CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 juillet 2016

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UKRAINE   (Application no. 65663/12)                     JUDGMENT       STRASBOURG   28 July 2016       This judgment is final but it may be subject to editorial revision. In the case of Marchuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Erik Møse, President,   Yonko Grozev,   Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 5 July 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 65663/12) 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 Ukrainian national, Mr Andriy Vasylyovych Marchuk (“the applicant”), on 3   October 2012. 2.     The applicant was represented by Ms G.   Artyushenko, a lawyer practising in Kovel. The Ukrainian Government (“the Government”) were represented by their Agent. 3.     On 18 December 2014 the complaints under Articles 2, 6 and 13 of the Convention concerning the effectiveness of the domestic criminal and civil proceedings in relation to the death of the applicant’s daughter were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1969 and lives in Kovel. 5.     At about 1.30 p.m. on 27 August 2003 the applicant’s daughter (two years old at that time) was admitted in a critical condition to the infectious diseases ward of the Kovel City Hospital. She was diagnosed with acute enterocolitis with concomitant illnesses. At 3.45 p.m. her condition aggravated, and acrocyanosis of the lips and nose were noted. At 4 p.m. the resuscitation specialists performed artificial pulmonary ventilation and cardiac massage. At 5.40 p.m. the doctors stated that the applicant’s daughter had died. A.     Criminal proceedings 6.     On 9 September 2003 the applicant complained to the Kovel inter ‑ district prosecutor’s office (“the prosecutor’s office”) about the death of his daughter in hospital. 7.     On 19 September 2003 the prosecutor’s office, having conducted a pre-investigation inquiry, decided not to institute criminal proceedings against the doctors of the hospital for lack of corpus delicti . The next day that decision was quashed by the supervising prosecutor and further inquiry was ordered. 8.     On 10 October 2003 the prosecutor’s office instituted criminal proceedings to investigate the allegations of medical negligence and failure to ensure the right of the applicant’s daughter to free medical aid. 9.     On 16 June 2004 a panel of forensic medical experts found, inter alia , that the resuscitation measures had been delayed; however, there was no guarantee that the outcome would have been positive had those measures been taken in a timely fashion. The experts considered that the principal cause of death was the nature and seriousness of the illnesses, which had caused the patient’s brain to swell. 10.     On 24 June 2005 the Volyn regional prosecutor’s office informed the applicant that the investigation had been delayed and that instructions had been given to investigate the case properly. 11.     On 16 September 2006 the forensic medical experts issued an additional report stating, inter alia , that the applicant’s daughter had been admitted to hospital five days after the first symptoms of the pathological process. If her family had sought medical aid in due time, her life and health prognosis could have been more favourable. 12.     On 3 December 2007 the investigators in charge of the criminal case were disciplined for causing delays and for failure to take all the necessary measures during the investigations. 13.     On 24 July 2008 Dr G. was charged with the offences of failure to provide medical aid to a patient by a medical practitioner and violation of the right to free medical aid. 14.     On 7 August 2008 the investigation was completed. The case was referred to the court for trial. 15.     On 5 November 2008 the Turiysk District Court returned the case to the prosecutor’s office stating that the prosecutor had not complied with procedural requirements when submitting the case file to the court. 16.     On 8 January 2009 the prosecutor’s office decided that additional investigative steps should be carried out in the case. 17.     On 30 March 2009 the Turiysk District Court committed Dr   G. for trial. 18.     On 26 October 2009 the Turiysk District Court found that on 27   August 2003 Dr G. had committed the offence of failing to provide the applicant’s daughter with medical aid. It also released her from any punishment due to the expiry of the time-limit for criminal responsibility. The court then acquitted Dr   G. of a violation of the right to free medical aid, finding that that charge had been unsubstantiated. The applicant and the prosecutor appealed against that judgment. 19.     On 23 February 2010 the Volyn Regional Court of Appeal upheld the judgment of 26 October 2009 as regards Dr   G.’s partial acquittal. As regards her conviction, it stated that the trial court had failed to specify the punishment from which she had been released. The Court of Appeal therefore quashed the judgment in that part and remitted the case to the trial court for fresh consideration. 20.     On 30 June 2010 the Turiysk District Court held that Dr   G. was guilty of failing to provide medical aid to the applicant’s daughter. It found that between 3.45 p.m. and 4 p.m. on 27 August 2003 she had failed to carry out artificial respiration and cardiac massage and that those failures had reduced the chances of success of the resuscitation measures carried out subsequently by the other doctors. The court sentenced Dr   G. to a fine and a three-year ban on medical practice. It nevertheless released her from that punishment due to the expiry of the time-limit for criminal responsibility. 21.     On 24 September 2010 the Volyn Regional Court of Appeal upheld that judgment. B.     Civil proceedings 22.     On 23 September 2011 the applicant initiated civil proceedings seeking compensation for the non-pecuniary damage caused by the hospital’s failure to ensure appropriate medical treatment for his daughter. Dr G. was admitted to the proceedings as a third party. 23.     On 7 March 2012 the Starovyzhivskyy District Court found that the applicant had sustained non-pecuniary damage on account of the professional misconduct of Dr   G. The court awarded the applicant 20,000 [1] Ukrainian hryvnias in respect of non-pecuniary damage. In its reasons the court referred to the findings of the domestic court dealing with the criminal case against Dr   G. The court further found that, in accordance with the statutory documents of the Kovel Inter-District Territorial Medical Association, that legal entity was obliged to pay the amount awarded. 24.     On 18 April 2012 the Volyn Regional Court of Appeal upheld the decision of 7 March 2012. 25.     On 25 May 2012 the Higher Specialised Court for Criminal and Civil Matters refused the applicant leave to appeal in cassation against these decisions. II.     RELEVANT DOMESTIC LAW 26.     The relevant provisions of domestic law can be found in the judgment in the case of Arskaya v. Ukraine (no. 45076/05, §§   52-55, 5   December 2013). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 27.     The applicant complained that the domestic criminal and civil proceedings had not been compatible with the procedural requirements of Article 2 of the Convention. That Article reads 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 28.     