FIFTH SECTION

DECISION

Application no. 14908/11 Tamara Petrovna BURAKOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 March 2020 as a Committee composed of:

Yonko Grozev, President, Ganna Yudkivska, Lado Chanturia, judges, and Victor Soloveytchik, Deputy Section Registrar ,

Having regard to the above application lodged on 26 February 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Tamara Petrovna Burakova, is a Ukrainian national who was born in 1948 and lives in Kherson. She was represented before the Court by Mr G.V. Tokarev, a lawyer practising in Kharkiv.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant ’ s thirty-year old son, B., suffered from HIV and, as a former drug addict, had received methadone substitution treatment since 2008. According to a certificate issued by the Kherson regional Aids centre on 10 March 2010, he was diagnosed as HIV-positive in March 2008. In October 2008 his HIV was in its early stages and did not require any medical treatment.

5 . On 13 February 2010 the Tsuryupinsk district police arrested B. on suspicion of a drug-related crime. Before being placed in custody, he was seen by a doctor from Kherson Hospital, who assessed his fitness for detention. He underwent an X-ray examination of his lungs and heart, but no pathological conditions were found. The doctor noted that B. was a drug addict and that he could “be detained in an ITT”. Shortly afterwards he was placed in the Tsuryupinsk temporary detention facility (“the ITT”).

6 . According to the applicant, from 13 to 15 February 2010, while the temperature outside was below freezing, B. was detained in a cell with a window without glass, dressed in just trousers and a t-shirt.

7 . According to the Government, the temperature in the ITT cells was 19 o C.

8 . On 15 February 2010 the Dniprovsky y District Court of Kherson extended B. ’ s police custody up to ten days. During the course of the hearing the applicant saw her son and noted that he had a cough and fever. At the end of the hearing B. was taken back to the ITT.

9 . On 16 February 2010 an addiction specialist (narcologist) examined B. It was noted that he was HIV-positive and had previously undergone methadone treatment because he suffered from withdrawal. He concluded that B. did not “need urgent medical treatment and could be kept in the ITT in the usual conditions”. The narcologist further stated that in the event B. ’ s health became unpredictably worse, [he] was to be provided with urgent medical care.

10 . On 23 February 2010 the Dniprovsky y District Court of Kherson remanded B. in pre-trial detention. The applicant saw her son again at the hearing. According to her, he was short of breath and could hardly speak.

11 . On 23 February 2010 B. was transferred to the Kherson pre-trial detention centre (“the SIZO”) and examined by the SIZO doctor, who noted that he was unfit for detention because he suffered from methadone withdrawal. The SIZO refused to admit him and he was then transported to a civilian hospital. On 24 February 2010 civilian doctors established that he suffered from HIV and drug addiction, but found him fit for detention in the SIZO.

12 . On the same day B. was transported back to the SIZO and placed in a shared cell. Later that day the SIZO doctor examined him, stating that he had bronchitis. He was prescribed medication, which he received afterwards. It was also noted that his heart and lungs were functioning normally.

13 . On 25 February 2010 B. complained to the SIZO staff of a cough. He was examined by the SIZO doctors, diagnosed with bronchitis and prescribed antibiotics. An X-ray of his lungs and heart was carried out. It appears that he received the medication. A request concerning his HIV status was made by the SIZO.

14 . On 1 March 2010 B. complained to the SIZO staff of a cough and weakness. He was examined by the SIZO doctor, who noted that his general condition was satisfactory. The doctor recommended that he continue the treatment prescribed earlier (see paragraph 13 above).

15 . On 4 March 2010 B. complained to the SIZO doctor of a fever, weakness and a cough. An X-ray of his lungs and heart was carried out. He was seen by the SIZO doctors, who diagnosed him with tuberculosis, pneumonia and pleurisy. He was immediately placed in the SIZO medical unit under constant monitoring, with a doctor examining him every hour. Medication for tuberculosis was administered to him.

16 . At 5.25 a.m. the next morning B. was found unconscious. The ambulance team who arrived at 6.07 a.m. established that he was dead.

17 . An autopsy was carried out between 9 and 29 March 2010, which concluded that B. had died from purulent bronchial pneumonia.

18 . According to the Government, the incident was immediately reported to the police, who started an inquiry into the matter.

19 . On 13 March 2010 the police investigator refused to institute criminal proceedings into the death of the applicant ’ s son on the grounds that there was no evidence that an offence had been committed. The investigator stated that there were no signs that B. had suffered a violent death; he also referred to the forensic medical report indicating that the cause of B. ’ s death was bilateral abscess bronchial pneumonia.

20 . On 29 March 2010 the autopsy of B. ’ s body was completed. It was concluded that B. ’ s death had occurred as a result of bilateral abscess bronchial pneumonia complicated by a pulmonary heart insufficiency.

