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MATUSHEVSKYY AND MATUSHEVSKA - 59461/08 [2011] ECHR 1016 (23 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1016.html
Cite as:
[2011] ECHR 1016
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FIFTH
SECTION
CASE OF MATUSHEVSKYY AND MATUSHEVSKA
v.
UKRAINE
(Application
no. 59461/08)
JUDGMENT
STRASBOURG
23
June 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Matushevskyy and Matushevska v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Ganna
Yudkivska,
Angelika
Nußberger,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 59461/08) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Petro Mykolayovych
Matushevskyy and Ms Mariya Petrivna Matushevska (“the
applicants”), on 21 November 2008.
The
applicants were represented by Ms L. Topolevska, a lawyer practising
in Lviv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
The
applicants complained, in particular, that the domestic authorities
had been responsible for and had failed to effectively investigate
the death of their son, following his alleged ill-treatment, in
detention.
On
24 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1952 and 1956 respectively and live in Lviv.
On
4 February 2008 the applicants' thirty-year-old son, Mr Igor
Matushevskyy (“I.M.”), was placed in Lviv Pre-Trial
Detention Centre no. 19 (“the SIZO”) following his
arrest on suspicion of a drug-related offence.
On
the same date I.M. was examined by a medical commission which found
him to be in good health.
On
7 February 2008 a drug specialist found him to be in unstable
remission from drug addiction.
On
24 April 2008 I.M. was placed in cell no. 153, which was shared by
nine inmates. It was his sixth transfer to a different cell in the
SIZO.
On
22 May 2008 at 6.10 p.m., the inmates of cell no. 153 knocked on
the door and informed the prison guard that I.M. had fallen from the
upper bed and had fainted. A few minutes later, a medical attendant
and the on-duty doctor arrived. According to an entry made by them in
I.M.'s medical record, they administered the following injections to
him: cordiamin, cortisol, mezaton, caffeine and atropine. He was then
transported to the medical unit, still alive. At 6.50 p.m. an
ambulance, for which the prison administration had called, arrived;
and at 7.02 p.m. I.M. was pronounced dead. According to the
medical certificate written by the SIZO administration and the
doctors recording I.M.'s death, a closed craniocerebral injury was
indicated as the preliminary cause of death.
On
the same date three of the inmates, as well as the personnel
involved, gave written statements concerning the matter to the SIZO's
governor. The detainees explained that there had been no incidents in
the cell, that I.M. had accidentally fallen from his bed and that
they had unsuccessfully tried to bring him back to consciousness by
putting a wet towel on his forehead. According to them, they had
promptly called for a doctor, who, in turn, had arrived without
delay. The inmates also submitted that a few hours before his death
I.M had complained of headache. One of the detainees noted that I.M.
had occasionally mentioned that he suffered chest pains.
In
the evening on the same date, 22 May 2008, the SIZO administration
examined the scene and informed the Lviv police and the Lviv Regional
Prosecutor's Office (“the LRPO”) of I.M.'s death.
On
23 May 2008 at about 4.30 p.m., the SIZO administration sent a
telegram to the applicants informing them that their son had died and
that they could collect his body from the Lviv morgue.
According
to the applicants, at about 10 a.m. on 23 May 2008, before the
telegram had reached them (on 24 May 2008), they received an
anonymous phone call from a person who had introduced himself as a
detainee at the SIZO. He had allegedly stated that I.M. had been
killed by SIZO officers.
The
applicants immediately got in contact with the local morgue, which
confirmed that I.M.'s body was there. However, according to the
applicants, its staff refused to show them his body.
The
first applicant also informed the LRPO of the allegations received in
the anonymous phone call and sought the opening of a criminal
investigation into the matter.
On
the same date, 23 May 2008, the Lviv Regional Police found that there
was no indication of a homicide and terminated the investigation.
On
24 May 2008, from 9 a.m. to noon, the first applicant waited outside
the morgue while an autopsy of I.M.'s body was going on. He saw some
people there (whom he later found out were from the SIZO) and
allegedly heard one of them saying on the phone: “Everything is
fine, the haematomas have been removed and the bruises behind the
ears have been retouched. There is something there with his heart and
lungs.” The applicant had the impression that the conversation
had been about his son.
After
the autopsy was completed, the first applicant was allowed to collect
I.M.'s body. According to him, he discovered the following injuries
on it: I.M.'s chest, shoulders, arms and legs, as well as his groin
area, were covered with bruises, his fingertips were bluish in
colour, the phalanx bone of the little finger on his left hand was
broken, his face was swollen and his nasal bridge was deformed, the
hair on his temples was missing as if it had been torn out, and there
were bloodstains on his earlobes. The applicant asked the doctor
about the injuries and was told that they were the signs of
post-mortem lividity.
