THIRD SECTION

DECISION

Application no. 20991/12 G.N. against Russia

The European Court of Human Rights (Third Section), sitting on 26 April 2022 as a Committee composed of:

Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 17 March 2012,

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

Having regard to the decision not to have the applicant’s name disclosed,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms G.N., is a Russian national, who was born in 1964 and lives in Novozybkov. She was represented before the Court by Mr S. Gavrilenko , a lawyer practising in Novozybkov.

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

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

4. On an unspecified date in November 2005 the applicant applied to the municipal health care institution “Novozybkovsky roddom” (“Novozybkovsky Maternity Hospital”) for a medical examination. She complained about vaginal bleeding and itching. On the basis of the results of medical tests the applicant was diagnosed with trichomoniasis and was recommended to undergo curettage of the uterine cavity.

5. On 22 November 2005 the applicant underwent curettage of the uterine cavity in the Novozybkovsky Maternity Hospital. Prior to that intervention, the applicant gave her written consent thereto. In particular, she stated that she had been informed of the possible risks of becoming infertile and agreed that the doctors would act according to their judgment in case of unforeseen developments in the course of the intervention. After the intervention the applicant left the hospital.

6. A week later the applicant returned to the hospital as the bleeding did not stop. Dr M. prescribed the applicant certain drugs for the treatment of trichomoniasis. Two weeks later the applicant went to see Dr M. as the bleeding continued. However, according to the applicant, Dr M. could not tell what was wrong with her and did not recommend her any medical treatment either.

7. As the bleeding continued, on 16 December 2005 the applicant went to see a district doctor, Dr A. The latter diagnosed the applicant with metritis and hematometra and referred her to the hospital.

8. On 21 December 2005 the applicant was again admitted to the Novozybkovsky Maternity Hospital. Dr B. diagnosed her with chronic metritis, hysteromyoma, hematometra and recommended biopsy of the lining of the uterus . She also recommended curettage of the uterine cavity with a view to remove the hematometra and make a more accurate diagnosis. On the same date the applicant again underwent curettage of the uterine cavity. She gave a written consent to the intervention and stated that she had been informed of the possible risks, including the risk of becoming infertile. After the intervention she was diagnosed with submucous hysteromyoma and prescribed antiphlogistic therapy, hemostatics and preventive anaemia treatment.

9. On 28 December 2005 the applicant was discharged from the hospital. According to her, the bleeding continued.

10. After that she remained unwell and on 2 January 2006 reapplied to the Novozybkovsky Maternity Hospital with heavy bleeding. She was examined by a doctor on duty, Dr P., and admitted to the hospital for further medical treatment. Despite the measures taken by the doctors, within the next three days the applicant’s condition rapidly declined. As in view of the hysteromyoma’s form it was not possible to remove it and leave the uterus intact, the applicant was recommended to undergo the removal of the uterus.

11. On 5 January 2006 the applicant gave her written informed consent to the surgery and stated that she had been informed of the possible risks, including the risk of becoming infertile. On the same date supracervical hysterectomy was performed on the applicant and, as a consequence, her uterus was removed.

12 . On an unspecified date in July 2009 the applicant requested the Novozybkov and Novozybkovsky District Department of the Interior (“Novozybkovsky OVD”) to investigate the events related to the alleged medical negligence of the hospital’s staff with regard to her treatment, which led to the removal of her uterus.

13 . On 22 July 2009 the Novozybkovsky OVD refused to institute criminal proceedings having found no evidence of a crime in doctors’ actions.

14 . On 4 August 2009 the Novozybkovsky OVD again refused to institute criminal proceedings having found no evidence of a crime.

15. The applicant subsequently filed three more requests to institute criminal proceedings. She added new arguments in each request.

16. On 14 and 29 October and 18 November 2009 the Novozybkovsky OVD rejected the applicant’s requests, having found no evidence of a crime.

17. The applicant resubmitted her requests to have criminal proceedings instituted.

18. On 4 December 2009 the Novozybkovsky OVD again refused to institute criminal proceedings having found no evidence of a crime. However, at the same time it asked the prosecutor to remit the case for additional investigation. The decision also mentioned that the applicant’s medical file had been requested from the Novozybkovsky Maternity Hospital and that upon its receipt it would be handed over to the Regional Forensic Bureau for expert examination.

