38243/15;8844/22;45988/22;10629/24

FIFTH SECTION CASE OF KULISH AND OTHERS v. UKRAINE (Applications nos. 38243/15 and 3 others – see appended list) JUDGMENT STRASBOURG 11 June 2026 This judgment is final but it may be subject to editorial revision. In the case of Kulish and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Andreas Zünd, President, Vahe Grigoryan, Sébastien Biancheri, judges, and Viktoriya Maradudina, ActingDeputy Section Registrar, Having deliberated in private on 21 May 2026, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.The case originated in applications against Ukraine lodged with the Court under Article34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.The Ukrainian Government (“the Government”) were given notice of the applications. THE FACTS 3.The list of applicants and the relevant details of the applications are set out in the appended table. THE LAW JOINDER OF THE APPLICATIONS 4.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 5.The applicants complained of the ineffectiveness of domestic proceedings concerning the death of their relatives as a result of alleged medical negligence. They relied, expressly or in substance, on Article2 of the Convention. 6.The Court notes at the outset that the present case falls to be examined from the perspective of the State’s procedural obligations under Article2 of the Convention in the context of healthcare.The relevant general principles were summarised in Lopes de Sousa Fernandes v. Portugal ([GC], no.56080/13, §§ 214-21, 19 December 2017). 7.Reviewing the facts of the present case in the light of those principles, the Court considers that the domestic proceedings were marked by various shortcomings which undermined the ability of the authorities to establish the circumstances surrounding the deaths of the applicants’ next of kin and to identify who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. 8.In the leading cases of Arskaya v. Ukraine (no. 45076/05, 5December 2013) and Valeriy Fuklev v. Ukraine (no. 6318/03, 16 January 2014), the Court already found a violation in respect of issues similar to those in the present case. 9.Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject (see, for illustrative purposes, Marchuk v.Ukraine [Committee] (no. 65663/12, 28 July 2016) and Tretyakova v.Ukraine [Committee] (no. 63126/13, 4 November 2021)), the Court considers that in the instant case the domestic proceedings failed to meet the criteria of effectiveness. 10.These complaints are therefore admissible and disclose a breach of Article2 of the Convention under its procedural limb. APPLICATION OF ARTICLE41 OF THE CONVENTION 11.Regard being had to the documents in its possession and to its case‑law (see, in particular, Valeriy Fuklev,cited above, §104, and Tretyakova, also cited above, § 43), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 2 of the Convention concerning the ineffectiveness of domestic proceedings concerning the death of the applicant’s relative as a result of alleged medical negligence; Holds that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; 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; Dismissestheremainderoftheapplicants’ claims for just satisfaction. Done in English, and notified in writing on 11 June 2026, pursuant to Rule77§§2 and3 of the Rules of Court. Viktoriya MaradudinaAndreas Zünd Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 2 of the Convention (ineffectiveness of domestic proceedings concerning the death of the applicant’s relative as a result of medical negligence) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Background to the case Domestic proceedings Key issues Amount awarded for non-pecuniary damage per applicant (ineuros)[1] Amount awarded for costs and expenses per application (in euros)[2] 38243/15 27/07/2015 Sergiy Mykolayovych KULISH On 01/09/2013 the applicant’s wife was admitted to the emergency department of Kharkiv City Hospital No. 27 with a suspected heart attack. Upon her admission, the applicant informed the doctors of his wife’s severe allergic reactions to certain medications. On the following day, the applicant’s wife died due to pulmonary oedema. On 21/09/2013 a criminal investigation into alleged medical negligence was initiated. On 04/10/2013 the applicant and his son were questioned. In January 2014 two doctors who had treated the applicant’s wife were also questioned. During 2014 the investigator submitted several requests to the hospital seeking medical records related to the treatment of the applicant’s wife; however, these documents were not provided. In September 2014, the investigator ordered a forensic medical examination and commissioned it to the Kharkiv Regional Bureau of