CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 septembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s65E06E64 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s96D82958 { margin-top:14pt; margin-bottom:3pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } Published on 14 October 2024   FIFTH SECTION Application no. 38243/15 Sergiy Mykolayovych KULISH against Ukraine and 6 other applications (see list appended) communicated on 27 September 2024 SUBJECT MATTER OF THE CASES The present applications concern the complaints under the procedural limb of Article 2 of the Convention about ineffective investigations into the deaths of the applicants’ next-of-kin as a result of alleged medical malpractice. In application no.   38243/15, the applicant also complains in this respect of the alleged lack of independence of forensic expert establishments which carried out forensic medical examinations in that case, as both those establishments and public hospitals implicated in the events were subordinated to the Ministry of Health. In applications nos. 32156/20, 1516/21 and 44287/21, the applicants also invoke the substantive aspect of Article 2 of the Convention complaining that the deaths of their next-of-kin were caused by serious omissions of health-care professionals. In addition, in application no.   32156/20, the applicants complain under Article 3 of the Convention that the alleged medical malpractice caused suffering to their two-year-old daughter, and that there has been no investigation into those events. The summary of the facts for each application, as submitted by the applicants, is provided in the attached table.     QUESTION TO THE PARTIES REGARDING ALL APPLICATIONS Having regard to the procedural protection of the right to life (see   paragraph   104 of Salman v.   Turkey [GC], no.   21986/93, ECHR 2000-VII), was the investigation in the present cases by the domestic authorities in breach of Article   2 of the Convention? ADDITIONAL QUESTION TO THE PARTIES IN APPLICATION Nо. 38243/15 Were the forensic expert establishments which carried out forensic medical examinations in the present case independent in the view of the procedural guarantees enjoyed by Article 2 of the Convention (see,   mutatis   mutandis, Bajić v. Croatia , no. 41108/10, §§ 95-102, 13   November 2012), considering that both those establishments and public hospitals implicated in the events were subordinated to the Ministry of Health? ADDITIONAL QUESTION TO THE PARTIES IN APPLICATIONS Nos. 32156/20, 1516/21 AND 44287/21 Has the State complied with its positive obligation under Article 2 to put in place an effective regulatory framework in the field of health care that would ensure proper protection of the lives of the applicants’ next-of-kin (see   Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§   186-189, 19 December 2017)? ADDITIONAL QUESTIONS TO THE PARTIES IN APPLICATION No. 32156/20 1. Was the applicants’ daughter subjected to inhuman or degrading treatment in view of the alleged inadequate medical care provided to her in the public hospital? If so, did the State comply with its positive obligation under Article 3 of the Convention to protect the applicants’ daughter from ill-treatment? 2. Having regard to the State’s procedural obligation envisaged in Article   3 of the Convention, has the investigation into the above allegations of medical malpractice been effective? APPENDIX No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by Background to the cases (facts as submitted by the applicants) 1. 38243/15 Kulish v. Ukraine 27/07/2015 Sergiy Mykolayovych KULISH 1947 Kharkiv Ukrainian Andriy Anatoliyovych KRISTENKO On 1 September 2013 the applicant’s wife was admitted to the emergency department of the Kharkiv City Hospital with a suspected heart attack. The applicant had informed the doctors right upon her admission to the hospital about his wife’s severe allergic reactions to certain medications. On the next day the applicant’s wife died because of the pulmonary oedema. On 21   September 2013 the criminal investigation has started. The investigator ordered a forensic medical examination of both post-mortem expert report and histologic samples, but failed to receive the latter on time, and the samples were allegedly destroyed by the hospital. On 14 July 2016 the criminal proceedings were discontinued for lack of evidence of crime, which the applicant was not informed about. The investigator relied on a forensic examination report, which stated that the medical staff had provided sufficient and correct medical treatment to the applicant’s wife. Following the applicant’s appeal after he had learnt about the investigator’s decision, on 22 November 2019 the court quashed it and ordered further investigation, having considered the forensic expert examination not reliable due to several deficiencies. The   court decision was received by the investigator on 10   January 2020. However, the latter failed to execute it and to re-open the criminal proceedings. By a letter of 7   April 2023, the investigative body informed the applicant that it was not aware of the decision. 2. 