CASE OF KARPYLENKO v. UKRAINE

FIFTH SECTION

CASE OF KARPYLENKO v. UKRAINE

(Application no. 15509/12)

JUDGMENT

STRASBOURG

11 February 2016

FINAL

11/05/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Karpylenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 19 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 15509/12) 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, Ms Zoya Mykolayivna Karpylenko (“the applicant”), on 8 March 2012.

2.  The applicant was represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3.  The applicant alleged that her son had been ill-treated in custody and that there had been no effective domestic investigation into the matter. She also complained that he had not been provided with adequate medical care in detention and blamed the authorities for his death. Lastly, the applicant complained that there had been no effective domestic remedies at her disposal in respect of the above complaints.

4.  On 6 January 2014 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1957 and lives in Kyiv.

A.  Alleged ill-treatment of the applicant’s son in detention, the corresponding investigation and related events

6.  On 26 December 2009 the applicant’s twenty-five-year-old son, K., was arrested by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery.

7.  On 27 December 2009 K. underwent a medical examination, which did not reveal any injuries.

8.  On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial.

9.  On 30 December 2009 K. was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”).

10.  On 22 March 2010 he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office (“the Shevchenkivskyy Prosecutor’s Office”).

11.  At 9.30 a.m. on 10 April 2010 K. was admitted to Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, rupture of the spleen, retroperitoneal haematoma, a closed chest injury, laceration (tissue rupture) of the right lung, left-sided pneumonia, post-traumatic anaemia, and fourth-degree haemorrhagic shock (the most serious on a scale of one to four, entailing critical blood loss of over 40%).

12.  On 10 and 12 April 2010 K. underwent surgery twice in respect of the above-mentioned injuries and his spleen was removed.

13.  On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the SIZO on 8 April 2010.

14.  On 23 April 2010 the Shevchenkivskyy Prosecutor’s Office refused to institute criminal proceedings against police officers in respect of K.’s ill-treatment for lack of corpus delicti in respect of their actions.

15.  On 28 April 2010 K. was discharged from hospital and placed in the SIZO’s medical unit, where he remained until 18 June 2010.

16.  On 3 June 2010 the Kyiv City Police Department completed the internal investigation in respect of the applicant’s complaint regarding the alleged ill-treatment of her son and found it to be without any basis.

17.  On 8 June 2010 the newspaper “Segodnya”, issued in the Kyiv region, published an article under the headline “A bad [police] station” («Нехороший участок») about the alleged ill-treatment of the applicant’s son in the Shevchenkivskyy police station in spring 2010. The author relied, in particular, on the statements of one of K.’s cell-mates. A similar article titled “Another incident in the Shevchenkivskyy police station” («Новое ЧП в Шевченковском РУВД») appeared in the internet media outlet “Levyy Bereg”.

18.  On 10 June 2010 the Shevchenkivskyy Prosecutor’s Office overruled its decision of 23 April 2010 and decided that further investigation was required. More specifically, K. had to be questioned as to who exactly had subjected him to ill-treatment in the SIZO in April 2010.

19.  On 10 June 2010 the investigator also questioned the applicant’s son. K. contended that on 26 December 2009, when he was arrested, police officers had hit him in the stomach. He further stated that the investigator dealing with his case had also hit him in the stomach once in March 2010. According to K., these two beatings had necessitated his urgent medical treatment on 10 April 2010. K. said that he did not understand why his mother had stated that he had been subjected to ill-treatment on 8 April 2010 (see paragraph 13 above).

20.  On 21 June 2010 the investigator who was in charge of K.’s criminal case was also questioned. He denied ever having seen K. in March 2010, let alone having physically assaulted him.

21.  On 8 July 2010 the Shevchenkivskyy Prosecutor’s Office once again refused to institute criminal proceedings against the police officers in question, having found no evidence of criminal conduct. The decision not to prosecute noted that K. had not complained of any ill-treatment during his detention, and that his medical examination on 27 December 2009 had not revealed any injuries (see paragraph 7 above). Following his hospitalisation on 10 April 2010, K. had mentioned to a doctor that he had been physically assaulted some three days earlier, and the doctor had then stated to the investigator that K.’s injuries had been sustained no more than two days before his admission to hospital. According to his medical file, K.’s injuries had originated from blows to his back with blunt objects one to twelve hours prior to his admission to hospital (that is, during the night of 9 to 10 April 2010). On the basis of the above information, the Shevchenkivskyy Prosecutor’s Office concluded that the allegation regarding K.’s ill‑treatment was unsubstantiated.

22.  On 3 August 2010 an official of the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s Office”), to which the investigation had been transferred meanwhile for an unknown reason, also questioned K. This time, he stated that he had only been ill-treated on 26 December 2009, but never thereafter.

