Communicated on 26 June 2015
FIFTH SECTION
Application no. 25114/11
Nina Ivanivna KUTSENKO against Ukraine
lodged on 17 April 2011
STATEMENT OF FACTS
The applicant, Ms Nina Ivanivna Kutsenko, is a Ukrainian national, who was born in 1949 and lives in Vyshneve, the Kyiv region.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Events prior to the death of the applicant’s son
On 13 August 2003 the applicant’s son (born in 1972), V. K., went missing.
On 18 August 2003 the applicant complained about his disappearance to the Vyshneve Town Police Department. Its chief, A., entrusted the search to the police officer Kh.
On the same date an unidentified unconscious man was found in Vasylkiv, the Kyiv region. He was taken by an ambulance to the local hospital with a diagnosis of “poisoning by unknown substance”.
On 19 August 2003 the man regained his senses and identified himself as V. K.
On 21 August 2003 an official of the Vasylkiv Town Police informed his counterparts in Vyshneve that the applicant’s son had been found and that he was in hospital in a serious condition. This message remained without any follow-up and was not passed on to the applicant.
On 22 August 2003 V. K. left the hospital without authorisation.
On the same day, at about 8 p.m., three officers of the Fastiv police department (Ko. and two unidentified officers) apprehended V. K. and took him to the Fastiv police station, where they beat him up. The detention of the applicant’s son was not documented.
In the evening on 25 August 2003 V. K. fainted. At 1.45 a.m. on 26 August 2003 the police officers took him to the railway station in Fastiv and left him there.
At 2.35 a.m. on 26 August 2003 an ambulance took the applicant’s son from the railway station to the Fastiv Central Town Hospital (“the Fastiv Hospital”). He was diagnosed with a closed craniocerebral injury and cerebral contusion, as well as contused wounds to his head. The doctor in charge of his treatment was traumatologist P.
On 28 August 2003, following a serious deterioration of V. K.’s health, a board of doctors, with the participation of a neurosurgeon from Kyiv Regional Clinical Hospital, examined him. The neurosurgeon recommended a computerised brain tomography in the regional hospital with a view to specifying V.K.’s diagnoses. That recommendation was not implemented.
On the same day, 28 August 2003, the applicant, who remained unaware of the whereabouts of her son, once again applied to the police for his search.
Still on that day the police officer Kh., who was in charge of the search, issued a decision refusing to open a criminal case. He referred to the statements of a staff member of the Vasylkiv Hospital, according to which V. K. had been discharged from that hospital on 22 August 2003 in good health. It would be later established that Kh. had forged that questioning report.
On 2 and 3 September 2003 V. K. was in a coma.
On 3 September 2003, at 6.20 p.m., he died.
2. Investigation into the death of the applicant’s son and related events
On 4 September 2003 a forensic-medical expert, Ga., conducted an autopsy of V.K.’s body, which was documented as that of an unidentified person, and reported some insignificant injuries.
On 9 September 2003 V. K. was buried as an unidentified person.
On the same day the applicant found out about the death of her son from her own unspecified sources.
On 12 September 2003 the body was exhumed. According to the applicant, it bore signs of torture.
On 10 October 2003 the Prosecutor General’s Office (“the PGO”) opened a criminal investigation into the death of the applicant’s son.
On 29 December 2003 the Fastiv Town Prosecutor’s Office terminated the investigation with a conclusion that there was no case to be examined. It mainly relied on the autopsy report of 4 September 2003.
On an unspecified date the PGO quashed the aforementioned decision.
On 15 October 2004 a repeated exhumation of V.K.’s body took place at the PGO’s order. It established that the following injuries had not been reported: three hematomas under the pericranium and the skull base, numerous hematomas to the cranial pia mater, the broken nose, and a focal subarachnoid hemorrhage. The exhumation report established that V. K. had had a head injury and that he had died of the brain swelling.
In 2004 and 2005 the Vasylkiv Town Prosecutor’s Office and the Kyiv Regional Prosecutor’s Office investigated the case.
In October 2005 the PGO took the investigation over. It was entrusted to its Main Department for Investigation of Particularly Serious Cases. Overall, the investigator in charge of the case was changed twelve times.
On 26 August 2009 the PGO ordered a forensic medical examination in respect of the death of the applicant’s son.
