FIFTH SECTION      CASE OF VALERIY FUKLEV v. UKRAINE (Application no. 6318/03)       JUDGMENT    STRASBOURG 16 January 2014  FINAL 16/04/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Valeriy Fuklev 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 10 December 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 6318/03) 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, Mr Valeriy Andriyovych Fuklev (“the applicant”), on 6 February 2003.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.3. The applicant complained under Article 2 of the Convention that there had been no effective investigation into the death of his wife. He further alleged under Article 3 of the Convention that on 2 October 2003 he had been subjected to ill-treatment and that there had been no effective investigation of that incident.4. On 26 September 2007 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1951 and lives in Nova Kakhovka.A. Death of the applicant’s wife1. Hospitalisation of the applicant’s wife6. On 4 July 2001 the applicant’s wife, Mrs Yelena Fukleva, was admitted to the gynaecological ward of the Kherson Regional Clinical Hospital (Херсонська обласна клінична лікарня – “the hospital”) with metrofibroma. An operation was scheduled for 5 July 2001. According to the medical file, she signed a written consent to undergo the operation. On that date she underwent an unsuccessful intubation of the trachea for the purpose of anesthetisation. The operation was therefore postponed to 9 July 2001. The applicant’s wife was discharged until that date.7. On 9 July 2001 the applicant’s wife underwent an operation for metrofibroma in the hospital. According to the medical file, she signed a written consent to undergo that operation.8. After the operation her condition started to deteriorate rapidly.9. On 15 July 2001 a panel of doctors found that the applicant’s wife was suffering from post-operative peritonitis. Although she was then treated for peritonitis, she died of peritonitis and sepsis on 18 July 2001.10. An autopsy was carried out shortly after her death and confirmed that Mrs Fukleva had died of post-operative peritonitis complicated by sepsis.2. Investigations into the incident by the health-care institutions(a)  Conclusions of the local health-care commission11. Following the incident, the local health-care authorities set up a commission consisting of three members to investigate the quality of the medical treatment provided to the applicant’s wife by the hospital. Having examined the case, the commission found that the medical staff had committed no errors which could have aggravated the patient’s state of health or accelerated her death. The commission concluded that the patient’s death had not been caused by the medical staff.(b)  Conclusions of the hospital commission12. On 8 August 2001 the hospital commission examined the case and found that the surgical treatment had been carried out correctly; that post-surgical treatment had been fully provided to the patient; and that, despite appropriate treatment, the fatal outcome had been inevitable.(c)  Conclusions of the ministerial commission13. Following a complaint by the applicant, on 7 September 2001 the Ministry of Health set up a commission to investigate the adequacy of Mrs Fukleva’s treatment at the hospital.14. The ministerial commission found that (i) the applicant’s wife had not been properly prepared for the planned operation and had been operated on urgently on 9 July 2001; (ii) the antibacterial and infusion treatment for the peritonitis and sepsis had been insufficient; (iii) the peritonitis had developed due to the decline of the patient’s immune system; and (iv) the difficulties in the early diagnosis of the peritonitis had been caused by the vague clinical symptomatology (namely, subdiaphragmatic and subhepatic abscesses) and, as a result, a relaparotomy had been conducted only on the sixth day.(d)  Further developments15. On 24 September 2001 the Health Department of the Kherson Region State Administration (“the Health Department”), having regard to the conclusions of the ministerial commission, ordered that (i) an inspection of the gynaecological ward of the hospital be carried out; (ii) the obstetrician-gynaecologist S. undergo training on the medical treatment for sepsis in obstetrics and gynaecology; and (iii) the case of the applicant’s wife be discussed at the meeting of the regional association of obstetrician-gynaecologists.16. In a letter of 8 October 2001 the Ministry of Health recommended to the Health Department that it consider disciplinary measures in respect of the doctors involved in the treatment of the applicant’s wife, and advised an early reassessment of the doctors by the qualification commission as to their suitability for the categories that had been granted to them. The Ministry noted that the ministerial commission had found substantial errors in the treatment of the applicant’s wife. The Ministry specified that the death of the applicant’s wife had been caused by the aftereffects of the operation performed on 9 July 2001 in the hospital; the medical file suggested that on 5 July 2001 the patient had not undergone the necessary supplementary examinations and had not been provided with antianaemic treatment; after the unsuccessful anesthetisation procedure on 5 July 2001 the patient had been discharged from the hospital, a measure that had been contraindicated; on 9 July 2001 the patient had been operated upon without having been tested for the most important indicators of homeostasis