Forensic Medical Expertise of the Kharkiv Department of Health Protection (“the expert institution”). In March 2015 the expert institution refused to conduct the examination due to the absence of the post-mortem report and histological samples. On 07/04/2015 the Kyivskyy District Court of Kharkiv granted the investigator access to the medical records and histological samples. On 28/04/2015 the investigator obtained the post-mortem report; however, by that time, the histological samples had allegedly been destroyed by the hospital. The applicant subsequently provided the investigator with all available medical documents relating to his wife. On 09/06/2015 the investigator ordered a forensic medical examination of the medical documentation. The experts from the expert institution conducted the examination based on the available medical records and case materials. In their report (No.217-KE/2015 of 31/07/2015), they concluded that there was no evidence of improper medical treatment. However, they noted that a full assessment of microscopic structural changes in the patient’s internal organs was not possible in the absence of histological samples. On 14/07/2016 the criminal proceedings were discontinued due to a lack of evidence of a crime. The applicant was not informed of this decision. The investigator relied on the conclusions of forensic report No. 217-KE/2015 of 31/07/2015. Following the applicant’s appeal, lodged after he became aware of the decision, the Kyivskyy District Court of Kharkiv on 22/11/2019 quashed the discontinuation and ordered further investigation. The court found that the case file lacked official confirmation of the destruction of the histological samples. The investigator received the court’s decision on 10/01/2020. However, no steps were taken to comply with it or to reopen the criminal proceedings. By a letter dated 07/04/2023, the investigative authority informed the applicant that it was not aware of the court’s decision. The manner, in which the criminal inquiry and investigation were conducted, undermined the principle of a thorough examination of the facts of the case (see Arskaya v.Ukraine, no.45076/05, §72, 5December 2013; Nina Kutsenko v. Ukraine, no.25114/11, § 162, 18July 2017; Tretyakova v. Ukraine [Committee], no.63126/13, §32, 4November 2021), remittals of the case on account of shortcomings in the investigation (see Arskaya v. Ukraine, no.45076/05, § 72, 5December 2013; Valeriy Fuklev v.Ukraine, no.6318/03, §§ 75-76, 16January 2014), undue delay and lack of diligence (see Arskaya v.Ukraine, no.45076/05, §72, 5December 2013; Valeriy Fuklev v.Ukraine, no. 6318/03, §§ 75-76, 16January 2014; Marchuk v.Ukraine [Committee], no.65663/12, §§35 and 37, 28 July 2016; Tretyakova v.Ukraine [Committee], no.63126/13, §§ 31-33, 4 November 2021) 6,000 8844/22 28/01/2022 Oleg Oleksandrovych TSMOKALOV Kornaga Oleksandr Igorovych Kyiv The applicant’s father was diagnosed with colorectal cancer with liver metastases in January 2018, after having allegedly complained of health problems to his family doctor for approximately two years without being referred to an oncologist. He underwent surgery and chemotherapy during 2018–2019. On17/07/2019 a multidisciplinary commission decided to discontinue anti-tumour treatment because the disease had progressed despite chemotherapy, and symptomatic treatment at home under oncological supervision was recommended. On 26/07/2019 following the applicant’s complaint that the cancer had been diagnosed too late and that his father had received inadequate medical care, criminal proceedings were opened under Article 140 § 1 of the Criminal Code (failure by medical professionals to perform, or improper performance of, their duties). During the initial stage of the investigation, the applicant was questioned, the father’s medical records were obtained from the relevant institutions, and the family doctor and later the applicant’s father were interviewed. The applicant’s father stated that, in his view, medical professionals had ignored his complaints for a prolonged period, failed to diagnose the disease in time, and provided improper treatment. He died on 24/03/2021 after his condition deteriorated and he was taken to hospital by ambulance. In 2020 the investigation included a forensic medical examination and a review by the Zakarpattia Regional Health Department and medical councils, all of which concluded that the medical care provided had complied with applicable standards and protocols. At the same time, the prosecutor issued written instructions to the investigator. On 21/02/2020 a complex forensic examination was ordered, but on 28/04/2020 the Zakarpattia Regional Bureau returned the resolution without