21 . On 5 November 2010 the Kherson Regional Prosecutor ’ s Office overruled the decision of 13 March 2010 and remitted the case file for an additional inquiry.

22 . On 18 November 2010 the police investigator refused to institute criminal proceedings into the death of B. The investigation took note of the autopsy results and came to the same conclusion as in the decision of 13 March 2010 (see paragraph 19 above).

23 . On 9 March 2011 the applicant asked the Kherson Regional Prosecutor ’ s Office to conduct an investigation into the circumstances of her son ’ s death in order to find whether there had been any elements of an offence in the actions of the ITT administration and the SIZO medical staff. According to the applicant, she lodged that request on 11 June 2010. In it she referred to the poor conditions of B. ’ s detention in the ITT (see paragraph 6 above) and his poor state of health when she had seen him on 15 February 2010 (see paragraph 8 above). She further stated that her son had died of an illness which he had contracted as a result of the poor conditions of detention in the ITT and a lack of medical treatment.

24 . In the course of the investigation the investigator gathered information and evidence from the ITT and SIZO staff and medical practitioners from civilian medical facilities.

25 . On the basis of the above information and evidence, on 14 March 2011, the Tsuryupinsk district prosecutor ’ s office refused to institute criminal proceedings against the officers of the ІТТ on the grounds that there were no constituent elements of an offence. The prosecutor found that the conditions of B. ’ s detention in the ITT, including the temperature in the cell, had been suitable and that B. had not complained about his detention conditions or of any health issues.

26 . On the same day the Tsuryupinsk district prosecutor ’ s office refused to institute criminal proceedings against the SIZO officers. The prosecutor relied on the explanations of the head of the SIZO medi c al unit, information from B. ’ s medical file, the results of the autopsy and the results of an internal inquiry into B. ’ s treatment which had been carried out on 14 March 2011 by a panel of civilian and penal system doctors. In particular, according to the results of that internal inquiry, B. ’ s death had been “fulminant” (sudden), and he had received adequate medical treatment while in the SIZO.

27 . The applicant lodged appeals against the decisions of 14 March 2011, which were dismissed as unsubstantiated on 8 May and 22 June 2012 by the Komsomolsky y District Court of Kherson and the Kherson Region Court of Appeal respectively.

28 . On 24 January 2013, following an appeal by the applicant on points of law, the Higher Specialised Court for Civil and Criminal Matters (“the HSCU”) quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh examination. The HSCU found that the lower courts had failed to check whether the prosecution authorities had carried out a thorough examination of the arguments raised by the applicant in her complaints. The HSCU further noted that the prosecution authorities had not requested a forensic medical examination to establish, inter alia , whether the medical care provided to B. had been relevant to his state of health and whether it had been possible to prevent his death. The HSCU also found that the prosecution authorities had failed to question the applicant and her lawyer as regards the conditions of B. ’ s detention in the ITT.

29 . On 20 February 2013 the Komsomolsky y District Court of Kherson overruled the decisions of 14 March 2011 (see paragraphs 25 and 26 above) and remitted the case to the prosecution authorities for further investigation. In particular, the court found that the prosecution authorities had failed to:

30 . On 11 March 2013 the prosecution authorities started a pre-trial investigation pursuant to the court decision of 20 February 2013. An investigation team was formed and a relevant investigation plan was drawn up.

31 . On 5 July 2013 the forensic medical examination was completed. According to the results of the examination, B. had an acute respiratory infection which, against the background of stage IV HIV, developed into acute pulmonary cardiac insufficiency. The latter condition was the direct cause of B. ’ s death. The forensic experts further noted that B. had been diagnosed as having “right-lung pneumonia” on 4 March 2010. The diagnosis “purulent bronchial pneumonia” was identified following an autopsy of the body (see paragraph 17 above). The sudden suspension of B. ’ s methadone treatment during detention could not have aggravated his state of health or contributed to his death. The medical care provided to B. while in the SIZO had been prompt, relevant to his state of health, and in accordance with medical protocols. B. ’ s state of health from 25 February until 1 March 2010 had not required his transfer to a specialist medical facility. However, having regard to the rapid deterioration of his health on 4 March 2010, B. had needed to be transferred to a specialist medical facility. The forensic experts further found that, given that B. had been suffering from stage IV HIV, meaning that he had almost no immunity, his transfer to a specialist medical facility on 4 March 2010 would not have prevented him from dying.

32 . On 18 July 2013 the prosecution authorities terminated the pre-trial investigation on the grounds that there were no constituent elements of an offence. On 5 August 2013 the Dniprovsky y District Court of Kherson overruled the above decision.

