CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 3 juillet 2025

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UKRAINE (Applications nos. 60191/16, 60194/16 and 35272/17)             JUDGMENT   STRASBOURG 3 July 2025   This judgment is final but it may be subject to editorial revision. In the case of Zhukov and Zhukova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Georgios A. Serghides , President ,   Gilberto Felici,   Diana Sârcu , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Valeriy Anatoliyovych Zhukov (“the   first applicant”) and Ms Olga Yevgeniyivna Zhukova (“the   second   applicant”), on the various dates indicated the appended table; the decision to give notice of the applications to the Ukrainian Government (“the Government”) represented by their Agent, most recently, Ms   M.   Sokorenko, of the Ministry of Justice; the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention); the parties’ observations; Having deliberated in private on 12 June 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present case concerns allegations that the domestic investigation into the circumstances of the applicants’ daughter’s death in a public hospital were ineffective. MEDICAL TREATMENT AND DEATH OF THE APPLICANTS’ DAUGHTER 2.     On 2 June 2008 the applicants’ daughter, K., who was born in 1982, sought antenatal care at Mykolayiv Maternity Hospital no. 1 (“the hospital”). She had a congenital heart defect which presented a risk of complications and required constant medical supervision. 3.     On 22 December 2008, when the applicants’ daughter was between thirty-five and thirty-six weeks pregnant, she was admitted to the hospital for inpatient treatment. She was assessed as being extremely high risk of complications. On 26 December 2008 the applicants’ daughter gave birth. 4.     In the days that followed, the applicants’ daughter’s condition deteriorated rapidly. On 31 December 2008 she was transferred to the emergency department of Mykolayiv City Hospital no. 1, where she died from cardiac failure several minutes after her admission. INVESTIGATION into THE INCIDENT 5 .     In February 2009 a commission established by the Health Department of the Regional State Administration (“the Health Department”) concluded that the applicants’ daughter’s death had been unpreventable and that there had been no shortcomings on the part of the healthcare professionals involved. 6 .     In April 2009 a commission established by the Ministry of Health concluded that, on the contrary, the death had indeed been preventable, poor clinical decisions had been made, and there had been numerous shortcomings in both the inpatient and outpatient treatment that the applicants’ daughter had received. On the basis of the report, the Health Department reprimanded the hospital’s chief doctor Dr V., and seven other doctors: the head of midwifery department no. 3 who had been the doctor responsible for the care of the applicants’ daughter during her stay at the hospital, Dr U.; a general practitioner who had been in charge of the applicants’ daughter’s care during her pregnancy, Dr S.; the deputy chief doctor of the hospital, Dr H.; the head of midwifery department no. 2, Dr Ye.; a midwife, K.; and two doctors from the cardiological emergency team, Dr O. and Dr Vo. 7 .     As regards a criminal complaint made by the applicants alleging medical negligence by the hospital’s doctors, the investigative authorities repeatedly refused to institute criminal proceedings for almost a year after the applicants’ daughter’s death (the relevant decisions in that regard were taken on 1   January, 23 April, 16 July, 27 August, and 3 October 2009). All those decisions were set aside by the regional prosecutor’s office as unsubstantiated. Disciplinary proceedings were instituted against the investigator for those repeated unreasoned refusals and the protracted investigation, and ultimately, on 24   December 2009, the regional prosecutor’s office instituted criminal proceedings for causing death by negligence. The applicants lodged civil claims within the criminal proceedings. 8 .     Between 2010 and 2014 several investigative steps were taken. Among   them, several forensic medical examinations aimed at establishing the cause of the applicants’ daughter’s death were carried out (the respective reports were issued in December 2010, August and October 2011, and November   2014). The reports all noted shortcomings in the applicants’ daughter’s care in breach of the official standards and procedures in place. In   particular, the reports stated the following: (i) the medical supervision of the pregnancy had not been sufficient; the applicants’ daughter’s congenital heart defect had meant that she had required treatment in a specialised cardiology department; the medication prescribed was contraindicated in patients with her symptoms and could have contributed to the deterioration of her condition; (ii) owing to the extremely high risk of complications, she ought to have been giving birth in a highly specialised maternity hospital; (iii) during the applicants’ daughter’s inpatient treatment before she had given birth, her complaints of weakness and shortness of breath, which had been the first symptoms of her cardiac failure, had not been addressed; (iv) after giving birth, owing to the increasing symptoms of cardiac failure, the applicants’ daughter ought to have been urgently transferred to a   specialised cardiology department; instead, by the time she had finally been transported to Mykolayiv City Hospital no. 1 (in an inappropriate light duty car not equipped with any medical equipment), her condition had been critical and precluded the possibility of any further transfer. 