Communicated on 27 August 2018
FOURTH SECTION
Application no. 71056/14
Lyudmyla Stepanivna INDYLO and Ivan Ivanovych INDYLO
against Ukraine
lodged on 31 October 2014
STATEMENT OF FACTS
The applicants, Ms Lyudmyla Stepanivna Indylo and Mr Ivan Ivanovych Indylo, are Ukrainian nationals, who were born in 1966 and 1962 respectively and live in Volovytsya. They are represented before the Court by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Events surrounding the applicants’ son’s death
(a) The domestic authorities’ version
As preliminarily established by the domestic authorities, on 17 May 2010 the applicants’ son, I., while celebrating the eve of his birthday in a student dormitory in Kyiv, was arrested for an administrative offence (flagrantly resisting the police officer’s order). The applicants’ son was delivered to the police station by the off-duty police officer P., who was residing in the same dormitory. I.’s friend accompanied him to the station. The events happened between 8.15 p.m. and 8.38 p.m.
While in the police station, I. and his friend were placed in the preliminary interview room where the police officer P. drafted a report on I.’s administrative offence. According to the official record, the applicants’ son was gravely inebriated and when he leaned against the table, he stumbled and fell down on his back on the floor and lost consciousness. The police called an ambulance.
The ambulance arrived at 9.07 p.m. The doctors helped I. to regain consciousness. Allegedly, the applicants’ son resisted the medical check-up and for this reason the ambulance team concluded that there were no grounds to hospitalise him. They diagnosed I. with alcoholic intoxication. The ambulance left the police station at 9.20 p.m. The police officer P., as well as I. and his friend, remained in the room for preliminary interview. The police officer P. finalised the report on the applicants’ son’s administrative offence.
At 9.49 p.m. the applicants’ son was placed in a cell. At 1.23 a.m. on 18 May 2010 he fell on the floor from the bench and never stood up again. Allegedly, as a result of falling from the bench, I. obtained craniocerebral trauma with multiple haemorrhages and broke his skull.
At 4.52 a.m. the police staff called an ambulance, which concluded at 5.05 a.m. that I. was dead. According to the death certificate of 18 May 2010 the applicants’ son died because of broken skull bones and craniocerebral haemorrhage.
(b) The applicants’ version
The applicants argued that their son had not fallen down by himself while in the police station and that he had not been gravely inebriated. They claimed that he had been subjected to physical violence on the part of the police which resulted in his trauma and death.
The applicants further maintained that the authorities failed to provide their son with adequate medical care.
2. Investigation of the events
On 28 May 2010 a criminal investigation was initiated on charges of exceeding, by the police, the limits of their power and causing the death of the applicants’ son.
On 7 October 2010 the police officer P. was accused of drafting an administrative report without approval, physically abusing the applicants’ son by placing him in a cell by force and leaving him on the floor which amounted to degrading treatment. Subsequently, the same police officer was charged with exceeding the limits of power in aggravated circumstances.
On the same day the duty officer K. was accused of allowing unlawful arrest and detention of the applicants’ son. Subsequently, K. was charged with neglect of duty.
On 17 November 2010 the two police officers were committed for trial before the Desnyanskyy District Court of Kyiv (hereinafter, “the District Court”).
On 23 December 2011 the District Court released duty officer K. from criminal liability under the Law of Ukraine “On Amnesty in 2011” on the ground that K. had a minor dependent son.
On 5 January 2012 the District Court convicted police officer P. and sentenced him to five years of imprisonment and imposed on him a ban on taking positions in law enforcement for two years. It suspended the sentence for a two-year probationary period. The court found that P. had purposefully exceeded the limits of his powers by placing the applicants’ son in detention without approval by the duty officer and his superior. Moreover, P. had forced the applicants’ son to enter the cell against his will and left him on the floor in the cell. The court found that this constituted degrading treatment.
On 12 January 2012 the applicants appealed against the judgments 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 properly investigated and examined.
On 14 May 2012 the Kyiv Court of Appeal quashed the judgments of 23 December 2011 and 5 January 2012 and remitted the case for a fresh investigation. The court found that the prosecution concerned merely neglect of duty and exceeding powers and not I.’s death. The court further stated that video recordings from the CCTV cameras in the police station had not been properly analysed during the investigation; the possible negligence by the ambulance doctors had not been scrutinised; the forensic medical examination in the case had failed to answer a number of essential questions, namely concerning the cause of the injuries. The court found that the applicants’ son had sustained injuries, the nature of which had not been explained in the course of the investigation. The court concluded that the investigation had been incomplete and ordered that in the course of a fresh investigation the competent authorities should, inter alia, ensure an additional forensic medical examination to establish the circumstances under which the applicants’ son had sustained his injuries; they should also examine 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 hand.
In October 2012 the additional investigation was completed and the case, with indictments of police officers, P. and K., was referred to the District Court. On 29 October 2012 and 15 March 2013 the District Court attempted to remit the case for additional investigations. Its remittal decisions were quashed as unfounded by the appellate court.
On 27 June 2013 the District Court, finding inconsistency in the evidence in the case, ordered an additional forensic medical examination.
On 3 March 2014 the forensic examination found that the death of the applicants’ son had been caused by the craniocerebral trauma which had been sustained from six to eight hours before death; the trauma could not have been caused by I.’s fall(s) in the cell.
On 21 August 2014 the District Court remitted the case for a fresh investigation, finding that the cause of the applicants’ son’s death could not be reasonably explained by his falling from the bench in the cell. Moreover, it was necessary to investigate whether or not the ambulance doctors had complied with their duties when treating the applicants’ son.
On 17 October 2014 the Appellate Court of Kyiv upheld the above decision.
The case was remitted to the prosecution office to carry out additional investigation. According to the latest information provided by the applicants on 31 October 2014, the investigation was, at that date, still pending
COMPLAINTS
1. The applicants complain under Articles 2 and 3 of the Convention that on 17 and 18 May 2010: (i) their son was subjected to ill‑treatment, (ii) the State authorities failed to provide him with the requisite medical assistance, and (iii) the State was responsible for the death of their son.
2. The applicants complain under Articles 2, 3 and 13 of the Convention that there has not been an effective investigation into those events.
QUESTIONS TO THE PARTIES
1. Was the applicants’ son’s right to life, ensured by Article 2 of the Convention, violated in the present case? Is the State responsible for the death of the applicants’ son?
2. Was the applicants’ son subjected to torture, inhuman or degrading treatment in breach of Article 3 of the Convention?
3. Having regard to the State’s positive obligations under Articles 2 and 3 of the Convention (see, inter alia, Karpylenko v. Ukraine, no. 15509/12, § 79, 11 February 2016, with further references) was the health and physical well-being of the applicants’ son duly protected at the police station? Did he receive prompt and adequate medical care? Have the police or medical staff failed to intervene to protect the applicants’ son’s life?
4. Has the State complied with its procedural obligations under Articles 2 and 3 of the Convention to carry out effective investigations of the events leading to the death of the applicants’ son, his alleged ill-treatment and the alleged lack of medical assistance?
5. Did the applicants have at their disposal, as required by Article 13 of the Convention, an effective domestic remedy in respect of their grievances under Articles 2 and 3?
The Government are invited to provide information on the developments in the case at the domestic level, together with all relevant documents.
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