FIFTH SECTIONCASE OF KARDAVA v. UKRAINE(Application no. 19886/09)      JUDGMENT STRASBOURG17 December 2019 This judgment is final but it may be subject to editorial revision.In the case of Kardava v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President, Ganna Yudkivska, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 26 November 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 19886/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Tamaz Kardava (“the applicant”), on 27 March 2009.2. After the applicant’s death on 7 April 2010, his sister, Ms Manana Kardava, expressed her wish to pursue the application. She is represented before the Court by Mr O. Veremiyenko, a lawyer practising in Kyiv and Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.3. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that the authorities had failed to investigate the matter. He also complained under Articles 2 and 3 of the Convention that the authorities had failed to provide him with adequate medical assistance during his detention, placing his health and life in danger. On 30 August 2010 notice of the application was given to the Government.4. The Georgian Government were informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). They did not provide any reply.THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was a Georgian national who was born in Sokhumi in 1967 and lived in Kyiv from 1993 until his death on 7 April 2010.The applicant’s arrest and detention6. On 7 August 2008 the applicant was arrested in Kyiv by the police on suspicion of robbery. Narcotic drugs were found on him. The applicant was taken to the Shevchenkivskyy District police station of Kyiv. The applicant’s arrest was documented under the Code of Administrative Offences, for a violation of the rules on the circulation of drugs, which constituted an administrative offence.7. On 10 August 2008, under Article 115 of the Code of Criminal Procedure, an investigator decided to place the applicant in custody on suspicion of robbery and the possession of drugs.8. On 12 August 2008 the Shevchenkivskyy District Court of Kyiv remanded the applicant in custody, in view of the ongoing criminal investigations against him. The court noted that the applicant had a criminal record and, having regard to the gravity of the alleged crimes, concluded that if he remained at liberty then he might seek to evade investigation and trial, which would obstruct the establishment of the truth in the case.9. Subsequently, the Shevchenkivskyy District Court and the Kyiv Court of Appeal extended the applicant’s pre-trial detention.10. On 27 July 2009 the applicant’s case was referred to the Shevchenkiskyy District Court for trial, along with the bill of indictment.11. In October 2009 the applicant asked the court to release him from detention, mainly because of his health problems (see below). By a decision of 22 October 2009, the court refused the applicant’s application, finding that there was no evidence to conclude that he would not seek to evade investigation and trial or obstruct the establishment of the truth in the case.12. In the course of a hearing on 30 March 2010 the applicant’s lawyer requested the applicant’s release for similar reasons. The application was refused by the court, on the same grounds as those stated in its decision of 22 October 2009. The court also stated that the lawyer’s reference to the applicant’s poor state of health did not constitute sufficient grounds for changing the preventive measure.Alleged ill-treatment of the applicant and investigation into those allegations13. According to the applicant, in the course of his arrest on 7 August 2008 he was beaten by police officers. The beatings continued on the police premises. On 11 August 2008 the police officers beat the applicant on a number of occasions and abused him with the aim of obtaining a confession from him to the crimes of which he was suspected.14. When the applicant was placed in police custody on 11 August 2008 a medical assistant noted that he had sustained haematomas on the right shoulder and left thigh, and that he had a closed injury on the chest.15. From 14 August 2008 onwards the applicant, his family members and his lawyer submitted a number of complaints to the authorities, including the courts, prosecutors, and the Ombudsman, alleging that he had been ill-treated by the police and that his arrest and detention were unlawful.16. On 15 August 2008 the applicant’s state of health deteriorated significantly and he was taken to a hospital, where he was examined by doctors who noted that he had a closed head injury, multiple blunt internal injuries, including contusion to the kidneys, and a broken rib. The applicant was also found to be suffering from chronic internal haemorrhoids, discirculatory encephalopathy and chronic persistent hepatitis C.17. On 22 December 2008 forensic medical experts issued a report stating that, at the time of their assessment, the applicant had been suffering from discirculatory encephalopathy and chronic persistent hepatitis C; the other diagnoses had not been confirmed.18. By decisions of 8 September and 9 December 2008, and 9 April, 8 October and 10 December 2009, the Shevchenkivskyy District prosecutor’s office, having conducted pre-investigation inquiries, refused to open criminal proceedings, finding that the applicant’s allegations of ill‑treatment by the police were unfounded.19. Following an appeal by the applicant, the above-mentioned decisions were quashed by the higher prosecutors or by courts on the grounds that the inquiries had fallen short of the requirements of a full and objective examination of the circumstances of the case. In particular, on 30 March 2010 the Shevchenkivskyy District Court found that the experts’ report of 22 December 