9 .     In April 2015, pointing to the protracted nature of the investigation, the   Regional Office of Internal Affairs ordered that it be expedited. Following that order, the investigator instituted two sets of criminal proceedings for   causing death by negligence, the first against Dr V., and the second against Dr U., Dr S. and Dr H. All of them were served with a notice of suspicion in 2015, and shortly thereafter the investigator drafted bills of indictment. 10.     On 22 January and 20 February 2016, following a request by the prosecutor, the Central District Court of Mykolayiv terminated the criminal proceedings against Dr U., Dr S. and Dr H., and against Dr V., respectively, as being time-barred and released them from criminal liability. The court held that there had been medical negligence by all the doctors against whom the   criminal proceedings had been brought. The applicants’ civil claims were not considered by the court. Both decisions were upheld on appeal and became final. CIVIL PROCEEDINGS 11.     The applicants lodged civil claims against Dr V., Dr U., Dr S., Dr H., the hospital and the Health Department seeking payment of pecuniary damages and compensation for non-pecuniary damage. 12 .     On 16 January 2017 the Central District Court of Mykolayiv awarded the applicants 200,000 Ukrainian hryvnias (UAH) (around 6,760 euros) each for non-pecuniary damage, and UAH 14,430 to the second applicant for   pecuniary damages, to be paid by the hospital as the doctors’ employer. The   court relied exclusively on the facts established in the criminal proceedings, citing the bills of indictment against Dr U., Dr S., Dr H. and Dr   V. Following an appeal by the hospital, the Mykolayiv Court of Appeal reduced the amount of the award, but on 28   November   2018 the Supreme Court upheld the decision of the Central District Court of Mykolayiv. 13.     The applicants informed the Court that the award had been paid to   them by the hospital in full. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 14.     Having regard to the similar subject matter of the applications, the   Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 15.     The applicants complained that there had been no effective investigation into the circumstances of their daughter’s death. They relied on Article 6   §   1 of the Convention. Relying on that same Article, the applicant in application no. 35272/17 also complained that the civil court’s award had been insufficient.   The Court, which is the master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under the procedural aspect of Article   2 of the Convention (see,   for example, Arskaya v. Ukraine , no.   45076/05, §§ 57-58, 5   December   2013 ). 16.     The Government argued that the applicants had lost their victim status in view of the compensation awarded to them by the civil courts.   The   applicants maintained their complaint and contended that there had been no acknowledgment of a violation of their rights by the State, so   the   payment of the compensation by the hospital could not be considered sufficient to result in them losing their victim status. 17.     The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaints. It therefore joins its examination to the merits. 18.     The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the   Convention. They must therefore be declared admissible. 19.     The general principles concerning the State’s procedural obligations under Article 2 of the Convention in the context of healthcare have been summarised in   Lopes de Sousa Fernandes v. Portuga l ([GC], no. 56080/13, §§ 214-21, 19 December 2017). The Court will examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the   victim (see Lopes de Sousa Fernandes , cited above, §§ 214-16, and Valeriy Fuklev v. Ukraine , no. 6318/03, §§ 66-67, 16 January 2014). 20.     The Court observes that the healthcare authorities opened an investigation promptly, and shortly thereafter the commission established by the Ministry of Health identified shortcomings in the actions of the hospital’s doctors (see paragraphs 5 and 6). However, the only action taken was to reprimand the doctors in question. No analysis of the shortcomings or any   other preventive measures were taken to avoid them reoccurring in the future. 21.     Notwithstanding the above-mentioned findings in the disciplinary proceedings, the investigative authorities refused to institute criminal proceedings on five occasions (see paragraph 7 above), even though all those decisions were subsequently set aside by the regional prosecutor’s office. Such delays in the initial stage of the investigation inevitably diminished the   prospect of its success and completion (see, mutatis mutandis , Oleynikova   v.   Ukraine , no.   38765/05, § 80, 15 December 2011). 22.     