32156/20 Lavrinenko v. Ukraine 16/07/2020 Artem Volodymyrovych LAVRINENKO 1976 Bobrynets Ukrainian   Nataliya Anatoliyivna LAVRINENKO 1980 Bobrynets Ukrainian   On 19 April 2011 the applicants’ two-year old daughter was admitted to the Kirovograd Regional Children’s Hospital for a planned examination related to her congenital anomaly of the gastrointestinal tract (a   Hirschsprung disease). The applicants’ daughter was treated by a doctor P. Among the number of medications, hypertensive enemas were prescribed. According to the applicable protocols, she should have received two enemas a day. Instead, she had received them three times a day with 5% sodium chloride solution instead of 1% solution and in the amount of 300 ml instead of 100 ml. Already after the second enema the applicant’s daughter’s state of health has deteriorated and she had started vomiting. Despite that the treatment continued without any change. The applicants’ daughter had a very high fever, continued vomiting and having tremors and on 23 April 2011 felt in coma and died in the hospital four days later. In June 2011 criminal proceedings were instituted into improper performance of duties by medical personnel. On 25   January 2023 the Leninskyy District Court of Kirovograd found doctor P. guilty of improper performance of professional duties that caused serious consequences to a minor and sentenced him to three years’ imprisonment with three years restriction to perform his duties. The court referred to a medical conclusion that the death was caused by non-controlled enemas. It was underlined that the applicants’ daughter’s disease was not the cause of her death. The   court discharged P. from serving the sentence as it became time-barred. This decision was appealed against, and the proceedings are still pending. At the same time within the same proceedings on 29   June 2023 the Kropyvnytskyy Court of Appeal has awarded the applicants 2,170,800 Ukrainian hryvnas (UAH) (around 53,400 euros (EUR) at the material time) and UAH   2,894,400 (EUR 71,200), respectively, in compensation for non-pecuniary damage to be paid by the hospital. It is unclear whether these amounts have been paid to the applicants.   3. 1516/21 Sinko v. Ukraine 18/12/2020 Anatoliy Leonidovych SINKO 1959 Slobozhanske Ukrainian   On 26 August 2011 the applicant’s mother was admitted to a hospital for a planned examination and further treatment of osteoarthrosis of her knee. After being examined by doctor S., several other health problems were established, and at the doctor’s advice, the patient agreed to undergo a surgery to remove an abdominal hernia. The surgery was carried out on 6   September   2011. On the next day, the patient’s health condition started deteriorating rapidly, and on 9   September 2011 she died because of the exacerbation of the cardiovascular disease. On the hospital’s own motion, an internal medical examination was carried out, which established several significant shortcomings in the preoperative examination, the surgery itself and postoperative care, which led to the applicant’s mother’s death. This conclusion was confirmed by the examination by the regional health administration. On 25 December 2011 criminal proceedings were instituted. The   investigator ordered a forensic medical examination (no. 171), which pointed out several shortcomings in the medical treatment of the applicant’s mother by doctor S. On   5   July 2012 the applicant was granted a victim status. On   3   August 2012 doctor S. was charged with committing a crime of medical negligence which led to the death of a patient. However, due to procedural shortcomings, the prosecutor returned the case for additional investigation and required the investigator to order an additional forensic examination. The conclusions of the second examination confirmed the findings of the first one. On   29   April   2013 the bill of indictment was drawn up. On   11   December 2013 the trial court found doctor S. guilty; the appellate court changed the sanction upholding the rest of the judgment. However, by its decision of 20 November 2014 the Supreme Court quashed the judgment and returned the case for reconsideration to the appellate court. On 31   March 2015 the court ordered another forensic examination (no.   84/к), which concluded that the applicant’s mother had not had specific contraindications for the surgery, and that despite several shortcomings in the doctor S’s actions, there was no direct causal link with the patient’s death. On 24   September 2015 the appellate court returned the case to the trial court. Further, the bill of indictment was returned to the prosecutor twice; following the appeals from both parties, the case was appointed for new consideration by the court several times. Ultimately, on 10 January 2019 the trial court acquitted doctor S. relying mainly on the conclusion of the forensic examination no. 84/к and having dismissed the previous examinations as inadmissible evidence; the court also stated that it could not establish a direct causal link between the doctor S’s actions and the applicant’s mother’s death as there were other doctors involved in her medical treatment, and their actions were not assessed during the investigation. By its final decision of 17   June   2020, the Supreme Court in the applicant’s absence, upheld this judgment. 4. 17167/21 Karpenko v. Ukraine 12/03/2021 Oleg Petrovych KARPENKO 1974 Verkhnya Syrovatka Ukrainian Igor Anatoliyovych DAVYDKO The applicant’s father, 79 years old at that time, had kidney and urinary chronic diseases. On 28 March 2015 he started feeling unwell, and on 2 April 2015 he was taken by an ambulance to a district hospital in Sumy. After several medical examinations, on 7 April 2015 the applicant’s father was transported to the regional hospital with a specialized urinary department, and on the same day he underwent an urgent surgery. Two hours after the surgery the applicant’s father was transported back to the district hospital. Upon arrival, the applicant’s father’s condition worsened, and on the same day he died. The applicant refused to carry out a post-mortem examination. He argued that his father died due to the inappropriate medical treatment and conditions of transportation. On 21 December 2015 criminal proceedings were instituted. On   14 June 2016 a forensic medical examination concluded that there were no signs of negligence on the part of the medical staff; it was impossible to establish the exact reason of the death in the absence of a post-mortem examination; there were no contraindications to the transportation of the applicant’s father either before or after the surgery. The applicant requested another forensic examination, which reached the same conclusions. The   applicant disagreed again and insisted on a repeated examination. According to the case file, the latest examination was finished on 10 February 2021, but there is no copy of the experts’ conclusion. Meanwhile, the applicant was submitting numerous complaints of ineffective investigation, but there is no information about the results of their consideration. On 6   April 2021 criminal proceedings were discontinued due to the lack of evidence of crime. On 19 January 2023 the court quashed that decision as unsubstantiated, and the investigation was resumed. 