and correction of anaemic status; the peritonitis had been diagnosed and treated too late; and during the post-operative period the antibacterial and infusion therapy had been insufficient and the antianaemic treatment miserable. The Ministry concluded that the medical treatment afforded to the applicant’s wife had been unsatisfactory.17. On 30 October 2001 the Health Department informed the Ministry of Health that a thorough inspection of the gynaecological ward of the hospital had been carried out and that it had not revealed any substantial deficiencies in the functioning of the ward. However, the head of the ward had been reprimanded. As to the doctors who had treated the applicant’s wife, it was noted that they would be sent for an extraordinary assessment by the qualification commission. The Health Department further noted that the doctor who had been in charge of the applicant’s wife had resigned of his own volition.18. On 30 November 2001 the Health Department informed the applicant that the circumstances of his wife’s death had been investigated by the health-care institutions and that it had not been found that his wife had been provided with inappropriate medical treatment.3. Criminal investigation into the applicant’s wife’s death19. On 27 July 2001 the Suvorivsky District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) decided not to institute criminal proceedings, finding, in the light of the results of the autopsy and the medical specialists’ opinions, that there had been no element of criminal negligence in the conduct of the medical staff.20. On 1 August 2001, at the applicant’s request, the Kherson Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed that decision as unfounded and ordered further pre-investigation enquiries.21. On 22 August 2001 the District Prosecutor’s Office decided not to institute criminal proceedings, finding that the death of the applicant’s wife had not resulted from the actions of the medical staff.22. On 18 September 2001 the Regional Prosecutor’s Office, at the applicant’s request, quashed the decision of 22 August 2001 on the ground that the pre-investigation enquiries had been inadequate. It noted in particular that the file did not contain any final conclusions with regard to the cause of the applicant’s wife’s death, the reasons for the development of the peritonitis or the adequacy of the medical treatment. The Regional Prosecutor’s Office further noted that the impugned decision had been based essentially on the statements of the medical staff whose actions had been complained of, while the other specialists, as well as the applicant and his relatives, had not been questioned. It therefore instituted criminal proceedings for medical malpractice and remitted the case to the District Prosecutor’s Office for the investigation.23. On 24 September 2001 the investigator ordered a forensic expert opinion on the quality of the medical treatment provided to the applicant’s wife. In reply, the Bureau of Forensic Medical Examinations at the Mykolayiv Regional Health Department provided a report suggesting that the applicant’s wife had been properly treated in the hospital.24. On 1 October 2001 the applicant was granted the status of victim in the criminal proceedings.25. On 3 January 2002 the District Prosecutor’s Office, having obtained further evidence, decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. The applicant challenged that decision in court.26. On 31 January 2002 the Suvorovsky District Court of Kherson (“the District Court”) quashed the decision of 3 January 2002 as unfounded and ordered a further investigation. The District Court noted that it was necessary to investigate allegations of forgery in respect of the medical file and, in particular, in relation to the signature of the applicant’s wife indicating her consent to the operation of 9 July 2001. It also found it necessary to question witnesses, and to take other measures.27. On 26 March 2002 the Kherson Regional Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision of 31 January 2002 as unfounded and remitted the case to the District Court for fresh consideration.28. On 28 August 2002 the District Court upheld the decision of 3 January 2002 discontinuing the criminal investigation. It considered that the District Prosecutor’s decision was well founded and supported by the available evidence. The applicant appealed.29. On 12 November 2002 the Court of Appeal upheld the decision of 28 August 2002. The applicant appealed on points of law to the Supreme Court.30. On 19 December 2002 the Supreme Court dismissed the applicant’s appeal as inadmissible.31. On 11 March 2003, following a complaint by the applicant, the General Prosecutor’s Office quashed the District Prosecutor’s decision of 3 January 2002 and ordered a further investigation, noting that additional measures had to be taken in order to determine all the relevant circumstances in the case. In particular, it had to be determined whether or not the signatures of the applicant’s wife had been forged in her medical file, certain pieces of evidence had to be enclosed in the investigation file, and contradictions in the medical evidence had to be resolved.32. On 29 October 2003 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued a report concluding, inter alia, that the applicant’s wife had been properly and fully diagnosed in the gynaecological ward of the hospital; it had been necessary to operate on the applicant’s wife; however, she should have undergone supplementary examinations and measures