FIFTH SECTION

Application no. 23195/11 Vitaliy Vasylyovych KUTSEVYCH and Lidiya Andriyivna KUTSEVYCH against Ukraine lodged on 6 December 2007

STATEMENT OF FACTS

The applicants, Mr Vitali y Vasylyovych Kutsevych and Mrs Lidiya Andriyivna Kutsevych , are Ukrainian nationals who were born in 1949 and 1947 respectively and live in Svitlovodsk .

A. The circumstances of the case

1. The applicants ’ son ’ s medical supervision and death

In November 2002 Oleksandr Kutsevych , the applicants ’ adult son (born in 1982) requested M., an oncologist with the Svitlovodsk Central District Hospital ( “ the Svitlovodsk Hospital ” ), to consult him on account of an inflammation of a mole on his neck. Upon visual examination and without creating any record, M. advised Oleksandr Kutsevych that there was no need to worry about a possibility of cancerous growth in the mole and prescribed dimexide (an anti-inflammatory and analgesic medicine).

In view of a continuing inflammation, on 17 November 2002 Oleksandr Kutsevych consulted K., a surgeon with the Svitlovodsk Hospital . K. diagnosed Oleksandr Kutsevych as suffering from an infected papilloma and surgically removed it. The post-surgery material was transferred to the Oleksandriya Hospital no. 1 (“ Oleksandriya Hospital ”) for histological testing.

On 5 December 2002 the Oleksandriya Hospital ’ s laboratory reported that the post-surgical material was a “ papillomous form of a marginal pigmented nevus ” , which was not cancerous.

In February 2003 Oleksandr Kutsevych complained to M. about an aggravation of his state, in particular, the enlargement of lymph nodes on his neck, and was prescribed antibiotic treatment for lymphadenitis.

As this treatment was not providing positive results, M. referred Oleksandr Kutsevych to a haematologist, suspecting that he may be suffering from a blood disease or lung disease. On an unspecified date Oleksandr Kutsevych consulted a haematologist, who informed him that he was unable to diagnose the problem.

On 21 March 2003 Oleksandr Kutsevych went to the Zaporizhya cancer dispensary upon his own initiative, where doctor F. performed an out-patient biopsy and diagnosed him with melanoma.

Having returned to Svitlovodsk , Oleksandr Kutsevych allegedly consulted M. on further treatment and was advised that F. ’ s diagnosis was incorrect, prescribed no treatment and suggested “ to stop bothering doctors ” .

By fall 2003 Oleksandr Kutsevych ’ s state further aggravated and a large lump grew on his neck at the place, where the biopsy had been taken.

On several occasions M. refused to visit Oleksandr Kutsevych at his home advancing various reasons.

Eventually, on 16 October 2003, after a request by Oleksandr Kutsevych ’ s physician and the applicants ’ complaints to various authorities, M. visited Oleksandr Kutsevych and prescribed no medicines, alleging that she had forgotten the official forms for prescriptions.

As Oleksandr Kutsevych ’ s sta te continued to aggravate, on 4 November 2003 M. visited him again and prescribed tramadol (a strong opiate analgesic). She further proposed his hospitalisation, which the applicants refused referring to Oleksandr Kutsevych ’ s extremely poor condition.

On 8 November 2003 Oleksandr Kutsevych died at home.

Subsequently the forensic medical experts commission concluded that Oleksandr Kutsevych had died of ‘ intoxication resulting from malicious melanoma with metastasis into lymphatic nodes and internal organs ’ .

On 10 December 2003 the Svitlovodsk Hosptial anti-cancer commission, consisting of five doctors, including M., examined Oleksandr Kutsevych ’ s case and found that the reason for the late diagnosis was incorrect data provided by the Oleksandriya Hospital laboratory after the examination of post-surgical material upon removal of Oleksandr Kutsevych ’ s papilloma .

2. Official investigations into the circumstances of Oleksandr Kutsevych ’ s death

Following Oleksandr Kutsevych ’ s death, the applicants started complaining to various authorities about negligent performance of duties by numerous entities, doctors and officers.

(a) Official investigation in respect of M.

On 8 January 2004 the Kirovograd Regional Prosecutors ’ Office ordered an inquiry into the applicants ’ allegations of medical malpractice on the part of M.

On 10 F ebruary 2004 a forensic experts commission concluded that the organisation of Oleksandr Kutsevych ’ s treatment featured numerous shortcomings.

