Communicated on 6 January 2014
FIFTH SECTION
Application no. 15509/12
Zoya Mykolayivna KARPYLENKO against Ukraine
lodged on 8 March 2012
STATEMENT OF FACTS
The applicant, Ms Zoya Mykolayivna Karpylenko, is a Ukrainian national, who was born in 1957 and lives in Kyiv. She is represented before the Court by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 December 2009 the applicant’s twenty-five year old son, K., was detained by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery.
On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial.
On 22 March 2010 K. complained to the court that the investigator had subjected him to physical and psychological pressure with a view to making him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office.
On 10 April 2010, at 9.30 a.m., K. was hospitalised to the Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, spleen rupture, retroperitoneal hematoma, a closed chest injury, laceration of the right lung (a chest injury in which lung tissue is torn), left-sided pneumonia, post-traumatic anemia, hemorrhagic shock of the fourth degree (on a scale of four; critical blood loss of over 40%).
On 10 and 12 April 2010 he underwent surgeries in respect of the mentioned injuries. As a result, his spleen was removed.
On 28 April 2010 K. was discharged from the hospital and placed in the SIZO medical unit, where he remained till 18 June 2010.
On 17 May and 23 June 2010 K. tested HIV positive.
On 8 July 2010 the Shevchenkivskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. It was noted in the ruling that K. had not complained of any ill-treatment during his detention. Nor had his medical examinations on 27 December 2009 and 5 July 2010 revealed any injuries. On 7 April 2010 K. had been brought to the court, but the hearing had not taken place owing to the victim’s absence. K. had not raised any complaints. At about 6 p.m. he had been taken back to the SIZO, together with a number of other detainees. The convoy officers denied having applied force to K. Following his hospitalisation on 10 April 2010, K. had complained that he had been beaten some three days earlier. However, the doctor told the investigator that K.’s injuries had been sustained no more than two days before his hospitalisation. According to the medical file, his injuries had originated from blows with blunt objects to his back within one to twelve hours prior to his hospitalisation (that is, during the night from 9 to 10 April 2010). On the basis of the above observations, the prosecutor concluded that the allegation of ill-treatment of K. was unsubstantiated.
On 29 December 2010 the applicant’s son signed an authority form authorising Mr Zarutskyy (the lawyer who represents the applicant in this case – see above) to represent him in the proceedings before the Court. He did not, however, apply to the Court. According to the applicant, her son did intend to lodge an application with the Court regarding his ill-treatment and its investigation.
On 1 and 28 February 2011 the lawyer of K. challenged the ruling of 8 July 2010 to the Kyiv City Prosecutor’s Office and to the Shevchenkivskyy Court.
On 15 February 2011 the Shevchenkivskyy Court found K. guilty as charged and sentenced him to four years and six months’ imprisonment.
On 10 March 2011 the Kyiv City Prosecutor’s Office opened a criminal case in respect of the infliction of grievous bodily injuries on K. by unidentified persons.
On 20 April 2011 K. underwent a regular medical examination and X‑raying and was diagnosed, for the first time, with tuberculosis of the right lung in an unclear phase. Preventive treatment for two to three months was prescribed to him.
On 6 June 2011 K. was X-rayed again. He was diagnosed with infiltrative tuberculosis of the right lung, HIV infection, chronic gastritis and hepatitis in a remission stage, drug addiction, and the condition following the spleen removal. He was placed in the anti-tuberculosis medical unit of the SIZO.
On 7 July 2011 the Shevchenkivskyy Court quashed the prosecutor’s ruling of 8 July 2010 and remitted the case for additional investigation.
On 13 October 2011 K. underwent another X-raying which revealed positive dynamics in his treatment for tuberculosis. It was decided to continue that treatment.
On 19 October 2011 K.’s health drastically deteriorated, without further details available in the case file as it stands.
On 20 October 2011 he was taken to Kyiv City Hospital no. 5, where the following diagnoses were established: infiltrative tuberculosis of the right lung, HIV infection of an unclear phase, HIV-provoked meningitis, chronic hepatitis and gastritis in a remission stage, and the condition after the spleen removal.
On 10 November 2011 K. died. According to the death certificate, his death had been caused by an acute heart failure and the HIV infection with multiple concomitant diseases.
The applicant complained to the prosecution authorities about his death. On 30 December 2011 the Kyiv City Prosecutor’s Office wrote to her that the investigation was going on.
The case file does not contain any information on the investigation progress or outcome.
COMPLAINTS
The applicant complains under Article 3 of the Convention that her son was ill-treated in police custody and that there was no effective domestic investigation into the matter.
She also complains under the same provision about the lack of adequate medical care for K. in detention.
The applicant blames the authorities for the death of her son, thus raising in substance a complaint under Article 2 of the Convention (right to life).
Lastly, she complains under Article 13 that there were no effective domestic remedies at her disposal in respect of the above complaints.
QUESTIONS TO THE PARTIES
1. Was the applicant’s son subjected to torture, inhuman or degrading treatment or punishment in breach of Article 3 of the Convention while in police custody?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation undertaken by the domestic authorities into K.’s allegation of ill-treatment by the police in compliance with the requirements of Article 3 of the Convention?
3. Was the applicant’s son’s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, was his health and physical well-being duly protected during his detention? Did he receive prompt and adequate medical care?
4. 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 into the circumstances of K.’s death in compliance with the requirements of Article 2 of the Convention?
5. Did the applicant have at her disposal an effective domestic remedy for the above complaints, as required by Article 13 of the Convention?
The Government are requested to submit a copy of the entire medical file of the applicant’s son, both from the detention facilities and civilian hospitals. They are also requested to submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant’s son and of the circumstances of his death, as well as copies of all related documents.
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