FIFTH SECTION

Application no. 56757/11 Yekaterina Vasilyevna MORDALEVICH against Ukraine lodged on 29 August 2011

STATEMENT OF FACTS

The applicant, Ms Yekaterina Vasilyevna Mordalevich , is a Ukrainian national, who was born in 1960 and lives in Rysakove .

A. The circumstances of the case

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

On 30 September 2000 the applicant ’ s husband, A.M., accidentally swallowed a chicken bone during his lunch. Although he felt pain in the lower part of the chest, he did not consult a doctor.

On 6 October 2000, at about 6 p.m., A.M. vomited. The vomit contained the bone and some traces of blood.

One hour later A.M. applied for medical assistance to the Dzhankoy Central City Hospital (further referred to as “the Dzhankoy Hospital”). The doctor on duty, S., did not discover any pathology and recommended A.M. to eat warm and liquid food and to immediately come back to the hospital in case of any deterioration of his health.

Upon his arrival home A.M. had vomiting and diarrhoea with traces of blood. At 10 p.m. he had a cup of tea and went to bed. At about 6 a.m. A.M. vomited with blood again and died.

The applicant complained to the local prosecutor ’ s office of the alleged failure of S. to provide A.M. with medical assistance having resulted in the latter ’ s death.

On 17 October 2000 the Dzhankoy City Prosecutor ’ s Office issued a ruling refusing to institute criminal proceedings against S. It relied, in particular, on the explanations given by S., according to which he had checked A.M. ’ s pulse, had palpated his stomach and had carried out a rectal examination to check for any indications of internal bleeding, with no disorders having been discovered. Furthermore, the investigator noted that A.M. had ignored the doctor ’ s recommendation to re-apply for medical assistance once his health deteriorated.

On 11 February 2002 the Dzhankoy City Court quashed the aforementioned decision and remitted the case for an additional investigation. It noted that there had been no forensic medical expert examination with a view to verifying whether the diagnosis given to A.M. and the treatment prescribed to him had been correct.

On 24 January 2003 an investigator of the Dzhankoy Prosecutor ’ s Office again refused to institute criminal proceedings against S. for the lack of c orpus delicti in his actions. In addition to the reasoning of its earlier ruling, it referred to the autopsy report, according to which the death of A.M. had been caused by a profuse gastrointestinal haemorrhage as a result of the oesophageal perforation by the chicken bone, followed by inflammation of the wound canal and complicated by an injury of the aortal arch.

On 9 October 2003 another investigator of the Dzhankoy Prosecutor ’ s Office quashed the decision of 24 January 2003 for failure to comply with the court ’ s instructions of 11 February 2002.

On 4 November 2003 an internal disciplinary inquiry into the incident was held by a commission of three medical specialists of the Public Health Ministry. It found that S. had committed a diagnostic and tactical error caused by the atypical and asymptomatic clinical course of the oesophageal perforation with development of a rare complication (the aortic wall rupture). The commission noted that S. should have hospitalised A.M. for monitoring, but had not done so given his limited experience (1.5 years). The commission considered, however, that even if that mistake had not been committed, this would have hardly averted the fatal outcome, because the treatment of such complications even in specialised hospitals was quite problematic, with a death rate approaching 100%.

On 12 November 2003 the Dzhankoy Prosecutor ’ s Office delivered another ruling refusing to institute criminal proceedings against S.

On 16 March 2003 the Prosecutor ’ s Office of the Autonomous Republic of Crimea (“the Crimea Prosecutor ’ s Office”) quashed that ruling as premature. It noted that it remained to be established whether there was any causal link between the omission by S. and A.M. ’ s death.

The Dzhankoy Prosecutor ’ s Office posed the above question to the Public Health Ministry.

On 29 June 2004 a senior official of the Public Health Ministry replied in the negative. He noted that, even if A.M. had been hospitalised and X-rayed immediately, a mere scratch on his oesophageal would have been discovered not warranting any invasive treatment. As further stated in the letter, such cases were extremely rare and it was impossible to foresee and prevent the sudden profuse bleeding leading to death.

On 19 July 2004 the Dzhankoy Prosecutor ’ s Office refused once again to institute criminal proceedings against S. relying on the above findings.