On 12 February 2004 the internal medical commission of the Regional Health Department, chaired by chief surgeon L., concluded that M. had performed her duties vis-à-vis Oleksandr Kutsevych properly and in good faith.

On 12 February 2004 the Svitlovodsk Prosecutors ’ Office refused to institute criminal proceedings against M., having concluded that notwithstanding the possible shortcomings of the treatment, there was no evidence that these shortcomings could have been fatal and that Oleksandr Kutsevych ’ s death had not been caused by the gravity of the disease itself. On an unspecified date this decision was annulled, following the first applicant ’ s complaints.

On 18 February 2004 M. was punished with a disciplinary reprimand for negligent medical record keeping in Oleksandr Kutsevych ’ s case and delay in Oleksandr Kutsevych ’ s placement under supervision for risk of cancer.

By April 2004 the prosecutors ’ office established that M. had been a certified surgeon and did not have the necessary qualifications to occupy the position of an oncologist. The applicants were informed thereof on 8 April 2004.

In the same month M. was relieved of her duties as an oncologist and subsequently put into a special continuing professional education program.

On 12 May 2004 The Svitlovodsk Health Department informed the applicants that they had a special meeting concerning the case of Oleksandr Kutsevych ’ s , where it had been concluded that there had been no causal link between Oleksandr Kutsevych ’ s death and the treatment he had received. However, the commission acknowledged a number of breaches in the performance of M. and the operation of the Svitlovodsk Hospital . In particular, M. had had insufficient qualifications to be an oncologist, she had kept Oleksandr Kutsevych ’ s medical record sparingly; and the hospital had not put in place effective training programs and procedures to supervise staff ’ s performance.

On 6 August 2004 the Svitlovodsk Prosecutors ’ Office instituted criminal proceedings into the allegations of medical malpractice in the case of Oleksandr Kutsevych .

On 23 December 2004 M. was assigned a higher qualification category as a doctor-oncologist-surgeon and her reprimand was considered nullified.

In May 2005 a forensic experts commission concluded that medicines prescribed by M. to Oleksandr Kutsevych in fall 2002 – winter 2003 had been improper for his condition and could possibly stimulate cancer growth.

On 29 July 2005 M. was indicted of medical malpractice.

On 6 August 2005 M. was committed to stand trial before the Svitlovodsk Court .

On 26 January 2006 the Svitlovodsk Court ordered an additional forensic medical assessment within the framework of the proceedings.

On 29 April 2008 the court obtained the results of the assessment.

On 15 September 2008 the Svitlovodsk Court returned the case for additional investigations.

On 11 November 2008 the Kirovograd Regional Court of Appeal quashed this decision and the case was remitted to the Svitlovodsk Court for trial.

On 22 March 2010 the Svitlovodsk Court convicted M. of medical malpractice within the meaning of Article 140 of the Criminal Code of Ukraine and sentenced her to one year ’ s suspended imprisonment. The court further released M. from the obligation to serve this punishment, as the proceedings had become time-barred. Finally, the court awarded the applicants UAH 2,267.61 ( hryvnyas ) [1] in pecuniary damage and UAH 5,000 [2] in non-pecuniary damage.

On 17 August 2010 the Kirovograd Regional Court of Appeal discontinued the proceedings as time-barred and annulled the trial court ’ s decision concerning the award of damages. It also took separate rulings addressing various shortcomings in the organisation of the medical assistance in Oleksandr Kutsevych ’ s case, which could have facilitated the aggravation of his condition.

On 16 June 2011 the Supreme Court of Ukraine quashed the decision of the Court of Appeal and remitted the case for a re-consideration at the appeal instance.

According to the materials available, the proceedings are currently pending before the Kirovograd Regional Court of Appeal.

(b) Official investigation in respect of F.

In May 2004 the applicants complained to the Zaporizhya Regional Prosecutors ’ Office that F. had performed his medical duties in bad faith. In particular, he had acted negligently in taking Oleksandr Kutsevych ’ s biopsy without appropriate in-patient supervision and had poorly kept the relevant records. Following this complaint, the prosecutors ’ office invited the Zaporizhya Regional Department of Health to create a medical commission to verify these allegations.

On an unspecified date three doctors, including F. ’ s supervisors, certified that F. had properly performed his duties vis-a-vis Oleksandr Kutsevych and had acted in good faith.

