FIFTH SECTION      CASE OF ARSKAYA v. UKRAINE (Application no. 45076/05)       JUDGMENT    STRASBOURG 5 December 2013 FINAL 05/03/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Arskaya v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 12 November 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 45076/05) 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 and Russian national, Ms Lyubov Nikolayevna Arskaya (“the applicant”), on 17 October 2005.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.3. The applicant alleged under Article 2 of the Convention that her son had not been properly treated in a hospital and that the investigation of his death had not been effective.4. By a decision of 4 October 2011, the Court joined to the merits the Government’s objection as to the admissibility of the application and declared the application admissible. By the letter of 14 November 2011 the Government of the Russian Federation informed the Court that at this stage they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings concerning the present application.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1937 and lives in Moscow.A. The hospitalisation of the applicant’s son6. On 22 March 2001 the applicant’s son, S., who was forty-two years old, was taken by ambulance to the Simferopol Anti-Tuberculosis Clinic (“the hospital”), a public health-care institution, and hospitalised with the following diagnosis: left-sided pneumonia; tuberculosis of the left lung; haemoptysis; and pulmonary insufficiency.7. In the morning on 23 March 2001 the doctors noted, among other things, that S. was euphoric, behaved inadequately and complaining of dizziness. On the same date S. was X-rayed. S.’s state of health was characterised as serious. He was prescribed antibacterial, blood clotting and detoxification medicines.8. On 25 March 2001 the attending doctor noted that S.’s state of health had improved.9. On 26 March 2001 S. was X-rayed and offered a bronchoscopy, which would allow a specific diagnosis to be achieved and localise the source of bleeding he was suffering. The doctors noted that S. refused to undergo the procedure. They further assessed S.’s condition as serious. According to the medical file, the need for S. to undergo the bronchoscopy was explained to the applicant.10. On 27 March 2001 S. remained in a serious condition. The doctors noted that S. was excited and suffering from visual hallucinations. A psychiatrist invited by the medical staff noted that S. refused to talk to him.11. On 28 March 2001 the doctors observed that S. appeared psychologically and emotionally unstable, excitable and that he displayed an aggressive attitude towards the medical staff. They also diagnosed S. with an acute abscess of the left lung.12. On that date S. again refused to undergo a bronchoscopy and countersigned a note to this effect made in his medical records. As the conservative treatment had not produced the necessary improvement in his condition and S. did not consent to the bronchoscopy, he was taken to the thoracic surgery department of the hospital for a radioscopy and further examination. S., however, left the surgical department of the hospital. According to the medical file, the doctors continued to talk to the applicant on account of the necessity of the treatment which S. had refused.13. On 29 March 2001 S.’s condition was assessed as extremely serious. On that date he wrote in his personal diary that he had refused to undergo any surgical operations as he was in fear for his life. He noted the following:“... I ... declare that I am against any surgery on my recovering body. [This] text has been written because of [my] fear for my life ...”14. On 30 March 2001 the doctors noted that S. was in a serious condition and was refusing to accept intramuscular and intravenous injections. A thoracic surgeon examined S. and recommended that the patient be persuaded to undergo an X-ray examination in the surgical department for the purpose of subsequent drainage of the abscess and to continue receiving the previously prescribed treatment. The surgeon qualified the condition of S. as serious. The doctors further explained to the applicant that S. required an examination and surgical treatment.15. On the same date a psychiatrist diagnosed S. with somatogenic paranoid disorder.16. Between 31 March and 3 April 2001 S. was in an extremely serious condition. The doctors noted that S. had refused penicillin injections. The other medical treatment was provided in accordance with the previous prescriptions.17. On 3 April 2001 S. was still suffering from an acute abscess of the left lung. His emotional and psychological states were characterised as extremely unstable. At 3 p.m. that day his condition was again assessed as extremely serious. At 10.45 p.m. S. died.18. On 4 April 2001 a post-mortem examination of S.’s body was carried out and it was stated that the clinical and post-mortem diagnosis coincided.B. Official investigations into the doctors’ alleged