30182/17;32155/17

FIFTH SECTION CASE OF BLAGOVESHCHENSKA AND BORYSENKO v. UKRAINE (Applications nos. 30182/17 and 32155/17)             JUDGMENT   STRASBOURG 10 October 2024       This judgment is final but it may be subject to editorial revision. In the case of Blagoveshchenska and Borysenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Kateřina Šimáčková, President,  Mykola Gnatovskyy,  Úna Ní Raifeartaigh, 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 the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, of the Ministry of Justice; the parties’ observations; Having deliberated in private on 19 September 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The present case concerns the alleged ineffectiveness of the domestic investigation into medical malpractice at a private clinic. The applicants’ operations and resulting complications 2.  On 20 November 2004 the applicants underwent cataract eye surgery at a private clinic, E. Shortly after the operation, they began exhibiting symptoms including corneal swelling and redness. Twenty other patients who had undergone similar surgical procedures at clinic E. on the same date reported similar post-operative complications. 3.  On 21 November 2004, following medical examinations, the applicants were diagnosed with inflammation of the intraocular fluids (endophthalmitis) and provided with medical treatment. As the applicants’ condition progressively deteriorated, on 24 November 2004 they underwent emergency removal of the vitreous humour (vitrectomy). 4.  By 29 November 2004 a bacteriological examination revealed the presence of the Pseudomonas aeruginosa (blue-green pus) pathogen in the applicants’ eyes. They remained in inpatient care until 15 December 2004. 5.  According to the available information, as a result of the inflammation the vision in the left eye of the first applicant, and in the right eye of the second applicant, was lost. On 31 March 2005 the first applicant was officially classified with a second-degree disability. investigation of the incident 6.  On the basis of the available information, on the afternoon of 22 November 2004 the manager of the clinic E. notified the authorities of mass complications following the cataract operations. On the same day, a commission of public health and epidemiological experts conducted an on-site examination of the clinic’s premises and collected various samples, including eye discharge taken from fifteen patients and surface swabs. 7.  On 24 November 2004 experts from the public health and epidemiological service obtained samples of the residual irrigating solution used in the operations. On 2 December 2004 microbiological testing of the collected residue confirmed the presence of Pseudomonas aeruginosa (blue-green pus), a pathogen also identified in the applicants’ eyes. 8.  On 30 December 2004 the Kharkiv regional prosecutor’s office instituted criminal proceedings against the clinic’s officials for medical negligence under Article 140 § 1 of the Criminal Code of Ukraine[1]. Both applicants were granted victim status in the criminal proceedings. 9.  Throughout the investigation, the applicants, doctors, nurses and several other individuals were questioned. Furthermore, multiple forensic examinations were performed. The final forensic report, completed in 2008, confirmed several shortcomings on the part of the clinic’s staff, including violations of public-health regulations and delayed notification of the incident. Despite those findings, the report could not conclusively identify the source of the pathogen or the exact method of contamination, although it mentioned the irrigating solution as a potential cause. Noting that the surgical procedures conformed to medical standards, the experts were unable to establish a direct causal link between the actions of the clinic’s staff and the conditions experienced by the applicants. 10.  Following amendments to the Code of Criminal Procedure of Ukraine, on 24 July 2007 the case was transferred from the prosecutor’s office to the police. 11.  On 30 July 2008 the investigation was discontinued because it had not been possible to identify the individual(s) who had committed the offence. 12.  On 1 October 2008 and 5 September 2012 the applicants, being unaware that the investigation had been discontinued, made enquiries to the authorities about its progress. In its written replies on 11 December 2008 and 5 October 2012, the prosecutor’s office informed the applicants that the criminal investigation was still ongoing and that the case remained under the supervision of the prosecutor’s office. 13.  Following another enquiry by the applicants, on 5 September 2016, the prosecutor’s office informed them that the criminal investigation had been discontinued since 30 July 2008. On the same day the investigation was resumed, and the information relating to it was included in the Unified Register of Pre-Trial Investigations. 14.  On 15 January 2018 the police investigator terminated the criminal investigation in view of the absence of the elements of an offence. The Government provided no information about any investigative actions taken between the resumption of the investigation on 5 September 2016 and its closure on 15 January 2018. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 15.  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 8 OF THE CONVENTION 16.  