CASE OF KARPYLENKO v. UKRAINE
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1957 and lives in Kyiv. 6. On 26 December 2009 the applicant’s twenty-five-year-old son, K., was arrested by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery. 7. On 27 December 2009 K. underwent a medical examination, which did not reveal any injuries. 8. On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial. 9. On 30 December 2009 K. was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”). 10. On 22 March 2010 he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office (“the Shevchenkivskyy Prosecutor’s Office”). 11. At 9.30 a.m. on 10 April 2010 K. was admitted to Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, rupture of the spleen, retroperitoneal haematoma, a closed chest injury, laceration (tissue rupture) of the right lung, left-sided pneumonia, post-traumatic anaemia, and fourth-degree haemorrhagic shock (the most serious on a scale of one to four, entailing critical blood loss of over 40%). 12. On 10 and 12 April 2010 K. underwent surgery twice in respect of the above-mentioned injuries and his spleen was removed. 13. On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the SIZO on 8 April 2010. 14. On 23 April 2010 the Shevchenkivskyy Prosecutor’s Office refused to institute criminal proceedings against police officers in respect of K.’s ill-treatment for lack of corpus delicti in respect of their actions. 15. On 28 April 2010 K. was discharged from hospital and placed in the SIZO’s medical unit, where he remained until 18 June 2010. 16. On 3 June 2010 the Kyiv City Police Department completed the internal investigation in respect of the applicant’s complaint regarding the alleged ill-treatment of her son and found it to be without any basis. 17. On 8 June 2010 the newspaper “Segodnya”, issued in the Kyiv region, published an article under the headline “A bad [police] station” («Нехороший участок») about the alleged ill-treatment of the applicant’s son in the Shevchenkivskyy police station in spring 2010. The author relied, in particular, on the statements of one of K.’s cell-mates. A similar article titled “Another incident in the Shevchenkivskyy police station” («Новое ЧП в Шевченковском РУВД») appeared in the internet media outlet “Levyy Bereg”. 18. On 10 June 2010 the Shevchenkivskyy Prosecutor’s Office overruled its decision of 23 April 2010 and decided that further investigation was required. More specifically, K. had to be questioned as to who exactly had subjected him to ill-treatment in the SIZO in April 2010. 19. On 10 June 2010 the investigator also questioned the applicant’s son. K. contended that on 26 December 2009, when he was arrested, police officers had hit him in the stomach. He further stated that the investigator dealing with his case had also hit him in the stomach once in March 2010. According to K., these two beatings had necessitated his urgent medical treatment on 10 April 2010. K. said that he did not understand why his mother had stated that he had been subjected to ill-treatment on 8 April 2010 (see paragraph 13 above). 20. On 21 June 2010 the investigator who was in charge of K.’s criminal case was also questioned. He denied ever having seen K. in March 2010, let alone having physically assaulted him. 21. On 8 July 2010 the Shevchenkivskyy Prosecutor’s Office once again refused to institute criminal proceedings against the police officers in question, having found no evidence of criminal conduct. The decision not to prosecute noted that K. had not complained of any ill-treatment during his detention, and that his medical examination on 27 December 2009 had not revealed any injuries (see paragraph 7 above). Following his hospitalisation on 10 April 2010, K. had mentioned to a doctor that he had been physically assaulted some three days earlier, and the doctor had then stated to the investigator that K.’s injuries had been sustained no more than two days before his admission to hospital. According to his medical file, K.’s injuries had originated from blows to his back with blunt objects one to twelve hours prior to his admission to hospital (that is, during the night of 9 to 10 April 2010). On the basis of the above information, the Shevchenkivskyy Prosecutor’s Office concluded that the allegation regarding K.’s illtreatment was unsubstantiated. 22. On 3 August 2010 an official of the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s Office”), to which the investigation had been transferred meanwhile for an unknown reason, also questioned K. This time, he stated that he had only been ill-treated on 26 December 2009, but never thereafter. 23. On 25 August 2010 eleven inmates with whom K. had shared a cell in the SIZO were also questioned. They said that he had felt unwell on the night of 9 to 10 April 2010, and that an ambulance had been called for him on the morning of 10 April 2010. They also submitted that nobody had been violent towards him or had put him under any psychological pressure. 24. On 9 September 2010 the SIZO’s medical assistant (фельдшер), who had been on duty at the time of the events, was questioned as part of the investigation. He stated that he had been called to cell no. 36, where K. had been held, at 8.45 a.m. on 10 April 2010. K. had complained of weakness, vertigo and blurred vision. He had not alleged any ill-treatment and a visual examination had not revealed any injuries. He had had low blood pressure. The medical assistant said that he had provided K. with the necessary medical assistance and had reported the matter to the doctor on duty. The doctor on duty at the time of the events made a similar statement. 25. On 22 October 2010 an official from the Kyiv Prosecutor’s Office questioned the ambulance paramedics who had been called to assist K. They did not remember the circumstances. 