On 7 September 2009 the forensic medical examination in respect of the death of the applicant’s son was completed. The panel of experts relied on the case-file materials, from which it transpired that V. K. had sustained hits with a rubber truncheon or other blunt objects (such as hands or feet), which had led to some hematomas to the cranial pia mater, three hematomas under the pericranium, three punctured wounds and a fracture of the nasal bone. The experts established that there was a causal link between those injuries and V.K.’s death.
On 2 December 2009 the PGO ordered another forensic medical examination, which was to specify the injuries V. K. had sustained to the head, the mechanism of their infliction and their gravity.
In its report of 10 December 2009 the expert panel established that V. K. had sustained three wounds to the right part of the parietotemporal area, an unspecified number of hematomas to the cranial pia mater and the face, three hematomas under the pericranium, and a fracture of the right part of the nasal bone. All those injuries had resulted from at least eight “traumatic actions”. While the experts found it impossible to establish with precision the mechanism of the infliction of each injury, they could not rule out that some of those injuries had resulted from hits with a rubber truncheon. Lastly, the experts referred to the lack of precise data as regards the brain injuries or their connection with the hits sustained by V. K.
3. Criminal proceedings against Ga. (the forensic medical expert who conducted the autopsy on 4 September 2003)
In 2005 the PGO opened a criminal case against the forensic medical expert Ga., on suspicion, in particular, of his failure to report all the injuries to V.K.’s body.
On 5 May 2010 the Kyyevo-Svyatoshynskyy District Court (“the Kyyevo-Svyatoshynskyy Court”) found Ga. guilty of abuse of position and forgery by an official having entailed grave consequences, as well as of making a knowingly false expert conclusion. The court acquitted him in respect of the charge of the concealment of a serious crime. Given that the charges of forgery and making a false expert conclusion had become time-barred, Ga. was released from the penalty in that part. The remaining sentence, which concerned the abuse of position charge, was three years and six months’ imprisonment and a three years’ ban on holding expert positions. The court also allowed the applicant’s civil claim in part.
On 18 August 2010 the Kyiv Regional Court of Appeal modified the aforementioned judgment as follows. It reclassified the abuse of position and forgery charges to the charge of professional negligence with grave consequences and released Ko. from serving the sentence in its entirety given the expiry of the limitation period. The appellate court also quashed the judgment as regards the charge of making a false expert conclusion and discontinued the proceedings in that part for the lack of corpus delicti in Ga.’s actions.
On 18 October 2010 the Supreme Court rejected the prosecutor’s request for leave to appeal on points of law.
4. Criminal proceedings against Kh. (the police officer who was in charge of the search for the applicant’s son)
On 16 April 2007 the PGO opened a criminal case in respect of police officer Kh., who had been in charge of the search for the applicant’s son in August 2003, on suspicion of abuse of position and fraud by a law-enforcement official, which had entailed grave consequences.
There is no further information in the case file regarding this investigation.
5. Criminal proceedings against P. (the traumatologist who treated the applicant’s son in August and September 2003)
On 24 October 2007 the PGO opened a criminal case against the traumatologist of the Fastiv Hospital, P., on suspicion of a failure to provide the applicant’s son with the requisite medical care.
On 14 September 2010 the investigator ordered a forensic medical expert assessment of the medical care provided by the traumatologist to V. K. It was to answer thirty specific questions.
On 28 January 2011 the expert report was issued. It stated, in particular, that the gravity of V. K. condition had warranted his transfer to a better equipped hospital, which had not been done. Furthermore, there was no evidence that due resuscitation measures had been applied to V. K. It appears from the aforementioned report that that was at least the fourth forensic medical assessment of the kind.
In March 2011 the investigation was declared completed and the case was referred to court.
On 19 September 2013 the Vasylkiv Town Court remitted the case for additional investigation.
On 6 February 2014 the Kyiv City Court of Appeal, however, quashed the above ruling and remitted the case to the first-instance court for fresh examination.