The
morgue issued a death certificate to the first applicant indicating
that the cause of death had “not been preliminarily clarified”.
Later
on 24 May 2008, the applicants discovered in their mailbox a letter
from an anonymous “detainee”, according to which I.M. had
been beaten up by one of the inmates, T., on police instructions with
a view to extracting a confession from him, and had died of the
injuries he had sustained. It was noted in the letter that the SIZO
administration was intimidating the witnesses in order to conceal the
real cause of death. However, the witnesses would give truthful
testimonies if questioned by the prosecutor in absence of SIZO staff.
On
26 May 2008 the first applicant again complained to the LRPO that his
son had been killed in the SIZO. On an unspecified date shortly
thereafter the prosecutor questioned him as to what made him think
that I.M.'s death had been a violent one. The first applicant
referred to the information received from the anonymous phone call
and letter. He also noted that his son had not made any complaints
about his health. Furthermore, on 19 May 2008, the last time that the
second applicant had passed over a food parcel for I.M., she had
enquired with the SIZO medical staff whether he needed any medicine
but had been told that he did not require any.
On
the same date, 26 May 2008, the assistant to the SIZO governor, who
had been on duty when I.M. had died, gave a written statement to the
LRPO, according to which: there had been no incidents in cell no. 153
on 22 May; no coercive measures had been applied to any detainees;
and he had not seen any injuries on I.M.'s body. The senior security
officer on duty made a similar statement.
On
28 May 2008 T. and seven other inmates repeated their previous
account of the events (see paragraph 11 above) to the LRPO, without
specifying what aid they had provided to I.M. before the medical
attendant's arrival, which had been two to three minutes after I.M.'s
fall. The inmates from the neighbouring cells, nos. 152 and 154,
stated that they had not heard any noise from cell no. 153 on 22 May
2008. The prosecutor also questioned detainee V., with whom I.M. had
been sharing cell no. 140 before his transfer to no. 153., and
who, according to the applicants, might have had additional
information about the circumstances of his death. V. submitted
that I.M. had not wanted to encounter T. and had therefore been
unwilling to be transferred to cell no. 153. V. had allegedly warned
the administration about a possible conflict between T. and I.M., as,
according to him, they had been “opposites in the criminal
world”.
On
29 May 2008 the prosecutor questioned the SIZO governor as regards,
in particular, the reasons for I.M.'s frequent transfers from one
cell to another. The governor stated that I.M. had had a negative
influence on other detainees, without giving further details. He
submitted that I.M. had neither opposed his transfer to cell no. 153
nor had he later asked to be transferred to another cell. T. and I.M.
had not shared cells before. The governor also contended that he had
not received any information about conflicts between them or about
any wrongdoing on the part of T. According to him, the atmosphere in
cell no. 153 had been calm.
On
29 May 2008 T. stated that he had known I.M. since 1998 because they
had lived in the same town. According to him, they had been neither
friends nor enemies, rather just acquaintances. He also supplemented
his earlier statements to the effect that the inmates had tried to
bring I.M. back to consciousness by pouring water on him and by
rubbing his hands, feet and ears.
On
29 May 2008 a toxicologist of the Regional Bureau of Forensic Medical
Examinations issued a report, according to which no alcohol had been
discovered in I.M.'s blood.
On
30 May 2008 another forensic medical report was issued by a
histologist following an examination of I.M.'s body tissues. It
concluded that the deceased had been suffering from: swelling of the
lungs and haemorrhaging, focal serous bronchopneumonia, chronic
leptomeningitis, fatty liver disease, chronic persistent hepatitis,
signs of chronic nephritis, and atheromatosis of the aorta.
On
the same date the Galytskyy Police Department refused to open a
criminal case regarding the death of I.M. for want of indication of a
crime.
On
2 June 2008 the Galytskyy District Deputy Prosecutor quashed the
aforementioned decision as having been delivered prematurely.
On
3 June 2008 the forensic medical expert who had performed the autopsy
gave a written statement to the LRPO. He stated that there had been
bruises and sores on I.M.'s face, both earlobes, and on the inner
parts of both thighs, while no bone fractures or craniocerebral
injuries had been discovered. The expert expressed the view that a
possible cause of I.M.'s death could have been a heart or lung
condition.
