CASE OF INDYLO v. UKRAINE

FIFTH SECTION

CASE OF INDYLO v. UKRAINE

(Application no. 71056/14)

JUDGMENT
 

STRASBOURG

13 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of Indylo v. Ukraine,

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

 María Elósegui, President,
 Gilberto Felici,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 71056/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 31 October 2014 by two Ukrainian nationals, Ms Lyudmyla Stepanivna Indylo and Mr Ivan Ivanovych Indylo (“the applicants”), who were born in 1966 and 1962 respectively, live in Volovytsya and were represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko;

the parties’ observations;

Having deliberated in private on 23 January 2025,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the alleged ill-treatment and subsequent death of the applicants’ son while in police custody. It raises issues under Articles 2 and 3 of the Convention.

2.  According to the domestic authorities, on 17 May 2010 the applicants’ son, while celebrating on the day before his birthday in his student dormitory in Kyiv, had disturbed public order while intoxicated. An off-duty police officer, P., who was residing in the same dormitory, was called by a security guard to try and calm him down. Since the applicants’ son did not obey P.’s demand to calm down, P. arrested him on suspicion of having committed an administrative offence (malicious failure to obey the order of a police officer). P. then brought the applicants’ son to a police station. A friend of the applicants’ son, Kh., accompanied them. Those events happened between 8.15 p.m. and 8.38 p.m.

3.  At 8.45 p.m. P., Kh., and the applicants’ son arrived at the police station, where K. was duty officer that day. The applicants’ son and Kh. were placed in an interview room where Police Officer P. drafted an administrative-offence report in respect of the applicants’ son. According to the official record, the applicants’ son was extremely intoxicated and at one point he tried to lean against the table but stumbled and fell backwards onto the ground, causing him to lose consciousness. An assistant duty police officer, L., called an ambulance at 8.55 p.m.

4.  The ambulance arrived at 9.07 p.m. The ambulance team helped the applicants’ son to regain consciousness. The applicants’ son confirmed that he had consumed alcohol. Although he resisted the medical check-up, the ambulance team managed to examine his head (while two paramedics held his arms, the doctor palpated the head) and found no injuries. For this reason, and having diagnosed the applicants’ son with alcoholic intoxication only, the ambulance team concluded that there were no grounds to hospitalise him. The ambulance left the police station at 9.20 p.m. Officer P. remained in the interview room with the applicants’ son and Kh. P. finalised the administrative-offence report charging the applicants’ son with having maliciously disobeyed a police officer’s order.

5.  At 9.49 p.m. P. and L. took the applicants’ son to a cell. Given that he resisted being placed there, P. dragged him into the cell by force and left him on the floor. The other occupants of the cell testified that after a while he had gotten up and lain down on a bench. In the meantime, P. finalised the case file and at 12.30 a.m. returned to the dormitory.

6.  As was later established by investigating authorities (see paragraph 25 below), the applicants’ son fell onto the cell floor twice – he fell firstly between 1.01 a.m. and 1.07 a.m., and fell again at 1.23 a.m., after which he did not get up. According to K., he heard the applicants’ son falling to the ground sometime between 1.20 a.m. and 1.30 a.m. He approached the cell and saw the applicants’ son lying on the floor. K. asked the applicants’ son what had happened, and the latter responded that everything was fine. At approximately 4.40-4.50 a.m. an assistant duty police officer, Zh., told K. that the applicants’ son was not feeling well and that he had called an ambulance. K. approached the applicants’ son, heard that he was breathing heavily, and sprinkled him with water, but there was no reaction. Zh. and K. called an ambulance two more times.

7.  At 5.05 a.m. the ambulance team arrived and concluded that the applicants’ son was dead. According to the death certificate of 18 May 2010, he had died owing to a fractured skull and craniocerebral haemorrhaging that had been caused by contact with a blunt object.

8.  The applicants contested the above version of events before the Court both in the application form and their subsequent submissions. They argued that their son had not fallen down by himself while in the police station and that he had not been extremely intoxicated. They claimed that he had been subjected to physical violence by the police, which had resulted in his injuries and death. The applicants further insisted that the authorities had failed to provide their son with adequate medical care.