execution. The pre-trial investigation was later extended. After the father’s death, the applicant was granted victim status in May 2021, following judicial intervention in response to the investigator’s failure to recognise him as such earlier. The applicant and his representative then repeatedly complained about investigative inactivity and requested additional investigative steps, including further questioning of doctors, seizure of documents, and a new forensic examination addressing the adequacy of treatment. Although the prosecutor instructed the investigator to take into account the victim’s proposed questions to the experts, on 25/05/2021 the investigator appointed a further forensic examination without following those instructions and without properly considering the victim’s requests. In September 2021, because of the poor state of the investigation, the prosecutor initiated the replacement of the investigator, and a new investigator was appointed on 24/09/2021. A forensic examination completed on 17/09/2021 again found no violations by the doctors. Disagreeing with that conclusion, the applicant challenged it, and on 16/12/2021 the investigating judge ordered a further commission forensic medical examination by the State Bureau of Forensic Medicine of the Ministry of Health, including questions concerning the father’s COVID-19 treatment in February 2021. However, that examination was not carried out. On 08/08/2022 the State Bureau reported that it would not perform the examination, referring to the applicant’s complaints, criminal proceedings brought against certain officials of the expert institution, and the resulting pressure. The criminal case materials were therefore returned. In the meantime, between 2021 and 2022, several doctors were questioned. They stated that the applicant’s father had been diagnosed in January 2018, had received all necessary treatment, had been regularly monitored, and that the disease progressed rapidly despite therapy. On 21/06/2023 in light of the refusal of the State Bureau to conduct the court-ordered examination, the investigator ordered another forensic medical examination by the Zakarpattia Regional Bureau of Forensic Medicine, this time including the questions raised by the court and the applicant. The examination was conducted between 27/06/2023 and 18/03/2024. In expert opinion no. 54 of 18/03/2024, the experts concluded that complaints giving rise to suspicion of a gastrointestinal tumour first appeared in October 2017, that the applicant’s father had thereafter been referred for the necessary examinations, and that throughout the relevant period, including during the symptomatic phase and his COVID-19 treatment in February 2021, medical care had been timely and consistent with the applicable protocols. They found that the immediate cause of death was intoxication and cachexia resulting from advanced sigmoid colon cancer with metastases, and that no contraindicated or improper treatment had been provided. On 11/10/2024, relying on that conclusion and the earlier expert material, the investigator terminated the proceedings for lack of a criminal offence. On 22 August 2025, the investigating judge of the Mukachevo City District Court of Zakarpattia Region upheld the applicant’s complaint and quashed the decision to terminate criminal proceedings. Undue delay and lack of diligence (see Arskaya v.Ukraine, no.45076/05, §72, 5December 2013; Valeriy Fuklev v.Ukraine, no. 6318/03, §§ 75-76, 16January 2014; Marchuk v.Ukraine [Committee], no.65663/12, §§35 and 37, 28 July 2016; Tretyakova v.Ukraine [Committee], no.63126/13, §§ 31-33, 4 November 2021), investigation criticised by the national authorities themselves for lack of efficiency (see Marchuk v.Ukraine [Committee], no.65663/12, § 35, 28July 2016) 6,000 45988/22 12/09/2022 Lyudmyla Vasylivna PERETA Kornaga Oleksandr Igorovych Kyiv On 20/04/2017 the applicant’s husband and her friend attended her delivery. According to their testimonies, the labour was difficult due to weak contractions; the applicant twice lost consciousness, and two doctors, including Dr S., performed the Kristeller manoeuvre (manual fundal pressure). The baby was born cyanotic, not breathing or swallowing, with an occipital haematoma, remained in intensive care for six weeks, showed no developmental progress, and died on 08/01/2018 from pneumonia due to the absence of a swallowing reflex. The applicant maintained that the child’s critical condition had been caused by birth trauma and hypoxia resulting from inadequate medical care, in particular, the use of the Kristeller manoeuvre, which she claimed was prohibited due to high risks. She lodged a criminal complaint on 06/05/2017. During 