On
the same date detainee V. additionally explained that he had wanted
to stay in the same cell as I.M. because the latter had often
received food parcels and had shared them with his cellmates.
On
3 June 2008 the LRPO refused to institute criminal proceedings
against the SIZO staff in respect of I.M.'s death for a lack of
corpus delicti in their actions.
On
6 June 2008 the Frankivskyy District Court in Lviv terminated the
pending criminal proceedings against I.M. given that he had died. It
also issued a separate ruling in which it noted that the
circumstances of I.M.'s death warranted a criminal investigation (it
had been informed by the SIZO administration that I.M. had died
because of a closed head injury).
On
11 June 2008 the LRPO quashed the decision of 3 June 2008 and resumed
the investigation. In particular, it noted that it was still
necessary to question the ambulance doctors, to analyse the anonymous
letter received by the applicants with a view to establishing its
author, to question T. as to whether he had suffered any injuries,
and to take steps to find out who had telephoned the applicants on 23
May 2008.
On
12 June 2008 the applicants complained to the LRPO that the cause of
their son's death had never been officially established. They pointed
out that the accounts of the SIZO governor in that regard lacked
consistency. Thus, according to them, he had explained that I.M. had
died because he “had fallen from his bed”, subsequently
because he “had fallen ill”, and, lastly, because he “had
fallen down in the shower”.
On
17 June 2008 a forensic medical report was issued, according to which
a chemical examination had discovered the presence of an organic
substance possibly belonging to a group of amphetamines
(psychostimulant drugs) in I.M.'s body. A precise identification of
the substance was impossible. At the same time, it was noted in the
report that the examination had not revealed any traces of caffeine
or atropine, amongst other substances.
On
18 June 2008 another forensic medical examination (started on 24 May)
was completed. It found the following injuries on I.M.'s body: two
sores, one on each side of the nose; three sores under the left
eyebrow; a brownish-red sore on the lower part of the right earlobe
and a bluish-violet bruise on its upper part; a bluish-violet bruise
of 2 x 1 cm behind the left earlobe and a similar bruise measuring
2.5 x 3 cm behind the right earlobe; a triangle-shaped sore on the
neck behind the right ear; a bluish-violet bruise of 24 x 24 cm
on the inner side of the right thigh and a similar bruise of 15 x 14
cm on the inner part of the left thigh; as well an area of 10 x 20 cm
on the front part of the left thigh which was bruised all over. The
examination of I.M.'s internal organs revealed a 7 x 9 cm long and
0.4 cm deep area of haemorrhaging in the right temple and a 6 x 7 cm
long and 0.3 cm deep area of haemorrhaging in the left temple.
The expert concluded that I.M. had sustained the aforementioned
injuries while still alive. He classified them as insignificant and
having no relation to his death. No bone fractures were discovered.
The examination report indicated cardiomyopathy, presumably caused by
drug addiction, as the cause of I.M.'s death. It noted that I.M. had
been intoxicated by a psychostimulant substance belonging to the
amphetamine group which had triggered a heart attack and death.
Furthermore, it discovered features of the following conditions:
focal serous bronchopneumonia and chronic leptomeningitis, fatty
degeneration of the liver, chronic hepatitis and nephritis,
atherosclerotic heart disease, thyroid hyperplasia and cardiomegaly.
They were also found to have contributed to I.M.'s death.
On
26 June 2008 T. was examined by a forensic medical expert, who did
not discover that he had suffered any injuries.
By
a letter of 27 June 2008, the SIZO governor informed the LRPO that an
internal investigation had not revealed any drug trafficking in the
SIZO. He noted that the psychostimulant substance discovered in
I.M.'s body might have been passed to him from the outside with his
food parcel, given that he had not shared his food parcels with
anybody.
On
3 July 2008 the LRPO questioned the ambulance doctor who had
pronounced I.M. dead. He submitted that he had not seen any injuries
on I.M., but only traces of bleeding from the nose and the left ear.
He explained that he had given the “closed craniocerebral
injury” diagnosis on the basis of the initial visual
inspection, without giving further details.
On
the same date the LRPO decided that the investigation had not
revealed anything criminal in the actions of the SIZO staff or I.M.'s
cellmates. It therefore refused to institute criminal proceedings
against them.
On
8 July 2008 the prosecutor of the LRPO Supervision Department quashed
the aforementioned decision as premature and ordered further
investigation, the aim of which was to clarify, in particular, how
the injuries had been inflicted on I.M. and how the drugs could have
appeared inside the SIZO.
