THIRD SECTION

DECISION

Application no. 12822/09 Valentina Viktorovna PSHENICHNIKOVA against Russia

The European Court of Human Rights (Third Section), sitting on 3 December 2019 as a Committee composed of:

Georgios A. Serghides, President, Erik Wennerström , Lorraine Schembri Orland, judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 11 February 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Valentina Viktorovna Pshenichnikova , is a Russian national, who was born in 1953 and lives in Kondratovo , the Region of Perm. Her application was lodged on 11 February 2009. She was represented before the Court by Ms N.L. Kuznetsova, a lawyer practising in Perm.

2 . The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant ’ s son, A.P., was drafted into the army in 2000. In January 2001 he was hospitalised for a week and diagnosed with follicular tonsillitis.

5 . On 27 March 2001 A.P. died. On the same day a criminal investigation into his death was opened. The applicant was immediately informed about the death of her son, but apparently was not granted the victim status in the investigation.

6 . On 27 June 2001 the prosecutor ’ s office closed the criminal case due to the absence of the event of a crime. Based on witness statements and medical forensic examination it concluded that A.P. had died from sudden coronary death caused by numerous mixed microadenomae .

7 . In 2007 the applicant on several occasions unsuccessfully requested the prosecutor ’ s office to quash the decision of 27 June 2001.

8 . On 14 May 2007 the applicant brought an action against the State seeking non-pecuniary damages in relation to the death of her son. On 17 August 2009 the Totskiy District Court of the Orenburg Region established that the authorities had been responsible for A.P. ’ s death as it had been largely caused by the improper treatment of his tonsillitis. The court partly granted the applicant ’ s claims for non-pecuniary damages. On 7 October 2009 the Orenburg Regional Court increased the amount of compensation to 300,000 roubles (about 6,900 euros at the material time) and upheld the rest of the judgment on appeal.

COMPLAINT

9 . The applicant complained under Article 2 of the Convention that the criminal investigation into her son ’ s death was ineffective. In particular, she noted that she had not been granted victim status in the criminal case opened into the death of A.P.; that the criminal investigation had not examined any other leads than that A.P. ’ s death had resulted from a disease and not from improper medical assistance; that no one had been brought to criminal liability.

THE LAW

10 . The Court reiterates that in the ordinary course of events an appeal to the courts against the prosecutor ’ s decision to terminate the criminal case might be regarded as an effective remedy. Failure to bring such proceedings in due time would normally result in dismissal of the complaint for non ‑ exhaustion (see Dzhamaldayev v. Russia ( dec. ), no. 39768/06, § 28 with further references, 22 January 2013). In the present case the applicant did not appeal to a court against the prosecutor ’ s decision of 27 June 2001 to terminate the criminal investigation. Thus, the applicant did not use a domestic judicial remedy arguably available to her.

11 . If the applicant considered that the judicial remedy against the prosecutor ’ s decision to terminate the criminal case was ineffective, she should have applied to the Court within six months of that decision. The applicant ’ s complaint to the Court was lodged on 11 February 2009, that is outside of the six-months ’ period since the prosecutor ’ s decision of 27 June 2001.

12 . The applicant claimed that in 2007 she contested the decision of 27 June 2001 before superior prosecutors. The Court has previously held that complaints to superior prosecutors did not constitute an effective remedy to be exhausted (see Trubnikov v. Russia ( dec. ), 49790/99, 14 October 2003) and, consequently, cannot be taken into account for the purposes of calculation of six months.

13 . Finally, as for the applicant ’ s civil action, it was an effective remedy to establish the civil liability of the medical personnel and the amount of compensation of non-pecuniary damages. However, it could not cure any alleged deficiencies of the criminal investigation, such as the failure to grant the applicant the victim status, to examine other potential reasons of A.P. ’ s death or, even less so, to establish anyone ’ s criminal liability in relation to A.P. ’ s death (see, mutatis mutandis , Korogodina v. Russia , no. 33512/04, § 59, 30 September 2010). Thus, the civil action also cannot be taken into account for the purposes of six months calculation.

14 . Based on the above the Court concludes that the applicant ’ s complaint about the ineffective criminal investigation of her son ’ s death was lodged belatedly.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 January 2020 .

Stephen Phillips Georgios A. Serghides Registrar President