26. On 4 November 2010 the Kyiv Prosecutor’s Office questioned K. again. He stated that Shevchenkivskyy police officers had physically assaulted him following his arrest on 26 December 2009. He considered that the sudden deterioration in his health on 10 April 2010 had been the consequence of that ill-treatment. 27. From 8 November 2010 to 28 January 2011 a forensic medical expert evaluation of K.’s medical file was carried out, with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been. The expert concluded that K. had sustained an insignificant spleen trauma about a month prior to undergoing surgery, on around 10 March 2010. More specifically, he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally. However, about twelve hours before surgery (at about 4 a.m. on 10 April 2010) K. had sustained a serious non-penetrating stomach injury resulting from a blow to the left side of his back with a blunt object. As a result, he had sustained a haemoperitoneum, a partial rupture of the diaphragm and trauma of the spleen. 28. On 29 December 2010 the applicant’s son signed a form of authority, authorising Mr Zarutskyy (the lawyer who represented the applicant before the Court – see paragraph 2 above) to represent him in proceedings before the Court. He did not, however, lodge an application with the Court on that occasion. According to the applicant, her son did intend to lodge an application regarding both his ill-treatment and the investigation into that allegation. 29. In February 2011 K.’s lawyer challenged the refusal to institute criminal proceedings of 8 July 2010 (see paragraph 21 above) with the Kyiv Prosecutor’s Office and before the Shevchenkivskyy Court. He submitted, in particular, that the origin of K.’s injuries while he had been under the authorities’ control had never been explained. 30. On 10 March 2011 the Kyiv Prosecutor’s Office, relying on the findings of the forensic medical expert report of 28 January 2011 (see paragraph 26 above), opened a criminal case in respect of unidentified individuals who had caused K. grievous bodily harm. The investigation was entrusted to the Shevchenkivskyy Police Department. 31. On 7 July 2011 the Shevchenkivskyy Court quashed the decision of the Shevchenkivskyy Prosecutor’s Office of 8 July 2010 and remitted the case for additional investigation. 32. Between 31 May and 25 August 2011 another forensic medical expert evaluation was carried out. It confirmed the findings of the earlier expert report of 28 January 2011 (see paragraph 27 above), but added that a fall could not be ruled out as a possible cause of the injuries. 33. On 26 August 2011 the Shevchenkivskyy Prosecutor’s Office issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions. 34. On 30 September 2011 K. was assigned victim status in the criminal investigation launched on 10 March 2011. On the same date the investigator of the Shevchenkivskyy Police Department questioned him. K. maintained his earlier version of events, namely that his ill-treatment had consisted of the following two episodes: Shevchenkivskyy police officers physically assaulting him following his arrest on 26 December 2009, and the investigator in charge hitting him once in the stomach at the end of March 2010. 35. On 30 September 2011 the SIZO administration sent to the investigator the list of the staff members who had been on duty during the night of 9 to 10 April 2010. As regards the list of K.’s cell-mates at the time, the administration informed the investigator that no records were kept in that regard. 36. On 7 November 2011 K., who had been transferred from the SIZO to a civilian hospital and who was suffering from HIV, tuberculosis and a number of concomitant diseases, died (see paragraphs 43-51 below). 37. On an unspecified date in November 2011 the applicant was granted status as K.’s successor in the criminal investigation into his ill-treatment. She was represented by the same lawyer who had earlier represented K. 38. On 9 December 2011 the Chief of the Shevchenkivskyy Police Department informed the applicant’s lawyer that the investigation, which had been initiated on 10 March 2011 (see paragraph 30 above), was ongoing. 39. On 30 March 2012 the applicant enquired with the Shevchenkivskyy Police Department about the progress of the investigation. 40. On 31 July 2012 the Kyiv City Investigation Department informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry. 41. It is not clear whether any investigative measures were implemented between 2012 and 2014. 42. On 7 March 2014 the investigator of the Shevchenkivskyy Police Department made an entry in the Unified Register of Pre-Trial Investigations about the assault on K. causing grievous bodily harm. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012. 43. Between 14 and 17 May, and 18 and 23 June 2010, when he was a detainee in the SIZO, K. was examined at the Kyiv City AIDS Centre at his request. He tested positive for HIV on both occasions. 44. According to the information submitted by the Government, between 24 June 2010 and 20 April 2011 K.’s health remained stable and he did not seek medical assistance. 45. On 20 April 2011 K. had his lungs X-rayed and was diagnosed, for the first time, with tuberculosis of the right lung. It was unclear how advanced the tuberculosis was. According to the Government, he was prescribed preventive treatment for two to three months. 46. On 23 May 2011 K.’s lawyer enquired with the management of the SIZO about his client’s condition. He asked, in particular, for clarification as to whether K. had been diagnosed with tuberculosis while in detention, and requested copies of the relevant documents. 