On
the same date the LRPO informed the applicants of the developments in
the investigation and invited them to study the case file if they
wished to do so.
On
14 July 2008 four inmates of cell no. 153 gave further statements
regarding the events of 22 May 2008. They noted that on that day I.M.
had been exercising, after which the inmates had been taken to the
shower area. Upon their return to the cell, I.M. had complained about
having a headache. They also stated that they had massaged and rubbed
I.M. and had slapped him in the face after his fall to bring him to
his senses.
On
28 July 2008 the LRPO delivered another decision refusing to open a
criminal case against the SIZO administration or I.M.'s cellmates for
a lack of corpus delicti in their actions. At the same time,
the investigation into the death of I.M. continued, without being
targeted against any particular person.
On
8 August 2008 the LRPO ordered another forensic medical examination,
this time by a commission of experts, with a view to finding answers
to the following questions:
- when I.M. had died and what the cause had been;
- whether he had sustained any injuries and, if so, what their nature
and origin were;
- whether those injuries could have originated from being hit with
blunt objects (such as fists, feet, a stick, etc.), and, if so, what
those objects had been;
- whether his injuries could have originated from first aid provided
to him (rubbing of his ears, eyes, eyebrows and hands) and, if so,
which of the injuries were caused in such a manner;
- whether there was a causal link between I.M.'s injuries and his
death;
- whether I.M. had been suffering from any diseases or handicaps and,
if so, whether those had had a causal link with his death; and
- whether I.M. had consumed any alcohol or drugs shortly before his
death, and, if so, what their impact had been.
On
18 September 2008 a microscopic examination of I.M.'s internal organs
revealed: subarachnoid haemorrhage in the pia mater surrounding the
brain (it was impossible to localise the bleeding with additional
precision); punctuate cerebral haemorrhage; and renal haemorrhage.
On
27 October 2008 the forensic medical commission of three experts
delivered its report. It confirmed that I.M. had died of a heart
attack at about 7 p.m. on 22 May 2008. His injuries were
estimated as light, with the exception of the subarachnoid
haemorrhaging, which was of medium gravity. The haemorrhaging had
commenced shortly before death and had originated from the repeated
“hitting and shaking” action of blunt objects against the
body. It could not be excluded that those objects had been fists,
feet or other objects impossible to define. Given that the injuries
were to different parts of the body, they could not all have been
inflicted at the same time. Some of them – such as the sores on
the nose and under the right eyebrow – could have originated
from falling against a blunt object. The injuries could not be
characterised as having resulted from first-aid efforts. No direct
connection was established between I.M.'s injuries and his death. The
experts also concluded that, prior to his death, I.M. had suffered
from a number of diseases – of the lungs, heart, kidneys and
liver – which had been aggravated by a heart attack and had
caused his death. They also confirmed that a psychostimulant
substance had been found in his body, without commenting on how it
was related to his death.
On
3 November 2008 the prosecutor of the LRPO Supervision Department
quashed the decision of 28 July 2008 as lacking a proper basis and
ordered further investigation.
On
5 November 2008 the LRPO additionally questioned the toxicologist who
had issued the report of 17 June (see paragraph 37 above). The
expert specified that the drug discovered in I.M.'s body was not
contained in any of the medications given to him by the doctors
before his death. It could have stayed in the body for up to five
days.
On
7 November 2008 the prosecutor repeatedly inspected cell no. 153,
together with a forensic medical expert (a member of the commission
authoring the report of 27 October 2008 (see paragraph 49 above)) and
in the presence of one of the detainees and two attested witnesses. A
detailed inventory was produced containing details of all the beds
and furniture items and measurements of the distances between them.
On
10 November 2008 the LRPO questioned the expert who had participated
in the inspection of the cell on 7 November 2008 (see paragraphs
49 and 52 above). Referring to the inspection of the scene, the
expert stated that I.M. could have hit himself against the table
while falling from the upper bed, then against the bench next to the
table, and, finally, against the floor. Most of his bruises and
sores, as well as the cerebral haemorrhaging, could have resulted
from such a fall. As to the bruises behind both ears, they could have
resulted from the intensive rubbing which the inmates had resorted
to, having no knowledge as to how first aid should be provided.
Lastly, the expert noted that the subarachnoid haemorrhaging could be
assessed as being of both light and medium gravity, as the major
criterion for the categorisation of such an injury was the effect of
time, which was not applicable to the circumstances under
examination.
