FIFTH SECTIONCASE OF MATYUSHONOK v. UKRAINE(Application no. 34590/06)     JUDGMENT STRASBOURG11 July 2024      This judgment is final but it may be subject to editorial revision. In the case of Matyushonok v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lado Chanturia, President, Stéphanie Mourou-Vikström, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 34590/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 August 2006 by a Ukrainian national, Mr Vladimir Aleksandrovich Matyushonok (“the applicant”), who was born in 1985 and is currently in detention in Gubnik, had been granted legal aid and was represented by Ms O. Ashchenko and Ms N. Okhotnikova, lawyers practising in Kharkiv, and subsequently by Mr O. Ovchynnykov, a lawyer practising in Strasbourg;the decision to give notice of the complaints under Articles 3, 6, 8, 13 and 34 to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, of the Ministry of Justice, and to declare the remainder of the application inadmissible;the Court’s decision to adjourn the proceedings sine die after 2014 based on the Government’s statement that they did not have access to the applicant’s criminal case file, which had remained in Crimea after its unlawful occupation by the Russian Federation in 2014;the Court’s decision, taken on 7 June 2023 in view of the age of the case, to resume the proceedings and to invite the parties to submit their amended observations, if any;the parties’ observations;Having deliberated in private on 20 June 2024,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns the applicant’s allegations of his systematic ill‑treatment in detention and the lack of an effective investigation in that respect (the relevant factual details are outlined in the appended table). It also concerns the alleged unfairness of the applicant’s trial on account of the excessively severe sentence imposed by the Supreme Court in the absence of the applicant’s lawyer. It raises issues under Articles 3 and 6 of the Convention.2. By a judgment of 31 May 2005, the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”), sitting as a court of first instance, found the applicant and three other persons guilty of two counts of premeditated murder committed as part of a group, and of a related offence. They were sentenced to life imprisonment, all their property was confiscated and they were ordered jointly to pay compensation to the victims.3. The applicant, his lawyer and the applicant’s mother, who had acted as her son’s representative, lodged an appeal, challenging the severity of the sentence and requesting that the applicant’s sincere remorse, his age and other circumstances be taken into account and that his life sentence be replaced by a fixed term of imprisonment. The applicant’s co-defendants, M., G. and M.‑M., also appealed against the judgment of 31 May 2005. M. and M.-M. acknowledged their guilt and requested that life imprisonment be replaced with a fixed-term sentence, whereas G. denied his guilt and requested that the case be remitted to the first-instance court for a new trial. The prosecutor also requested that the Supreme Court commute the life sentences of all the defendants to fixed-term sentences. The prosecutor referred to their age and character references, and also noted that the defendants had no previous criminal record; that G. had a dependent child and that he and M. had not fully participated in the crimes as planned but rather had stepped back; and that the applicant, M. and M.-M. had pleaded guilty and had expressed sincere remorse.4. On 9 February 2006 the Supreme Court examined the case in the presence of the prosecutor, the applicant, his co-defendants and G.’s lawyer. In a judgment of the same day, the Supreme Court upheld the substance of the Court of Appeal’s judgment of 31 May 2005. With regard to the question of sentencing, the Supreme Court, after listing the relevant factors mentioned in paragraph 3 above, found it justified in the circumstances of the case to reduce the sentences of G. and M. to fifteen years’ imprisonment. This judgment became final.THE COURT’S ASSESSMENTALLEGED ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.6. The general principles concerning the prohibition of ill-treatment and the obligation to carry out an effective investigation of such allegations have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81‑90 and 100-01, ECHR 2015).7. Reviewing the present complaint in the light of the above-mentioned principles, the Court considers that the domestic investigation did not reflect a serious effort to verify the applicant’s allegations of ill-treatment. It notes that the applicant’s allegations were examined exclusively by way of pre‑investigation inquiries. The Court has held that such investigative procedures do not comply with the principles of an effective remedy, because an inquiring officer can only take a limited number of steps and a victim has no formal status, meaning that his or her effective participation in the procedure is excluded (see Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, with further references). The inquiries in the applicant’s case were essentially limited to questioning the staff of the detention facilities, whose statements were taken at face value, and studying the prisons’ logbooks. Neither the applicant nor the witnesses identified by him were questioned. The Court further notes that while the medical units’ refusals to register his injuries constituted a part of the applicant’s complaints, the absence of such registered injuries was repeatedly referred to by the authorities as grounds to reject the applicant’s allegations of ill‑treatment owing to a lack of evidence.8. Furthermore, it appears that no forensic medical examination of the applicant was ordered by the authorities until 2010, despite the applicant’s repeated complaints of beatings. The forensic medical examination carried out in 2010, which was ordered at the applicant’s request and appears to have been the only medical evidence available, revealed signs of several healed wounds of different types on the applicant’s body (see details in the appended table). The Government provided no explanation as to the origin of those injuries. Nor did they provide any evidence that the applicant, who had been in continuous detention since his arrest in October 2003, had sustained the injuries prior to being placed under the control of the authorities. Accordingly, the failure of the respondent State to discharge its burden of proof leads the Court to accept the applicant’s allegations, presented in a coherent and detailed manner, that the injuries were sustained in detention. On the basis of the evidence before it, the Court is not in a position, and does not consider it necessary, to determine which particular detention facility was responsible for the injuries sustained.9. The Court considers the above findings sufficient to conclude that the investigation into the applicant’s complaints of ill-treatment fell short of the Article 3 requirements and that the State’s responsibility is engaged for the treatment sustained by the applicant, which can be characterised as inhuman and degrading.10. The present complaints are therefore admissible and disclose breaches of Article 3 of the Convention under its substantive and procedural limbs.ALLEGED UNFAIRNESS OF the PROCEEDINGS11. The applicant complained under Article 6 §§ 1 and 3 of the Convention that his conviction had been unfair. He contended that the Supreme Court had failed to duly consider arguments in favour of a more lenient punishment and that having professional legal representation during the hearing would have better safeguarded his interests. The applicant noted, in particular, that two of his co-defendants, including the instigator of the crime, had had their sentences reduced to fifteen years’ imprisonment, while the sentence imposed on him, the youngest of the group, had remained unchanged despite the existence of mitigating circumstances. He added that the sentence had been more severe than that requested by the prosecutor.12. In their initial observations filed with the Court in December 2014, the Government cited their inability to comment on this complaint owing to the lack of access to the applicant’s criminal case file, which had remained in Crimea after its unlawful occupation by the Russian Federation in 2014. In their subsequent submissions dated 2 November 2023, based on documents provided by the applicant, the Government contended that Article 6 of the Convention had not been breached. They argued that the absence of the lawyer had not affected the fairness of the trial, as both the applicant’s lawyer, the applicant himself and his mother had presented arguments – limited to requesting a more lenient sentence – in their written appeals, which had been duly considered by the Supreme Court.13.

Outcome for Article 13: violation