malpractice19. On 14 June 2001 the applicant complained to the prosecution authorities that the medical assistance provided to her son had been inadequate and that he had died as a result. The prosecutor’s office asked the Ministry of Health for the Autonomous Republic of Crimea to conduct an internal inquiry into the incident.20. In July 2001 the internal inquiry was completed. It found that S. had died as a result of blood poisoning and increasing respiratory and cardiovascular insufficiency caused by an acute abscess of the left lung. In the board of inquiry’s opinion, S. had sought medical treatment belatedly, when he had already been very seriously ill. The inquiry found the following shortcomings on the part of the doctors: on 22 March 2001 no medical treatment plan had been drawn up; on 23 March 2001 the doctors had failed to properly assess the state of S.’s health; the X-ray images made on the same date had been interpreted wrongly; on 24 and 25 March 2001 S. had been supervised unsatisfactorily; and on 26 March 2001 S. should have been examined by a resuscitation specialist and provided with specialised intensive care. However, this had not been done because the hospital had been required to follow the regulations of the Simferopol Health-Care Department, which provided that patients should be transferred to an intensive care department of another city hospital in only two cases: (a) if a patient had a serious infectious-toxic shock; and (b) if the patient was suffering from an asthma attack. The board further stated that the treatment of S. had been complicated by his repeated refusals to consent to measures of treatment and to take medication.21. The board therefore considered that: (a) the Head Doctor of the hospital should take measures in respect of the medical staff responsible for the identified shortcomings; (b) the Head of the Simferopol Health-Care Department should review the regulations on admission of patients to the intensive care department of the city hospital; and (c) a thematic conference concerning the medical treatment of abscess of the lungs should be organised for the physicians working in the city.22. On 11 July 2001 the Head Doctor of the hospital found that a number of doctors had failed to objectively assess S.’s state of health and provide him with adequate medical treatment in the initial period of his hospitalisation; subsequently, S. had repeatedly refused to accept medical treatment and had died. The Head Doctor therefore decided to reprimand three doctors who were treating S. Another doctor was to be assessed by the qualification commission as regards his suitability for his qualification class.23. By letter of 13 July 2001 the Deputy Minister of Health for the Autonomous Republic of Crimea informed the applicant that between 22 and 26 March 2001 the medical staff had not taken appropriate organisational and treatment measures in respect of S. In particular, on 26 March 2001 he should have been transferred to the resuscitation department for further treatment, but this had not been done. She then added that a number of doctors had been disciplined on this account.24. On 29 December 2001 the applicant sent another complaint to the prosecutor’s office, arguing that the medical treatment of S. had been inappropriate and that the notes made by the doctors in the medical records had been incorrect. She specified that S. had insisted on medical treatment in the hospital and had only refused to consent to surgical operations and penicillin injections. The applicant further claimed that on 3 April 2001 she had demanded that S. be operated upon.25. On 16 January 2002 the Kyivskyy District Prosecutor’s Office of Simferopol applied to the Simferopol Kyivskyy District Court (“the District Court”) seeking a decision that criminal proceedings against one of the doctors, Ch., not be instituted in view of the Amnesty Act.26. On 17 April 2002 the District Court allowed the application and passed a decision to that effect. The applicant appealed.27. On 13 August 2002 the Court of Appeal for the Autonomous Republic of Crimea quashed the decision of 17 April 2002. It noted that: the District Court had failed to determine the precise reason for the death of the applicant’s son; it had not paid attention to section 43 § 2 of the Health Protection Standards Act 1992, providing that a patient’s refusal to accept medical treatment could not be a valid excuse for failure to provide such treatment in urgent situations where the patient’s life was at a real risk; the behaviour of the rest of the medical staff had not been examined. The court of appeal ordered additional inquiry by the prosecutor’s office.28. On 21 May 2003 a criminal investigation was opened into the alleged malpractice by the medical staff. A forensic medical examination was ordered in the case.29. On 10 June 2003 the applicant was granted the status of victim in the criminal proceedings.30. On 30 March 2004 the forensic medical experts issued their report, concluding