23.  On 25 August 2010 eleven inmates with whom K. had shared a cell in the SIZO were also questioned. They said that he had felt unwell on the night of 9 to 10 April 2010, and that an ambulance had been called for him on the morning of 10 April 2010. They also submitted that nobody had been violent towards him or had put him under any psychological pressure.

24.  On 9 September 2010 the SIZO’s medical assistant (фельдшер), who had been on duty at the time of the events, was questioned as part of the investigation. He stated that he had been called to cell no. 36, where K. had been held, at 8.45 a.m. on 10 April 2010. K. had complained of weakness, vertigo and blurred vision. He had not alleged any ill-treatment and a visual examination had not revealed any injuries. He had had low blood pressure. The medical assistant said that he had provided K. with the necessary medical assistance and had reported the matter to the doctor on duty. The doctor on duty at the time of the events made a similar statement.

25.  On 22 October 2010 an official from the Kyiv Prosecutor’s Office questioned the ambulance paramedics who had been called to assist K. They did not remember the circumstances.

26.  On 4 November 2010 the Kyiv Prosecutor’s Office questioned K. again. He stated that Shevchenkivskyy police officers had physically assaulted him following his arrest on 26 December 2009. He considered that the sudden deterioration in his health on 10 April 2010 had been the consequence of that ill-treatment.

27.  From 8 November 2010 to 28 January 2011 a forensic medical expert evaluation of K.’s medical file was carried out, with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been. The expert concluded that K. had sustained an insignificant spleen trauma about a month prior to undergoing surgery, on around 10 March 2010. More specifically, he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally. However, about twelve hours before surgery (at about 4 a.m. on 10 April 2010) K. had sustained a serious non-penetrating stomach injury resulting from a blow to the left side of his back with a blunt object. As a result, he had sustained a haemoperitoneum, a partial rupture of the diaphragm and trauma of the spleen.

28.  On 29 December 2010 the applicant’s son signed a form of authority, authorising Mr Zarutskyy (the lawyer who represented the applicant before the Court – see paragraph 2 above) to represent him in proceedings before the Court. He did not, however, lodge an application with the Court on that occasion. According to the applicant, her son did intend to lodge an application regarding both his ill-treatment and the investigation into that allegation.

29.  In February 2011 K.’s lawyer challenged the refusal to institute criminal proceedings of 8 July 2010 (see paragraph 21 above) with the Kyiv Prosecutor’s Office and before the Shevchenkivskyy Court. He submitted, in particular, that the origin of K.’s injuries while he had been under the authorities’ control had never been explained.

30.  On 10 March 2011 the Kyiv Prosecutor’s Office, relying on the findings of the forensic medical expert report of 28 January 2011 (see paragraph 26 above), opened a criminal case in respect of unidentified individuals who had caused K. grievous bodily harm. The investigation was entrusted to the Shevchenkivskyy Police Department.

31.  On 7 July 2011 the Shevchenkivskyy Court quashed the decision of the Shevchenkivskyy Prosecutor’s Office of 8 July 2010 and remitted the case for additional investigation.

32.  Between 31 May and 25 August 2011 another forensic medical expert evaluation was carried out. It confirmed the findings of the earlier expert report of 28 January 2011 (see paragraph 27 above), but added that a fall could not be ruled out as a possible cause of the injuries.

33.  On 26 August 2011 the Shevchenkivskyy Prosecutor’s Office issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions.

34.  On 30 September 2011 K. was assigned victim status in the criminal investigation launched on 10 March 2011. On the same date the investigator of the Shevchenkivskyy Police Department questioned him. K. maintained his earlier version of events, namely that his ill-treatment had consisted of the following two episodes: Shevchenkivskyy police officers physically assaulting him following his arrest on 26 December 2009, and the investigator in charge hitting him once in the stomach at the end of March 2010.

35.  On 30 September 2011 the SIZO administration sent to the investigator the list of the staff members who had been on duty during the night of 9 to 10 April 2010. As regards the list of K.’s cell-mates at the time, the administration informed the investigator that no records were kept in that regard.

36.  On 7 November 2011 K., who had been transferred from the SIZO to a civilian hospital and who was suffering from HIV, tuberculosis and a number of concomitant diseases, died (see paragraphs 43-51 below).

37.  On an unspecified date in November 2011 the applicant was granted status as K.’s successor in the criminal investigation into his ill-treatment. She was represented by the same lawyer who had earlier represented K.

38.  On 9 December 2011 the Chief of the Shevchenkivskyy Police Department informed the applicant’s lawyer that the investigation, which had been initiated on 10 March 2011 (see paragraph 30 above), was ongoing.

39.  On 30 March 2012 the applicant enquired with the Shevchenkivskyy Police Department about the progress of the investigation.

40.  On 31 July 2012 the Kyiv City Investigation Department informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry.

41.  It is not clear whether any investigative measures were implemented between 2012 and 2014.

42.  On 7 March 2014 the investigator of the Shevchenkivskyy Police Department made an entry in the Unified Register of Pre-Trial Investigations about the assault on K. causing grievous bodily harm. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012.