Once the criminal proceedings had finally been instituted, they lasted seven years and were ultimately terminated as being time-barred, with the accused being released from criminal liability. The respondent State has itself recognised the protracted nature of the investigation (see paragraphs 7 and 9 above). 23.     Furthermore, there was an unusually high number of repeated examinations by medical experts during the criminal proceedings. While   it   could be accepted that in certain circumstances an expert examination might need to be repeated in order to clarify the circumstances of the case, the fact that the same type of forensic examination was ordered several times (see   paragraph 8 above) within the same criminal proceedings suggests the   lack of a comprehensive approach to the collection of evidence during the   pre-trial investigation phase (see Sergiyenko v. Ukraine , no.   47690/07, §   52, 19 April 2012, and Basyuk v. Ukraine , no.   51151/10, §§   67‑68, 5   November 2015). 24.     The Court notes that, in the subsequent civil proceedings, the applicants were awarded compensation to be paid by the hospital (see   paragraph 12 above). However, the Court emphasises that there has been neither a recognition of a violation of the procedural limb of Article 2 of the Convention, of which the applicants complain in the present case, nor the provision of redress for that violation, which would result in the loss of the applicants’ victim status. The Government’s objection is therefore dismissed. 25.     Moreover, the mere fact that the outcome of the civil proceedings was favourable to the applicants did not remedy the substantial shortcomings of the preceding criminal proceedings, which concerned the core of the applicants’ complaints under the Convention. Although it is true that the civil courts considered the applicants’ claims within a short period of time, such promptness was possible largely because the civil courts relied exclusively on the findings of the criminal proceedings (see paragraph 12 above) (see   Marchuk v. Ukraine [Committee], no.   65663/12, § 36, 28   July 2016). 26.     The Court has previously emphasised the need for a prompt examination of cases concerning medical negligence in a hospital setting (see   Lopes de Sousa Fernandes , cited above, § 218). Assessing the   cumulative circumstances of the present case, the Court considers that the   domestic authorities failed to carry out a prompt examination of the   applicants’ complaints. Taken overall, the domestic legal proceedings concerning the circumstances of the death of the applicants’ daughter lasted for an excessively long period of time, were marked by various flaws and were therefore incompatible with the State’s obligation under Article 2 of the   Convention to carry out an effective investigation (see, mutatis mutandis, Akopyan v. Ukraine , no.   12317/06, §   97, 5   June 2014, and Drazman and Others v. Ukraine [Committee], nos. 22207/12 and 2 others, § 11, 29   June   2023). 27.     In the light of the foregoing, the Court finds a violation of Article   2 of the Convention under its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.     The first applicant claimed 18,000 euros (EUR) in respect of non-pecuniary damage, EUR 680 in respect of legal costs incurred in the   proceedings before the Court, and EUR 94 as reimbursement for translation services. 29.     The second applicant claimed EUR 20,000 in respect of non-pecuniary damage and EUR 680 in respect of legal costs incurred in the   proceedings before the Court. 30.     In support of the claims for expenses, the applicants submitted copies of the relevant invoices from their lawyer (residing in Poland) and for the   translations. 31.     The Government considered the above sums claimed in respect of non-pecuniary damage excessive. They did not object to the claims for expenses. 32.     The Court awards the applicants EUR 6,000 each in respect of non-pecuniary damage plus any tax that may be chargeable. 33.     Having regard to the documents in its possession, the Court considers it reasonable to award the first applicant EUR 774 and the second applicant EUR 680 covering costs under all heads, plus any tax that may be chargeable to them, and to dismiss the remainder of the claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 2 of the Convention under its procedural limb; Holds (a)   that the respondent State is to pay the first applicant within three months: (i)   EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 774 (seven hundred seventy-four euros), plus any tax that may be chargeable to him, in respect of costs and expenses; (b)   that the respondent State is to pay the second applicant within three months, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 680 (six hundred eighty euros), plus any tax that may be chargeable to her, in respect of costs and expenses; (c)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 3 July 2025, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Georgios A. Serghides   Deputy Registrar   President     APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Year of birth Place of residence Nationality Represented by 1. 60191/16 Zhukov v. Ukraine 17/09/2016 Valeriy Anatoliyovych ZHUKOV 1958 Torun Polish Michal INDAN-PYKNO 2. 60194/16 Zhukova v. Ukraine 30/09/2016 Olga Yevgeniyivna ZHUKOVA 1958 Mykolayiv Ukrainian 3. 35272/17 Zhukov v. Ukraine 03/05/2017 Valeriy Anatoliyovych ZHUKOV 1958 Torun Polish