CASE OF MUSHYNSKYY v. UKRAINE
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
André Potocki;Ganna Yudkivska;Síofra O’Leary
4. The applicant was born in 1979 and is currently serving a prison sentence in Ukraine. 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. 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 onehour 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. 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. 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.