Errors and omissions in investigations regarding the exact causes of death and the right to life protected by the ECHR

JUDGMENT

Nina Kutsenko v. Ukraine 19-07-2017 (no. 25114/11)

see here 

SUMMARY

The case concerned the investigation into the death of the applicant’s son because of his alleged ill-treatment by the police and the inability of the authorities to provide adequate and timely medical care.

The Prosecutor General’s Office filed a criminal prosecution for the death of the applicant’s son in October 2003 and finally charged police officers and a doctor finding that their deeds and omissions were causally related to his death. The defendants were virtually unpunished because the offenses were time-barred.

Ms Kutsenko, however, has successfully filled multiple appeals. Based in particular on Article 2 (right to life), she complained that her son had died due to chain crimes and omissions by the state authorities. The ECtHR found that there had been a violation of the ECHR.

PROVISION

Article 2

PRINCIPAL FACTS

The applicant, Nina Ivanivna Kutsenko, is a Ukrainian national who was born in 1949 and lives in Vyshneve, the Kyiv region (Ukraine). The case concerned the investigation into the death of her son, allegedly as a result of his ill-treatment by the police and the authorities’ failure to provide adequate and timely medical care.

Ms Kutsenko’s son, V.K., had been reported missing one week before he was admitted to hospital on 25 August 2003 as an unidentified person. Doctors treated him for several injuries to his skull and brain but they did not conduct more comprehensive exams, despite a recommendation by a neurosurgeon to do so, because the hospital lacked the necessary equipment. V.K.’s condition deteriorated and on 3 September 2003 he died after having fallen into a coma.

The Prosecutor General’s Office opened a criminal case into his death in October 2003. Over the course of the next 13 years, the investigator in charge of the case changed at least 20 times. Charges were eventually brought against a police officer for causing the injuries which led to V.K.’s death, another officer for watching the beating without intervening, and the doctor in charge of V.K.’s care for failing to transfer V.K. to a regional hospital for further diagnosis or to take measures after he had fallen into a coma. Further charges were brought against the medical examiner who had conducted the autopsy for professional negligence (notably for falsely stating that V.K. had died from diseases caused by alcohol and drug addiction and failing to record all of his injuries or to carry out essential analyses); and the police officer who had been in charge of the search when V.K. had gone missing for abuse of office and forgery. Each of these defendants was found guilty but, because the offences were time-barred, none of them served a prison sentence. Ms Kutsenko was, however, successful in multiple civil claims amounting to 261,851 Ukrainian hryvnyas (equivalent to about 16,500 euros (EUR) at the time each judgment was rendered), though she claims she has only received about EUR 1,225.

Relying in particular on Article 2 (right to life), Ms Kutsenko complained that her son had died as a result of a chain of crimes and omissions by State authorities. In particular, she alleged that her son had been tortured while in police custody, that there had been deficiencies in his medical treatment, that the police had not conducted an adequate search for him before he had been hospitalised, that the investigation into both the origin of her son’s injuries and into her allegation of inadequate medical care had been ineffective and had lasted too long, and that she had only received a small amount of the damages awarded to her under her civil claims.

THE DECISION OF THE COURT 

Violation of Article 2 (right to life) – on account of the fatal injuries sustained by V.K. at the hands of the police and the lack of adequate medical treatment provided for him prior to his death

Violation of Article 2 (investigation) – on account of the ineffective domestic investigation into the origin of V.K.’s injuries

Violation of Article 2 (investigation) – on account of the ineffective domestic investigation into the allegation of inadequate medical care provided to V.K. in Fastiv Hospital

Just satisfaction: EUR 72,000 (non-pecuniary damage) and EUR 2,786 for costs and expenses (echrcaselaw.com editing). 


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