Kats & Ors. v. Ukraine

The applicants were three Ukrainian nationals; two of them are grand parents to the third applicant whose mother (Olga Biliak) had schizophrenia, HIV and drug addiction, was convicted of robbery and detained, and died in detention in February 2004. The applicants claimed that Olga Biliak had been prosecuted because she hadn’t cooperated with police officers from the Anti-Narcotics Police Department who thought that she had been selling drug that were seized from street dealers by the police. The applicants submitted that their requests for the prosecution of these officers hadn’t been rejected.

At and after the time of her arrest, Olga Biliak was examined and found to be healthy for detention although she had refused to be tested for HIV. After a month, she wrote in her diary that she had pneumonia; she had also been examined by a panel of psychiatrists had confirmed that she had schizophrenia and suggested deeper assessment but noted that she could have been in control of her actions at the time commission of the offence. Days after, Olga Biliak was hospitalized in a psychiatry hospital where she underwent psychiatric treatment. Upon completing the treatment, she was transferred to her detention cell and stayed there until she died. While detained, Olga Biliak had been treated for certain conditions like gastric ulcer and examined by neuropathologist and a psychiatrist for her mental illness and vasomotor neurosis. She also was ” diagnosed with chronic bronchitis and multi-drug dependence”. [Para.37] During this period, Olga Biliak  had been writing in her diary that she had developed pneumonia again, that her health was rapidly deteriorating due, in part, to the conditions in her detention. Her lawyer’s requests with the authorities for release due to her state of health was rejected without any response regarding her health problems.

Ten days before her death, Olga Biliak was diagnosed with “acute bronchitis, chronic gastritis, anaemia, cachexia and  mental disorders. Her state of health was assessed as being of “medium seriousness”. She was prescribed some anti-inflammatory and light tranquilising drugs, as well as some antibiotics” [para. 42]; she refused to be tested for HIV stating that she wasn’t HIV positive. Three days before her death, the District Police Department ordered her release but before it was effected she had died, the recorded cause of her death being bilateral pleurisy. The government submitted that she had died due to acute heart failure.

After her death, the applicants lodged a complaint against the detention center’s staff for their negligence but the investigator refused to institute proceedings stating that the death hadn’t been caused by the staff’s negligence. The City Prosecutor’s Office decided that the deceased had been receiving medical treatment and food and medication from her family, and that her HIV status hadn’t been known until ten days before her death. An investigation in to her death was still being undertaken by the authorities. 

The applicants also instituted a civil action for non-pecuniary damage on account of the deceased’s lack of appropriate medical care and denial of release; the domestic court awarded the damage.

The applicants lodged a claim before the European Court of Human Rights (the ECHR) on the grounds that Olga Biliak died due to lack of adequate medical care which constituted a violation of Article 2 of the Convention; an effective investigation in to her death hadn’t been conducted by the authorities in violation of Article 13 of the convention; the conditions of her detention hadn’t been adequate in violation of Article 3 of the Convention; her detention in the last 4 days before her death was unlawful in violation of Article 5 (1) of the Convention.

“The Government claimed that Olga Biliak’s death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness she had acquired prior to her placement in custody and of which she had failed to inform the prison authorities. The prison doctors had examined her on many occasions and prescribed appropriate medical treatment and medication. Their recommendations had been fully complied with. As soon as the prison authorities had started to suspect that she was HIV-positive they had undertaken all necessary measures, including requesting the prosecution authorities to authorize her release. According to the Government, all Olga Biliak’s health complaints had been addressed in timely and adequate fashion by the prison doctors, and the State could not bear responsibility for any suffering of which she had not informed the authorities. The Government reiterated that since the investigation into the circumstances of Olga Biliak’s death was still pending, they could not comment on the existence or absence of a violation of the Convention provision”. [Para. 102]

The ECHR reiterated that the right to life enshrined under Article 2 of the Convention imposed obligation on states to take steps to safeguard the lives of the people within their territories. The ECHR noted that the deceased's father had informed the prison's administration four months before the deceased's death about her being HIV positive and thus rejected the government's argument that her status hadn't been known until 10 days before her death. It also noted that the treatment that had been given to the deceased was inadequate given her HIV status and exposure to various other diseases. The ECHR also noted that the deceased's and her lawyer's requests for release due to the deterioration of her health hadn't been addressed by the authorities. Even after determining that the deceased needed to be transferred to a higher medical facility for treatment, the a prison administration failed to effect the her transfer. There had been a four days delay on the part off the authorities in processing her urgent release for medical reasons during which she had died of HIV related illnesses. The ECHR thus found a violation of Article 2 of the Convention.

The ECHR noted that the investigation in to the deceased's death had excluded the applicants as they were not made parties to it and were not being notified of its progress and discontinuance. The ECHR also observed a lack of coordination between the prosecution and the court in their decisions on the investigation. The ECHR held that the state had violated Article 2 of the Convention due to its failure to conduct 'effective and independent investigation' in to the deceased's death. [Para. 123] As a result of this finding, the ECHR hadn't examined the applicants' claim under Article 13 of the Convention. It hadn't examined the complaint under Article 3 of the Convention as the facts were the same as those considered under Article 2 of the Convention.

The ECHR noted that while the Code of Criminal Procedure of Ukraine requires an immediate communication to a detainee of an order of his/her release, the deceased Olga Biliak hadn't been notified of the order of her release. Moreover, the prison's administration hadn't immediately released her contrary to the same requirement stipulated under Pre-trial Detention Act. The deceased's detention for the last four days before her death was unlawful in violation of Article 5(1) of the Convention.

The ECHR awarded non-pecuniary damage to the applicants.

"Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. Having held that the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance, the Court considers that, where a detainee dies as a result of a health problem, the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death....As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person's right to life" [Para. 104]