visits they had been permitted to make had been considerably limited. He provided no further details in that regard.
Section 1.03	C.  The criminal investigation against the applicant and his trial
18.  During his first interrogation, on 30 October 2004, the applicant had the assistance of a lawyer of his own choosing. 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 to defend him during the investigation and trial. The applicant’s mother also took part in the proceedings as the applicant’s representative.
19.  In the course of the investigation and trial, the applicant admitted that he had committed the murders and the attempted murder of which he was suspected.
20.  The criminal investigation of the applicant’s case was completed in January 2005. Subsequently, the criminal case was referred to the Kyiv Regional Court of Appeal for trial.
21.  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 another person, with the aim of stealing the victims’ property. The court based its judgment on statements made by the applicant during the investigation and at the trial, the testimonies of one of the victims and six witnesses – one of whom had caught the applicant at the scene of the crime − and the conclusions of several forensic examinations, including a psychiatric examination which found that the applicant had been aware and in control of his actions at the time of the offences. The applicant was held to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property.
22.  The same judgment ordered his continuing detention in the Kyiv SIZO.
23.  The applicant lodged an appeal. He contended that he had committed the crimes whilst of unsound mind and requested an additional psychiatric examination.
24.  In his appeal, 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.
25.  On 4 August 2005 the Supreme Court upheld the judgment of 24 March 2005 and it accordingly entered into force on that date.
Section 1.04	D.  The application to the Court
26.  In December 2005 the applicant requested that the Kyiv Regional Court of Appeal provide him with copies of certain documents from his case file, including the verbatim records of his questioning during the investigation, the decisions concerning his detention, and various procedural decisions taken in the course of the investigation and trial, which he intended to submit to the Court in support of his application. In a letter dated 19 January 2006, a Court of Appeal judge informed the applicant that his request had been refused, pointing out that the procedure governing applications to the European Court of Human Rights did not require the submission of the documents of which the applicant had sought copies.
27.  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.
Article II.	II.  RELEVANT DOMESTIC LAW
28.  The principal domestic regulations concerning family visits to detainees prior to the entry into force of their conviction were quoted most recently in Yaroshovets and Others v. Ukraine (nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 57, 58 and 61, 3 December 2015). Those concerning family visits to prisoners serving prison sentences after their conviction has become final were quoted in Trosin v. Ukraine (no. 39758/05, §§ 26‑27, 23 February 2012).
THE LAW
Article III.	I.  SCOPE OF THE CASE
29.  The Court notes that, after the case had already been communicated to the respondent Government, the applicant lodged new complaints. In particular, in his submissions dated 1 September 2010 the applicant complained under Articles 8 and 14 of the Convention about the allegedly discriminatory gender-related differences in the limitations applicable to detainees sentenced to life imprisonment. In his submissions of 30 August 2013, he complained under Articles 3, 13 and 34 of the Convention and Article 1 of Protocol No. 1 that he had been subjected to inhuman treatment during his transfer from the Sokalska Colony to the SIZO in Lviv in March 2012.
30.  In the Court’s view, the applicant’s new complaints constitute more than a mere expansion of his original complaints to the Court, on which the parties have commented. The Court considers, therefore, that it is not appropriate to take these matters up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
31.  The applicant complained that the restrictions applied in respect of contact with his relatives and his counsel during his detention had been contrary to Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
32.  The Government contended that the applicant had received as many visits as he had requested and that the duration of the visits had been in accordance with the law. Generally, the Government argued that the restrictions on the family visits in question had been lawful and had pursued the legitimate aim of ensuring security and public safety and preventing crime. Given that the applicant had been sentenced to life imprisonment, the restrictions had been justified.
33.  The applicant maintained his complaints.
34.  The Court notes that the applicant’s submissions as regards this part of the case are lacking certain important details. In particular, he mentioned no specific dates or circumstances in respect of his allegation of restrictions on contact with his relatives and his defence counsel in the course of the investigations and trial. Nor did he submit any evidence showing that he had raised those complaints before the domestic authorities.