5. 44287/21 Pushkar v. Ukraine 27/08/2021 Yuriy Yakovych PUSHKAR 1950 Kharkiv Ukrainian Gennadiy Volodymyrovych TOKAREV On 29 September 2009 the applicant’s son, 27 years old at the material time, was admitted to a hospital with acute pancreatitis. After several days of intensive therapy, on 13   October 2009 he died of severe complications. Upon the applicant’s request, in December 2009 an investigator started pre-investigative inquiries, but repeatedly refused to open a criminal investigation. Those decisions were quashed by a court and a prosecutor as unsubstantiated, and further inquiry was ordered. A post-mortem examination commenced on 14   October 2009 was completed only on 14 January 2010. The applicant alleged that, during this period, the medical staff forged the medical documentation by changing some of the records and forging his son’s signature. The investigators have never examined those allegations. The experts concluded that the applicant’s son died as a result of intoxication and other complications of pancreatitis. On 21   March 2011 a commission of the Ministry of Health found several errors that had aggravated the applicant’s son’s state of health but concluded that the treatment had been adequate in general. On 15 December 2012 criminal proceedings were instituted, after the new Code of Criminal Procedure entered into force leaving no discretion for the investigator. On 30 January 2013 the investigator terminated the proceedings. The applicant became aware of that in October 2014, as he was not receiving any information from the investigator despite numerous requests. An investigative judge quashed the investigator’s decision and ordered further investigation. In the following years, the applicant repeatedly complained of the investigator’s inactivity, and another investigator was appointed. The   inactivity of both investigators was confirmed by a supervising police department and by a prosecutor. The   investigator was not replying to the applicant’s requests. None of the medical staff has been questioned during the investigation. On 20 June 2018 a forensic medical examination confirmed that the medical treatment was adequate. The applicant did not agree with this conclusion and requested an additional examination. The   investigation was pending at the time of lodging of the application with the Court. 6. 8844/22 Tsmokalov v. Ukraine 28/01/2022 Oleg Oleksandrovych TSMOKALOV 1975 Mukachevo Ukrainian   The applicant’s father was diagnosed with cancer in January 2018. According to the applicant, before that, his father had complained about health issues to his family doctor for two years, but the latter had not referred him to an oncologist. On 26 July 2019, upon the applicant’s complaint, a criminal investigation as to the alleged medical negligence by the family doctor was instituted. The   applicant’s father was receiving chemotherapy during 2018-2019, but on 17   July   2019 it was suspended. On 24 March 2021 the applicant’s father died after being delivered by an ambulance to a hospital. On 21 May 2021 the applicant was recognised as a victim in the criminal proceedings. A forensic medical examination concluded that the doctors acted in full compliance with relevant medical standards and protocols. The applicant requested an additional forensic expert examination; the investigator refused, but, following the applicant’s complaint, a court ordered such examination (which was still pending at the time of lodging of the application with the Court). Meanwhile, the applicant complained multiple times of the inactivity of the investigator, and the court granted his complaints, having found several deficiencies in the investigation. A prosecutor also established that the investigation was ineffective and replaced the investigator with another one. 7. 45988/22 Pereta v. Ukraine 12/09/2022 Lyudmyla Vasylivna PERETA 1985 Kyiv Ukrainian Oleksandr Igorovych KORNAGA On 20 April 2017 the applicant gave birth to her child; due to complications during the labour, the child had a severe birth trauma, he could not breathe and was transferred to an intensive care, where he spent a month and a half. Doctors claimed that the trauma had been the result of an infection during pregnancy; the applicant claimed that the doctors had committed several significant errors during the labour which caused the trauma. In September 2017 the child still could not hold his head and did not swallow food. On 7   September   2017, criminal proceedings were instituted upon the applicant’s complaint of medical negligence committed by the doctors during the labour. In   October 2017 the child was recognised disabled. On 8   January 2018 the child died. According to the applicant, the investigation was ineffective. The applicant alleged that the doctors had forged medical documentation, but the investigator did not consider her allegations. Nobody has been notified of suspicion in the case. The applicant’s requests for investigative actions were disregarded or rejected; she was not sufficiently informed about the progress of the investigation (the respective inactivity of investigators was declared unlawful by a court). In February 2019 and in December 2021 the prosecuting authorities confirmed that the investigation was carried out ineffectively, so the investigators were provided with written instructions as to investigative steps to be taken.