GORODOVYCH v. UKRAINE - 71050/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 71 (19 January 2017)

In the case of Gorodovych v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          André Potocki, President,
          Ganna Yudkivska,
          Síofra O’Leary, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 13 December 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 71050/11) 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, Ms Oleksandra Mstyslavivna Gorodovych (“the applicant”), on 14 November 2011.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3. On 3 March 2014 the application was communicated to the Government.

THE FACTS

4. The applicant was born in 1967 and lives in Lviv.

5. Between March 1995 and July 1996 the applicant underwent outpatient treatment for overactive thyroid at the State Oncology Centre in Lviv. She was treated by Dr S.

6. In July 1996 the applicant’s health deteriorated; she was examined at the State Endocrinology Centre in Lviv and was diagnosed with hypothyroidism. From 13 November to 10 December 1996 the applicant underwent inpatient treatment for hypothyroidism at the Endocrinology Centre. The applicant told the doctors that her hypothyroidism resulted from the treatment with a radiopharmaceutical, J-131 (radioactive iodine), which Dr S. had administered to her between March 1995 and July 1996. The doctors from the Endocrinology Centre recorded in the applicant’s medical file that the applicant suffered from hypothyroidism resulting from the treatment with radiopharmaceuticals. Eventually, the applicant lost her thyroid and was recognized as suffering from the second highest official degree of disability.

7. On 10 October 1997, at the applicant’s request, Dr S. issued her a certificate stating that throughout 1996 the applicant’s treatment included injections of a radiopharmaceutical, namely radioactive iodine J-131. Dr S. did not specify the dosage or dates on which the applicant had received the injections.

8. In May and June 1998 the applicant complained to the Lviv Department of the Ministry of Health (“the Department”) that the radiopharmaceuticals administered to her by Dr S. had seriously damaged her health.

9. The Department invited the applicant to undergo a medical examination at one of the hospitals in Lviv, however she refused. The Department checked the records of the Oncology Centre and found that they contained no data as regards the applicant’s alleged treatment with radiopharmaceuticals. It was further noted that, according to the applicant’s medical records, between 1995 and 1996 her diagnosis had been unclear. That being the case, the treatment mentioned in the certificate of 10 October 1997 had been inadequate. The Department recommended the Oncology Centre to dismiss Dr S. for that reason. Shortly afterwards Dr S. retired from the Oncology Centre of her own motion.

10. In July 1998 the applicant complained to the Lviv prosecutor’s office that Dr S. had treated her with J-131, that the treatment had been inadequate and that it had destroyed her thyroid. To support her complaint, the applicant submitted the certificate of 10 October 1997.

11. In January 1999 an official investigation was launched into the applicant’s complaint which was carried out initially by the prosecutors and later by the police. In the course of the investigation the applicant, Dr S. and a number of other persons were questioned. Also, several forensic examinations were performed. A number of decisions were taken rejecting the applicant’s complaint principally for the reason that, according to the forensic reports, it was impossible to establish the cause of the destruction of the applicant’s thyroid. Those decisions were eventually quashed for incomplete investigation. The most recent decision in that regard was taken by the Frankivskyy District Court in Lviv on 18 January 2016, by which it instructed the police to carry out further investigation in the applicant’s case, finding inter alia that the police had failed to examine all pertinent evidence and that an additional forensic examination was necessary. The investigation has not been completed to date.

THE LAW

I. ALLEGEDLY INADEQUATE MEDICAL TREATMENT AND INEFFECTIVE INVESTIGATION IN THAT REGARD

12. The applicant complained under Articles 3, 6, 13, 14 and 17 of the Convention that her inadequate medical treatment amounted to torture and that this matter was not properly investigated. The Court considers that these complaints fall to be examined solely under Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

13. The Court observes that the applicant’s complaints concern both the substantive and procedural aspects of Article 3 of the Convention, namely (i) the allegedly inadequate treatment by Dr S. and (ii) the allegedly ineffective investigation into that matter.

