FIFTH SECTION

DECISION

Application no . 23195/11 Vitaliy Vasylyovych KUTSEVYCH and Lidiya Andriyivna KUTSEVYCH against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 12 May 2015 as a Committee composed of:

Angelika Nußberger, President, Boštjan M. Zupančič, Vincent A. D e Gaetano, judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 6 December 2007 ,

Having regard to the declaration submitted by the respondent Government on 15 March 2013 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, spouses Mr Vitaliy Vasylyovych Kutsevych (the first applicant) and Mrs Lidiya Andriyivna Kutsevych (the second applicant) , are Ukrainian nationals, who were born in 1949 and 1947 respectively and live in Svitlovodsk . They were represented before the Court by Mr A.A. Kristenko , a lawyer practising in Kharkiv .

The Ukrainian Government (“the Government”) w ere represented by their acting Agent Mr M. Bem .

The part of the application concerning the complaints about ineffective investigation of the allegations of medical negligence and the length of two sets of criminal proceedings was communicated to the Government .

The circumstances of the case

On 8 November 2003 Oleksandr Kutsevych , the applicants ’ son, died of cancer .

On 15 January 2013, following several re-investigations of the case of alleged malpractice by Dr M. of the Svitlovodsk District Hospital, the Svitlovodsk Court convicted her and released her from punishment applying the statute of limitation. The court also awarded the first applicant 2,267.61 Ukrainian hryvnias (UAH) in pecuniary damage and UAH 5,000 in non-pecuniary damage. On 23 April 2013 the Kirovograd Regional Court of Appeal upheld this judgment and on 30 July 2013 the Higher Specialized Civil and Criminal Court refused to review the case on the points of law.

On numerous occasions the law-enforcement authorities rejected the applicants ’ demands to initiate criminal proceedings with a view to investigating poor performance of other medical and administrative staff, in particular, against Dr F. of the Zaporizhya Cancer Dispensary, Chief Doctor L. of the Kirovograd Regional Health Department, the employees of the Oleksandriya hospital laboratory and some others. These decisions were repeatedly revoked as insufficiently substantiated by the prosecutorial and judicial authorities upon the applicants ’ appeals and the cases were remitted for additional inquiries.

On 23 June 2008 criminal proceedings into the applicants ’ accusations against Dr F. were instituted and on 19 May 2009 a forensic assessment was ordered. As of September 2013 the applicants were not informed of the results of this assessment.

According to the applicants, criminal proceedings against Dr L. and the Oleksandriya hospital laboratory had also been eventually opened after their numerous complaints, but the applicants had never been apprised of their progress.

On various dates the judicial authorities rejected in full or in part a number of the first applicant ’ s civil and administrative actions brought with a view to challenging various omissions in the investigation of Oleksandr Kutsevych ’ s case, obtaining damages and facilitating further investigation.

COMPLAINTS

The applicants complained that there was no effective investigation into their allegations of medical malpractice and negligence resulting in their son ’ s death. They invoked Article 2 of the Convention in this respect.

They further complained that the criminal proceedings against Dr M. and Dr F. were unreasonably protracted in breach of Article 6 § 1 of the Convention.

The applicants also complained under Article 13 of the Convention about lack of effective domestic remedies for their complaints concerning ineffective and protracted investigation of their son ’ s case.

Finally, the applicants additionally complained under Articles 6 § 1 and 13 of the Convention that a number of the first applicant ’ s court actions lodged with a view to facilitating proper investigation of his son ’ s case and obtaining damages for the delays and the authorities ’ omissions had been treated unfairly. In particular, they were often unnecessarily delayed and eventually disposed of incorrectly.

THE LAW

A. The Government ’ s unilateral declaration

The applicants complained about lack of an effective investigation into the allegations of medical malpractice and negligence presumably resulting in their son ’ s premature death and about delays in the criminal proceedings against Dr M. and Dr F. They relied on Article s 2 and 6 § 1 of the Convention in respect of the above complaints.

After the failure of attempts to reach a friendly settlement, by a letter of 15 March 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ The Government of Ukraine acknowledge that domestic au th orities have violated the ap plicants ’ rights gu aranteed by Articles 2 and 6 § 1 of the Conv e ntion .

I , Markiyan Bem , for the Government Agent before th e European Court of Human R ights, declare that the Government of Ukraine are ready to pay the just satisfact ion in the amount of 3 000 euros to Mr Vitally Vasylyovych Kutsevych and 3 000 euros to M r s Lidiya A nd r iy i vna Kut s evych .

The Government therefore invite the Court to strike the application out of the list of cas es. They suggest that the present declaration might be a cc e pted by the Court a “any other re ason” justifying the strik ing out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The above sum, which is to cover any pecuniary and non -pecuniary damage, as well as co sts and expenses, will be converted into the national currency o f the respondent State at the ra te applicable on the date of pa yment, and free of any taxes that may be applicable. It will b e pa yable within three months from the date of notification of th e decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Hu man Rights. In the ev e nt of failure to pay this sum within the above three-month period, the Government undertake to pay sim ple interest o n it, from expiry of that period until settlement, a t a rate equal to the marginal len ding rate of the European Ce ntral Bank during the default p eriod plu s three percentage po ints.

This payment will constitu te the final resolution of the c ase .”

The applicants did not comment on the text of the declaration. In their observations on the admissibility and merits of the case, the applicants submitted that they had been victims of very serious breaches of the fundamental human rights. They also claimed 25,000 euros (EUR) each in non-pecuniary damage.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03).

