Information Note on the Court’s case-law 193

February 2016

Karpylenko v. Ukraine - 15509/12

Judgment 11.2.2016 [Section V]

Article 34

Victim

Standing of mother to make Article 3 complaint on behalf of her son who died while in detention: victim status upheld

Article 2

Positive obligations

Article 2-1

Effective investigation

Lack of adequate medical care for HIV-positive detainee who died in det ention and lack of effective investigation into his death: violations

Facts – The applicant was the mother of K., a former detainee who died of HIV-related illnesses in 2010 while in detention. In her application to the European Court the applicant complai ned under Article 2 of the Convention that the authorities had been responsible for her son’s death as they had not provided him with adequate medical care in detention and that they had failed to conduct an effective investigation into his death. She furt her complained under Article 3 that her son had been ill-treated while in custody and that there had been no effective domestic investigation into that issue either.

Law – Article 2

(a) Medical care provided by the authorities – Despite the fact that K. was diagnosed with HIV while in detention, the authorities had not carried out an immunological assessment of his condition or provided him with treatment. Instead, though aware that tuberculosis was the most widespread AIDS-relate d disease in Ukraine at the time, they had left him without medical supervision for some ten months. Even though K. had not complained, it was the authorities’ duty to ensure proper monitoring of his health, given the seriousness of his diagnosis and inher ent risk of concomitant illnesses. Furthermore, although K. was diagnosed with pulmonary tuberculosis in 2011, he was not even considered for antiretroviral therapy, despite a WHO recommendation that patients infected with both HIV and tuberculosis should begin such therapy as soon as possible after starting tuberculosis treatment. The authorities had thus failed to discharge their positive obligation to protect K.’s health and life, regardless of whether or not their efforts could have prevented the fatal outcome.

Conclusion : violation (unanimously).

(b) Effective investigation – The investigative measures taken by the police following K.’s death completely disregarded the key fact that he had died of a number of HIV-related diseases, despite the applicant’s substantiated complaint in that respect. As a result, the authorities f ailed to conduct an assessment of the quality of the medical treatment which had been provided to him. They had thus failed to carry out a thorough and effective investigation into the allegations that the death was caused by inadequate medical treatment f ollowing almost two years in detention.

Conclusion : violation (unanimously).

Article 3

(a) Locus standi – The Court noted at the outset that, some eight months after his alleged ill-treatment, K. had signed an authority form authorising a lawyer to repres ent him in the Convention proceedings. He died shortly afterwards and four months later his mother lodged an application in her own name before the Court. In the absence of a clear causal link between the alleged ill-treatment and K.’s death, the Court had to examine whether the applicant had demonstrated a strong moral interest or shown that there were other compelling reasons for it to examine her Article 3 complaints.

The Court attached weight to a number of circumstances. The applicant had been seeking an effective investigation into her son’s ill-treatment for several years at domestic level and was granted status as his successor in the criminal investigation into the matter immediately after his death. Moreover, as established by unequivocal medical e vidence, in April 2010 the applicant’s son had sustained serious injuries necessitating a surgical intervention which was performed about twelve hours later. Although K. consistently denied ill-treatment, it was clear that his injuries had been sustained w hile in police custody. Moreover, after his discharge from hospital he was returned to the same detention facility without the perpetrators of his ill-treatment having been identified. At the time he was already seriously ill and he eventually died of nume rous illnesses, having been left without proper medical care. The circumstances of the present case indicated that the applicant’s son was particularly vulnerable during his detention, at least from the moment he sustained and was recovering from the serio us injuries inflicted in 2010. The effective investigation of alleged ill-treatment inflicted or tolerated by prison staff was a matter of general interest which required an examination of the case. In the light these considerations the Court accepted the applicant’s locus standi in respect of her complaints under Article 3.

(b) Alleged ill-treatment of the applicant’s son in detention – It was an established fact that the applicant’s son had sustained serious injuries in detention. The absence of any expl anation by the Government for those injuries constituted sufficient grounds to conclude that they were the result of ill-treatment while in detention.

Conclusion : violation (unanimously).

(c) Effective investigation – Although confronted with the establis hed fact that the applicant’s son had sustained serious injuries in a detention facility, the domestic investigation failed to establish what had happened to him and dismissed the applicant’s allegation of ill-treatment as unsubstantiated. Although K. had denied being ill-treated, the accuracy of that denial was undermined by several forensic medical expert reports. Despite this, the authorities did not try to make sure that no pressure had been put on K. or, in the event that it had, to protect him. Nor di d they establish with whom he had had contact at the time of his injuries, limiting themselves instead to initiating a criminal investigation into the infliction of injuries by unidentified individuals. The domestic authorities had therefore failed to ensu re an effective and independent investigation into the circumstances in which the applicant’s son had sustained serious injuries while in detention.

Conclusion : violation (unanimously).

Article 41: EUR 8,000 in respect of non-pecuniary damage.

(See Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], 47848/08, 17 July 2014, Information Note 176 ; see also the Factsheets on Prisoners’ health-related rights and on Detention conditions and treatment of prisoners )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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