On 31 March 2005 the Dzhankoy Court quashed the aforementioned ruling. It noted that, contrary to the earlier directions, there had been no forensic medical expert evaluation with a view to verifying whether the actions of S. had been correct and whether they had been in causal link with A.M. ’ s death.

On 18 April 2005 the Dzhankoy Prosecutor ’ s Office issued another ruling refusing to open a criminal case in respect of S. It relied on the autopsy report and the internal disciplinary inquiry findings. The investigator stated that it was impossible to conduct the forensic medical expert evaluation as directed by the court, because it could be undertaken only in the framework of criminal proceedings, and there were no grounds to institute such proceedings.

On 5 September 2005 the Dzhankoy Court rejected the applicant ’ s complaint against the aforementioned ruling.

On 22 December 2005 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed both the decision of the first-instance court and the prosecutor ’ s ruling of 18 April 2005. It held that the investigation had disregarded the directions given earlier.

On 10 February 2006 the Dzhankoy Prosecutor ’ s Office refused again to institute criminal proceedings against S. It held that the necessity to conduct the expert examination indicated by the courts could not be regarded as a valid ground for the instituting such proceedings.

On 15 June 2006 the Crimea Prosecutor ’ s Office quashed the aforementioned ruling.

On 2 August 2006 the Dzhankoy Prosecutor ’ s Office refused again to institute criminal proceedings against S.

On 21 March 2007 the Prosecutor General ’ s Office quashed the ruling of 2 August 2006 on the ground that the investigator had not clarified all the essential facts. It instituted criminal proceedings on a charge of inadequate performance of professional duties by the Dzhankoy Hospital staff.

On 14 May 2007 a forensic medical expert evaluation was held. It concluded that, even though S. should have hospitalised A.M., there was no causal link between that omission and A.M. ’ s death. The fatal outcome might have been averted by the removal of the chicken bone shortly after A.M. had swallowed it, but he had waited for a week before seeing a doctor.

On 31 October 2007 the Dzhankoy Prosecutor ’ s Office discontinued the criminal proceedings initiated on 21 March 2007. It relied, in particular, on the expert report of 14 May 2007, as well as the applicant ’ s and S. ’ s statements. The applicant had confirmed that A.M. had had pain in the lower part of his chest after the incident on 30 September 2000, but had not sought medical assistance till 6 October 2000. S. had submitted that he had proposed hospitalisation to A.M., but the latter had refused.

On 27 November 2008 the Dzhankoy Court quashed the ruling of 31 October 2007 and remitted the case for additional investigation. It noted that there had been no expert assessment of S. ’ s professional activity. Furthermore, there were contradictions in the statements of S. who had submitted that A.M. had refused hospitalisation and those of the applicant who had insisted that it had been S. who had refused to hospitalise her husband despite the latter ’ s complaints.

On 9 February 2009 the Dzhankoy Prosecutor ’ s Office decided that there were no grounds for the institution of criminal proceedings against S. It held that no additional expert assessments were necessary, as the evaluation of 14 May 2007 had provided clear answers to all the essential questions.

On 13 December 2010 the Dzhankoy Court quashed that ruling.

On 24 February 2011 the Crimea Court of Appeal upheld the decision of the first-instance court.

On 6 December 2011 the Dzhankoy Prosecutor ’ s Office again refused to institute criminal proceedings against S. for lack of corpus delicti in his actions.

The applicant unsuccessfully challenged that ruling before the higher-level prosecution authorities.

B. Relevant domestic law

Article 4 of the Code of Criminal Procedure (1960) provides that the court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish whether a crime has been committed, identify the perpetrators and punish them.

COMPLAINT

Relying on Articles 2 and 6 of the Convention, t he applicant complains that the domestic authorities did not carry out an effective investigation into the death of her husband .

QUESTIONS TO THE PARTIES

1 . Has the applicant complied with the rule of exhaustion of domestic remedies in respect of her complaint under Article 2 of the Convention? In particular, could the applicant institute non-criminal proceedings seeking redress on account of the alleged medical negligence ? If so, would the non-criminal forum be effective in the light of the conclusions reached within the criminal proceedings and in view of the fact that those criminal proceedings had been pending for over eleven years ? The Government are requested to provide examples of the domestic case - law.

2 . Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?