to control the bleeding should have been taken; the correct surgical method had been chosen and the operation had been conducted correctly. According to the report, the death of the applicant’s wife had been caused by several factors: (i) a weak immune system which had led to the development of post-operative peritonitis; (ii) the failure by the gynaecologists to use all possible means to control the bleeding without resorting to urgent surgical intervention; and (iii) belated treatment for the peritonitis. It was specified that if the peritonitis had been diagnosed and treated in time it was possible that the patient’s life would have been saved.33. On 3 January 2004 the investigator ordered an additional forensic medical examination, finding that the report of 29 October 2003 was incomplete and contradictory.34. On 31 March 2005 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued another report concluding, inter alia, that the applicant’s wife’s death had been caused by several factors, including the gravity of the pathology, the patient’s obesity, which had diminished her immunity and contributed to the development of post-operative complications, and the shortcomings in the medical treatment of the patient. It concluded that there was an “indirect relationship” between the shortcomings in the medical treatment in the gynaecological ward of the hospital and the death of the patient.35. On 11 July 2005 the senior investigator of the Regional Prosecutor’s Office discontinued the criminal proceedings for lack of corpus delicti in the conduct of the medical staff. He found that the death of the applicant’s wife had been caused by the cumulative effect of several factors and it could not be argued that there was a direct relationship between the shortcomings in the medical treatment and the fatal outcome.36. On 5 August 2005 the Deputy Prosecutor of the Kherson Region quashed the decision of 11 July 2005 as unfounded and ordered a further investigation. He specified that additional measures were necessary to investigate the cause of the applicant’s wife’s death and the alleged forgery of her signatures in the medical file.37. In the course of the subsequent proceedings, the investigator ordered further expert inquiries on various aspects of the treatment of applicant’s wife. Apart from these issues, the experts concluded that the signatures in the medical file were indeed those of the applicant’s wife.38. On 11 October 2007 the Regional Prosecutor’s Office decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. On the basis of the expert examination reports and other evidence, the investigator found that the death of the applicant’s wife had been caused by the cumulative effect of several factors, including shortcomings in the medical treatment in the gynaecological ward of the hospital; however, there was no direct causal link between those shortcomings and the death of the patient.B. Alleged ill-treatment of the applicant1. Incident of 2 October 200339. At the material time the applicant owned a shop in Nova Kakhovka.40. On 2 October 2003 a tax police squad visited the applicant’s shop in order to carry out an unscheduled inspection due to the applicant’s alleged failure to submit tax returns.41. The inspection was not conducted, as the applicant, his relatives and his employees prevented the officers from accessing the store’s tax records. It led to a fracas.42. As was later established by the investigation, at some point the applicant switched off the light and one of the employees screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. The applicant tried to prevent K. from leaving and jumped on the bonnet of the car, then broke a side window and tried to pull officer K. out of the car.43. According to the applicant, during the incident he was injured by the officers.2. Official investigations into the applicant’s allegations of ill-treatment44. On 3 October 2003 the applicant lodged a complaint with the law-enforcement authorities, arguing that on 2 October 2003 he had been ill-treated by the tax police.45. On the same day the applicant was examined by a doctor, who documented injuries on the applicant’s forearm and lip.46. On 15 October 2003 a forensic medical expert, relying on the results of the medical examination of 3 October 2003, reported that the applicant had sustained numerous scratches to the right forearm and a bruise to the lower lip. The expert classified the injuries as light and stated that they could have been sustained on 2 October 2003.47. On 27 October 2003 the investigator of Nova Kakhovka Prosecutor’s Office (“the Town Prosecutor’s Office”) decided not to open criminal proceedings against the officers as their conduct did not disclose any elements of a criminal offence. He found that the scratches on the applicant’s forearm had been caused by the applicant himself, when he had attempted to pull the officer out of the car through the broken window. Similarly, the bruise on his lip could have been caused by the applicant himself at any time during the incident, including the moment when he had jumped on or off the car or broken the window. No evidence had been found which suggested that the bruise had been inflicted by the officers.48. On 11 February 2004, at the applicant’s request, the Regional Prosecutor’s Office quashed the decision of 27 October 2003, finding that further enquiries were necessary. In particular, the Regional Prosecutor’s Office instructed the investigator to question the applicant and officer K.49. Subsequently, in the course of additional enquiries on 4 March, 7 June, 4 and 30 December 2004 and 16 December 2005, the investigator of the Town Prosecutor’s Office decided not to institute criminal proceedings for similar reasons to those set out in the decision of 27 October 2003. Those decisions were quashed by the supervising authorities and additional measures were ordered.50. On 2 February 2006 the Deputy Prosecutor of Nova Kakhovka refused to open criminal proceedings against the officers, finding that their conduct disclosed no elements of a criminal offence. On the basis of the additional evidence gathered, he gave similar reasons for that decision to those set out in the decision of 27 October 2003.