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. B.     Merits 1.     The parties’ submissions 29.     The applicant argued that the criminal investigation had not been conducted with reasonable expedition. The criminal proceedings had been groundlessly delayed and civil redress had only been possible following the determination of the criminal charges against the doctor. 30.     The Government submitted that the relevant circumstances had been effectively examined at the domestic level and that there had been no procedural violation of Article 2 of the Convention. They admitted that the civil claim had been closely linked to the determination of the criminal charges against Dr G. However, the civil courts had been prompt in their consideration of the applicant’s claims in a separate set of civil proceedings. 2.     The Court’s assessment 31.     The Court has stated on a number of occasions that an effective judicial system, as required by Article   2, may, and under certain circumstances must, include recourse to criminal law. However, if the infringement of the right to life or to physical integrity has not been caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, this obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII, with further references). 32.     Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih v. Slovenia [GC], no. 71463/01, §   195, 9 April 2009, with further references). In cases of this type, the Court must examine whether the legal system as a whole adequately dealt with the matter at hand (see Byrzykowski v. Poland , no. 11562/05, § 107, 27 June 2006, and Dodov v. Bulgaria , no. 59548/00, §§   83 and 86, 17   January 2008). 33.     In the present case, the principal issue in the applicant’s complaint is the question of promptness and reasonable expedition of the domestic proceedings. In that regard the Court notes that while the identification and punishment of those responsible for a death and the availability of compensatory remedies to the applicant are important criteria in the assessment of whether or not the State has discharged its Article 2 obligations, in a number of cases before the Court the finding of a violation of that provision was essentially based on the existence of unreasonable delays and a lack of diligence on the authorities’ part in conducting the proceedings, regardless of their final outcome (see, for example, Šilih , cited above, §   211, and Sergiyenko v. Ukraine , no.   47690/07, §§   50 and 54, 19   April 2012, with further references). 34.     In the light of these principles, the Court notes that following the death of his daughter, the applicant complained to the prosecutor’s office seeking the criminal prosecution of the medical staff. In view of the facts of the case, his recourse to a criminal-law remedy does not appear to have been unreasonable. Nor was it regarded as such by the domestic authorities, who initiated a criminal investigation and eventually convicted the doctor who had been in charge of the applicant’s child. It is common ground between the parties that any parallel civil proceedings for damages would not have been an effective course of action while the criminal proceedings were pending. The parties agreed that in such circumstances the civil courts would not have been in a position to determine the civil claims based on the facts, specifically acts or inactivity by the medical staff, which were also the subject-matter of the pending criminal case. The Court must therefore examine whether the criminal proceedings were conducted promptly for the purposes of Article   2. 35.     In that regard the Court notes that the criminal proceedings were concluded after a period of seven years. During that time the domestic authorities repeatedly admitted that the investigation had been delayed and informed the applicant that they had taken measures to expedite the proceedings (see paragraphs 10 and 12 above). Subsequently, following the trial court’s instructions, it took a considerable period of time for the investigating authorities to carry out additional investigative measures and resubmit the case to the trial court (see paragraphs 14-17 above). Furthermore, the available material does not suggest that the length of the investigation and court proceedings could be justified by the complexity of the case or by the applicant’s behaviour. Having examined the parties’ submissions, the Court finds that the criminal proceedings in the present case were unreasonably delayed by the authorities. 36.     As to the subsequent set of civil proceedings initiated in 2011, it is true that the civil courts considered the applicant’s claim within a short period of time. However, such promptness was possible largely because most of the evidence had been assembled by the investigating authorities in the course of the criminal proceedings and the civil courts could rely on the findings of the criminal courts. Therefore, the effectiveness of this remedy cannot be considered in isolation. By contrast, assessing the overall length of both sets of proceedings cumulatively, the Court considers that the domestic authorities failed to carry out a prompt examination of the applicant’s civil claim. 37.     Taken overall, the domestic legal procedures concerning the circumstances of the death of the applicant’s daughter lasted for an excessively long period of time and were therefore incompatible with the State’s obligation under Article 2 of the Convention to carry out an effective investigation. The consequence of this delay was that the responsible doctor was absolved of the punishment (a fine and a three years ban, see paragraph 20 above). 38.     There has therefore been a procedural violation of Article 2 of the Convention. II.     ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 39.     The applicant complained that the ineffective domestic proceedings in the present case gave also rise to violations of Articles 6   §   1 and 13 of the Convention. 40.     Having regard to the finding of a violation under Article 2 of the Convention and the reasoning leading to thereto, the Court considers that this part of application is admissible but it does not give rise to any issues separate to those examined already under Article 2 of the Convention. 41.     The Court holds that it is not necessary to examine separately the complaints under Articles 6 and 13 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 42.     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 43.     The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage. 44.     The Government contended that that claim was groundless. 45.     The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage. B.     Costs and expenses 46.     The applicant did not submit any claims under this head. The Court therefore makes no award. C.     Default interest 47.     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, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 2 of the Convention in its procedural limb;   3.     Holds that there is no need to examine the complaints under Articles 6   §   1 and 13 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR   4,000 (four thousand euros) plus any tax that may be chargeable thereon, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Milan Blaško   Erik Møse Deputy Registrar   President [1] About EUR   1,865.