Communicated on 22 January 2015
FIFTH SECTION
Application no. 14908/11
Tamara Petrovna BURAKOVA against Ukraine
lodged on 26 February 2011
STATEMENT OF FACTS
The applicant, Ms Tamara Petrovna Burakova, is a Ukrainian national, who was born in 1948 and lives in Kherson. She is represented before the Court by Mr G.V. Tokarev, a lawyer practising in Kharkiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s thirty-year old son, B., suffered from HIV and, as a former drug-addict, had received methadone substitution treatment since 2008. His HIV was at early stage of development and did not require any medical treatment.
On 13 February 2010 the Tsuryupinskyy District Police Office arrested B. and brought him to a civil hospital to assess his physical fitness for detention. The civil doctors noted that he was a drug addict, had a healthy heart and lungs and could “be detained in an ITT”. B. was placed in an ITT cell shortly afterwards. From the moment of his arrest onwards he did not receive any methadone treatment.
From 13 to 15 February 2010 B., dressed just in trousers and a t-shirt, stayed in a cell with a window which did not have a glass, while the temperature outside was below freezing.
On 15 February 2010 the applicant saw her son during a court hearing and noted that he had coughs and fever.
On 16 February 2010 a narcologist examined B. It was noted that he was HIV positive, had previously undergone methadone therapy because he suffered from withdrawal syndrome. He concluded that B. did not “need urgent medical treatment and could be kept in the ITT in the usual conditions”.
On 23 February 2010 the applicant again saw her son at a court hearing. He was suffocating and could hardly speak.
On 23 February 2010 B. was transferred to the SIZO and examined by the SIZO doctor who noted that B. was not fit for detention because he suffered from methadone withdrawal syndrome. However, the SIZO could not provide him with methadone therapy as it did not have proper State licence. B. was therefore transported to a civilian hospital where, on 24 February 2010, the civilian doctors established that he suffered from HIV and drug addiction, but found that he was physically fit for detention in the SIZO.
On the same day B. was transported back to the SIZO and placed in a common cell. Still on 24 February the SIZO a doctor examined him stating that he had bronchitis, and prescribed medication which he received afterwards.
On 25 February 2010 B. complained to the SIZO staff about coughs. He was examined by the SIZO doctors, diagnosed with bronchitis and prescribed antibiotics. It appears that B. received the medication.
On 1 March 2010 B. complained to the SIZO staff about coughs and weakness. He was examined by the SIZO doctor who noted that his general condition was satisfactory.
On 4 March 2010 B. complained to the SIZO doctor about fever, weakness and coughs. At about 2 pm. he was seen by the SIZO doctors who diagnosed him with tuberculosis, pneumonia and pleurisy. He was immediately placed in the SIZO medical unit and put under constant medical monitoring when a physician examined him every hour.
On the next day at 5.25 am. B. was found unconscious. The ambulance which arrived at 6.07 am established that he was dead.
The examination of the corpse conducted from 9 to 29 March 2010 indicated pneumonia as the cause of death.
A. Criminal investigation into the death of the applicant’s son
On 14 March 2011 the prosecutors refused the applicant’s request to institute criminal proceedings against the ITT and SIZO staff responsible for not safeguarding her son’s life in detention.
On 20 February 2013 the Komsomolskyy District Court of Kherson, upon the applicant’s complaint, quashed this decision stating that the prosecutors had failed to: 1) take any steps to assess whether the fact that B. had not received methadone during his detention contributed to his death; 2) question the persons who had been detained in the ITT at the same time as B.; 3) establish all the factors which led to deterioration of B.’s health; 4) establish whether the treatment provided to B. in detention was timely and adequate. The court ordered the prosecutors to conduct an additional investigation which currently remains pending.
B. Civil proceedings concerning the death of the applicant’s son
On 31 March 2012 the applicant lodged a civil claim before the Suvorovskyy District Court of Kherson seeking compensation for non-pecuniary damage caused to her by her son’s death. In Janury 2013 the court ordered the Tsuryupinskyy District Police Office to join the proceedings as a defendant in the case. The court also requested the SIZO to provide documentation concerning B.’s treatment in that establishment and ordered a forensic medical examination to assess adequacy of the treatment.
The examination of the case remains pending.
COMPLAINTS
1. The applicant complains, under Articles 2 and 3 of the Convention, that the State authorities failed to safeguard her son’s life in detention. She states in particular, that they : a) kept B. in a cold cell due to which fact he developed pneumonia; b) did not take sufficient steps to discover his pneumonia on time and treat it; c) did not take any measures in connection with his withdrawal syndrome. She also complains about a violation of Article 3 of the Convention on account of the same facts.
2. The applicant further complains invoking Articles 2 that the investigation into her son’s death was not effective.
3. Relying on Article 13 she alleges that she did not have a domestic remedy for her complaint under Article 2 of the investigation.
QUESTIONS
1. Has the applicant son’s right to life been violated in the present case? In particular, was his health duly protected during his detention? Did he receive prompt and adequate medical care? Was there any connection between the applicant son’s death and i) the fact that during his detention he was not provided with methadone therapy or treatment against the withdrawal syndrome; ii) the conditions of his detention in the ITT?
2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
3. Did the applicant have at her disposal an effective domestic remedy for her complaints under Articles 2, as required by Article 13 of the Convention?
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