9.  On 18 May 2010 an investigator from the district prosecutor’s office carried out an on-site inspection and questioned several witnesses: P., the applicants’ son’s friend Kh., duty Police Officer K., assistant duty Police Officers L. and Zh., the security guard of the dormitory, the applicants’ son’s neighbours in the dormitory, the ambulance team and the cellmates of the applicants’ son.

10.  On 21 and 27 May 2010 the head of a forensic medical examination bureau, V., was questioned. He explained that the injuries of the applicants’ son could have been caused by a fall from a standing position to the ground. He denied that the injuries could have been caused by a blow from a blunt object.

11.  On 28 May 2010 a criminal investigation was launched in respect of the police officers on suspicion of exceeding authority or official powers, accompanied by violence and in such a way as to cause significant harm to the applicants’ son (Article 365 § 3 of the Criminal Code).

12.  On 29 September 2010 a forensic medical examination established that the applicants’ son had been extremely intoxicated at the material time.

13.  On 7 October 2010 Officer P. was accused under Article 365 § 2 of the Criminal Code of exceeding the limits of his powers in aggravated circumstances for drafting the administrative-offence report without approval, physically abusing the applicants’ son by placing him in the cell by force and for leaving him on the floor, which had amounted to degrading treatment.

14.  On the same day, duty Officer K. was accused under Article 367 § 1 of the Criminal Code of neglecting of his duties by allowing the unlawful arrest and detention of the applicants’ son. On the same day P. and K. were both officially charged with the above-mentioned offences.

15.  On 17 November 2010 P. and K. were committed for trial at the Desnyanskyi District Court of Kyiv (“the trial court”).

16.  On 23 December 2011 the trial court absolved Duty Officer K. from criminal liability under the Amnesty Act of 2011 on the ground that K. had a dependent minor son.

17.  On 5 January 2012 the trial court convicted Officer P. under Article 365 § 2 of the Criminal Code, sentenced him to five years’ imprisonment and imposed on him a ban on taking positions in any law-enforcement authorities for two years. However, it suspended the sentence for a two-year probationary period. The trial court found that P. had purposefully exceeded the limits of his powers by placing the applicants’ son in detention without approval from the duty officer and his superior. Moreover, P. had forced the applicants’ son to enter the cell against his will and had left him on the floor in the cell. The trial court concluded that that had constituted degrading treatment.

18.  On 12 January 2012 the applicants appealed against the decisions of 23 December 2011 and 5 January 2012, arguing that the key issue of the case, notably the cause of their son’s death and the ensuing liability of the police officers, had not been duly investigated and examined.

19.  On 14 May 2012 the Kyiv Court of Appeal (“the court of appeal”) allowed the applicants’ appeal and sent the case back to the prosecutor’s office for a fresh investigation. It found that the prosecution had only investigated the negligence of duties and exceeding of powers and not the death of the applicants’ son. The court of appeal further stated that video recordings from the closed-circuit television cameras in the police station had not been properly examined during the investigation; the possibility of negligence by the ambulance doctors had not been scrutinised; and the forensic medical examination in the case had failed to address several essential questions, namely concerning the cause of the injuries. The court of appeal found that the applicants’ son had sustained injuries, the nature of which had not been explained during the investigation. It concluded that the investigation had been incomplete and ordered that in the course of a fresh investigation the competent authorities should, inter alia, ensure that there was an additional forensic medical examination to establish the circumstances under which the applicants’ son had sustained his injuries, and that they should also examine whether there had been any connection between the conduct of the police officers and ambulance doctors, on the one hand, and the death of applicants’ son, on the other.

20.  In October 2012 the additional investigation was completed and the case, with indictments of the police officers (P. – for exceeding the limits of his powers and K. – for negligence of duties), was transmitted for trial.

21.  On 27 November 2013 the trial court, finding that there were inconsistencies in the evidence in the case, ordered an additional forensic medical examination.

22.  On 3 March 2014 the forensic examination found that the death of the applicants’ son had been caused by craniocerebral trauma which had been sustained in a fall from a standing position a minimum of six-eight hours and a maximum of one day before his death; the trauma could not have been caused by the applicants’ son’s fall(s) in the cell. The expert also concluded that the ambulance doctors should have hospitalised the applicants’ son when they had first been called (after his fall in the interview room) because he had been unconscious.