On
11 November 2008 another forensic medical expert participating in the
commission which had issued the report of 27 October 2008 was
questioned by the prosecutor. She noted that the internal bleeding
could have resulted from a generalised trauma to the dead body. It
could have occurred owing either to blows or to falling against a
hard surface.
On
12 November 2008 the LRPO again refused to institute criminal
proceedings against the SIZO administration or the detainees for a
lack of corpus delicti in their actions. On the same date it
informed the applicants of that decision and explained to them that
they had the right to study the case file at the LRPO's premises.
On
17 November 2009 the lawyer representing the applicants asked the
LRPO for a copy of the decision of 12 November 2008. On 17 December
2009 the LRPO granted that request.
On
8 February 2010 the prosecutor of the LRPO Supervision Department
quashed the decision of 12 November 2008 as based on an incomplete
investigation.
On
9 April 2010 the LRPO ordered a complex forensic medical examination
with a view to finding answers to the same questions as posed on 8
August 2008 (see paragraph 47 above). The investigator noted, in
particular, that there had been injuries on I.M.'s body and that
initially a closed craniocerebral trauma had been given as a possible
cause of his death. It remained, however, to be established whether
I.M. had in fact sustained the aforementioned injury and what the
cause of his death had been.
There
is no information on the progress or outcome of the investigation.
The
applicants submitted to the Court ten colour photos of the dead body
of their son, dressed and placed in a coffin. The only visible parts
of his body are his face and hands. The bridge of his nose appears to
be swollen. There are sores on the upper part of the bridge of his
nose and below both eyebrows, and a bruise below his left brow. Both
earlobes are covered with what appears to be bloodstains and bruises.
There are also bruises and patches of missing hair on both temples.
His fingertips and nails are bluish in colour.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant provisions of the Constitution and the Code of Criminal
Procedure can be found in the judgment of Sergey Shevchenko v.
Ukraine, no. 32478/02, §§ 36 and 38, 4 April 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that the
State authorities bore responsibility for the death of their son,
I.M., during his pre-trial detention. They further complained under
Article 13 of the Convention that there had been no effective
investigation into the matter and that they had not been duly
informed of or involved in it.
The
Court considers it appropriate to examine both complaints solely from
the standpoint of Article 2 of the Convention (see, for example,
Gasyak and Others v. Turkey,
no. 27872/03, § 53, 13 October 2009),
which reads, insofar as relevant, as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law...”
A. Admissibility
The
Government submitted that the applicants had failed to contest any of
the domestic decisions refusing to institute criminal proceedings
against the SIZO administration or I.M.'s cellmates in respect of his
death. They noted that the investigation had been resumed on 8
February 2010 and was still underway. Accordingly, the applicants
could not be regarded as having exhausted domestic remedies.
The
applicants maintained that they had not been informed of the
respective decisions in due time. They further noted that the
Government's objection was closely linked to the substance of their
complaint concerning the alleged ineffectiveness of the investigation
into I.M.'s death.
The
Court notes that this objection on the part of the Government indeed
raises issues which are closely linked to the question of the
effectiveness of the investigation. It therefore decides to join this
objection to the merits of the applicants' complaint to be examined
from the standpoint of the procedural limb of Article 2 of the
Convention (see, for example, Trapeznikova v. Russia, no.
21539/02, § 78, 11 December 2008, and Kats and Others v.
Ukraine, no. 29971/04, § 99, 18 December 2008).
The
Court further notes that this complaint is neither manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
The
applicants submitted that their son had died while being under the
full control of the State authorities, which had failed to provide a
plausible explanation in that regard. They further contended that the
domestic investigation had been superficial and ineffective and that
they had not been kept aware of the investigative measures
undertaken.
The
Government denied any responsibility on the part of the State for the
death of the applicants' son. They maintained that I.M. had died from
a pre-existing heart condition aggravated by his drug addiction and a
number of chronic diseases, while the injuries discovered on his body
had not been of a life-threatening nature. The Government insisted
that the domestic authorities had undertaken a prompt and thorough
investigation into the circumstances of I.M.'s death and had given a
clear explanation regarding its cause. They also maintained that the
applicants had been notified of all the investigative measures taken
and had had access to the case file materials.
In
response to the Government's observations, the applicants argued that
the authorities had failed to provide I.M. with adequate medical
assistance and had therefore been responsible for his death. They
also alleged that he had been detained in poor conditions, which had
contributed to the deterioration of his health and, subsequently, to
his death.
The
Government commented that the issues of I.M.'s medical care or
conditions of his detention had never been mentioned in any of the
applicants' earlier submissions to the Court.