2008 had not included an analysis of the medical records on the applicant’s treatment between August and October 2008. It had been necessary to obtain and verify the relevant medical information concerning his injuries, and question the applicant and the doctors who had examined him.20. On 24 June 2010, referring to the experts’ report of 22 December 2008, the Shevchenkivskyy District prosecutor’s office once again refused to open criminal proceedings regarding the alleged ill-treatment, considering that the available evidence did not indicate that police officers had been involved in any crime.The applicant’s medical treatment in detention and his death21. During his pre-trial detention the applicant was predominantly held in Kyiv pre-trial detention centre (“the SIZO”).22. Between 15 August and 2 October 2008 the applicant was treated in a public hospital in relation to his physical injuries and illnesses. According to the hospital doctors, the treatment resulted in an improvement in his state of health, so much so that he could be discharged from hospital. However, the doctors recommended that the applicant continue inpatient treatment at a neurological centre.23. On 21 January 2009 the applicant was examined by a neurologist in the SIZO, who noted that he was suffering from the after-effects of a head injury. On 16 April 2009 the applicant was examined by a chief SIZO doctor, who was of the opinion that the applicant had the remote effects of a head injury, chronic hepatitis C, and chronic gastroduodentitis. The doctors examining the applicant concluded that he was fit to remain in custody, and that he could obtain the necessary treatment in the SIZO.24. By a letter of 22 October 2009, the SIZO governor informed the applicant’s lawyer that during his stay in the SIZO the applicant had made a number of requests for medical assistance, and following those requests he had been examined by a general practitioner, a neurologist, a cardiologist, and an ophthalmologist. According to their conclusions, the applicant was suffering from coronary heart disease, atherosclerotic cardiosclerosis, hypertension, circulatory deficiency, circulatory encephalopathy, the remote effects of a head injury, cervical osteochondrosis, myopia, chronic hepatitis C, and chronic gastritis.25. On 25 November 2009 the applicant was placed in a medical unit of the SIZO because of the deterioration in his state of health, in particular because he had developed cirrhosis of the liver and portal hypertension. The SIZO doctors found no grounds for urgently hospitalising the applicant outside the SIZO, despite his requests in this regard. However, the doctors noted that such a measure might be “advisable”, noting that the applicant’s state of health continued to deteriorate.26. On 8 February 2010 the applicant was taken by ambulance doctors to a hospital in Kyiv, where he was diagnosed with the active phase of cirrhosis of the liver, hepatocellular failure and hepatorenal syndrome, portal hypertension, ascites, splenomegaly, chronic pyelonephritis, chronic pancreatitis, chronic choletistitis, and symptomatic hypertension. The doctors prescribed the applicant a number of drugs, in view of his health problems.27. On 1 March 2010 the applicant was transferred back to the SIZO medical unit, where, according to a letter from the SIZO governor of the same date, he was placed under “intense observation” by the medical staff. The applicant was given medication.28. On 11 and 31 March 2010 the SIZO doctors suggested that the applicant be admitted to a hospital within Bucha Correctional Colony. The applicant refused, arguing that detainees in that hospital were placed in solitary confinement, and that the hospital did not have the facilities for the operation which he needed.29. On 1 April 2010 an ambulance was called for the applicant and he was taken to Kyiv Emergency Hospital, where he remained until his death on 7 April 2010. According to an autopsy carried out by a pathologist on 8 April 2010, the applicant died of pulmonary heart disease, lower lobe pneumonia complicated by an abscess, splenomegaly, and cirrhosis of the liver.Investigation into the circumstances of the applicant’s death30. On 28 October 2010, in reply to a complaint by the applicant’s sister, the Kyiv prosecutor’s office refused to open criminal proceedings in relation to the death of the applicant, finding that there were no elements of a crime.31. On 28 March 2011 the Pecherskyy District Court quashed that decision as unfounded and ordered further inquiries.32. On 25 April 2011 the Kyiv prosecutor’s office issued another decision refusing to open criminal proceedings in relation to the death of the applicant, finding that there were no elements of a crime.RELEVANT DOMESTIC LAW33. The relevant provisions of the Constitution of Ukraine, the Criminal Code and the Code of Criminal Procedure can be found, in particular, in the Court’s judgment in Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, §§ 121, 131 and 134, with further references, 21 April 2011). The relevant provisions of the Code of Administrative Offences can be found in Nikolay Kucherenko v. Ukraine (no. 16447/04, §§ 19-21, 19 February 2009).THE LAWPRELIMINARY QUESTION34. The applicant died while his application was pending before the Court. The Government admitted that the applicant’s sister was closely related to him. However, they argued that the application concerned eminently personal and non-transferable rights, and for those reasons the applicant’s sister was not a victim and could not continue the present proceedings in his stead.35. The applicant’s sister maintained that she was the only relative who had gone from Georgia to Ukraine to live with the applicant. She had actively assisted the applicant after his arrest – finding him a lawyer, purchasing medicine and food, and filing applications with the domestic authorities.36. The Court notes that the Government’s objection concerns the question of whether or not the applicant’s sister has standing in the present case after the death of the applicant, who was the victim of the alleged violations. The Court has previously accepted that where an applicant has died after lodging an application, his next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014 and the references indicated therein).37. Having regard to the circumstances of the case, the Court considers that the applicant’s sister has a legitimate interest in the current proceedings. It therefore holds that she has standing to pursue the application. However, for convenience, the Court will continue to refer to Mr Tamaz Kardava as the applicant in the present judgment.