The Court has established in a number of cases, including those brought against Ukraine , its practice concerning complaints about the ineffective investigation of allegations of medical negligence (see, for example, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII, with further references; Arskaya v. Ukraine, no. 45076/05 , §§ 72-74 , 5 December 2013 and Valeriy Fuklev v. Ukraine, no. 6318/03 , §§ 72-76, 1 6 January 2014 ).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases (see e.g. judgments in the cases of Arskaya , cited above, § 95 ; Valeriy Fuklev , cited above, § 104 ; Nikolay Volkogonov a nd Igor Volkogonov v . Ukraine , [Committee], no. 40525/05, § 66, 28 November 2013; Reus and others v. Ukraine , [Committee], no. 40587/07, § 34, 16 October 2014; Padura v. Ukraine, [Committee], no. 48229/10, § 55, 11 December 2014 and Barsukovy v. Ukraine , [Committee], no. 23081/07, § 31, 26 January 2015) – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue t he examination of this part of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike this part of the case out of the list.

B. The complaint under Article 13 of the Convention with respect to the lack of effective remedies for the complaints concerning the investigation

Relying on Article 13 of the Convention, the applicants complained that there were no effective remedies for their complaints that the investigation of their son ’ s case had been ineffective and protracted.

The Court finds that this complaint is closely linked to the complaints under Article 2 and 6 § 1 of the Convention, in respect of which the Government had acknowledged breaches of the Convention in the unilateral declaration examined above (see, mutatis mutandis , Šilih v. Slovenia [GC], no. 71463/01, § 216 , 9 April 2009 ). The Court therefore considers that it is no t justified to continue a separate examination of this complaint (Article 37 § 1 (c)).

T he Court is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, this complaint should be struck out of the list.

C. Remainder of the application

Finally, the applicants also complained under Articles 6 § 1 and 13 of the Convention that a number of the first applicant ’ s court actions lodged with a view to facilitating proper investigation of Oleksandr Kutsevych ’ s case and obtaining damages for the delays and the authorities ’ omissions had been treated unfairly. In particular, they had been unnecessarily protracted and decided incorrectly.

Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Costs and expenses

Rule 43 § 4 of the Rules of Court provides :

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicants claimed UAH 206.99 in postal expenses and provided copies of the respective receipts.

They also claimed UAH 39,494.40 in legal fees. They presented a copy of a contract with private company “ Injurpolis ” for their legal representation in connection with the present application dated 5 December 2012. The above contract stipulated, in particular:

“4.1. The clients are obliged to remunerate the service provider only in the event that [the Court] finds violations of the [Convention]... or ... the case is [struck out] on the basis of .... a unilateral declaration of the Government...

4.2. ...The remuneration due shall be calculated based on the service provider ’ s hourly rates... and may not exceed 10% (ten percent) of the amount designated ... in the unilateral declaration...”

The applicants also provided a copy of an invoice signed by Mr A. Kristenko in his capacity as the company ’ s associated partner. According to the invoice, the applicants were billed for 16.32 hours of Mr Kristenko ’ s work at an hourly rate of UAH 2,420. It appears that the invoice has not been paid yet pending resolution of the case.

The Government left the issue of compensation of the postal expenses at the Court ’ s discretion. As regards the legal fees, they submitted that the claim was excessive .

The Court observes that, when an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. The Court reiterates that when making an award under Rule 43 § 4 of the Rules of Court, the general principles governing reimbursement of costs are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002; M.C.E.A. Voorhuis v. the Netherlands ( dec. ), no. 28692/06, 3 March 2009; Youssef v. the Netherlands ( dec. ) no. 11936/08, 27 September 2011 and Saakov v. Russia ( dec. ), no. 39563/11, 13 January 2015). In other words, in order to be reimbursed, the costs must relate to the alleged violation, have been actually and necessarily incurred and be reasonable as to quantum.

The Court next notes that the applicants ’ representative submitted his observations as well as other pleadings. The applicants appear not to have paid the bill yet, however, their obligation is outstanding. The Court further notes that according to the conditions of the unilateral declaration, the compensation was to cover these costs. However, the Court considers that the sum proposed by the Government is insufficient for that purpose and decides to use its discretion under Rule 43 § 4 of the Rules of Court (see Zakirov v. Russia ( dec. ), no. 50799/08, 18 February 2014; Scholvien and Others v. Germany ( dec. ), no. 13166/08, 12 November 2013 ; Święch v. Poland ( dec. ), no. 60551/11, 1 July 2013; Gil v. Poland ( dec. ), no. 46161/11, 4 June 2013 and Saakov , cited above).

Regard being had to the documents in the Court ’ s possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 600 in legal fees and EUR 20 in postal expenses.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s unilateral declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Holds

(a) that the respondent State is to pay the applicants jointly, within three months, EUR 620 (six hundred and twenty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Decides to strike the complaints raised by the applicants under Article 2 of the Convention with respect to the ineffective investigation of their son ’ s case, under Article 6 of the Convention concerning the delays in the criminal proceedings against Dr M. and Dr F. and under Article 13 of the Convention concerning lack of effective remedies for the complaints regarding the ineffective investigation out of its list of cases in a ccordance with Article 37 § 1 (c) of the Convention ;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 4 June 2015 .

Milan Blaško Angelika Nußberger Deputy Registrar President