2. The Court's assessment
The
Court emphasises that Article 2 enshrines one of the basic values of
the democratic societies making up the Council of Europe and ranks as
one of the most fundamental provisions in the Convention (see McCann
and Others v. the United Kingdom, 27 September 1995, § 147,
Series A no. 324). In the light of the importance of the
protection afforded by Article 2, the Court must subject deprivations
of life to the most careful scrutiny, taking into consideration not
only the actions of State agents but also all the surrounding
circumstances (see Salman v. Turkey [GC], no. 21986/93, §
99, ECHR 2000 VII). Thus, the Court attaches importance to the
particular vulnerability of persons in custody (ibid.). It considers
that, where an individual is taken into police custody in good health
but is later found dead, it is incumbent on the State to provide a
plausible explanation for the events leading to his death, failing
which the authorities must be held responsible under Article 2 of the
Convention (see Velikova v. Bulgaria, no. 41488/98, § 70,
ECHR 2000 VI). Indeed, events in prisons or other
State-controlled facilities lie wholly or in large part within the
exclusive knowledge of the authorities, which therefore have a duty
to account for them (see Ertak v. Turkey, no. 20764/92, §
132, ECHR 2000-V, and Hugh Jordan v. the United Kingdom, no.
24746/94, § 103, ECHR 2001-III (extracts)). This obligation
becomes even more stringent where it concerns a death (see Salman,
cited above, § 99).
The aforementioned obligation of the State under the
substantive limb of Article 2 has a close affinity with its
procedural obligation to undertake an effective investigation into a
suspicious death. Thus, the investigation's conclusions must be based
on thorough, objective and impartial analysis of all relevant
elements. While the obligation to investigate is of means only and
there is no absolute right to obtain a prosecution or conviction, any
deficiency in the investigation which undermines its capability of
establishing the circumstances of the case or the person responsible
is liable to fall foul of the required standard of effectiveness (see
Makaratzis v. Greece [GC], no. 50385/99, § 74,
ECHR 2004 XI). At the same time, a failure on the part of
the State to advance a satisfactory and convincing explanation for a
death occurring under its control is an inconceivable result if an
investigation complies with the minimum standards satisfying the
requirement of effectiveness.
Given
that in the present case the applicants' son died in a detention
facility to which he had been admitted having been – as
documented by the SIZO doctors – in good heath (see paragraph 7
above), the Court will now examine the explanation given by the
Ukrainian authorities for his death and the underlying investigative
efforts.
According
to the findings of the domestic authorities, I.M. died as a result of
a heart attack supposedly caused by an unidentified drug and further
exacerbated by some chronic illnesses (see paragraphs 37 and 38
above). It remains unclear what kind of drug was found in I.M.'s body
and how it had been trafficked into the SIZO. The Court also observes
that about three months before his death, I.M. had been found to be
healthy and in unstable remission from drug addiction, and that the
state of his health had never been the object of the SIZO doctors'
attention. The applicants' belated allegation about the poor health
of their son has also to be taken into account although it is not
corroborated by any documents and contradicts their own submissions
to the domestic authorities (see paragraph 22 above). While the
actual state of I.M.'s health before his death can therefore not be
assessed with certainty, the Court is convinced that he did not have
any visible injuries when he was placed in the SIZO.
It
is noteworthy that the aforementioned cause of I.M.'s death was not
the only one under consideration. According to the preliminary
conclusions of the ambulance and the SIZO doctors reached immediately
after I.M.'s death, it might have been caused by a closed head
injury. While the findings of a later forensic medical examination
might be expected to overrule that early and preliminary conclusion,
this is not obvious in the present case, given that about two years
after I.M.'s death the investigators called for another expert
examination in order to verify whether I.M. had in fact suffered a
head injury before his death (see paragraph 58 above).
The
Court further notes that forensic examinations discovered certain
injuries on I.M.'s body, namely: bruises and sores on his face, neck,
behind both ears, as well as on the inner side of his both thighs and
on the front part of the left thigh. The bruises on his thighs were
notably large (24 x 24 cm, 15 x 14 cm, and 10 x 20 cm
respectively). There was also internal bleeding (haemorrhaging)
discovered in I.M.'s brain, and in both of his temples and kidneys
(see paragraphs 38 and 48 above). Furthermore, as submitted by the
applicants and confirmed by the photos provided by them, there were
bruises on and patches of hair missing from both of I.M.'s temples
(see paragraphs 19 and 60 above). Given that he had apparently
sustained those injuries shortly before dying (see paragraphs 38 and
49 above), clarifying their origin was essential for establishing the
circumstances of I.M.'s death.
