CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 avril 2002

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Rozakis , President ,   Mrs   F. Tulkens ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mr   E. Levits ,   Mr   A. Kovler ,   Mr   V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar , Having regard to the above application introduced on 19 March 2001 and registered on 25 May 2001, Having deliberated, decides as follows: THE FACTS The applicant, Larisa Konstantinovna Litovchenko, is a Russian national, who was born in 1963 and lives in Khabarovsk. She is represented before the Court by Mr A.Y. Leontyev and Mr J.M. Burns, lawyers practising in St. Petersburg. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Delivery and medical care In 1994 the applicant, a former gynaecologist/obstetrician joined the Jehova’s Witnesses. In the summer of 1996 the applicant entered State Maternity Hospital   No. 2 in Khabarovsk to give birth to her third child. On her admission to the maternity ward at 8:00 a.m. on 4 July 1996, she explained to the duty doctor, Dr Bella Chebonenko, that she was a Jehova’s Witness and conscientiously objected to blood transfusions on religious grounds. She asked the medical staff to use effective alternatives that were available. Dr   Chebonenko accepted the applicant as a patient. The applicant also gave Dr Chebonenko an advance directive, which had been signed and dated before witnesses, expressly refusing a blood transfusion (even if doctors believed it necessary to preserve her life or health), agreeing to accept alternative methods of treatment (non-blood volume expanders) and releasing the medical personnel from all liability for any unfavourable consequences resulting from her decision. At 4:00 p.m. on 4 July 1996 the applicant gave birth to a baby girl. Although the delivery was uncomplicated, bleeding gradually ensued in the postnatal stage. An entry in the hospital records at 6:00 p.m. stated: “The woman categorically refuses transfusions of blood and blood components (for religious reasons).” Between 4 and 6   July 1996, instead of adhering to the applicant’s request for available alternatives to be used, the doctor rendered the applicant unconscious with anaesthetic and began to give her a blood transfusion. According to the hospital records, anaesthetic was administered “with the aim of rendering her unconscious, as she refuses a blood transfusion for religious reasons.” After the applicant regained consciousness and discovered that she was receiving a blood transfusion, she tried to close the regulator valve and stop the transfusion. The doctor took a syringe and administered a stronger anaesthetic. The hospital records stated: “During the transfusion the woman periodically turned off the transfusion system, refusing the transfusion.” Over the next three days the applicant received more than thirteen litres of blood, in addition to blood substitutes. The foreign blood came from twenty different donors, including fresh whole blood that had not been tested for HIV virus, Hepatitis B, Hepatitis C, and other blood-borne diseases. An entry in the hospital records for 7 July 1996 stated: “2:00 a.m. [The woman] is conscious, she orients herself properly, but has an inappropriate attitude towards the transfusion of blood components (which are prohibited by her faith).” On 5 July 1996, the day after the doctors began the blood transfusion, they obtained consent from the applicant’s husband. The hospital records stated: “The woman belongs to the Jehovist sect and categorically refuses blood transfusions. All blood transfusions were conducted under anaesthetic with the husband’s consent.” On 8 July 1996 the applicant was transferred to the intensive care unit of the Territorial Clinical Hospital No. 1 in Khabarovsk (a hospital that accepts severe cases) for treatment for her condition, which continued to be serious, her symptoms including persistent fever and blood poisoning. The applicant told her new doctors that she wanted them to use alternatives to blood, and they agreed. Ultrasound tests to the applicant’s abdomen revealed an unknown fluid that was the source of the problem, and doctors began non-invasive treatment. The applicant’s serious condition, however, continued for over three weeks. Suspecting an abscess, the doctors finally decided to operate on 30 July 1996. The operation revealed that the cause of the poisoning was 400 ml of thin blood in the applicant’s abdomen following the blood transfusions at Maternity Hospital No. 2. 2.     Publication of the applicant’s story in the media In September 1996 the regional insert Dalinform to the national Argumenty i Fakty newspaper printed a story containing detailed information on the applicant’s treatment in Maternity Hospital No. 2, including her name (given as “Larisa L.”), age, religion, profession, number of years’ work experience, and the name of the hospital and the city. The applicant, who was easily identifiable from the publication, had not given her prior consent to the article or published any information herself. The newspaper story said that the information had come from hospital doctors, but they denied this. 3.     