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 was 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, and identify and punish the perpetrators.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 up to 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.THE LAWI. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION56. The applicant complained that the investigations into the circumstances of the death of his wife had been ineffective. He relied on Articles 2 and 13 of the Convention, which read as follows:Article 2 (right to life)“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. ...”Article 13 (right to an effective remedy)“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”A. Admissibility1. The parties’ submissions57. The Government submitted that the applicant had not lodged a civil claim seeking damages on account of the death of his wife in the hospital. As long as the civil remedy had not been used, the applicant had failed to exhaust domestic remedies in respect of this part of application.58. The applicant disagreed.2. The Court’s assessment59. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaints. It therefore joins the objections to the merits of the applicant’s complaints.60. The Court further notes that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. Article 2 of the Convention(a)  The parties’ submissions61. The Government argued that the applicant had had at his disposal effective domestic procedures which had enabled the medical incident involving his wife to be properly examined. They submitted that the case had been examined by the health-care institutions and by the criminal investigation bodies. Moreover, the applicant could have applied to the civil courts for the determination of the relevant issues and recovery of damages, if appropriate.62. The Government further contended that the official investigations had been comprehensive and thorough. The measures taken by the authorities had been appropriate and sufficient to comply with the requirements of Article 2 of the Convention.63. The applicant disagreed.(b)  The Court’s assessment(i)  General principles64. The Court reiterates that the first sentence of Article 2 enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III).65. Those principles also apply in the sphere of public health. In particular, they require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I).66. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific 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, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII, with further references).67. Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see Calvelli and Ciglio, cited above, § 53). Therefore the Court is called to examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. In other words, rather than assessing the legal regime in abstracto, the Court must examine whether the legal system as a whole adequately dealt with the case at hand (see Byrzykowski v. Poland, no. 11562/05, § 107, 27 June 2006, and Dodov v. Bulgaria, no. 59548/00, §§ 83 and 86, 17 January 2008).(ii)  Application of the principles to the present case(α)  Investigations by the health-care institutions68. The Court notes that the results of the investigations conducted by the health-care institutions were contradictory: the first two reports prepared by the local commissions suggested that the medical treatment had been adequate and the death of the applicant’s wife inevitable (see paragraphs 11 and 12 above). On the other hand, the conclusions of the ministerial commission suggested that there had been shortcomings on the part of the doctors at the hospital (see paragraph 14 above).69. This principal question was further addressed in a confusing manner. In particular, in the correspondence between the Health Department and the Ministry of Health, the latter referred to the substantial mistakes made by the medical staff and concluded that the medical treatment of the applicant’s wife had been unsatisfactory (see paragraph 16 above). By contrast, despite this language, the Health Department suggested to the applicant that his wife had been treated adequately (see paragraph 18 above).70. It is true that at a certain point the Health Department reported to the Ministry of Health that measures had been taken in respect of the medical staff (see paragraph 17 above). However, it does not appear that the reprimand issued to the head of the gynaecological ward of the hospital was somehow connected with the case of the applicant’s wife. Moreover, as to the assertion that the doctors treating the applicant’s wife would be sent for an extraordinary assessment by the qualification commission, no further information was provided to show that they had undergone such assessment or what were the results of these assessments.71.

Outcome for Article 2: violation