Communicated on 12 April 2015
FIFTH SECTION
Application no. 58656/10
Zoya Georgiyivna GORYAYEVA
against Ukraine
lodged on 24 September 2010
STATEMENT OF FACTS
The applicant, Ms Zoya Georgiyivna Goryayeva, is a Ukrainian national, who was born in 1938 and lives in Mykolayiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s son (A.G.) was born in 1966. He suffered, among other, from tuberculosis, AIDS and drug addiction. He had an infected phlegmon on the right shin.
On 4 May 2007 A.G. was arrested on suspicion of drug-related crimes and placed in temporary detention centre of the Mykolayiv Police Department (“the ITT”).
On 7 May 2007 the Tsentralnyy District Court of Mykolayiv ordered the A.G.’s detention in custody.
On 8 and 10 May 2007 A.G. was not admitted by the Mykolayiv pre-trial detention centre (“the SIZO”). The staff of the SIZO took note of the A.G.’s serious diagnoses and considered that he required specialised medical treatment which had not been available at the SIZO.
On 13 may 2007 an ambulance was called to A.G at the ITT. The paramedic recommended treatment of A.G. in a hospital. That recommendation was not followed as there had been no facilities to escort A.G. outside the ITT.
On 14 May 2007 the Mykolayiv Court of Appeal upheld the first-instance court decision of 7 May 2007 dismissing the allegations of A.G.’s defence that keeping A.G. in custody as a preventive measure had not been commensurate with his condition.
On 15 May 2007 the staff of the SIZO refused again to admit A.G. in their facility for the same reasons that they had advanced earlier.
On 19 May 2007 an ambulance was called to A.G. at the ITT and he was taken to the city hospital for treatment for the phlegmon on his right shin. On the same day, following the treatment, A.G. was returned to the ITT.
On 20 May 2007 A.G. was examined and treated by an ambulance doctor who arrived at the ITT.
On 22 May 2007 A.G. was escorted to the SIZO which once again refused to admit him due to his state of health. A.G. was returned to the ITT.
At about 9.30 p.m. on 23 May 2007 A.G.’s physical condition aggravated. When the ambulance team arrived at the request of the ITT they found that A.G. had died.
According to the post-mortem examination report, A.G. died from ischemic heart illness which had been aggravated by the acute heart insufficiency. Strangulation bruises were also found on A.G.’s neck which indicated an interrupted asphyxia. According to the report, the asphyxiation had been attempted ten minutes before the death and could have aggravated A.G.’s chronic illnesses.
Between 2007 and 2012 the investigators of the local prosecutor’s office repeatedly refused to initiate criminal proceedings in connection with the death of the applicant’s son. Those decisions were quashed by the supervising authorities and further pre-investigation enquiries were ordered.
On 14 December 2012 the authorities initiated criminal proceedings for the alleged failure to provide medical assistance to the applicant’s son.
On 27 March 2013 the investigator of the Zavodskyy Distrtict Prosecutor’s Office of Mykolayiv terminated the criminal proceedings finding no elements of crime on the part of the ITT officers.
On 24 July 2013 the Zavodskyy Distrtict Court of Mykolayiv quashed the decision of 27 March 2013 as unfounded noting that the investigator had failed to take the necessary measures in the case.
On 3 October 2013 the investigator terminated the criminal proceedings concluding that there had been no evidence to suggest that the staff of the ITT had caused the death of the applicant’s son. The investigator found that before his death the applicant’s son had unsuccessfully attempted to commit suicide by hanging himself and that conduct could have instigated the aggravation of his chronic illnesses; according to the available medical evidence, the applicant’s son had not had any acute condition which had required his admission to the hospital during his detention in the ITT; furthermore, the serious illnesses, such as tuberculosis and HIV, suggested that A.G.’s physical condition would have in any event gradually aggravated.
COMPLAINTS
1. The applicant complains under Article 2 of the Convention that her son was not provided with requisite medical assistance during his detention and that the prison authorities were responsible for the death of her son.
2. The applicant complains under Articles 2 and 13 of the Convention that there has been no effective investigation of the case.
QUESTIONS TO THE PARTIES
1. Did the domestic authorities comply with their positive obligations under Article 2 of the Convention?
(a) Did they provide appropriate medical treatment to the applicant’s son?
(b) Having regard to the signs of attempted strangulation on the body of the applicant’s son, did the domestic authorities ensure his security during his detention? Have they failed to take any operational measures on that account?
2. Having regard to the procedural protection of the right to life, were the enquiries and investigations in the present case by the domestic authorities in breach of Article 2 of the Convention?
The Government are invited to provide the following material:
- medical records and reports as regards the applicant’s state of health and treatment during his detention in May 2007;
- documents concerning the domestic proceedings in respect of the applicant’s son’s death (including internal enquiries, pre-investigation enquiries, investigations) and, in particular, decisions by which the authorities refused to open investigations or terminated the investigations and the decisions of the supervising authorities reviewing those decisions.
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