23.  On 21 August 2014 the trial court sent the case back to the prosecutor’s office for a fresh investigation. It found that the investigation had not been complete and accurate since the applicant’s son’s fall from his bench in the cell had been ruled out as a cause of his injuries without another cause having been definitively identified. Moreover, it was necessary to investigate whether the ambulance doctors had complied with their duties when treating the applicants’ son. On 17 October 2014 the court of appeal upheld that decision.

24.  On 16 June 2016 an additional forensic examination found that the death of the applicants’ son had been caused by swelling of the brain as well as his craniocerebral injury. That injury could have been caused by his knocking his head off a flat surface as a result of his fall. It was further established that the applicants’ son could have lost consciousness in the interview room as a result of cerebral vessel pathology together with alcoholic intoxication. The experts also reached the conclusion that the ambulance doctors should have hospitalised the applicants’ son.

25.  On 5-6 November 2016 the investigator reviewed video recordings showing the events of 17-18 May 2010 in the police station. It was established that the applicants’ son had fallen on the floor in the cell twice (he fell firstly between 1.01 a.m. and 1.07 a.m., and fell again at 1.23 a.m.).

26.  On 14 September 2017 a forensic medical re-examination found that the craniocerebral injury could have been caused by the head of the applicants’ son making contact with a blunt object as might happen in a fall or owing to a blow. The injury could have been caused in the circumstances shown in the video recordings from the police station. The applicants’ son could have sustained the injury three to six hours before death. The experts also concluded that there had been no grounds for the hospitalisation of the applicants’ son by the ambulance doctors.

27.  On 27 February 2018 the investigator reclassified the charges from exceeding the limits of powers under Article 365 § 2 of the Criminal Code to intentionally inflicting grave bodily harm to the applicants’ son under Article 121 § 2 of the Criminal Code. The investigator noted the following: (i) numerous forensic examinations had failed to establish how the craniocerebral injury leading to the swelling of the brain had occurred; (ii) the exact time when the injury had occurred had not been determined, which indicated that the injury could have occurred before the applicants’ son had been brought to the police station; (iii) the investigation had not obtained any evidence of the police officers’ involvement in the infliction of injuries.

28.  According to the latest information provided by the Government on 19 December 2018, the investigation was, at that date, still underway. No further information has been provided by the parties.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLEs 2 and 3 OF THE CONVENTION

29.  The applicants complained that, while in police custody on 17‑18 May 2010, (i) their son had been subjected to ill‑treatment; (ii) the State authorities had failed to provide him with the requisite medical assistance; (iii) the State was responsible for the death of their son; and (iv) there had been no effective investigation into those events. The applicants relied on Articles 2, 3 and 13 of the Convention. The Court considers that the above complaints fall to be examined solely under Articles 2 and 3 of the Convention.

30.  The Court further considers that the complaints are to be examined together, in the light of the converging principles deriving from both those provisions and taking into account that the complaints arise from the same set of facts (see, for a similar approach, Vardanyan and Khalafyan v. Armenia, no. 2265/12, § 78, 8 November 2022).

31.  The Government submitted that the applicants had failed to exhaust domestic remedies in respect of their complaints as the investigation was still underway. The applicants argued that the remedy suggested by the Government was ineffective. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that these matters fall to be examined below under the procedural aspects of Articles 2 and 3 of the Convention.

32.  The Government submitted that there had been no violation of the Convention. In particular, they noted that the investigating authorities had immediately opened a criminal investigation into the death of the applicants’ son. The investigating authorities had acted comprehensively and promptly and they had done everything possible to collect evidence and investigate the circumstances of the case.

33.  The applicants disagreed with the Government’s assertions. More specifically, they contended that the State authorities were responsible for the death of their son since they had not conducted an effective investigation in that connection.

34.  The Court has previously held that once the investigative obligation is triggered, compliance with the procedural requirement of Articles 2 and 3 of the Convention is assessed based on several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. Those elements are inter‑related and each of them, taken separately, does not amount to an end in itself (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015). Moreover, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, an investigation should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).