B.  Other issues relating to the health of the applicant’s son and the medical care provided for him in detention

43.  Between 14 and 17 May, and 18 and 23 June 2010, when he was a detainee in the SIZO, K. was examined at the Kyiv City AIDS Centre at his request. He tested positive for HIV on both occasions.

44.  According to the information submitted by the Government, between 24 June 2010 and 20 April 2011 K.’s health remained stable and he did not seek medical assistance.

45.  On 20 April 2011 K. had his lungs X-rayed and was diagnosed, for the first time, with tuberculosis of the right lung. It was unclear how advanced the tuberculosis was. According to the Government, he was prescribed preventive treatment for two to three months.

46.  On 23 May 2011 K.’s lawyer enquired with the management of the SIZO about his client’s condition. He asked, in particular, for clarification as to whether K. had been diagnosed with tuberculosis while in detention, and requested copies of the relevant documents.

47.  On 8 June 2011 the SIZO deputy governor and the chief of the medical unit replied that, following a planned X-ray that day, K. had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the SIZO’s medical unit for treatment. In another letter (dated 28 November 2011) from the SIZO management to the applicant’s lawyer (see also paragraph 52 below), it was stated that on 8 June 2011 K. was also diagnosed as having HIV, chronic gastritis, hepatitis in remission and a drug addiction. In addition, he was classed as being in recovery following the removal of his spleen.

48.  According to an extract from K.’s medical records, he was examined repeatedly by the SIZO’s doctors between June and October 2011. Each record begins with the statement that K.’s complaints remained the same, without specifying of what he complained. The records of 28 July and 9 September 2011 further note that K. complained of weakness. Furthermore, it was recorded that K. had complained of periodic coughing with purulent sputum during his examinations on 7 July and 15 October 2011. From 18 October 2011 onwards a deterioration in K.’s health was noted. On 20 October 2011 an ambulance was called for him.

49.  As indicated in the letter sent by the SIZO management on 28 November 2011 in reply to the applicant’s lawyer’s inquiry of 13 October 2011, K. had an X-ray which revealed that the treatment of his tuberculosis was evolving positively. A decision was made to continue that treatment.

50.  On 20 October 2011 K. was taken to Kyiv City Hospital no. 5, where the following diagnoses were made: infiltrative tuberculosis of the right lung, HIV in an unclear phase, meningitis caused by HIV, chronic hepatitis and gastritis in remission. K. was also classed as being in recovery following the removal of his spleen.

51.  On 7 November 2011 K. died in the hospital.

52.  In a letter of 28 November 2011 to the applicant’s lawyer the SIZO management noted that they had previously asked the Kyiv City Court of Appeal, which was dealing with the criminal case against K., to either accelerate the examination of that case or release K. on health grounds. However, they had not received any reply.

C.  Investigation into the death of the applicant’s son

53.  On 8 November 2011 the investigator of the Svyatoshynskyy District Police Department inspected K.’s body in the hospital. According to the report on “the inspection of the scene of the incident”, there was no indication of a violent death.

54.  On the same date, the applicant asked the police to transfer the body to a mortuary, with a view to establishing the cause of death.

55.  According to K.’s death certificate, which was issued on 10 November 2011, his death had been caused by acute heart failure, HIV and multiple concomitant illnesses.

56.  The autopsy report, which was also issued on 10 November 2011, specified that the immediate causes of death had been a brain tumour, pulmonary and heart failure resulting from “express autointoxication following cryptococcal meningoencephalitis, macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction”. The report also noted that K. had had “shock kidneys”, cachexia, oropharyngeal candidiasis, and albuminous degeneration of the tissues of the kidneys, cardiac muscle and liver.

57.  The applicant made a complaint to the prosecuting authorities regarding her son’s premature death and requested an investigation.

58.  On 16 November 2011 the Svyatoshynskyy District Police Department refused to open a criminal investigation into the matter, having concluded that there was no indication of a criminal offence.

59.  On 23 December 2011 the Svyatoshynskyy District Prosecutor’s Office overruled that decision on the grounds that it was based on a superficial investigation.

60.  On 31 December 2011 the investigator once again refused to open a criminal case in relation to K.’s death. Relying on the scene inspection report of 8 November 2011 and the death certificate of 10 November 2011 (see paragraphs 53 and 55 above), he considered that there was no third-party involvement in the death.

61.  On 16 July 2012 the applicant complained to the General Prosecutor’s Office about the ineffectiveness of the investigation. In particular, she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed. She noted that there had been no medical monitoring or treatment of K. as regards his HIV. Furthermore, while the HIV diagnosis presupposed a high risk of tuberculosis, K. had not had an X-ray until almost a year after he had tested positive for HIV. The applicant also complained that the intervals between the X-ray sessions had been unreasonably long. Thus, after his X-ray on 6 June 2011 K. had subsequently not had an X-ray until 13 October 2011, whereas a repeat X-ray should have been performed within a two-month time period. Furthermore, although K.’s treatment for tuberculosis had been unsuccessful, it had been continued, and his resistance to the medications prescribed had never been verified. Lastly, the applicant complained that the authorities had not provided her with all the information concerning her son’s health while he had still been alive, despite the numerous inquiries made by her lawyer. In particular, she had only found out about her son’s HIV after his death.