47. On 8 June 2011 the SIZO deputy governor and the chief of the medical unit replied that, following a planned X-ray that day, K. had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the SIZO’s medical unit for treatment. In another letter (dated 28 November 2011) from the SIZO management to the applicant’s lawyer (see also paragraph 52 below), it was stated that on 8 June 2011 K. was also diagnosed as having HIV, chronic gastritis, hepatitis in remission and a drug addiction. In addition, he was classed as being in recovery following the removal of his spleen. 48. According to an extract from K.’s medical records, he was examined repeatedly by the SIZO’s doctors between June and October 2011. Each record begins with the statement that K.’s complaints remained the same, without specifying of what he complained. The records of 28 July and 9 September 2011 further note that K. complained of weakness. Furthermore, it was recorded that K. had complained of periodic coughing with purulent sputum during his examinations on 7 July and 15 October 2011. From 18 October 2011 onwards a deterioration in K.’s health was noted. On 20 October 2011 an ambulance was called for him. 49. As indicated in the letter sent by the SIZO management on 28 November 2011 in reply to the applicant’s lawyer’s inquiry of 13 October 2011, K. had an X-ray which revealed that the treatment of his tuberculosis was evolving positively. A decision was made to continue that treatment. 50. On 20 October 2011 K. was taken to Kyiv City Hospital no. 5, where the following diagnoses were made: infiltrative tuberculosis of the right lung, HIV in an unclear phase, meningitis caused by HIV, chronic hepatitis and gastritis in remission. K. was also classed as being in recovery following the removal of his spleen. 51. On 7 November 2011 K. died in the hospital. 52. In a letter of 28 November 2011 to the applicant’s lawyer the SIZO management noted that they had previously asked the Kyiv City Court of Appeal, which was dealing with the criminal case against K., to either accelerate the examination of that case or release K. on health grounds. However, they had not received any reply. 53. On 8 November 2011 the investigator of the Svyatoshynskyy District Police Department inspected K.’s body in the hospital. According to the report on “the inspection of the scene of the incident”, there was no indication of a violent death. 54. On the same date, the applicant asked the police to transfer the body to a mortuary, with a view to establishing the cause of death. 55. According to K.’s death certificate, which was issued on 10 November 2011, his death had been caused by acute heart failure, HIV and multiple concomitant illnesses. 56. The autopsy report, which was also issued on 10 November 2011, specified that the immediate causes of death had been a brain tumour, pulmonary and heart failure resulting from “express autointoxication following cryptococcal meningoencephalitis, macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction”. The report also noted that K. had had “shock kidneys”, cachexia, oropharyngeal candidiasis, and albuminous degeneration of the tissues of the kidneys, cardiac muscle and liver. 57. The applicant made a complaint to the prosecuting authorities regarding her son’s premature death and requested an investigation. 58. On 16 November 2011 the Svyatoshynskyy District Police Department refused to open a criminal investigation into the matter, having concluded that there was no indication of a criminal offence. 59. On 23 December 2011 the Svyatoshynskyy District Prosecutor’s Office overruled that decision on the grounds that it was based on a superficial investigation. 60. On 31 December 2011 the investigator once again refused to open a criminal case in relation to K.’s death. Relying on the scene inspection report of 8 November 2011 and the death certificate of 10 November 2011 (see paragraphs 53 and 55 above), he considered that there was no third-party involvement in the death. 61. On 16 July 2012 the applicant complained to the General Prosecutor’s Office about the ineffectiveness of the investigation. In particular, she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed. She noted that there had been no medical monitoring or treatment of K. as regards his HIV. Furthermore, while the HIV diagnosis presupposed a high risk of tuberculosis, K. had not had an X-ray until almost a year after he had tested positive for HIV. The applicant also complained that the intervals between the X-ray sessions had been unreasonably long. Thus, after his X-ray on 6 June 2011 K. had subsequently not had an X-ray until 13 October 2011, whereas a repeat X-ray should have been performed within a two-month time period. Furthermore, although K.’s treatment for tuberculosis had been unsuccessful, it had been continued, and his resistance to the medications prescribed had never been verified. Lastly, the applicant complained that the authorities had not provided her with all the information concerning her son’s health while he had still been alive, despite the numerous inquiries made by her lawyer. In particular, she had only found out about her son’s HIV after his death. 62. On 20 July 2012 the General Prosecutor’s Office forwarded the above complaint to the Kyiv Prosecutor’s Office. 63. On 15 August 2012 the Svyatoshynskyy Prosecutor’s Office wrote to the applicant saying that her complaint concerning her son’s death and the allegedly inadequate medical care he had received had already been investigated. As a result, it had been decided on 31 December 2011 that there were no grounds for opening a criminal case (see paragraph 60 above). It remained open to the applicant to challenge that decision. 64. There is no information in the case file about any subsequent developments.