Communicated on 5 January 2016
FIFTH SECTION
Application no. 21073/12
Larisa Nikolayevna BUCHKOVSKAYA
against Ukraine
lodged on 20 March 2012
STATEMENT OF FACTS
The applicant, Ms Larisa Buchkovskaya, is a Ukrainian national, who was born in 1964 and lives in Frunze.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Detention of the applicant’s son in the temporary detention centre
On 26 July 2006 an investigator at the Saky district police, the Autonomous Republic of Crimea, arrested the applicant’s son, who was fifteen years old at that time, on suspicion of aggravated rape. On the day of arrest the applicant’s son was undergoing treatment in a psychiatric hospital.
The applicant’s son was placed in cell no. 10 of the local temporary detention centre where two other detainees, A and B (both minors), were being held. There, the applicant’s son was physically ill-treated by A and B, who also allegedly attempted to sexually abuse him.
On 28 July 2006 the applicant’s son complained of ill-treatment. On the same day he was transferred to cell no. 1 where two other detainees were being held. The cell was only equipped with two bunks and the applicant’s son had to sleep on the floor.
On 3 August 2006 the applicant’s son was medically examined. The medical expert stated that the applicant’s son had sustained a bruise on his chest, an abrasion on his back and a burn on his left foot. The medical expert considered that those injuries were minor and that they had been inflicted on 26 or 27 July 2006.
On 12 August 2006 the applicant’s son suffered a serious head injury in cell no. 1. Allegedly, T, another detainee (a minor), had pushed the applicant’s son from the upper bunk causing him to fall and damage his head.
An ambulance took the applicant’s son to the hospital, where cranial surgery was performed.
On 13 August 2006 he died in the hospital.
On 16 August 2006 a post-mortem medical examination of the applicant’s son was carried out. The pathologist concluded that the death had been caused by the serious head injury. The expert also noted other injuries: bruises on the chest, on the left knee, on both eyelids, in the lumbar and sacral regions, on both elbows and on the left foot.
2. Criminal proceedings against A and B
On 2 August 2006 the applicant’s son requested that criminal proceedings be initiated against A and B for his ill-treatment. This request was further maintained by the applicant after her son’s death.
On several occasions the authorities carried out pre-investigation inquiries and decided not to open criminal proceedings.
On 11 September 2009 the applicant and her husband instituted a private prosecution against A and B in the Saky District Court (“the District Court”). They brought the private prosecution under Article 125 § 2 of the Criminal Code (intentional infliction of minor bodily injuries).
On 3 February 2010 the District Court found that the case had to be referred to the local prosecutor for a pre-trial investigation.
On 28 February 2011 the District Court dismissed the charges against A and B as time-barred.
3. Criminal proceedings against T
On 5 February 2007 the District Court convicted T. of the manslaughter of the applicant’s son and sentenced him to nine years’ imprisonment. That judgment became final on 21 February 2007.
In a separate ruling of 5 February 2007 the District Court stated that the facts of the case also indicated that the local temporary detention centre had not provided the requisite level of safety and physical conditions of detention.
4. Pre-investigation inquiries in respect of the law-enforcement officers and staff of the detention centre
The applicant and her husband asked the local prosecutor to institute criminal proceedings against the staff of the detention centre who had allegedly failed to prevent the ill-treatment and death of their son. Subsequently, they claimed that the investigator dealing with their son’s criminal case should also be prosecuted.
On several occasions between 2006 and 2010 the authorities carried out pre-investigation inquiries and decided not to open criminal proceedings for lack of any elements of a crime. Those decisions were quashed as unfounded by the supervising authorities including the courts and further inquiries were ordered. The last decision to that effect was adopted on 31 August 2010.
The applicant and her husband challenged that decision in court.
On 8 November 2010 the District Court upheld the decision of 31 August 2010 stating that all the necessary measures had been carried out.
On 7 December 2010 the Court of Appeal of the Autonomous Republic of Crimea upheld the decision of the District Court.
On 6 October 2011 the Higher Specialised Civil and Criminal Court dismissed the applicant’s appeal on points of law and upheld the decisions of the lower courts.
B. Relevant domestic law
The relevant provisions of the domestic law can be found in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012) and Skorokhodov v. Ukraine (no. 56697/09, §§ 20-22, 14 November 2013).
C. Relevant Council of Europe Instruments
1. European Prison Rules
Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules provides in its relevant part:
Allocation and accommodation
“17.2Allocation shall also take into account the requirements of continuing criminal investigations, safety and security and the need to provide appropriate regimes for all prisoners.
18.6Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other.
18.8In deciding to accommodate prisoners in particular prisons or in particular sections of a prison due account shall be taken of the need to detain:
a. untried prisoners separately from sentenced prisoners;
b. male prisoners separately from females; and
c. young adult prisoners separately from older prisoners.”
Safety
“52.1As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.
52.2Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.
52.4It shall be possible for prisoners to contact staff at all times, including during the night.”
2. The European Committee for the Prevention of Torture (“CPT”)
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) in its 11th General Report on the CPT’s activities [CPT/Inf (2001) 16] stated as follows on the issue of inter-prisoner violence:
“Inter-prisoner violence
27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.
...
Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners ...”
COMPLAINTS
1. The applicant complains under Articles 2 and 3 of the Convention that the authorities failed to ensure the safety, medical treatment and appropriate physical conditions of detention of her son which resulted in his serious suffering and death.
2. The applicant complains under Article 2 and 3 of the Convention that there was no effective investigation against the law-enforcement officers and the staff of the detention centre who had to share the responsibility for the incidents with her son.
QUESTIONS TO THE PARTIES
1. Has the State complied with its positive obligations under Articles 2 and 3 of the Convention to ensure the safety, medical treatment and appropriate physical conditions of detention of the applicant’s son?
2. Has the State complied with its procedural obligations under Articles 2 and 3 of the Convention to carry out effective investigations of the incidents with the applicant’s son?
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