Kardava v. Ukraine

Kardava v. Ukraine, no. 19886/09, ECHR 2019
Download Judgment: English

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The applicant, a Georgian national, was detained on 7 August 2008 by the Ukrainian police in Kyiv on suspicion of robbery and for the illegal possession of narcotic drugs. He was denied bail due to his previous criminal record, the gravity of his alleged crimes, and the judicial finding that he might seek to evade investigation and trial if released. While detained, his several requests for release due to his deteriorating health were refused.

The applicant alleges that he was beat twice by police officers. First, on 7 August 2008 during the course of his arrest. Then, on 11 August 2008, the police beat him with the aim of obtaining a confession for the crimes he was suspected of having committed. On 11 August 2008, a medical assistant noted that the applicant had sustained haematomas on his right shoulder and left thigh, and that he had a closed injury on his chest. On 15 August 2008, the applicant was taken to a hospital due to his rapid deterioration, where doctors noted that he had a closed head injury, multiple blunt internal injuries – including contusion to the kidneys and a broken rib, chronic internal haemorrhoids, discirculatory encephalopathy, and chronic persistent hepatitis C. He was discharged and returned to custody. A report by forensic medical experts was taken on 22 December 2008, confirming that the applicant suffered from discirculatory encephalopathy and chronic persistent hepatitis C. On 21 January 2009, a new medical examination found that the applicant was suffering from the after-effects of a head injury, chronic hepatitis C, and chronic gastroduodentitis. The applicant’s health continued to deteriorate while in custody, and by 22 October 2009, he was found to be suffering from several cardiovascular conditions in addition to his previously diagnosed conditions. It deteriorated further, and on 8 February 2010, he was diagnosed with several conditions including liver cirrhosis, hepatocellular failure, chronic pancreatitis, and symptomatic hypertension. On 1 April 2010, the applicant died of pulmonary heart disease, pneumonia, and liver cirrhosis.

The applicant and his family submitted several complaints to the courts, prosecutors, and Ombudsman alleging that he had been ill-treated by the police. The Shevchenkivskyy District prosecutor’s office refused to open criminal proceedings, finding that the applicant’s allegations were unfounded. Upon appeal, the higher courts found that the District prosecutor’s inquiries had fallen short of the requirements of a full and objective examination. In particular, they noted that the District prosecutor’s reliance on the December 2008 report was insufficient, since it did not include any evaluation of the applicant’s medical treatment between August-October 2008. Despite this, on 24 June 2010 the District prosecutor’s office again refused to open criminal proceedings regarding the applicant’s alleged ill-treatment, again only relying on the December 2008 report as medical evidence. The applicant’s family also submitted a request to investigate the circumstances of his death to the District prosecutor’s office, which was dismissed by the prosecutor’s office, overturned on appeal, and again refused by the prosecutor’s office.

The Court held that there was a violation of Article 3 of the European Human Rights Convention, with respect to the applicant’s ill-treatment by the police and the authorities’ failure to conduct an effective investigation into the applicant’s ill-treatment. The Court found that the State was obliged to provide satisfactory and convincing explanations for the injuries the applicant sustained while in police custody, which it failed to do. It also found that the examination of the applicant’s allegations of ill-treatment was conducted exclusively through pre-investigation inquiries, which do not comply with the principles of an effective remedy since inquiring officers have limited investigatory latitude and the victim’s effective participation in the procedure is excluded. As a result, the Court found that no serious effort was made to investigate the allegations of ill-treatment by the applicant. Thus, the Court held that both the substantive and procedural limbs of Article 3 were violated with respect to the applicant’s ill-treatment in police custody.

 

The Court also held that there was a violation of Article 2 of the Convention, with respect to the authorities’ failure to provide the applicant with adequate medical assistance during his detention and thereby placing his health and life in danger. Determining whether adequate medical care has been provided in detention relies on whether authorities have ensured that diagnosis and care is prompt and accurate. It also requires, when warranted, that supervision be regular, systematic, and involve a comprehensive therapeutic strategy aimed at successfully treating a detainee’s health problems. The Court found that the applicant was diagnosed with several injuries on 11 August 2008, but unjustifiably delayed medical assistance for those injuries until 15 August 2008, at which point his health had deteriorated to the point of requiring hospitalization. The Court also found that authorities failed to provide the applicant with regular and systematic supervision and a comprehensive therapeutic strategy for his several diagnosed chronic illnesses. Finally, the Court found that authorities failed to identify and treat the applicant’s pulmonary issues prior to his death. As a result, the State failed to discharge its positive obligation to protect the applicant’s health and life.

“[pre-investigative] procedures do not comply with the principles of an effective remedy [for Article 3], because an inquiring officer can only take a limited number of steps and a victim has no formal status, meaning that his or her effective participation in the procedure is excluded” (para 48)

“The Court notes that it has already condemned patterns of investigation similar to those in the present case in a number of other cases against Ukraine” (para 49)

“In assessing the effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of the Convention with regard to a lack of adequate medical care in detention, a decisive question is whether that remedy can bring direct and timely relief” (para 57)

“The ‘adequacy’ of medical assistance remains the most difficult element to determine... authorities must ensure that diagnosis and care are prompt and accurate and that – where necessitated by the nature of a medical condition – supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation” (para 61)

“The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities.” (para 61)

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