19. On 4 and 25 February 2010 the Novozybkovsky OVD, following an additional inquiry, rejected the applicant’s request and again asked the prosecutor to remit the case for additional investigation as a report of the medical expert examination in this case had not been received. Both decisions stated that on 7 December 2009 and 28 January 2010 requests for an expert examination were sent to the Regional Forensic Bureau accompanied by the applicant’s medical file received from the Novozybkovsky Maternity Hospital.

20 . In March 2010 an expert examination was conducted by the Commission of the Bryansk Regional Healthcare Department. On 2 March 2010 the applicant refused to undergo a physical examination. It appears that the Commission then proceeded with the examination of the applicant’s medical file. The Commission’s report of 4 March 2010 stated that the applicant’s diagnostics and diagnosis had been correct, the hysterectomy had been carried out in accordance with the relevant procedures and upon the applicant’s written consent, and the doctors had acted lawfully when providing the applicant with medical assistance.

21. On 19 May 2010 the Novozybkovsky OVD again refused to institute criminal proceedings. Having regard to the expert report of 4 March 2010 (see the previous paragraph) and to the fact that the applicant had been informed about all the risks and consequences of the interventions, the Novozybkovsky OVD concluded that there was no evidence of a crime in the doctor’s actions.

22. On 20, 24 and 28 September 2010 the applicant resubmitted her requests to institute criminal proceedings.

23. On 30 September 2010 and on 9 November 2010 the Novozybkovsky OVD refused to institute criminal proceedings having found no evidence of a crime.

24. On 24 December 2010 the Novozybkovsky Interdistrict Department of the Investigative Committee instituted criminal proceedings into the applicant’s allegations of inadequate medical assistance.

25. On 3 March 2011 this decision was quashed by a higher prosecutor.

26 . On 29 March 2011 the Novozybkovsky OVD refused to institute criminal proceedings. The decision noted that currently civil proceedings for defamation instituted by the Novozybkovsky Maternity Hospital against the applicant were pending. In the context of those proceedings a forensic medical examination had been carried out by the Smolensk Regional Forensic Expert Bureau. According to the examination report of 22 October 2010 there had been no breaches of the applicable rules and standards by the staff of the Novozybkovsky Maternity Hospital when providing the applicant with medical assistance.

27. On 12 April 2011 the Novozybkovsky Interdistrict Prosecutor’s Office quashed this decision and remitted the case for additional check.

28. On 20 April 2011, 31 May 2011 and 8 July 2011 the Novozybkovsky OVD again refused to institute criminal proceedings for lack of evidence of a crime. The decisions also referred to the forensic examination of 22 October 2010 by the Smolensk Regional Forensic Expert Bureau, carried out within the framework of the civil proceedings brought by the Novozybkovsky Maternity Hospital against the applicant.

29. On 27 June 2011 the Novozybkovsky Interdistrict Prosecutor’s Office quashed the decision of 31 May 2011 and ordered to carry out a forensic medical examination.

30. On 13 August 2012 the Novozybkovsky Interdistrict Prosecutor’s Office also quashed the decision of 8 July 2011 and ordered to carry out a forensic medical examination. The case was remitted for additional check to the Novozybkovsky OVD.

31 . A medical forensic examination was carried out by the Smolensk Regional Forensic Expert Bureau. A report of 14 March 2013 stated that the applicant’s diagnosis had been correct; the medical interventions, including the hysterectomy she had undergone, had been necessary and indispensable in her case; she had given her informed written consent; and that there had been no defects in medical assistance received by the applicant.

32 . With reference to the above-mentioned report, on 22 March 2013 the Novozybkovsky OVD refused to institute criminal proceedings for lack of evidence of a crime in the doctors’ actions.

33 . The applicant repeatedly contested before courts refusals of the Novozybkovsky OVD to institute criminal proceedings into her allegations of medical negligence. She also complained about the breach of statutory time-limits for investigation

34 . He complaints were regularly examined and dismissed by the Novozybkovsk Town Court, who found that the investigating authorities had acted lawfully. These decisions were upheld on appeal by the Bryansk Regional Court.

COMPLAINTS

35. The applicant complained under Articles 3, 6 and 13 of the Convention about inadequate medical assistance which led to the removal of her uterus and the lack of effective criminal investigation into her allegations of medical negligence.