35.  Turning to the present case, the Court notes that a criminal investigation into the events was only launched ten days after the death of the applicants’ son (see paragraph 11 above) and that from the very beginning it merely concerned negligence of duties and exceeding limits of powers by the police officers (see paragraphs 13 and 14 above). The offence was reclassified to intentional infliction of grave bodily harm only eight years later (see paragraph 27 above). The domestic courts sent the case back to the prosecutor’s office for additional investigation on two occasions owing to a failure to take all necessary investigative steps to establish the cause of death of the applicants’ son (see paragraphs 19 and 23 above).

36.  The Court further notes that as of 19 December 2018 – that is more than eight and a half years after the death of the applicants’ son – the investigation has still not been completed. It cannot be concluded that its overall length was justified by the circumstances of the case. In this regard, the Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts. Moreover, with the passage of time the prospects that any effective investigation can be undertaken will increasingly diminish (see Goryayeva v. Ukraine [Committee], no. 58656/10, § 31, 6 October 2016). The Court sees no explanation for the investigation’s considerable length other than a number of delays and inadequacies in the conduct of vital investigative measures that made it necessary for the judicial authorities to refer the case back to the investigating authorities for additional investigation (see paragraphs 19 and 23 above).

37.  Furthermore, some crucial circumstances remain unestablished, namely, the cause of death of the applicants’ son, the cause of the injuries he sustained, the mechanism by which the craniocerebral injury occurred, and the connection between the conduct of the police officers and the ambulance doctors, on the one hand, and the death of applicants’ son, on the other. The Court reiterates that a substantial delay in the identification of the cause of death, unless it is justified by objective circumstances, can in and of itself undermine public confidence in the maintenance of the rule of law and thereby raise an issue under the Convention (see, for example, Mashchenko v. Ukraine [Committee], no. 42279/08, § 25, 11 June 2015).

38.  Thus, the Court concludes that, in the instant case, the investigation failed to meet the requirement of effectiveness and rejects the Government’s objection as regards non-exhaustion of domestic remedies.

39.  There has accordingly been a violation of the procedural limbs of Articles 2 and 3 of the Convention.

40.  The Government did not comment on the merits of the complaints under the substantive parts of Articles 2 and 3 of the Convention.

41.  The Court has previously emphasised that persons who have been taken into custody are in a vulnerable position and that the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies. In assessing the evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear, and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, §§ 99 and 100, ECHR 2000-VII, and Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015).

42.  As regards the substantive limb of Articles 2 and 3 of the Convention, the Court notes that the applicants’ son died as a result of injuries he did not have before arriving at the police station (see paragraph 4 above). The Court finds that the investigation conducted at the national level was so ineffective and left so many important questions unanswered that it was not capable of establishing the true circumstances surrounding the death of the applicants’ son. It also failed to establish whether the medical assistance provided to him was adequate. The failure of the investigating authorities to provide an explanation for the injuries he suffered and his death in police custody (see paragraph 36-38 above) indicates a failure in their duty to account for his treatment in custody and thereby to discharge the burden of proof which rested on them.

43.  Given the above-mentioned circumstances, it is not necessary to examine whether the State authorities provided the applicants’ son with the requisite medical assistance.

44.  There has accordingly been a violation of the substantive aspects of Articles 2 and 3 of the Convention.

45.  In the light of those circumstances, the Court concludes that there has been a violation of the respondent State’s obligations under Articles 2 and 3 of the Convention because of the failure to conduct an effective investigation into the ill-treatment and death of the applicants’ son in police custody.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  The applicants claimed 200,000 euros (EUR) in respect of non-pecuniary damage, EUR 5,000 in respect of legal expenses and 508 Ukrainian hryvnias (UAH) for postal expenses.

47.  The Government contended that the claim in respect of non-pecuniary damage was groundless and that there was no causal connection between the alleged violation of the Convention rights and the loss sustained. As regards costs and expenses, the Government submitted that the applicants had not supported those claims as they had failed to provide an agreement for the provision of legal services, an invoice or any other document that contained their lawyer’s hourly rate.

48.  The Court awards the applicants jointly EUR 40,000 in respect of non-pecuniary damage plus any tax that may be chargeable.

49.  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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000, plus any tax that may be chargeable to the applicants, in respect of costs and expenses incurred during the proceedings at the national level and before the Court.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, 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;

Done in English, and notified in writing on 13 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller María Elósegui
 Deputy Registrar President