14. In so far as the applicant’s complaints concern the substantive limb of Article 3 of the Convention, they must be rejected as being incompatible ratione temporis with the provisions of the Convention. The medical treatment in question allegedly had been administered to the applicant in 1995-1996, whereas the Convention entered into force in respect of Ukraine on 11 September 1997. It follows that this part of the applicant’s complaints should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

15. In so far as the applicant’s complaints concern the procedural limb of Article 3 of the Convention, the Court notes that the domestic investigation into the applicant’s complaint of inadequate medical treatment was launched in January 1999, that is after the Convention entered into force in respect of Ukraine, and is still ongoing (see, mutatis mutandis, Šilih v. Slovenia [GC], no. 71463/01, §§ 153-63, 9 April 2009). Thus, this part of the applicant’s complaints falls within the Court’s temporal jurisdiction. Although the Court is precluded from examining the applicant’s above complaints of allegedly inadequate treatment, it notes that her complaints to the domestic authorities, in particular those to the prosecutor’s office, contained serious and reasonably credible allegations which triggered a procedural obligation under Article 3 of the Convention for the domestic authorities to investigate them. Notably, they concerned a serious harm to the applicant’s health, which was sufficiently severe to attain the relevant threshold of that provision (see paragraph 6 above), and were supported by documentary evidence (see paragraphs 7 and 10 above). On the whole, the Court considers that the applicant’s complaints concerning the procedural limb of Article 3 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

16. The applicant maintained her complaints.

17. The Government contended that the authorities had complied with the requirement of effective investigation in the present case. They further stated that the applicant had complained to the prosecutor’s office after a substantial delay - about three years after she had been diagnosed with hypothyroidism in 1996 (see paragraph 6 above). Thus, it had been impossible to establish whether she had been treated with radioactive iodine and whether this could have resulted in the destruction of her thyroid.

18. The Court reiterates that where damage to health is not caused intentionally, the positive obligation imposed by Article 3 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the sphere of medical negligence, the 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 to be obtained. Disciplinary measures may also be envisaged (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 I). However, the above-mentioned rule is not absolute. In certain situations it is only by recourse to criminal-law remedies that it can be ensured that situations are investigated and evidence is collected in conformity with the Convention requirements (see Mitkus v. Latvia, no. 7259/03, § 76, 2 October 2012). In such cases, the Contracting Parties are required to conduct an effective official investigation, which must be thorough and expeditious. However, the failure of any given investigation to produce conclusions does not of itself mean that it was ineffective: an obligation to investigate is not an obligation of result but of means (see I.G. and Others v. Slovakia, no. 15966/04, § 129, 13 November 2012).

19. Turning to the present case, the Court notes that the parties did not dispute that the criminal investigation, which had been launched in January 1999, had been the appropriate way of dealing with the applicant’s complaint of inadequate medical treatment at the time in that it offered sufficient possibility to establish relevant facts and gather evidence. Moreover, the domestic authorities did not consider that the applicant’s complaint fell outside the scope of the domestic criminal law and the police is still bound by the decision of the Frankivskyy District Court of 18 January 2016 to carry out further investigation (see paragraph 11 above).

20. However, to date the investigation, which lasted for about eighteen years, has not led to any meaningful result. The Government’s argument that no cause of the applicant’s harm to her health could have been established in the circumstances runs counter the aforementioned decision of the Frankivskyy District Court (see paragraphs 11 and 17 above). Further, there is no evidence demonstrating that the fact that the applicant had not lodged her complaint of inadequate medical treatment with the prosecutors’ office before July 1998 had diminished the authorities’ ability to investigate the matter effectively. In that regard, the Court further notes that before having lodged her criminal complaint with the prosecutors’ office, the applicant had raised the matter before a State medical authority and gathered relevant evidence (see paragraphs 7-9 above).

21. In the light of the foregoing and having regard to the findings of the domestic courts in the present case (see paragraph 11 above), the Court finds that the investigation of the applicant’s complaint of inadequate medical treatment did not meet the requirements of Article 3 of the Convention. Accordingly, there has been a violation of the procedural aspect of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. 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

23. The applicant claimed 300,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

24. The Government contested that claim.

25. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In so far as the applicant’s claim concerns non-pecuniary damage, deciding in equity, it awards her EUR 7,500.

B. Costs and expenses

26. The applicant did not submit a claim under this head.

C. Default interest

27. 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 complaint concerning the procedural limb of Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of the procedural limb of Article 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the national currency at the rate applicable at 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin André Potocki
Acting Deputy Registrar President

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