The
Court is not convinced by the explanation given by the domestic
authorities for the injuries in question. It also considers
questionable the way their conclusions were reached.
The
Court notes, in particular, that the bruises behind I.M.'s ears were
explained by extensive rubbing mistakenly resorted to by his
cellmates in their attempts to bring him back to consciousness. First
of all, according to the inmates' account, their attempt at giving
I.M. first aid before the doctors' arrival lasted for a matter of a
few minutes (see paragraphs 11 and 24 above). The Court next observes
that their description as to exactly what they had been doing with
I.M. changed significantly over time and became more detailed. Thus,
initially, they submitted that a wet towel had been put on I.M.'s
head and did not mention any rubbing (ibid.). Only a week after the
death of I.M., T., who was suspected by the applicants as having been
possibly responsible for I.M.'s death, submitted (for the first time,
as it can be seen from the case file materials) that the inmates had
been rubbing I.M.'s hands, feet and ears. That account was later
supported by the other inmates and was eventually found by the
medical expert to be plausible (see paragraphs 26, 45 and 53 above).
The
Court does not accept that any, no matter how unqualified, attempt to
bring a person back to consciousness undertaken for several minutes
is likely to result in bruises behind both ears, as well as
haemorrhaging and patches of hair torn from both temples.
As
to the explanation given by the authorities for the other bruises and
sores on I.M.'s body, they were initially assessed as having
originated from blows with blunt objects, such as fists, feet or
other objects (see paragraph 49 above). However, according to a later
explanation, I.M. could have sustained those injuries during an
accidental fall from his bed, having hit himself first against the
table, then against the bench next to it, and, lastly, against the
floor (see paragraph 53 above).
The
Court observes that the injuries in question include large bruises on
the insides of both of I.M.'s thighs and many overlapping bruises on
the front side of his left thigh (see paragraph 38 above). If the
logic of the official explanation is followed, in order to have
sustained them, I.M. must have hit himself against three objects –
the table, the bench and the floor – on the three
aforementioned parts of his body, while falling. In the Court's
opinion, the successive and wide (given the size of the bruises)
exposure of the interior of both thighs and the front part of the
left thigh during such a fall is highly implausible.
As
regards the internal bleeding discovered in I.M.'s body, the
haemorrhaging was found to have possibly resulted from a generalised
trauma to the dead body (see paragraph 54 above). The Court considers
this finding inexplicable given that – as established by the
domestic authorities and supported by the known facts – I.M.
died in the SIZO's medical unit, in presence of the medical
specialists attempting to resuscitate him, and no further shocks or
traumas to his dead body have ever been implied (see paragraph 10
above).
The
Court further notes that, according to I.M.'s medical records kept by
the SIZO, injections of caffeine and atropine were administered to
him shortly before his death (see paragraph 10 above). A later
forensic examination report explicitly stated that those two
substances or traces of them had not been discovered in his body (see
paragraph 37 above). Those contradicting medical records have never
been reconciled or explained.
Lastly,
based on the available materials, the Court is unable to conclude
that the investigating authorities have taken any meaningful effort
to identify who wrote the anonymous letter and made the anonymous
phone call to the applicants alleging that the death of their son had
been violent.
The
Court is mindful of the fact that the domestic investigation is still
going on. It notes, however, that by now about three years have
elapsed from I.M.'s death, during which, as can be concluded in the
light of all the above considerations, the authorities have not
undertaken an effective investigation into his death and have not
given a credible account of the circumstances surrounding it.
The
Court therefore dismisses the Government's objection regarding the
admissibility of this complaint based on the non-exhaustion of
domestic remedies, which was previously joined to the merits (see
paragraph 66 above).
It
follows that there has been a violation of Article 2 of the
Convention under its both substantive and procedural limbs.
Having
regard to these findings, the Court does not deem it necessary, under
the circumstances, to additionally assess the applicants' involvement
in the investigative process, about which they also complained.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that their son had been ill-treated before his
death and that the domestic authorities had failed to properly
investigate the matter. They relied on Article 3 of the Convention,
which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government raised an objection as to the exhaustion of domestic
remedies by the applicants similar to that regarding their complaint
under Article 2 of the Convention (see paragraph 64 above).
The
applicants disagreed.
The
Court recalls that it joined the aforementioned plea of
inadmissibility to the merits of the applicants' complaint under the
procedural limb of Article 2 of the Convention and later dismissed
it, finding that the investigation into the death of the applicants'
son had not met the requirement of effectiveness (see paragraphs 66
and 87 above).