The applicants complained that medical negligence on the part of the clinic’s staff had resulted in severe damage to their health and that the investigation into the incident had been lengthy and ineffective. They further argued that because of the ongoing criminal proceedings, they were precluded from seeking damages from the private clinic E. in the civil courts and that the prosecutor’s office had concealed from them the fact that the investigation had been suspended. They relied on Articles 3 and 13 of the Convention. 17.  The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the application from the standpoint of Article 8 of the Convention (see Botoyan v. Armenia, no. 5766/17, §§ 90-92, 8 February 2022), which imposes positive obligations on States with regard to the protection of health, including an obligation to provide victims of medical negligence with access to proceedings in which they could, where appropriate, obtain compensation for damage (see, for instance, Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016, and Jurica v. Croatia, no. 30376/13, § 84, 2 May 2017). Admissibility 18.  The Government submitted that the applicants’ complaints were inadmissible for failure to exhaust domestic remedies. 19.  Firstly, they argued that the applicants had failed to claim damages from the private clinic E. They referred to a series of domestic court judgments in which claimants had successfully sought compensation for medical negligence without the defendant’s guilt having been established in a criminal context, including the Supreme Court Grand Chamber judgment of 12 March 2019 in case no. 920/715/17 and the Supreme Court judgment of 10 July 2019 in case no. 523/12321/15-ц. The Government also referred to a domestic court decision of 16 January 2008 in a similar case concerning another patient, which had established civil liability on the part of the private clinic E. for loss of sight following eye surgery. Although the domestic court appeared to have awarded the patient’s heir damages in the amount of the costs of the surgery, the Government admitted that they were unaware whether that decision had become final. Secondly, the Government maintained that the applicants had failed to challenge the police investigator’s decision to terminate the criminal investigation (see paragraph 14 above). 20.  The applicants asserted that their only effective recourse had been the criminal remedy. They pointed out that domestic case-law regarding the possibility of claiming civil damages before criminal proceedings were concluded had only been developed in 2019; prior to that, the domestic courts had held a contrary position. Despite the Government providing some positive court decisions in medical negligence cases, the applicants emphasised the overall negative trend towards claimants in such cases and cited several judgments of the courts of cassation as examples. They also emphasised that the decision of the domestic court of 16 January 2008 against the private clinic E. had been exclusively concerned with the reimbursement of the costs of the surgery and had not related to alleged pecuniary or non-pecuniary damage. As to the possibility of challenging the termination of the criminal proceedings, the applicants had chosen not to pursue that avenue as the medical negligence charges had become time-barred and there was no hope of an effective investigation. 21.  The Court considers that the arguments put forward by the Government are closely linked to the substance of the application. It therefore joins their examination to the merits (see Csoma v. Romania, no. 8759/05, § 33, 15 January 2013). 22.  It further notes that this application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 23.  The Court observes that the criminal proceedings in the applicants’ case were launched by the domestic authorities after they had identified the elements of an offence in the medical practitioners’ actions (see paragraph 8 above). 24.  The Court has previously analysed the interaction between civil-law and criminal-law remedies in medical negligence cases in the legal systems of various member States (see, for example, Botoyan, cited above, §§ 117‑25, and Marchuk v. Ukraine [Committee], no. 65663/12, § 34, 28 July 2016). In the latter case, the Court noted in relation to Ukraine that while criminal proceedings were pending, any parallel civil proceedings for damages were deemed ineffective. This was primarily because the civil courts were not in a position to determine the civil claims based on the facts that were also the subject matter of the pending criminal case (compare Tsmokalov v. Ukraine [Committee], no. 15524/13, §§ 16-17, 3 November 2022). Admittedly, the Government referred, in the present case, to a decision of a civil court in 2008 in a similar case, but they acknowledged a lack of information on whether that decision had become final. 25.  The Court therefore sees no reason to depart from its previous findings and takes it as established that no effective civil-law remedy was available to the applicants before the end of the criminal investigation. During that period, it was only within the framework of the criminal proceedings and upon the establishment of the liability of a particular individual that the applicants could have successfully claimed compensation for their health complications. 26.  