Proceedings against the doctors On 4 July 1997 the applicant filed a civil action in the Industrial District Court of Khabarovsk requesting a judicial declaration that the fact that she had been forced to have blood transfusions at the State hospital had violated her rights as a patient to withhold her consent and to medical privacy, as well as her constitutional rights to respect for her private life and freedom of conscience. On 10 December 1997 the Industrial District Court of Khabarovsk found that the applicant had made a prior written request signed before two witnesses for alternatives to blood to be used. The court dismissed her claim, stating that no mechanism existed in Russian law to enable the right to refuse medical treatment to be exercised and that the choice of treatment was the doctors’. It also dismissed the claims against the doctors for breach of medical privacy, holding that that issue had to be resolved by a separate libel action against the newspaper. On 27 January 1998 the Civil Chamber of the Khabarovsk Regional Court allowed the applicant’s appeal and ordered a retrial. On 12 November 1998, after three postponements due to the doctors’ repeated failure to appear in court, the Industrial District Court of Khabarovsk began a new hearing. On 24 August 1999, after further adjournments, the court appointed a team of independent medical experts to compile a report. The team included four pre-eminent Russian doctors, specialising in obstetrics, intensive care, anaesthetics and medical ethics. The experts, whose practical experience ranged from twenty-eight to forty-six years, reviewed the entire court file, including all the hospital records and the testimony of all the doctors concerned. On 20 March 2000 the experts concluded that the blood transfusions had been unnecessary and should have been avoided by adopting standard medical practice that would have been available to the treating doctors in 1996 in the Maternity Hospital No. 2. The applicant had had toxaemia, and bleeding had been anticipated. It had developed into disseminated intravascular coagulation. The necessary preventive measures had not been carried out. Other measures had been taken late or had been incorrect and had only served to exacerbate the applicant’s condition. The experts’ report highlighted critical errors in the applicant’s treatment. On 4 July 2000 the Industrial District Court dismissed the applicant’s claims in spite of the Khabarovsk Regional Court’s ruling on appeal that Section 33 of the Basic Law of the Russian Federation on Health Protection “provides for a citizen’s right to refuse medical treatment, and not medical assistance.” Instead, the Industrial District Court held that under Russian law, it was for the doctor, not the patient, to decide the treatment. The court also found that the doctors’ intervention when the applicant had attempted to stop the transfusion by closing the valve was lawful, as applicable laws did not permit euthanasia. The court disregarded the conclusions of the team of experts because its findings were largely based on modern medical theory and practice in the period of 1997-99 while the incident involving the applicant had taken place in 1996. On 21 September 2000 the Civil Chamber of the Khabarovsk Regional Court denied the applicant’s appeal for reasons similar to those of the trial court. B.     Relevant domestic law The Russian Constitution provides: Article 22   §   1 “Everyone has the right to freedom and personal inviolability.” Article 23   §   1 “Everyone has the right to respect for his private life and family life, his home and correspondence.” The Basic Law of the Russian Federation on Health Protection, No.   5487-I, of 22 July 1993 recognises patient’s rights to “integrity” or personal autonomy and self-determination: Section   30. Patient’s rights “Patients have the following rights when requesting or receiving medical assistance:... (7)     fully to make an informed decision on whether to consent to medical treatment in accordance with Section 32 of this Law; (8)     to refuse medical treatment in accordance with Section 33 of this Law...” Section 32. Consent to medical treatment “The citizen’s informed voluntary consent is a prerequisite for medical treatment...” Section 33. Refusal of medical treatment “A citizen or his legal representative has the right to refuse medical treatment or to demand that it cease, as except in those instances set out on Section 34 of this Law.” Section 34. Provision of medical care without consent “Medical aid (medical examinations, hospitalisation, observation and isolation) shall be permitted without the consent of the patient or his legal representatives if he suffers from a contagious disease or a serious psychiatric disorder or has acted in a dangerous manner on the grounds and under the procedure order prescribed by the legislation of the Russian Federation. A decision on whether to conduct a medical examination on a person or to admit him for observation without his or his legal representative’s consent shall be taken by a doctor (or a council