62.  On 20 July 2012 the General Prosecutor’s Office forwarded the above complaint to the Kyiv Prosecutor’s Office.

63.  On 15 August 2012 the Svyatoshynskyy Prosecutor’s Office wrote to the applicant saying that her complaint concerning her son’s death and the allegedly inadequate medical care he had received had already been investigated. As a result, it had been decided on 31 December 2011 that there were no grounds for opening a criminal case (see paragraph 60 above). It remained open to the applicant to challenge that decision.

64.  There is no information in the case file about any subsequent developments.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

65.  The relevant domestic law and extensive domestic and international materials can be found in the judgment in the case of Sergey Antonov v. Ukraine (no. 40512/13, §§ 40-53 and 55-56, 22 October 2015).

66.  Furthermore, according to the World Health Organisation’s (WHO) Clinical Protocols on HIV/AIDS Treatment and Care, adopted in 2007, the initial evaluation of a patient should include: confirmation of HIV infection status with the potential time of infection being established, if possible; a detailed personal, family and medical history; a physical examination; laboratory and other examinations; specialist examinations as appropriate; and clinical and immunological staging. Clinical staging (stage 3 or 4) and CD4 counts (immunological evaluations) are the best primary markers for deciding whether to start ART (antiretroviral therapy). The provision of ART is considered to be the core component of treatment for people who are HIV-positive.

67.  In 2010 the WHO issued a revised and updated version of its guidelines on “Antiretroviral therapy for HIV infection in adults and adolescents: Recommendations for a public health approach.” The revised text indicates that all adolescents and adults with HIV and CD4 counts of 350 cells/mm3 or less should start ART, regardless of the presence or absence of clinical symptoms. Those with severe or advanced clinical disease (WHO clinical stage 3 or 4) should start ART irrespective of their CD4 cell count. All patients should have access to CD4 cell-count testing to optimise pre-ART care and ART management. Viral-load testing is recommended to confirm suspected treatment failure. Irrespective of CD4 cell counts, patients infected with both HIV and tuberculosis should be started on ART as soon as possible after starting TB treatment.

68.  In June 2013 the WHO also published its “Consolidated guidelines on the use of antiretroviral drugs for treating and preventing HIV infection”. It noted, in particular, that tuberculosis was “the most frequent life-threatening opportunistic infection and a leading cause of death [among] people living with HIV”.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

69.  The applicant complained that the authorities had failed to provide her son with adequate medical care while he was in detention and were thus responsible for his death. She also complained that the investigation into his death had been neither adequate nor effective.

70.  The Court considers that the above complaints fall to be examined under Article 2 of the Convention, the relevant part of which reads:

“1. Everyone’s right to life shall be protected by law. ...”

A.  Admissibility

71.  The Government submitted that the applicant had not challenged the investigator’s decision of 31 December 2011 refusing to initiate a criminal investigation into the matter (see paragraphs 60 and 63 above). They therefore asserted that she had failed to exhaust effective domestic remedies before making her application to the Court, contrary to Article 35 § 1 of the Convention. In the alternative, the Government contended that these complaints were manifestly ill-founded.

72.  The applicant maintained her complaint that the domestic investigation into the death of her son could not be regarded as effective, and that this therefore exempted her from the obligation to pursue the remedy proposed by the Government.

73.  As a preliminary issue, the Court notes that, where a violation of the right to life is alleged, the Convention institutions have accepted applications from relatives of the deceased (see Kats and Others v. Ukraine, no. 29971/04, § 94, 18 December 2008, with further references). Therefore, the applicant, who is the mother of the deceased, can claim to be a victim of the alleged violations under Article 2 of the Convention.

74.  The Court reiterates that the rule on exhaustion of domestic remedies, referred to in Article 35 § 1 of the Convention, obliges applicants to first use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV).

75.  As regards the Government’s objection, the Court observes that it raises issues concerning the effectiveness of the criminal investigation in establishing the facts regarding the events of which the applicant complained and responsibility for those events. It is therefore closely linked to the merits of her complaint under the procedural limb of Article 2 of the Convention. In these circumstances, the Court joins the Government’s objection to the merits of the applicant’s complaint.