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION38. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that the authorities had failed to investigate the matter.39. Article 3 of the Convention reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits41. The applicant insisted that his complaint was properly substantiated by the available evidence, and that the Government had failed to provide a plausible explanation for the injuries documented during his detention. The investigation had not been effective, given that basic investigative measures had not been taken, as the domestic authorities had repeatedly established.42. The Government did not comment on the merits.43. The Court refers to the general principles concerning Article 3 of the Convention, and the State’s obligations stemming from that provision are summarised in particular in Bouyid v. Belgium ([GC] no. 23380/09, §§ 81‑90 and 100-101 ECHR 2015) and El-Masri v. the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§ 182-185 and 195-198, ECHR 2012).Substantive aspect of Article 344. In the present case, the applicant alleged that he had been ill-treated by police officers during the first days of his detention. In support of his allegations, he referred to the medical reports showing that at the relevant time he had been suffering from numerous injuries. Notably, a couple of days after his arrest the applicant displayed haematomas on the right shoulder and left thigh, and a closed injury on the chest (see paragraph 14 above). A few days later, during his uninterrupted detention, the applicant was diagnosed with, among other things, a closed head injury, multiple blunt internal injuries, including contusion to the kidneys, and a broken rib (see paragraph 16 above). In these circumstances, the Court considers that under Article 3 of the Convention, the State was obliged to provide a satisfactory and convincing explanation for these injuries and effectively disprove the applicant’s allegations of ill-treatment by police officers.45. In dismissing the applicant’s allegations, the domestic authorities relied on the experts’ report of 22 December 2008, which did not confirm the above-mentioned injuries (see paragraph 17 above). However, the domestic authorities themselves cast doubt on that report, finding that it had not included medical records for the relevant period, and they considered it necessary to carry out additional inquiries in that regard (see paragraph 19 above). In these circumstances, it does not appear that the report of 22 December 2008 effectively discredited the earlier medical evidence. No other reasons for dismissing the applicant’s allegations were given by the authorities.46. In these circumstances the Court concludes that the authorities did not provide any plausible explanation for the applicant’s injuries. Nor did they disprove the applicant’s allegations of ill-treatment by police officers. For this reason and given that for the entire period in question the applicant was under the control of the authorities and there was no suggestion that he endured the injuries reported before or during the arrest, the Court holds that the State must be held responsible for the alleged ill-treatment, which should be classified as inhuman and degrading.47. The applicant’s allegations of ill-treatment were examined exclusively by way of pre-investigation inquiries. The Court has held that such investigative procedures do not comply with the principles of an effective remedy, 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 (see Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, with further references). Indeed, during the period of pre-investigation inquiries, which lasted about three years, on numerous occasions the supervising authorities found that those inquiries had not been thorough, given that important investigative measures had not been taken (see paragraph 19 above). The repetition of such remittal orders may disclose a serious deficiency in criminal proceedings (in that regard and mutatis mutandis, see Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013).49. 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 (see, for example, Drozd v. Ukraine, no. 12174/03, §§ 63‑71, 30 July 2009; Savitskyy v. Ukraine, no. 38773/05, §§ 121-122, 26 July 2012; Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Zhyzitskyy v. Ukraine, no. 57980/11, §§ 49-53, 19 February 2015). Moreover, in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012), the Court found that the authorities’ reluctance to ensure a prompt and thorough investigation into ill‑treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention.50. In view of the circumstances of the present case and its earlier case-law, the Court concludes that, in the present case, no serious effort was made to investigate the allegations of ill-treatment made by the applicant.51.

Article of the Convention at issue: Article 3
Outcome: violation