CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 mars 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 31 March 2015   FIRST SECTION Application no. 63717/12 Ennu GANSEN against Estonia lodged on 30 September 2012 STATEMENT OF FACTS The applicant, Mr Ennu Gansen, is an Estonian national, who was born in 1963. He is detained in Tartu Prison. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In the autumn of 2006 a finger of the applicant’s right hand was hit by a hammer. When he went to see a doctor a month later, his finger was partly amputated. Purulent inflammation developed in his wrist, his hand swelled up and became numb. On 13 November 2006 the applicant was arrested on a suspicion of a crime. On 15 November 2006 he was formally released in the context of these criminal proceedings. However, in fact he continued to be detained in Pärnu Arrest House – as from 15 November 2006 his detention was based on a judgment in another criminal case that had become final on 14   November 2006. By that judgment the applicant was sentenced to four months’ imprisonment. He spent one month of the term in Pärnu Arrest House and the remaining three months in Tallinn Prison. He was released on 15 March 2007 after having served his sentence. On 22 March 2007 the applicant underwent medical examination including an X-ray. He was diagnosed with ankylosis (stiffening) of the finger joints and wrist of his right hand, arthrosis and damaged nerves. According to the doctor who examined the applicant, there was no treatment available for his condition. A medical expert committee established that the applicant had permanently lost 50% of his working capacity. The applicant claimed compensation for pecuniary and non-pecuniary damage from the police prefecture concerned. He argued that he had had an acute inflammation in his hand but instead of being sent to the prison hospital he had been treated in Pärnu Arrest House run by the police prefecture. As a result, he sustained permanent health damage. By a judgment of 15 June 2009 the Tartu Administrative Court dismissed his complaint. The court established that medical examination of the applicant had been carried out on the day of his admission to Pärnu Arrest House. He had been diagnosed with purulent inflammation in the right hand and treatment had been prescribed. The court concluded that the applicant had not been deprived of health care services and that the health care services had not been manifestly insufficient. At the same time, the question of the adequacy of the treatment, raised by the applicant, was not within the administrative court’s jurisdiction. The issue of whether the medical treatment provided had been inadequate (questions of mistakes in diagnosing and treatment) was to be established in civil court proceedings. The judgment was not appealed against. Subsequently, the applicant brought a civil suit for damage against the State. He admitted that in the arrest house he had received treatment against the inflammation with the same medication that had been prescribed to him before his arrest, and that the treatment of the inflammation had been successful. However, he argued that the provider of the health care service had been careless and had not paid attention to the fact that his hand could sustain further damage as a result of wrong diagnosis or inappropriate treatment. As a result of insufficient treatment he could almost not move his right hand. If the provider of the health care service was unable to provide satisfactory treatment, the applicant should have been sent to a specialist doctor or such a doctor should have been involved in his treatment. By a judgment of 18 October 2011 the Pärnu County Court dismissed the applicant’s claims. The court found that it did not follow from the evidence that the applicant’s health damage resulted from the defendant’s acts or omissions. It referred, inter alia , to the opinion of the doctor, who had treated the applicant after his release, according to which it could not be claimed that timely treatment would have saved the applicant’s hand. The court considered that the applicant had failed to prove that the defendant had made errors in diagnosis or treatment. It concluded that there were no grounds to claim that the health care service provided to the applicant had not conformed to the general level of medical science at the time the services were provided or that the services had not been provided with the care which could normally be expected of providers of health care services – and that as a result the applicant’s hand sustained further damage. The applicant appealed to the Tallinn Court of Appeal. He insisted that his treatment by the medical attendant of the Pärnu Arrest House, without involvement of a specialist doctor, did not constitute provision of health care services of sufficient quality and did not conform to the general level of medical science. By a decision of 21 May 2015 the Tallinn Court of Appeal quashed the County Court’s judgment and discontinued the proceedings. It found that the case had been resolved by the Tartu Administrative Court’s judgment of 15 June 2009. In both cases the applicant relied on the same factual circumstances and claimed compensation for pecuniary and non-pecuniary damage from the same defendant. The fact that the applicant’s claim had been dealt with by an administrative court – although according to the established practice the dispute in question was of a private law nature – did not amount to a new cause of action. Even though the Administrative Court had resolved the claim that should have been dealt with by the County Court, this fact did not serve as grounds for submitting the same claim to the County Court. On 24 September 2012 the Supreme Court decided not to examine the applicant’s appeal. B.     Relevant domestic law and practice Article 428 § 1(2) of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provides that a court discontinues proceedings without making a judgment if there is a final court ruling that has concluded the proceedings in a dispute between the same parties on the same grounds concerning the same object of action. In a judgment of 21 December 2010 (case no. 3-3-1-69-10) the Administrative Law Chamber of the Supreme Court held that provision of health care services as well as refusal to provide such services in a prison by a health care professional were obligations in private law and the related disputes were to be resolved in civil court proceedings by a county court. It was also within the jurisdiction of the county courts to examine claims for compensation for damage caused by provision of health care services or by failure to provide them. In the same judgment the Supreme Court also reiterated its earlier case-law (referring to a decision of a special panel of 10 April 2002, case no.   3 ‑ 3 ‑ 4 ‑ 2 ‑ 02) according to which the mere fact that an administrative court had resolved a case not falling within its jurisdiction did not require quashing the judgment given that the parties had not disputed the administrative court’s jurisdiction before the delivery of the first-instance administrative court’s judgment. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he had no access to court as regards his claim for damages related to the quality of the health care services provided to him in Pärnu Arrest House. An administrative court declined to rule on that matter considering that it fell within the jurisdiction of the civil courts whereas the civil courts discontinued the proceedings finding that the matter had already been resolved by an administrative court judgment.       QUESTION TO THE PARTIES Did the applicant have access to court, in accordance with Article 6 §   1 of the Convention, as concerns his claim for damages allegedly caused by the provision of health care services of insufficient quality?