76.  The Court further notes that this part of the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Alleged failure of the Ukrainian authorities to protect K.’s right to life

77.  The applicant contended that her son had died in detention because he had not received timely and adequate medical care. More specifically, she submitted that there had never been any medical supervision or treatment for him in respect of his HIV infection. The applicant further complained that K. had not had his lungs X-rayed until almost one year after testing positive for HIV, a delay which was excessive. Given that tuberculosis was often provoked by the HIV infection, it was not unlikely, in her opinion, that her son had already been suffering from tuberculosis for a long time before that diagnosis had been established. The applicant also criticised the medical treatment eventually provided for K. in respect of tuberculosis. The details of her complaint are reproduced in paragraph 61 above. As is clear from that paragraph, this complaint had already been raised at national level.

78.  The Government submitted that K.’s health had been given proper attention. They observed that he had been examined by doctors on many occasions and that he had been prescribed and had received appropriate medical treatment.

79.  The Court has emphasised on many occasions that people in custody are in a vulnerable position, and that authorities are under a duty to protect their health and well-being (see Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008). This implies an obligation on the authorities to provide detainees with the medical care necessary to safeguard their lives (see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006).

80.  Furthermore, the authorities must account for the treatment of people who are deprived of their liberty. Where a detainee dies as a result of a health problem, the State must offer both a reasonable explanation as to the cause of death and details regarding the treatment administered to the person concerned prior to his or her death (see Kats and Others, cited above, § 104).

81.  Turning to the present case, the Court notes that the applicant’s son died on 7 November 2011 of a number of HIV-related illnesses, while in custody and having been under the authorities’ control since 26 December 2009. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome. Whether or not the authorities’ efforts could in principle have averted it is not decisive when examining the discharge by the State of its positive obligation to protect the applicant’s son’s health and life (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 180, 14 March 2013).

82.  The Court observes that K. had several health-related concerns during his detention. In April 2010 he underwent surgery twice in respect of injuries sustained in unclear circumstances (see paragraphs 11 and 12 above) and his spleen was removed. He received medical treatment as an in-patient until 18 June 2010, first in a civilian hospital and later in the SIZO’s medical unit. There is no indication that the treatment received was deficient or that the injuries in question had led to a deterioration of K.’s health in the long run.

83.  However, the Court notes that, on 17 May 2010, the applicant’s son also tested positive for HIV, and that that diagnosis was confirmed on 23 June 2010. It is not in dispute that the authorities were aware of his HIV status. With reference to the recommendations of the World Health Organisation detailed in paragraph 68 above and to the standards adopted at national level, there is no indication in the material at the Court’s disposal that an immunological assessment of K.’s condition by means of a CD4 count test was carried out at any point, or that he received any treatment in that regard.

84.  Moreover, as the Government have confirmed, after K. tested HIV-positive, he was left with virtually no medical supervision for about ten months, until he was X-rayed on 20 April 2011 (see paragraphs 43-45 above). Even if, as submitted by the Government, K. had not complained about this, it was the authorities’ duty to ensure proper monitoring of his health, given the seriousness of his diagnosis and the inherent risk of concomitant illnesses.

85.  The Court notes that the X-ray procedure (eventually carried out on 20 April 2011) revealed that K. was also suffering from pulmonary tuberculosis and he was diagnosed with chronic gastritis and hepatitis in remission.

86.  It was acknowledged by the Ukrainian authorities in their progress report to the Joint United Nations Programme on HIV/AIDS for the period between January 2010 and December 2011 that “tuberculosis continue[d] to be the most widespread AIDS-related disease in Ukraine [and was] diagnosed in 5,745 cases (62.5%) out of 9,189 new AIDS cases” (see Sergey Antonov, cited above, § 51).

87.  It was within the period covered by that report that K. tested HIV positive while in detention, was left without further medical attention for about ten months, was then diagnosed with tuberculosis and died of HIV related illnesses six and a half months later.

88.  The Court notes in this connection that the WHO has also recommended that patients infected with both HIV and tuberculosis should begin antiretroviral therapy as soon as possible after starting tuberculosis treatment (see E.A. v. Russia, no. 44187/04, § 35, 23 May 2013). In the present case, antiretroviral therapy was never even considered, let alone offered to K.

89.  The Court has only very limited information as regards K.’s treatment for tuberculosis. It remains unclear which medications he was given and whether his resistance to them was ever verified. Although the SIZO management informed the applicant’s lawyer that K.’s X-rays of 13 October 2011 had revealed that his treatment for tuberculosis was evolving positively, subsequent events clearly undermined the accuracy of that statement, as less than a week later, on 18 October 2011, K.’s health deteriorated to such an extent as to warrant his urgent hospitalisation. He died on 7 November 2011, less than a month later.

90.  The Court has already addressed in a number of cases the issue of inadequate medical assistance for people with HIV in Ukrainian detention facilities (see, for example, Kats and Others, cited above; Pokhlebin v. Ukraine, no. 35581/06, 20 May 2010; and Salakhov and Islyamova v. Ukraine, cited above).

