Communicated on 23 June 2016
FIFTH SECTION
Application no. 18320/09
Mykola Demyanovych KHADZHYRADOV and
Vira Petrivna KHADZHYRADOVA against Ukraine
lodged on 20 March 2009
STATEMENT OF FACTS
The applicants, Mr Mykola Demyanovych Khadzhyradov (“the first applicant”) and Ms Vira Petrivna Khadzhyradova (“the second applicant”), are the father and mother of the late Mr Demyan Mykolayovych Khadzhyradov, who was born in 1975 and died in 2007. Both applicants live in Tashchenak.
A. Issues relating to the health of the applicants’ son in detention and applications for his release on health grounds
In May 2005 Demyan Khadzhyradov arrived at the hospital in Sofiyivska Correctional Colony No. 55 (“the prison”) to serve his sentence. According to the applicants, when their son arrived at the prison he was suffering from HIV and disseminated tuberculosis.
On 8 November 2005 the prison’s medical panel diagnosed the applicants’ son with HIV (clinical stage 4) but did not agree to release him on medical grounds.
On 14 February 2006 the diagnosis was confirmed by the regional centre for the prevention and fight against Aids (“the Aids Centre”).
From September 2006, fearing for the life of their son, the applicants requested the prison administration to release him on health grounds.
On 3 October 2006 the Aids Centre confirmed that the applicants’ son had HIV at clinical stage 4.
According to the applicants, the prison administration, for no valid reason, questioned the conclusions of the Aids Centre and ordered their son to undergo additional tests.
On 12 February 2007 the Aids Centre again informed the prison administration that Demyan Khadzhyradov was HIV-positive at clinical stage 4.
In March 2007 the prison’s medical panel confirmed the diagnosis and stated that it supported the release of the applicants’ son on health grounds.
On 16 March 2007 the prison authorities prepared a court application for the release of Demyan Khadzhyradov on health grounds. A hearing was scheduled for 24 March 2007 but did not take place as the relevant documents had been withdrawn by the head of the prison.
On 13 April 2007 the applicants’ lawyer met their son in prison. He could not walk on his own and was taken to the meeting assisted by prison staff.
On 27 April 2007 the prison administration submitted another application to the competent court for the release of Demyan Khadzhyradov on health grounds. A hearing was scheduled for 8 May 2007.
On 7 May 2007 Demyan Khadzhyradov died in prison from acute heart failure.
B. Medical treatment of the applicants’ son in prison
According to the applicants, nothing was done by the prison doctors to improve their son’s condition, despite a drastic deterioration in his health after his arrival in prison. The doctors never consulted civilian medical specialists outside the prison about their son and never attempted to transfer him to such establishments.
Referring to Demyan Khadzhyradov’s post-mortem examination, the applicants stated that their son had suffered from fibro-cavitary tuberculosis, which required different treatment than disseminated tuberculosis, for which he had been treated in prison. They also stated that they themselves had had to buy the necessary medication for their son.
Lastly, the applicants stated that their son had not been provided with prompt and adequate medical assistance on the last day of his life as he could have been taken to a hospital which had all the necessary resuscitation and intensive care equipment and which was only 300 metres away from the prison.
C. Proceedings in connection with the death of the applicants’ son
In July 2007 the second applicant instituted civil proceedings against the prison in the Vilniansky District Court of Zaporizhzhia Region (“the District Court”), seeking compensation for the death of her son. On an unspecified date she withdrew the proceedings.
It is apparent from the case file that at some stage the applicants lodged a criminal complaint against the prison administration with the District Court, which forwarded it to the prosecutor’s office for investigation.
On 9 October 2007 the prosecutor’s office refused to initiate criminal proceedings against the prison administration, finding that Demyan Khadzhyradov had died from a serious illness and that therefore no crime had taken place. The applicants did not appeal against that decision.
On 10 October 2007 the first applicant instituted civil proceedings in the District Court against the prison, seeking compensation for his son’s death. He claimed that the death had been caused by a deliberate delay in the release process by the head of the prison and by the prison’s failure to provide his son with appropriate medical care while in detention.
On 18 June 2008 the District Court dismissed the first applicant’s claim, finding that he had failed to prove a causal link between the acts or omissions of the prison authorities and the death of Demyan Khadzhyradov.
On 12 August and 3 December 2008 the Court of Appeal of Zaporizhzhia Region and the Supreme Court of Ukraine respectively upheld the District Court’s decision.
COMPLAINT
The applicants blame the authorities for the death of their son, relying on Article 2 of the Convention.
QUESTIONS TO THE PARTIES
Was Demyan Khadzhyradov’s right to life, ensured by Article 2 of the Convention, violated in the present case?
In particular, did the authorities do all that could reasonably be expected of them to prevent Demyan Khadzhyradov’s death? Was his health and physical well-being duly protected during his detention? Did he receive prompt and adequate medical care, including on the last day of his life? Did the prison authorities act with due diligence in connection with the applicants’ request for the release of their son on health grounds?
The Government are requested to submit copies of all relevant documents concerning the applicants’ complaint, including Demyan Khadzhyradov’s medical file, accompanied by an information note, presented in chronological order, on the medical treatment received in prison; decisions taken by the prison’s medical panel in his respect; and a note, in chronological order, on the treatment by the prison authorities of the request for Demyan Khadzhyradov’s release on health grounds.
Full & Egal Universal Law Academy