35.  In so far as his complaints concern his post-conviction detention, that is to say from 24 March 2005 onwards, the Court notes that the different restrictions on the number and duration of family visits which an applicant could request were provided for by the domestic law at the material time (see paragraph 28 above). The applicant received a number of visits from his parents before his conviction entered into force (see paragraph 16 above). He did not allege that he had requested more visits or visits of longer duration during that period. The applicant provided no details at all as regards family visits during the period after his conviction had entered into force on 5 August 2005. On a general level, he failed to demonstrate that the restrictions on family visits imposed by the law had adversely affected his ability to have meetings with his close relatives as often as he had wished (see, mutatis mutandis, Zinchenko v. Ukraine, no. 63763/11, §§ 100-01, 13 March 2014; by contrast, Shalimov v. Ukraine, no. 20808/02, § 88, 4 March 2010; and Trosin, cited above, §§ 45-46). In those circumstances, the Court does not consider it necessary to examine in abstracto whether the domestic regulations limiting the number of family visits, as applicable in the applicant’s case, satisfied the requirements of Article 8 of the Convection (see Yaroshovets and Others, cited above, § 175). It finds that this part of the case should be rejected as manifestly ill‑founded, in accordance with Article 35 §§3 (a) and 4 of the Convention.
Article V.	III.  ALLEGED INTERFERENCE WITH THE APPLICANT’S RIGHT OF INDIVIDUAL APPLICATION
36.  The applicant complained that the authorities had obstructed his access to the criminal case file and had refused to provide him with copies of the documents he had requested to substantiate his application to the Court. He relied on Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
37.  The Government stated that there had been no hindrance of the effective exercise by the applicant of his right of individual application. They argued that he had obtained copies of a number of the principal decisions in his case and that he could have made copies of other necessary documents when familiarising himself with the case file, that is to say prior to the completion of the criminal proceedings in his case. They also argued that the applicant’s mother, who had been at liberty, could have helped him to obtain the necessary copies and that the applicant had been entitled to legal assistance whilst serving his sentence, of which he had not availed himself.
38.  The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine (see, among others, Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 103-110, 26 July 2012, with further references; Savitskyy v. Ukraine, no. 38773/05, §§ 152, 157-159, 26 July 2012; Korostylyov v. Ukraine, no. 33643/03, §§ 46-50, 13 June 2013; and Andrey Zakharov v. Ukraine, no. 26581/06, §§ 66-70, 7 January 2016). In particular, in the case of Vasiliy Ivashchenko (cited above, § 123) the Court found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case-file documents after the completion of criminal proceedings, either by making such copies themselves (whether by hand or using appropriate equipment) or by having the authorities make copies for them.
39.  In the present case, the Government did not put forward any reason for the Court to depart from its findings under Article 34 of the Convention in the case of Vasiliy Ivashchenko or other cases cited above. Accordingly, the Court concludes that the respondent State failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicant in order to make possible the proper and effective examination of his application by the Court.
Article VI.	IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40.  The applicant also complained of a violation of Article 3 of the Convention, alleging that he had been tortured by the police during his detention and that his allegations of torture had not been duly examined, that the authorities had not provided him with adequate medical assistance, and that the conditions of his detention in the colony had been debasing.
41.  The applicant further complained under Article 5 § 1 (c) of the Convention that his pre-trial detention had been unlawful and that he had not been brought promptly before the court, within the meaning of Article 5 § 3 of the Convention.
42.  The applicant complained that the criminal proceedings against him had been unfair. In particular, he argued that his right to mount a defence had been infringed in that the SIZO authorities had prevented him from seeing his lawyer, that the principle of the presumption of innocence had not been respected, given that the authorities had started to enforce his sentence before his appeal had been determined, and that the courts dealing with his case had based their decisions on an incorrect assessment of the facts and on statements made by the applicant under duress. He relied on Article 6 §§ 1, 2, and 3 (c) and Articles 7 and 13 of the Convention in that regard.
43.  Lastly, the applicant submitted that there had been a violation of Articles 13, 14, 17, and 18 of the Convention, stating that the authorities, including the courts, had refused to examine his complaints about the conditions of his detention and the allegedly unlawful execution of his sentence before the criminal case had been finally decided.
44.  The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article VII.	V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 7.01	A.  Damage
46.  The applicant sought compensation for non-pecuniary damage, but did not indicate a specific sum.
47.  The Government argued that there were no grounds for awarding the applicant any sum in this regard.
48.  The Court finds that the applicant must have suffered non-pecuniary damage as a result of Ukraine’s failure to comply with its obligation under Article 34 of the Convention. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (see Andrey Zakharov v. Ukraine, cited above, § 75).
Section 7.02	B.  Costs and expenses
49.  The applicant did not submit a claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the applicant’s complaints under Articles 3, 5, 6, 7, 8, 13, 14, 17 and 18 of the Convention inadmissible;

2.  Holds that Ukraine has failed to comply with its obligations under Article 34 of the Convention to furnish all necessary facilities to the applicant in order to make possible a proper and effective examination of his application by the Court;

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
Done in English, and notified in writing on 15 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	André Potocki
	Deputy Registrar	President