91.  Likewise, the Court has found a violation of Article 3 of the Convention as a result of poor medical assistance and inadequate protection against tuberculosis in Ukrainian detention facilities (see, for instance, Yakovenko v. Ukraine, no. 15825/06, §§ 97-102, 25 October 2007; Pokhlebin, cited above, §§ 63-68; Kondratyev v. Ukraine, no. 5203/09, § 72, 15 December 2011; and Kushnir v. Ukraine, no. 42184/09, §§ 142-150, 11 December 2014).

92.  In the present case, given the delays and serious deficiencies in the diagnosis and treatment of the applicant’s son’s HIV, tuberculosis and concomitant illnesses, the Court does not consider that the authorities adequately discharged their positive obligation to protect the applicant’s son’s health and life. As the Court has already held in paragraph 81 above, whether or not their efforts could in principle have averted the fatal outcome is not decisive for this conclusion.

93.  The Court therefore concludes that there has been a violation of the substantive limb of Article 2 of the Convention.

2.  Alleged failure to carry out an adequate investigation into K.’s death

94.  The Government submitted that the investigation into the circumstances of the death of the applicant’s son had been prompt and thorough. In this connection, they observed that an on-site inspection had been carried out the day after the death, and shortly thereafter a post-mortem report had been completed. In the Government’s view, the fact that no third-party involvement in K.’s death had been established could not be regarded as an indication of the ineffectiveness of the investigation.

95.  The applicant maintained her complaint.

96.  The Court has held on many occasions that, where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty on the part of the State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise. The essential purpose of such an investigation is to establish the facts, secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents or bodies, identify any persons at fault and thus ensure their accountability (see Pearson v. the United Kingdom (dec.), no. 40957/07, § 67, 13 December 2011, with further references). That is the case, for instance, where a person dies in custody in suspicious circumstances (even where the apparent cause of death is a medical condition), which, as a rule, raises the question of whether the State has complied with its positive obligation to protect that person’s right to life (see Slimani v. France, no. 57671/00, §§ 30 and 34, ECHR 2004-IX (extracts); Kats and Others, cited above, § 115; Geppa v. Russia, no. 8532/06, § 71, 3 February 2011; and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 87, 22 November 2011). A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see, for example, Dzieciak v. Poland, no. 77766/01, § 105, 9 December 2008, with further references).

97.  Turning to the circumstances of the present case, the Court considers that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances of the death of the applicant’s son (see Slimani, cited above, §§ 29-34, and Kats and Others, cited above, § 117).

98.  The Court notes that the police did indeed take certain investigative measures without delay. On 8 November 2011, for example, they inspected K.’s body and concluded that there was no indication of a violent death. However, there had never been any suspicion of a violent death. The autopsy report of 10 November 2011 established that K. had died of a number of HIV-related diseases. Accordingly, an effective investigation into his death would imply an assessment of the quality of the medical treatment, which had been provided. That was the applicant’s key complaint, in support of which she submitted quite specific allegations warranting verification (see paragraph 61 above). Nonetheless, the issue of K.’s medical treatment remained unaddressed. It does not appear from the file that, after his death, his medical records were examined in detail or that medical personnel from the civilian hospital which treated him or personnel from the SIZO were questioned. Disregarding the facts and the applicant’s complaints, the authorities stuck to their line of reasoning: nobody had killed K. in the hospital where he had been treated and had died.

99.  Having regard to the above considerations, the Court concludes that the authorities failed to carry out a thorough and effective investigation into the allegations that the applicant’s son’s death was caused by inadequate medical treatment following almost two years in detention.

100.  The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies, previously joined to the merits (see paragraph 75 above), as the Court considers that, even if the applicant had been duly and promptly informed of the decision of 31 December 2011, the applicant cannot be reproached for not seeking the repeated reopening of an investigation which is found to be ineffective, and finds that there has also been a violation of Article 2 of the Convention under its procedural limb.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

101.  The applicant complained that that her son had been ill-treated in custody, and that there had been no effective domestic investigation into the matter. She relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

1.  Locus standi

102.  Although the respondent State did not raise any objection as to the Court’s jurisdiction ratione personae, the Court considers of its own motion that this issue calls for examination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).

(a)  General case-law principles

103.  Under Article 34 of the Convention, an applicant must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI).

104.  This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX). The Court has acknowledged that human rights cases before it generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII). Accordingly, the Court normally permits the next of kin to pursue an application where the original applicant has died after lodging an application with the Court. However, the issues involved are different where the direct victim dies before his or her complaint is brought before the Court (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI). Although the locus standi of a victim’s next of kin has been recognised where the victim had died or disappeared in circumstances which were alleged to engage the responsibility of the State (see paragraph 73 above with further references), the Court’s approach has been more restrictive in cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2.

105.  As regards complaints of ill-treatment of deceased relatives under Article 3 of the Convention, the Court has accepted the locus standi of applicants only in cases where the ill-treatment was closely linked to the death or the disappearance (see De Donder and De Clippel v. Belgium, no. 8595/06, §§ 53-62, 6 December 2011, and Kaburov v. Bulgaria (dec.), no. 9035/06, 19 June 2012).