33 . On 15 August 2013 the prosecution authorities again terminated the pre-trial investigation on the grounds that there were no constituent elements of an offence. The prosecutor relied on the explanations of the applicant, B. ’ s lawyer and others connected to B. ’ s detention and medical treatment, and the results of the forensic medical examination of 5 July 2013.

34 . The applicant appealed, but on 12 and 26 August 2014 the decis ion was upheld by the Dniprovsky y District Court of Kherson and the Kherson Regional Court of Appeal respectively. The courts noted, in particular, that B. had not complained about the conditions of his detention in the ITT, and that he had received the relevant medical care while in detention. They further referred to the findings of the forensic experts concerning the state of B. ’ s health while in detention, the medical treatment provided to him, as well as the cause of death (see paragraph 31 above).

35 . On 27 March 2012 the applicant lodged a civil claim with the Suvorovskyy District Court of Kherson seeking compensation for non ‑ pecuniary damage caused to her by her son ’ s death.

36 . In the course of the proceedings, the court ordered a forensic examination to establish whether B. ’ s treatment had been adequate. According to the results of the examination, which was completed on 4 October 2012, the medical care provided to B. in the SIZO was relevant and adequate to his state [of health].

37 . On 10 April 2013 the Suvorovskyy District Court of Kherson refused the applicant ’ s claim as unfounded. That decision was upheld on 11 June and 23 August 2013 by the Kherson Regional Court of Appeal and the HSCU respectively.

COMPLAINTs

38 . The applicant complained, under Articles 2 and 13 of the Convention that the State authorities had failed to safeguard her son ’ s life in detention, that the investigation into his death had been ineffective, and that she had not had an effective domestic remedy for the above complaints.

THE LAW

39 . The applicant complained that the State authorities had failed to safeguard her son ’ s life in detention, and that the investigation into her son ’ s death had been ineffective. The relevant part of Article 2 of the Convention reads as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law...”

40 . The Government submitted that the applicant had failed to exhaust the available domestic remedies, since she had failed to challenge the decisions of the prosecution authorities of 18 July and 15 August 2013.

41 . The applicant disagreed, stating that she had appealed against the decisions referred to by the Government.

42 . With respect to the Government ’ s non-exhaustion plea, the Court notes that, according to the documents submitted, the applicant did challenge before the courts all the decisions of the prosecution authorities concerning the investigation into her son ’ s death (see paragraph 34 above). The Court therefore rejects the Government ’ s objection.

43 . As regards the medical treatment provided to B., the Government submitted that he had been closely monitored by both civilian and penal system doctors. A proper diagnosis had been established and the relevant treatment had been prescribed and administered to him. This assertion was subsequently confirmed by the forensic medical examination (see paragraph 31 above).

44 . As regards the conditions of B. ’ s detention in the ITT, the Government asserted that they had been in compliance with both domestic legislation and the Convention, particularly as regards the temperature in the ITT cell. The Government further stressed that no complaints concerning the conditions of B. ’ s detention or medical treatment had been submitted by B., his defence lawyer or his mother.

45 . The applicant reiterated her initial submissions about the inadequacy of the conditions of her son ’ s detention (see paragraph 6 above) and the medical treatment provided to him, stating that he had fallen ill as a result of the poor conditions of detention in the ITT and subsequently died owing to the inadequacy of the medical treatment he had received while detained. She further stressed that sudden suspension of B. ’ s methadone treatment had resulted in a deterioration of his health and contributed to the development of a health condition that had not been adequately treated, and had led to his death.

46 . The applicable general principles regarding the State ’ s obligation to protect persons ’ life in detention were summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 130-31, ECHR 2014); Slimani v. France (no. 57671/00, §§ 27 ‑ 32, ECHR 2004 ‑ IX (extracts)); Kats and Others v. Ukraine (no. 29971/04, §§ 103-04, 18 December 2008); Geppa v. Russia (no. 8532/06, §§ 68 ‑ 72, 3 February 2011); and Karpylenko v. Ukraine (no. 15509/12, §§ 79-80, 11 February 2016) .

47 . The Court will first examine the applicant ’ s grievances about the conditions of her son ’ s detention in the ITT. It observes that her allegations are based on her own statements without being supported by any documentary evidence.

48 . According to the applicant, she and her son ’ s defence lawyer had seen B. in a poor state of health during at least two court hearings in February 2010 (see paragraphs 8 and 10 above). It does not appear from the submissions raised by the applicant both at the domestic level and before the Court that any complaints about the conditions of B. ’ s detention were raised with the domestic court on those occasions. Furthermore, it does not appear that any complaints were raised on the issue whatsoever while B. was still alive.