Given
that the investigation in question equally concerned the alleged
ill-treatment of I.M. prior to his death, the Court also joins the
present objection of the Government to the merits of the applicants'
complaint under Article 3 of the Convention in so far as it concerns
the investigation in question.
The
Court notes that this complaint meets the other admissibility
criteria provided in Article 35 of the Convention. It must therefore
be declared admissible.
B. Merits
According to the applicants, they had strong reasons
to believe that, before his death, I.M. had been beaten by one of his
cellmates at the instruction of the SIZO administration. They
referred in this connection to the following: on the one hand, the
anonymous letter received by them; and, on the other hand, the
numerous injuries discovered on the body of their son, the origin of
which had allegedly remained without any meaningful explanation.
The Government denied these allegations as unfounded.
The Court has already found that the Government have
not provided a plausible explanation for the injuries to I.M.'s body
(see paragraphs 78-83 and 86 above).
It considers that those injuries were serious enough
to indicate ill-treatment beyond the threshold of severity required
by Article 3 of the Convention.
There has therefore also been a violation of that
provision.
The Court does not deem it necessary to make a
separate finding under Article 3 in respect of the deficiencies in
the investigation, having already dealt with that question under
Article 2 of the Convention (see paragraphs 73-88 above; and, for the
case-law, see Mahmut Kaya v. Turkey, no. 22535/93, § 120,
ECHR 2000-III). At the same time, it dismisses the Government's
objection regarding the admissibility of the Article 3 complaint
previously joined to the merits (see paragraph 94 above).
III. THE REMAINDER OF THE APPLICATION
The
applicants also complained under Article 3 of the Convention that
their suffering on account of the death of their son, further
exacerbated by the alleged lack of volition on the authorities' part
to establish the truth, amounted to inhuman and degrading treatment.
Relying on Article 6 of the Convention, they further complained that
the detention of their son had been unlawful and had lacked adequate
judicial review.
The
Court has examined the remainder of the applicants' complaints as
submitted by them. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It
therefore rejects this part of the application in accordance with
Article 35 §§ 3 (a) and 4 of the Convention as being
manifestly ill-founded.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed 12,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered this claim to be unfounded and excessive.
The
Court has no doubt that the applicants suffered distress and
frustration on account of the suspicious death of their son under the
State's responsibility and the authorities' failure to account
convincingly for his death. Ruling on an equitable basis, the Court
awards in full the applicants' claim of EUR 12,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicants also claimed EUR 1,000 for legal
fees. In support of this claim, they submitted legal services
contract with Ms Topolevska signed on 10 June 2008, according to
which she was to prepare their application and to further represent
them in the proceedings before the Court. The applicants, in turn,
were bound to pay her, as stipulated in the contract – as soon
as they had the opportunity to do so – the amount of
8,500 Ukrainian hryvnias (UAH) which was equivalent to about
EUR 1,000 at the time.
The
Government considered that the applicants had failed to demonstrate
that the costs claimed had been reasonable and had actually occurred.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court notes that, although the
applicants have not yet paid the legal fees, they are bound to pay
them pursuant to a contractual obligation. As can be seen from the
case file materials, Ms Topolevska has been representing the
applicants throughout the proceedings before the Court and is
therefore entitled to seek payment of her fees under the contract,
which, according to the currency exchange rate as of June 2008, are
equal to about EUR 1,000. Accordingly, the Court considers those fees
to have been “actually incurred” (see Tebieti
Mühafize Cemiyyeti and Israfilov v. Azerbaijan,
no. 37083/03, § 106, ECHR 2009 ...). However, the
Court considers that the claim is excessive and awards it partially,
in the amount of EUR 700.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join to the merits the Government's
objection as to the exhaustion of domestic remedies in respect of the
applicants' complaints under Articles 2 and 3 of the Convention, and
dismisses it;
Declares the complaints under Articles 2
and 3 of the Convention concerning the death of their son in police
custody following his alleged ill-treatment admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of the
substantive limb of Article 2 of the Convention;
Holds that there has been a violation of the
procedural limb of Article 2 of the Convention;
Holds that there has been a violation of
Article 3 of the Convention on account of the ill-treatment
suffered by the applicants' son;
Holds that there is no need to examine
separately the complaint under Article 3 of the Convention in respect
of the effectiveness of the domestic investigation;
Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement:
(i) EUR
12,000 (twelve thousands euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
700 (seven hundred euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 23 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