106.  The Court highlighted the strictly personal nature of the Article 3 right at stake in the Kaburov case, but did not exclude the possibility that it might recognise locus standi in the context of complaints under Article 3 for applicants who complained of treatment concerning their late relative exclusively, where such applicants “show either a strong moral interest, besides the mere pecuniary interest in the outcome of the domestic proceedings, or other compelling reasons, such as an important general interest which requires their case to be examined” (§ 56). Furthermore, the Court attached weight to the fact that the applicant had lodged his application many years after the end of the investigation, “the effectiveness of which would have been the most important, if not the only, issue of general interest in [that] case” (§ 57).

(b)  Application of the above principles to the present case

107.  The Court notes that the alleged ill-treatment of the applicant’s son took place on 10 April 2010 at the latest (see, in particular, paragraphs 11 and 27 above). More than eight months later, on 29 December 2010, K. signed an authority form authorising a lawyer to represent him in the proceedings before the Court. K. died on 7 November 2011, about eleven months later. At that time, he had never lodged an application before the Court. It was the applicant who complained to the Court in her own name, four months after the death of her son.

108.  It neither follows clearly from the case-file materials nor has it been submitted by the applicant that there was a causal link between the alleged ill-treatment of her son prior to or on 10 April 2010 and his death one year and seven months later. It therefore remains to be seen whether the applicant has demonstrated a strong moral interest or shown that there are other compelling reasons, such as an important general interest, for the Court to examine her Article 3 complaints.

109.  The Court attaches weight to the fact that, unlike in the case of Kaburov (cited above), where the applicant claimed only pecuniary compensation in respect of a relative’s death, in the present case the applicant has been seeking an effective investigation into her son’s ill-treatment for several years at domestic level (see paragraph 13 above). Immediately after his death in November 2011 she was granted status as K.’s successor in the criminal investigation into the matter, which then continued until after March 2014 (see paragraphs 35-40 above).

110.  Furthermore, the Court is mindful of the following circumstances. As established by unequivocal medical evidence, the applicant’s son sustained serious injuries necessitating a surgical intervention on the morning of 10 April 2010 and those injuries occurred about twelve hours prior to that surgery (see paragraphs 27 and 32 above). K. himself consistently denied ill-treatment in the course of the domestic investigation (see paragraphs 19, 22, 26 and 34 above). It is clear that his injuries were sustained while in the SIZO and he was returned to the same detention facility after his discharge from hospital, where he was surrounded by the same people as before, without the perpetrators of his ill-treatment having been identified. It should also be noted that he was, at the time, already seriously ill and that he eventually died of numerous illnesses, having been left without proper medical care.

111.  The Court notes that in its case-law it has shown particular consideration for a victim’s vulnerability, especially with regard to factors such as age, sex or disability which may have rendered them unable to lodge a complaint with the Court, due regard also being had to the connections between the person lodging the application and the victim (see, for example, Y.F. v. Turkey, no. 24209/94, § 31, ECHR 2003–IX, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 103, ECHR 2014). The circumstances of the present case indicate that the applicant’s son was particularly vulnerable during his detention, if not when he entered the SIZO certainly from the moment when he incurred and was recovering from the serious injuries inflicted in April 2010.

112.  Once she was informed of her son’s injuries, the applicant complained to the prosecuting authorities about the assault in the SIZO, was granted victim status as her son’s successor into the investigation of ill-treatment after his death and promptly lodged an application with the Court.

113.  Moreover, in addition to the previous grounds, the Court emphasises that the effective investigation of alleged ill-treatment within prisons by prison staff or tolerated by prison staff is a matter of general interest which requires this case to be examined.

114.  In the light of all the foregoing considerations and in the particular circumstances of this case, the Court accepts the applicant’s locus standi in respect of her complaints under Article 3 of the Convention.

2.  Exhaustion of domestic remedies

115.  The Government observed that the applicant had not challenged the decision of the Shevchenkivskyy Prosecutor’s Office of 26 August 2011 (see paragraph 33 above). They therefore asserted that she had not exhausted the domestic remedies and invited the Court to declare her complaint inadmissible on those grounds.

116.  The applicant contested the above arguments.

117.  The Court notes that the Government’s objection is partly linked to the merits of the applicant’s complaint as regards the effectiveness of the domestic investigation into the allegation of her son’s ill-treatment. However, it observes that the applicant did not need to challenge the refusal of the prosecutor of 26 August 2011 to institute criminal proceedings, regardless whether this remedy was effective or not, because the criminal investigation into the ill-treatment of her son was pending in parallel proceedings. Accordingly, the Court dismisses the Government’s objection as to the non-exhaustion of domestic remedies.

3.  Otherwise as to admissibility

118.  The Court further notes that these complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. The Court therefore declares them admissible.