The Court notes, however, that the criminal investigation in the applicants’ case lasted for a total of more than thirteen years and was plagued with inexplicable periods of inactivity. It appears that for the last ten years – including during the period from when it was resumed in 2016 until it was finally closed in 2018 – no investigative activities were carried out at all (see paragraph 14 above). The Court has consistently held that proceedings aimed at shedding light on allegations of medical negligence must not be excessively long and that it is incumbent upon the respondent Government to provide a convincing and plausible justification for any delays and the overall duration of those proceedings (see, among other authorities, Tusă v. Romania, no. 21854/18, §§ 98-99, 30 August 2022; and also Lungu v. Romania [Committee], no. 2022/18, § 21, 24 October 2023). In the present case, the Government have failed to show any plausible justification for the excessive length of the proceedings. 27.  The Court therefore considers that the unreasonably long investigation failing to establish a direct causal link between the actions of the clinic’s staff and the conditions experienced by the applicants, prevented them for more than thirteen years from accessing proceedings in which they could obtain compensation for damage. 28.  The Court further observes that the authorities consistently withheld information from the applicants regarding the decision to discontinue the investigation. In the absence of any plausible explanation from the Government on that matter, it considers that by repeatedly assuring the applicants that the investigation was ongoing and that necessary investigative activities were being carried out, when in fact it had been suspended a long time beforehand, the authorities acted in bad faith. 29.  As to the possibility of initiating civil proceedings after the termination of the criminal investigation, the Court notes that, even assuming that such a remedy was available at the relevant time (see paragraph 19 above), this would not have resolved the core issue of the length of the criminal proceedings, which lies at the very heart of the applicants’ complaints. 30.  Moreover, appeals by the applicants against the decision to terminate the criminal proceedings would not have addressed this issue either. That decision was not only taken after the present applications had been lodged with the Court (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX), but also more than thirteen years after the incident. This delay left the applicants with no reasonable hope for an effective investigation, as the criminal charges had become time-barred (see paragraph 8 above).              31.  In view of the above, the Court considers that the applicants did not receive an adequate judicial response which complied with the requirements inherent in the protection of the right to physical integrity. It therefore rejects the Government’s objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraph 21 above) and concludes that there has been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.  The applicants claimed 20,000 euros (EUR) each in respect of damages, without specifying whether the claim concerned pecuniary or non-pecuniary damage. They also claimed EUR 2,000 each for legal costs incurred in the proceedings before the Court. In support of the claim for legal costs, they submitted copies of relevant contracts with detailed accounts of the work performed by their lawyer (twenty hours, at an hourly rate of EUR 100). 33.  The Government contended that the claims were unsubstantiated and excessive. 34.  Regard being had to the documents in its possession and its findings in the present case, and making its assessment on an equitable basis, the Court finds it reasonable to award each of the applicants EUR 2,700 in respect of non-pecuniary damage, plus any tax which may be chargeable on that amount. 35.  Having regard to the documents in its possession and the fact that both applications are almost identical, the Court considers it reasonable to award each of the applicants EUR 1,000 in respect of the legal costs incurred when preparing their observations in the proceedings before the Court, plus any tax that may be chargeable to them, and dismisses the remainder of the claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Joins to the merits the Government’s objection of non-exhaustion of domestic remedies and rejects it; Declares the applications admissible; Holds that there has been a violation of Article 8 of the Convention; Holds (a)  that the respondent State is to pay each applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)  EUR 2,700 (two thousand seven hundred euros), to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii)  EUR 1,000 (one thousand euros), to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of costs and expenses; (b)  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’ claim for just satisfaction. Done in English, and notified in writing on 10 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Martina Keller Kateřina Šimáčková  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. 30182/17 Blagoveshchenska v. Ukraine 11/04/2017 Nina Fedorivna BLAGOVESHCHENSKA Kharkiv Ukrainian Hanna Volodymyrivna OVDIYENKO 2. 32155/17 Borysenko v. Ukraine 24/04/2017 Zoya Mykhaylivna BORYSENKO Kharkiv Ukrainian Hanna Volodymyrivna OVDIYENKO   [1] Under Article 49 of the Criminal Code of Ukraine, the statute of limitations for criminal liability for this offence is three years.