On 29 July 2014 the Kyyevo-Svyatoshynskyy Court (to which the case had been transferred at the applicant’s request) found P. guilty of the failure to provide the applicant’s son with the requisite medical care and sentenced him to three years’ imprisonment. The court, however, released him from serving the sentence given that the limitation period established for that type of criminal offences had expired. Furthermore, the court allowed the applicant’s civil claim in part and awarded her 100,000 Ukrainian hryvnias (UAH, at the time equivalent of about 6,100 euros) in respect of non-pecuniary damage to be paid jointly by P., the Fastiv District State Administration and the Fastiv Hospital.
On 5 November 2014 the Kyiv Regional Court of Appeal upheld that judgment. It only amended it in that the awarded amount was to be paid to the applicant by the Fastiv Hospital alone.
6. Criminal proceedings against A. (the chief of the Vyshneve Town Police Department, to which the applicant had applied for the search of her son)
On 30 October 2007 the PGO opened a criminal case in respect of A. on suspicion of abuse of office by a law-enforcement official. More specifically, A. was suspected of having failed to take any measures for the search of the applicant’s son following her application to the police in August 2003.
On 4 December 2007 the Podilskyy District Court of Kyiv quashed the aforementioned ruling and refused to open a criminal case against A. On 9 January 2008 the Kyiv City Court of Appeal upheld that decision. On 24 July 2008 the Supreme Court, however, quashed the lower courts’ decisions and remitted the case to the first-instance court for fresh examination.
The subsequent events are not known. It appears that the investigation was eventually launched.
On 16 August 2011 the PGO discontinued the investigation having found that there was no case to be examined.
On 25 May 2012 the Pecherskyy District Court of Kyiv quashed that decision as ungrounded and ordered that the investigation be resumed.
On 18 July 2012 the Kyiv Regional Prosecutor’s Office, to which the investigation had apparently been entrusted, discontinued the criminal investigation once again having found that there was no case to be examined.
On 31 May 2013 the Pecherskyy District Court of Kyiv quashed the aforementioned ruling and ordered further investigation. On 9 July 2013 the Kyiv City Court of Appeal upheld that decision.
There is no information on the subsequent developments in the case file as it presently stands.
7. Criminal proceedings against Ko. (the police officer who ill-treated the applicant’s son)
On 26 December 2008 the GPO detained Ko., an officer of the Fastiv police department, on suspicion of ill-treatment of the applicant’s son in August 2003.
Subsequently several criminal cases were opened against him on suspicion of abuse of office by a law-enforcement official with grave consequences, excess of power associated with ill-treatment of the victim, also with grave consequences, and infliction of grievous bodily injuries having led to the victim’s death.
On 7 September 2011 the Bila Tserkva City Court found Ko. guilty in respect of the two first-mentioned charges and acquitted him in respect of the last-mentioned charge. It sentenced Ko. to six years’ imprisonment with the prohibition to hold offices related to public functions for three years. The court also ordered the confiscation of Ko.’s property.
On 7 December 2011 the Kyiv Regional Court of Appeal quashed the above judgment in so far as it concerned Ko.’s acquittal and upheld it in the remaining part.
On 30 October 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the lower courts’ decisions of 7 September and 7 December 2011.
On 12 August 2013 the Kyyevo-Svyatoshynskyy Court found Ko. guilty of infliction of grievous bodily injuries on V. K., which had led to the victim’s death. The court sentenced Ko. to ten years’ imprisonment.
On 27 November 2013 the Kyiv Regional Court of Appeal quashed the aforementioned judgment and discontinued the proceedings in that part as time-barred. Ko. was released in the court room.
On 21 August 2014 the Higher Specialised Court for Civil and Criminal Matters upheld that ruling.
8. Criminal proceedings against Go. (the police officer who was on duty in the Fastiv police station on 22 August 2003)
On 9 August 2012 the Baryshivka Town Prosecutor’s Office (in the Kyiv region) opened a criminal case against Go., who had not prevented his colleague Ko. from beating the applicant’s son in the police station on 22 August 2003.
There is no further information on this investigation or its outcome.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the State was responsible for the death of her son and that there was no effective domestic investigation into the matter. She additionally relies on Article 13 in this respect. Furthermore, relying on Article 6 § 1, the applicant complains about the length of the criminal proceedings against those implicated in her son’s death.
QUESTIONS TO THE PARTIES
1. Has the applicant’s son’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
2. 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 in the present case by the domestic authorities in breach of Article 2 of the Convention?
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