B.  Merits

1.  Alleged ill-treatment of the applicant’s son in detention

119.  The applicant complained that her son had sustained serious injuries during his detention in the Kyiv SIZO, leading to hospitalisation and surgery. She emphasised that the authorities had failed to make any meaningful efforts to explain the origin of those injuries.

120.  The Government denied any ill-treatment of K. They pointed out the discrepancies between his and the applicant’s statements in that connection (see paragraph 19 above). The Government further observed that the timing of K.’s injuries, as established by the medical evidence, did not correspond to that suggested by either the applicant or K. himself (see paragraphs 13, 19, 27 and 32 above).

121.  The Court notes that, where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State in such circumstances, where the events in issue lie wholly, or largely, within the exclusive knowledge of the authorities, to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).

122.  It is an established fact in the present case that the applicant’s son sustained serious injuries in detention. The absence of any explanation by the Government for those injuries constitutes sufficient grounds for the Court to conclude that they were the result of ill‑treatment while in detention (see Doroseva v. the Republic of Moldova, no. 39553/12, § 30, 28 April 2015).

123.  Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.

2.  Alleged ineffectiveness of the domestic investigation

124.  The applicant maintained her complaint that the domestic investigation into the matter was in breach of the requirements of Article 3.

125.  The Government submitted that the domestic authorities had done everything possible to establish the truth about K.’s injuries and to bring those responsible to account.

126.  The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

127.  The Court notes that the domestic investigation, although confronted with an established fact that the applicant’s son had sustained serious injuries in a detention facility, failed to establish what had in fact happened to him, yet this was not seen as an obstacle to dismissing the applicant’s allegation of ill-treatment as unsubstantiated (compare with Lotarev v. Ukraine, no. 29447/04, § 91, 8 April 2010).

128.  Although K. denied having been ill-treated shortly before his hospitalisation, the accuracy of that denial was undermined by several forensic medical expert reports (see, in particular, paragraphs 27 and 32 above). At no point did the authorities try to make sure that no pressure had been put on K. or, in the event that it had, to protect him. Nor did they establish with whom he had had contact at the time of his injuries, the records of who occupied his cell not having been kept (see paragraph 35 above). Instead, they limited themselves to initiating a criminal investigation into the infliction of K.’s injuries by unidentified individuals.

129.  The Court observes that the investigation appears to have stalled between 2012 and 2014, as the Government neither referred to any investigative steps taken during that period, nor explained such inactivity (see paragraphs 41 and 42 above). Furthermore, although the investigation was formally relaunched in March 2014, there is no information as to what investigative measures followed, if any, nor to any conclusions reached.

130.  In summary, the Court concludes that the domestic authorities failed to ensure an effective and independent investigation into the circumstances in which the applicant’s son sustained serious injuries while in detention. The Court thus finds that there has also been a violation of Article 3 of the Convention under its procedural limb.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

131.  The applicant further complained that she did not have an effective domestic remedy in respect of the above complaints. She relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

132.  The Court notes that this complaint is linked to those examined above, and must therefore likewise be declared admissible.

133.  However, having regard to its findings under Articles 2 and 3 of the Convention regarding the circumstances of K.’s death and the failure of the authorities to carry out an effective investigation into the latter and into his alleged ill-treatment in detention (see paragraphs 100 and 130 above), the Court does not find it necessary to also examine this issue in the context of Article 13 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

134.  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.”

A.  Damage

135.  The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

136.  The Government contested this claim as unsubstantiated and exorbitant.

137.  The Court considers that the applicant suffered non-pecuniary damage, which cannot be compensated for by the mere finding of a violation of her Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

138.  The applicant also claimed EUR 2,000 for costs and expenses incurred before the Court, to be paid directly to her representative, Mr Zarutskyy.

139.  The Government observed that the applicant had not submitted any documents in substantiation of this claim. They therefore invited the Court to reject it.

140.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the material in its possession and the above criteria, the Court considers it reasonable to allow the applicant’s claim for costs and expenses and to award her the sum of EUR 2,000, to be paid to her representative directly.

C.  Default interest

141.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY,

1.  Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint under Article 2 of the Convention concerning the death of her son in detention, and dismisses it after having examined the merits of that complaint;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 2 of the Convention in respect of the authorities’ failure to protect K.’s right to life;

4.  Holds that there has been a violation of Article 2 of the Convention in respect of the lack of an effective investigation into the circumstances of K.’s death;

5.  Holds that there has been a violation of Article 3 of the Convention in respect of K.’s ill-treatment in detention;

6.  Holds that there has been a violation of Article 3 of the Convention in respect of the lack of an effective investigation into the allegation of K.’s ill-treatment;

7.  Holds that there is no need to examine the applicant’s complaint under Article 13 of the Convention;

8  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(ii)  EUR 2,000 (two thousand euros), to be paid directly to the applicant’s representative Mr Zarutskyy, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

 

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