49 . In the light of the foregoing, and in the absence of any evidence to support the applicant ’ s allegations, the Court does not consider it sufficiently established that B. was held in the ITT in the conditions as described by the applicant.

50 . The Court further notes that the applicant ’ s son died on 5 March 2010 of purulent bronchial pneumonia, while he was in custody and had been under the authorities ’ control since 13 February 2010. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to prevent the fatal outcome. Whether or not the authorities ’ efforts could in principle have prevented it is not decisive when examining the discharge by the State of its positive obligation to protect the applicant ’ s son ’ s health and life (see Salakhov and Islyamova v. Ukraine , no. 28005/08, § 180, 14 March 2013).

51 . The Court observes that prior to his arrest B. was HIV-positive, and had received methadone treatment as a sufferer from withdrawal. It further notes that during his custody in the ITT from 13 to 24 February 2010 B. was examined by civilian and penal system doctors four times, that is, on 13, 15, 16 and 23 February 2010. The results of those examinations concluded that there had been no deterioration in B. ’ s health.

52 . After his placement at the SIZO on 24 February 2010, B. was further examined a number of times, notably on 24, 25 February, 1, 3 and 4 March 2010. The Court takes note that he underwent X-rays on 13 and 25 February and on 4 March 2010 and was administered medication to treat his health problems.

53 . As regards the applicant ’ s allegations about the sudden suspension of B. ’ s methadone treatment in detention, the Court observes that neither his medical file nor the subsequent forensic examinations contain any indication that this had serious adverse consequences for his health (compare and contrast Wenner v. Germany , no. 62303/13 , §§ 59-81 , 1 September 2016; see also Abdyusheva and Others v. Russia , nos. 58502/11 and 2 others, §§ 158-68, 26 November 2019, not yet final ).

54 . In this connection, the Court notes that the forensic medical examination of 5 July 2013 stated that the sudden suspension of B. ’ s methadone treatment in detention could not have aggravated his state of health or contributed to his death. The medical care provided to B. while in the SIZO had been prompt and relevant to his state of health. The forensic experts further concluded that B. ’ s transfer to a specialist medical facility on 4 March 2010 would not have prevented him from dying (see paragraph 31 above).

55 . In the light of the foregoing, on the basis of the parties ’ submissions and the material before it, the Court cannot conclude that health problems of the applicant ’ s son were improperly addressed, or that the authorities failed to protect his life contrary to the requirements of Article 2 of the Convention.

56 . It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

57 . The Government submitted that the investigation into the death of the applicant ’ s son had been prompt, thorough and effective. The investigation had interviewed everyone involved and had carried out a forensic examination which had answered all the questions concerning the reason for B. ’ s death, the adequacy of the diagnosis established, and the relevance and promptness of the treatment provided to him. The results of the investigation had been considered by the domestic court and found to be correct.

58 . The applicant disagreed, stating that the investigation had not been prompt and effective.

59 . The applicable general principles were summarised in Karpylenko (cited above, § 96).

60 . The Court notes that the death of the applicant ’ s son took place in the custody of the authorities and in circumstances that could engage their responsibility. A procedural obligation therefore arose under Article 2 of the Convention to investigate the circumstances of the death of the applicant ’ s son.

61 . The Court notes that despite a number of regrettable shortcomings at the initial stage of the investigation which led to the relevant decisions being overruled by the domestic courts, it appears that all those shortcomings were eventually eliminated.

62 . According to the case file material, the investigator fulfilled all the instructions given by the domestic court in its decision of 20 February 2013 as regards the necessary steps to be taken in the case (see paragraph 29 above). In particular, the applicant, B. ’ s lawyer and others connected with B. ’ s detention and medical treatment were questioned, and a forensic examination was carried out.

63 . It follows from the report of that examination that the forensic experts were asked all the relevant questions concerning B. ’ s medical condition, the medical treatment provided to him, the cause of death and the possibility for the penal authorities to save his life by taking urgent action.

64 . The Court further observes that the applicant did not complain about the results of the forensic examination at the domestic level and expressed her dissatisfaction only when commenting on the Government ’ s observations in July 2015.

65 . In the current circumstances, the Court does not consider that the authorities have failed to discharge their obligation to carry out an effective investigation into the death of the applicant ’ s son.

66 . It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

67 . The applicant further complained that she had had no effective remedies against the alleged violations under Article 2. She relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

68 . The Court observes that this complaint concerns the same issues as those examined earlier (see paragraphs 61 to 66 above) under the procedural limb of Article 2 of the Convention. Having regard to its conclusion above under Article 2 of the Convention, the Court considers that no separate examination of the above complaint under Article 13 is required.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 May 2020.

Victor Soloveytchik Yonko Grozev Deputy Registrar President