that during his hospitalisation S. had been diagnosed correctly; even though S. had not initially been provided with the most effective medication, the examinations and treatment had been appropriately prescribed and carried out in due time; S.’s state of health had worsened due to both the seriousness of the chronic condition affecting his lungs and his baseless refusals to undergo diagnostic tests and treatment. The report specified that S.’s condition had required surgery, including abscess cavity drainage and endotracheal suctioning, and that his refusal to undergo that treatment had substantially contributed to the progress of the inflammatory process in his lungs. The experts concluded that there had been no causal link between the treatment offered to S. in the hospital and his death, noting that domestic law required a patient’s advance consent to medical procedures and this implied the right to refuse medical assistance.31. On 6 May 2005 the Kyivskyy District Prosecutor’s Office of Simferopol found that S.’s death had been caused by a serious chronic lung disease, which had required surgery. This had been offered to S. but he had refused to undergo it. The refusal of treatment had worsened his condition and had resulted in his death. It followed that there had been no causal link between the doctors’ behaviour and S.’s death. The proceedings in the case were therefore terminated for lack of corpus delicti. The applicant challenged that decision before the supervising prosecutor’s office.32. On 11 October 2005 the Deputy Prosecutor for the Autonomous Republic of Crimea reversed the decision of 6 May 2005, noting that the veracity of the material which had been provided for the forensic expert examination had been disputed. Furthermore, the conclusions of the forensic medical examination had conflicted with the findings of the internal inquiry conducted by the health-care authorities. The further investigation of the case was therefore ordered.33. On 3 April 2006 the Kyivskyy District Prosecutor’s Office of Simferopol found that the forensic medical experts had been provided with appropriate material for their examination and their conclusions had not conflicted with the results of the internal inquiry. In particular, the shortcomings in medical treatment identified by the board of inquiry had not resulted in the fatal outcome for S., given that S. had died as a result of a serious chronic lung disease which had required surgery; this had been repeatedly offered to S., but he had refused to consent to it. It was further concluded there had been no causal link between the doctors’ behaviour and S.’s death. The proceedings in the case were therefore terminated. The applicant challenged that decision before the courts and the supervising prosecutor’s office.34. On 16 June 2006 the District Court upheld the decision of 3 April 2006. On 25 July 2005 the Court of Appeal for the Autonomous Republic of Crimea dismissed the applicant’s appeal against the decision of the District Court. The applicant appealed on points of law to the Supreme Court.35. In September 2006 the Prosecutor for the Autonomous Republic of Crimea reversed the decision of 3 April 2006 as unsubstantiated and ordered further investigation to be conducted by the Zaliznychnyy District Prosecutor’s Office of Simferopol. He specified, among other things, that it was necessary to find and examine the X-ray images of S., to question the psychiatrist who had examined S. and to conduct confrontations between the doctors and the applicant.36. In November 2006 the Deputy Minister of Health for the Autonomous Republic of Crimea informed the investigator that the X-ray images of S. made on 23 and 26 March 2001 and requested by the prosecutor’s office could not be found. He noted that the retention period for such files had expired in 2004.37. On 30 November 2006 the Supreme Court dismissed the applicant’s appeal on points of law against the decisions of the lower courts of 16 June and 25 July 2006, given that the impugned decision of the District Prosecutor’s Office of 3 April 2006 had been already quashed by the supervising prosecutor.38. On 28 December 2006 the Zaliznychnyy District Prosecutor’s Office of Simferopol terminated the criminal proceedings in the case for the reason that no causal link had been identified between the doctors’ conduct and S.’s death. It was specified that S. had repeatedly refused appropriate medical treatment which had been offered to him.39. On 17 May 2007 the General Prosecutor’s Office reversed the decision of 28 December 2006 on the ground that the investigation was incomplete. It was specified that the contradictions in the medical evidence had not been resolved and a number of witnesses had not been questioned. In addition, the applicant’s further supposition that S. might have been killed in order to harvest his organs for transplantation had not been examined.40. By letter of 2 July 2007 the Ministry of Health for the Autonomous Republic of Crimea informed