THE LAW

36. The applicant raised the above-mentioned complaints. The Court points out that individuals’ physical and psychological integrity, their involvement in the choice of medical care provided to them and their consent in that respect, and access of information enabling them to assess the health risks to which they are exposed fall within the scope of Article 8 of the Convention (see Trocellier v. France (dec.), no. 75725/01, ECHR 2006-XIV , and the authorities cited therein). It is therefore appropriate to examine the present case under Article 8 of the Convention, according to which:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

37. The Government argued that the application should be declared manifestly ill-founded. According to them, the applicant’s allegations of medical negligence had been thoroughly checked at the domestic level; the applicant had been actively involved in the relevant checks and all her arguments had been examined by the investigative bodies as well as the domestic courts. Three expert examinations had been carried out which had not established any malpractice of the health professionals or defects in medical assistance administered to the applicant. Therefore, there had been no grounds to institute criminal proceedings against the doctors.

38. The applicant disagreed with the Government and maintained her complaints.

39. The Court reiterates that although the right to health is not as such among the rights guaranteed under the Convention or its Protocols (see Jurica v. Croatia , no. 30376/13, § 84, 2 May 2017, and the authorities cited therein), the High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under its Article 8, firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ physical integrity and, secondly, to provide victims of medical negligence with access to proceedings in which they could, where appropriate, obtain compensation for damage (ibid; see also Trocellier , cited above).

40. The High Contracting Parties have a margin of appreciation in choosing how to comply with their relevant positive obligations under the Convention (see Lambert and Others v. France [GC], no. 46043/14, § 144, ECHR 2015 (extracts)), and enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems meet its requirements (see Vasileva v. Bulgaria , no. 23796/10, § 67, 17 March 2016).

41. In medical negligence cases the procedural obligation, which concerns the requirement to set up an effective judicial system, will 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 responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. Disciplinary measures may also be envisaged (see, as a recent authority, Mehmet Ulusoy and Others v. Turkey , no. 54969/09, § 91, 25 June 2019, with further references).

42. Turning to the present case, the Court observes that the applicant has never brought a civil claim against the health care institution in which she received medical treatment in an attempt to obtain redress in connection with the alleged medical negligence. In the absence of any submissions on this point from the Government, it will leave open the question whether any such avenue was available to the applicant and, if so, whether she was required to avail herself of that avenue in order to comply with the requirement of the exhaustion of all domestic remedies under Article 35 § 1 of the Convention, as the present application is in any event inadmissible on the following grounds.

43. On the facts, the applicant applied to the law-enforcement bodies with a complaint about the alleged medical negligence in July 2009 (see paragraph 12 above). The relevant office of the interior carried out a check into her allegations and found no grounds for opening the criminal proceedings in the absence of the evidence of crime in the relevant health professionals’ actions (see paragraph 13 above). The applicant’s ensuing requests that criminal proceedings be brought against the doctors were also dismissed after the checks had been carried out (see paragraphs 14-32 above).

44. In the context of those checks two medical forensic expert examinations were carried out which established that the doctors complied with the relevant rules and regulations; that the applicant’s diagnosis had been correct; that the medical interventions, including the hysterectomy she had undergone, had been necessary and indispensable in her case; that she had given her informed written consent; and that there had been no defects in medical assistance received by the applicant (see paragraphs 20 and 31 above). Similar conclusion were made by the experts in their report on the medical forensic examination carried out in the context of the defamation proceedings brought by the relevant medical institution against the applicant (see paragraph 26 above).

45. The applicant was actively involved in the checks, and submitted arguments and requests which were examined in the context of those checks. Her appeals against the alleged shortcomings in the checks were examined by the domestic courts and rejected as unfounded (see paragraphs 33-34 above).

46. Overall, no evidence has been submitted to the Court to suggest that the authorities did not display reasonable expedition and diligence in investigating the applicant’s allegations of medical negligence and establishing the relevant circumstances. While expressing dissatisfaction with the above-mentioned checks, the applicant did not indicate what other measures the authorities could have taken to investigate the matter. In fact, she disagreed with the outcome of those checks and insisted on bringing criminal proceedings against the doctors, the right which is not secured by the Convention. In that connection, the Court reiterates that the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see Jurica , cited above, § 88).

47. The Court thus cannot conclude that in the present case the domestic system failed to provide an adequate and timely response consonant with the State’s procedural obligation under Article 8 of the Convention.

48. The Court furthermore finds that there is nothing in its possession which would enable it to depart from the findings of the domestic authorities in so far as they established the circumstances of the present case. Accordingly, it considers that the facts of the present case do not disclose any appearance of a breach by the State of its positive obligation under substantive limb of Article 8 of the Convention either (see Mehmet Ulusoy and Others , cited above, §§ 83-85).

49. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 July 2022.

Olga Chernishova Darian Pavli Deputy Registrar President