of doctors), while a decision on whether to hospitalise a person without his or his legal representative’s consent shall be taken by a court of law. The provision of medical assistance without the consent of the patient or his legal representatives, associated with anti-epidemic measures, shall be regulated by healthcare legislation. Persons suffering from serious psychiatric disorders may be examined and admitted to hospital without their consent under the procedure prescribed by the Law of the Russian Federation on Psychiatric Help and the Guarantees of the Rights of People at the Time it is given. Compulsory medical measures may be imposed on persons who have acted in a dangerous manner on the grounds and under the procedure established by the legislation of the Russian Federation. Such persons shall remain in a medical institution until there cease to be any grounds for their hospitalisation without their consent or until a court order.” COMPLAINTS 1.     The applicant alleged that her being forced to undergo medical treatment breached her right as a patient to respect for her private life, as guaranteed by Article 8 of the Convention. 2.     She complained under Article 9 of the Convention that the fact that she had been given blood transfusions contrary to her religious convictions interfered with her freedom of conscience and religion. She maintained that the interference with her Article 8 and 9 rights was neither “in accordance with law” nor “prescribed by law”, inter alia , because she did not refuse medical assistance but chose a specific type of medical treatment. The national courts’ analogy to euthanasia was wholly inappropriate. She submitted that the decisions of the trial and appellate courts holding that the doctors’ actions were lawful could not be justified as being “necessary in a democratic society”. 3.     She further alleged that the imposition of medical treatment associated with the intentional use of anaesthetics interfered with her right as a patient not to be subjected to degrading treatment within the meaning of Article 3 of the Convention. She claimed that the degrading nature of the treatment forced on her was evident not only from the doctors’ disregard of the wishes she had expressed beforehand, but also from the deliberate abuse of medical anaesthetic as a tool for rendering her unconscious. Moreover, the doctors forced the applicant to undergo treatment that she had expressly stated to be contrary to her religious convictions, and did so in a humiliating and debasing way, as if she were mentally disabled. 4.     In addition, she claimed that the imposition of medical treatment interfered with her right as a patient to liberty and security of person, a right guaranteed under Article 5 of the Convention. She asserted, in particular, that the repeated and intentional use of anaesthetics as a means of physical and mental restraint deprived her of her mental and physical faculties, as she was powerless to resist them. 5.     Finally, the applicant complained that the denial of her rights as a patient was motivated by hostility to her religious beliefs and thus constituted discrimination within the meaning of Article 14 taken in conjunction with Article 8. THE LAW The applicant complained under Articles 3, 5, 8, 9 and 14 of the Convention about the treatment she received in the hospital. The Court first has to ascertain whether it is competent ratione temporis to deal with the application. It recalls that in accordance with the generally recognised rules of international law, the Convention is binding on each of the Contracting Parties only in respect of facts occurring after its entry into force in respect of that Party (see, for example, X. v. Portugal, application no. 6453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31, pp. 204, 208). The Court also recalls that the Convention came into force in respect of Russia on 5 May 1998. Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before that date. The Court notes that the applicant received the blood transfusion in July 1996. The proceedings against the medical staff who had chosen such treatment ended by the decision of the Khabarovsk Regional Court of 21   September 2000, i.e. after the Convention had entered into force in respect of Russia. This decision addressed in substance the same issues that are now before the Court – the applicant’s right to the choice of treatment, respect for her private life and religious convictions. The Court considers, however, that divorcing the domestic courts’ decisions from the events which gave rise to these proceedings would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law (see, as a recent authority, Jovanović v. Croatia (dec.), no. 59109/00, 28 February 2002). As to the proceedings before the domestic courts, in so far as they do fall within the Court’s competence ratione temporis , the applicant does not make any separate complaints. It follows that the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. For these reasons, the Court unanimously Declares the application inadmissible.   Erik Fribergh   Christos Rozakis   Registrar   President