the applicant’s lawyer that in 2001 S.’s X-ray images had been forwarded to the prosecutor’s office dealing with the case.41. On 12 July 2007 the Zaliznychnyy District Prosecutor’s Office of Simferopol terminated the criminal proceedings in the case finding that there had been no corpus delicti in the conduct of the medical staff. It was once again concluded that S. had repeatedly refused to undergo diagnostic tests and treatment and this had substantially contributed to the serious aggravation of his condition and had finally resulted in a fatal outcome. As to the missing X-ray images, the investigator who had previously dealt with the case explained that he had asked for the images from the hospital but that they had not been found there. As to the alleged harvesting of S.’s organs, those allegations were found to be unsubstantiated, as the expert who had conducted the post-mortem examination of S.’s body had recorded that there had been no external injuries of the necessary type on the body and it was considered that if any of the organs had been missing the expert would have stated this in the report of the post-mortem examination.42. On 1 August 2007 the Prosecutor’s Office for the Autonomous Republic of Crimea reversed the decision of 12 July 2007 as unsubstantiated. It resumed the investigation and ordered, inter alia, that all the measures which had previously been ordered by the General Prosecutor’s Office be undertaken, including questioning of the medical staff as regards S.’s psychiatric condition and his comportment during his hospitalisation; that a forensic psychiatric examination be carried out in order to establish S.’s mental state at the relevant time; and that additional measures be taken in order to investigate the applicant’s allegations of possible harvesting of organs for transplantation.43. On 14 September 2007 a post-mortem forensic psychiatric assessment was carried out. The experts noted that during his life S. had not sought any psychiatric assistance on account of any mental illness. They concluded that while there had been indications of a temporary state of mental disease during his hospitalisation, S. had been able to understand the consequences of his actions and his mind had been clear at that time. They added that S.’s refusals to accept treatment had not been caused by his mental condition.44. On 4 October 2007 the District Prosecutor’s Office terminated the criminal proceedings in the case for the reason that there had been no corpus delicti in the conduct of the medical staff. It was found that S. had refused necessary medical treatment which had been offered to him and this had resulted in the aggravation of his condition and his death. His ability to take decisions about his treatment had been confirmed by the findings of the post-mortem psychiatric examination.45. On 7 November 2007 the Prosecutor’s Office for the Autonomous Republic of Crimea reversed the decision of 4 October 2007 and ordered further investigation. The investigator was instructed, among other things, to find and question witnesses who could give evidence concerning the attitude of the medical staff and S. in relation to the prescribed medical treatment; to scrutinise the veracity of the medical evidence; and to question the applicant once again.46. Between January and April 2008 an additional forensic medical examination was conducted. On 14 April 2008 the experts issued their report, stating that S. had been diagnosed correctly and that he had been examined and treated appropriately by the medical staff. S.’s death had been caused by the seriousness of his chronic lung disease and by his repeated refusals to undergo appropriate surgical treatment, including abscess cavity drainage and endotracheal suctioning. If S. had agreed to undergo surgery the outcome might have been different.47. In May 2008 the case was transferred to the local police for further investigation.48. On 13 August 2008 the local police investigator, relying on the latest forensic medical expert report and all the other evidence in the file, found that there had been no causal link between the conduct of the medical staff and S.’s death. He therefore terminated the criminal proceedings for lack of corpus delicti in the actions of the medical staff.49. The applicant challenged that decision before the supervising prosecutors’ offices.50. On 30 September 2008 the Deputy Prosecutor General informed the applicant that the decision of 13 August 2008 was lawful and reasoned.II. RELEVANT DOMESTIC LAWA. Criminal Code of 28 December 1960 (in force at the material time)51. Article 113 of the Code provided as follows:“A failure to provide assistance to an ill person without a valid reason by a medical practitioner, who, according to the established rules, was obliged to provide such assistance, if such a failure could result in serious consequences for the ill person and the medical practitioner was aware of that [risk], shall be punishable by correctional work for up to two years