2017–2018 investigators seized medical records and questioned the applicant, her husband and friend. On 25/05/2018 a medical expert commission concluded that care had complied with standards, without assessing witnesses’ statements regarding the Kristeller manoeuvre. In August 2018 the applicant discovered an autopsy summary differing from the one she had received and reported its alleged falsification; the outcome of that investigation is unknown. Forensic examinations were conducted in November 2018. In June 2019 a commission forensic examination again found no medical malpractice and attributed the newborn’s condition to infectious diseases, without addressing allegations of the Kristeller manoeuvre. Between 2019 and 2023 the applicant repeatedly complained of investigative inactivity. Prosecutors on several occasions acknowledged that the investigation was ineffective and issued written instructions, and in December 2021 ordered an internal inquiry (its result remains unknown). The applicant’s requests to question experts and doctors were either ignored or refused. The limitation period for medical negligence expired on 17/04/2022. Only in October 2024–March 2025 the attending doctors were questioned for the first time; all stated they could not recall events due to the seven-year delay. The investigation remains pending. Failure to establish the essential facts of the case and possible errors in the medical treatment provided (see Ioniță v.Romania, no.81270/12, § 83, 10January 2017; Nina Kutsenko v.Ukraine, no.25114/11, § 159, 18July 2017; Lukashenko v. Ukraine [Committee], no.33944/13, §30, 11September 2025), impact of delay on accountability of the individuals responsible (sanctions avoided) (see Marchuk v. Ukraine [Committee], no.65663/12, §37, 28July 2016; Zhukov and Zhukova v. Ukraine [Committee], nos.60191/16 and foll., § 22, 3 July 2025), investigation criticised by the national authorities themselves for lack of efficiency (see Marchuk v.Ukraine [Committee], no.65663/12, § 35, 28July 2016), undue delay and lack of diligence (see Arskayav.Ukraine, no.45076/05, §72, 5December 2013; Valeriy Fuklev v.Ukraine, no. 6318/03, §§ 75-76, 16January 2014; Marchuk v.Ukraine [Committee], no.65663/12, §§35 and 37, 28 July 2016; Tretyakova v. Ukraine [Committee], no.63126/13, §§ 31-33, 4 November 2021) 6,000 - 10629/24 19/03/2024 Anatoliy Grygorovych BROZNYTSKYY Mishalova Maya Ivanivna Kamyanets - Podilskyy On 24/08/2007 the applicant’s son got into a traffic accident as a passenger of a motorbike, having sustained severe bodily injuries. He was admitted to the Chemerivtsi District Hospital, where he died the following night. On 18/09/2007 a medical conference was held in the Chemerivtsi District Hospital, where numerous shortcomings in the applicant’s son’s treatment were identified. The Acting Chief Doctor reprimanded six doctors and, in addition, ordered three of them to undergo a professional compliance evaluation. A post-mortem forensic examination stated that the death of the applicant’s son had been caused by the injuries sustained in the accident. However, a subsequent forensic medical examination carried out by the Khmelnytskyy Regional Forensic Bureau on 05/11/2007 found that the death had been caused by defects of the medical treatment. On 03/12/2007 the investigative authorities instituted criminal proceedings into medical negligence. In the following years, from 2008 to 2022, several investigative steps were taken, and several forensic medical examinations were carried out, which confirmed the shortcomings in the medical treatment and found that, in the absence of those shortcomings, it could have been possible to prevent the death. On numerous occasions, the investigator terminated the criminal proceedings, however all those decisions were quashed either by a supervising prosecutor or by a court. In 2022 the Kamyanets-Podilsk Circuit Prosecutor’s Office filed a motion to terminate the criminal proceedings due to the expiration of the statute of limitations. The motion was first rejected, but the Khmelnytskyy Court of Appeal overturned the decision and terminated the proceedings. On 21/11/2023 the decision was upheld by the Supreme Court. Investigation criticised by the national authorities themselves for lack of efficiency (see Marchuk v.Ukraine [Committee], no.65663/12, § 35, 28July 2016), undue delay and lack of diligence (see Arskaya v.Ukraine, no.45076/05, §72, 5December 2013; Valeriy Fuklev v.Ukraine, no. 6318/03, §§ 75-76, 16 January 2014; Marchuk v.Ukraine [Committee], no.65663/12, §§35 and 37, 28 July 2016; Tretyakova v.Ukraine [Committee], no.63126/13, §§ 31-33, 4 November 2021) 6,000 [1]Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.