or by public reprimand.The same conduct, if it resulted in serious consequences, shall be punishable by imprisonment for up to three years.”B. Code of Criminal Procedure of 28 December 1960 (in force at the material time)52. Article 4 of the Code provided that a court, prosecutor, investigator or body of inquiry, to the extent that it is within their power to do so, had to institute criminal proceedings in every case where signs of a crime had been discovered, take all necessary measures provided by law to establish whether a crime had been committed, identify the perpetrators and punish them.53. According to Article 28 of the Code, a person who had sustained damage as a result of a crime could lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant within criminal proceedings was exempt from the court fee for lodging a civil claim.C. Civil legislation54. The civil legislation does not provide for specific regulations on compensation for non-pecuniary damage caused by medical negligence.In accordance with the general principle laid down in Article 440-1 of the Civil Code of 18 July 1963 (in force until 1 January 2004), non-pecuniary damage caused to an individual or an organisation should be compensated by the person who has caused that damage, unless the latter proves not to have been guilty of the civil tort.55. Article 1167 of the Civil Code of 16 January 2003 (in force as from 1 January 2004), provides, inter alia, that non-pecuniary damage caused to an individual or legal person by illegal decisions, activity or inactivity should be compensated by the person who caused it, if that person is guilty of the civil tort.D. The Law “On the Fundamentals of Health Protection Legislation” of 19 November 1992 (“the Health Protection Standards Act 1992”) (as worded at the relevant time)56. The relevant provisions of the Act read as follows:Section 39. The obligation to provide medical information“A doctor shall be obliged to explain to a patient, in an understandable manner, the state of his or her health, the purpose of [any] proposed examinations and medical treatment, and the prognosis for the possible development of his or her illness, including any risk to life and health.The patient shall be entitled to familiarise himself with the records of his or her medical history and other documents which may be of use for his or her further treatment.The doctor may restrict access to the patient’s medical information if such access could be detrimental to the patient’s health. In that case, the doctor, taking into account the patient’s personal interests, shall inform the members of the patient’s family or the patient’s legal representative accordingly. The doctor shall act in the same way when the patient is unconscious.”Section 43. Consent to medical treatment“Diagnostic and preventive measures and medical treatment shall be carried out with the consent of the patient, who shall have been provided with the information required in accordance with section 39 of this Act. Medical treatment with respect to patients who are under the age of fifteen and patients who have been recognised, in accordance with the procedure established by law, as incapable shall be carried out with the consent of their legal representatives.In urgent situations when there is a real risk to the patient’s life, the consent of the patient or his or her legal representative to medical treatment shall not be required.If a lack of consent to medical treatment may result in serious consequences for the patient, the doctor shall be obliged to explain this to the patient. If the patient continues to refuse the treatment, the doctor shall be entitled to insist on written confirmation of the refusal by the patient, and if it is impossible to obtain that confirmation the doctor shall be entitled to attest to the patient’s refusal in writing in the presence of witnesses. ...”THE LAWI. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION57. The applicant complained that her son had died due to a lack of adequate medical treatment and that there had been no effective investigation into the circumstances in which he had died. She relied on Articles 2, 6 and 7 of the Convention.58. The Court decided to examine the complaint exclusively under Article 2 of the Convention, which provides, in so far as relevant, as follows:“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”A. The parties’ submissions59. In their objections to the admissibility of the application, joined to the merits, the Government submitted that the applicant had not exhausted domestic remedies. In particular, the applicant had failed to challenge the investigator’s decision of 13 August 2008 before the courts. Moreover, she had failed to lodge a separate civil claim seeking compensation for the alleged medical negligence in respect of her son. The Government provided copies of domestic court decisions which in their opinion proved the availability of the civil remedy in the applicant’s case.60.

Outcome for Article 2: violation