On 18 March 2005 the Komunarskiy District Prosecutors ’ Office of Zaporizhya refused to institute criminal proceedings into F. ’ s alleged malpractice, based on the commission ’ s findings.

Notwithstanding the first applicant ’ s requests, he was not provided with a copy of the above decision.

On an unspecified date the first applicant appealed against the decision of 18 March 2005 to the Komunarskiy District Court of Zaporizhzha .

On 2 June 2005 the Komunarskiy District Court allowed the first applicant ’ s appeal, having found that F. ’ s conduct could be indicative of various crimes, including medical malpractice and official negligence. The court further noted that verification of these allegations lent itself to be carried out through institution of criminal proceedings and called for ordering a forensic medical assessment.

On 5 December 2005 the Zaporizhya Regional Court of Appeal upheld this decision.

Following these decisions, the Komunarskiy District Prosecutors ’ Office took three more decisions not to institute criminal proceedings for want of evidence of a crime in F. ’ s actions, all of which were subsequently revoked by the Zaporizhya Regional Prosecutors ’ Office with reference to various shortcomings in the inquiry.

On 23 February 2007 the first applicant lodged an administrative complaint against the Komunarskiy District Prosecutors ’ Office seeking damages for their alleged omissions in investigating his allegations.

On 15 May 2008 the Svitlovodsk Court partly allowed his claim, having found that the prosecutors ’ office had failed to provide copies of their decisions to the first applicant in good time as well as to provide proper answers to his correspondence and awarded the first applicant UAH 1,000.

On 23 June 2008 the Komunarskiy District Prosecutors ’ Office instituted criminal proceedings into the allegations of medical malpractice on F. ’ s behalf, however F. was not indicted.

On 22 July 2008 the first applicant was admitted into these proceedings as a victim and a civil claimant.

On 19 May 2009 a forensic medical assessment was ordered within the framework of these proceedings. According to the case-file materials, the assessment is still pending.

On 28 May 2010 the Dnipropetrovsk Administrative Court of Appeal quashed the Svitlovodsk Court ’ s judgment of 15 May 2008 insofar as it related to the award of damages.

On 15 February 2011 the Higher Administrative Court of Ukraine rejected the first applicant ’ s cassation appeal against this decision.

(c) Official investigation in respect of L.

On several occasions the first applicant unsuccessfully attempted to have criminal proceedings instituted against L., who had chaired the Health Department ’ s commission, which had concluded in February 2004 that M. had acted in good faith in Oleksandr Kutsevych ’ s case.

On 19 June 2006 the Kirovograd Regional Prosecutors ’ Office discovered shortcomings in L. ’ s performance and recommended the Health Department to consider subjecting him to disciplinary liability. This recommendation was apparently not followed through.

On 6 May 2010 the Kirovograd Regional Control and Inspection Department ( Контрольно-ревізійне управління ) informed the first applicant that L. himself had been appointed to the office with various procedural breaches, which could lead to charges of corruption and that the prosecutors ’ office had been informed accordingly.

On 23 July 2010 the Leninskiy District Court of Kirovograd revoked the previous refusal of the prosecutors ’ office to institute criminal proceedings into L. ’ s official conduct and ordered further investigation.

In the meantime, on 4 February 2010 the first applicant lodged a civil action with the Svitlovodsk Court, seeking moral damages from the prosecutors ’ office allegedly incurred in connection with an unfair refusal to institute criminal proceedings against L. Courts of three instances rejected his claims, the final decision in the case having been taken on 3 February 2011 by the Higher Specialised Court of Ukraine.

(d) Official investigation in respect of the Oleksandriya Hospital laboratory staff

On 4 January 2005 the first applicant complained to the Oleksandriya Prosecutors ’ Office that the failure of the Oleskandriya Hospital ’ s laboratory to discover cancer growth in Oleksandr Kutsevych ’ s post-surgical material of November 2002 had been indicative of medical malpractice. He insisted, in particular, that the laboratory was grossly mismanaged. On two occasions (i.e. 3 November 2005 and 20 March 2006) the Oleksandriya Prosecutors ’ Office refused to institute criminal proceedings, having found no evidence of any crime.

On 7 June 2006 the Regional Control and Inspection Department found that there were some breaches in the laboratory management. In particular, the workload on staff exceeded statutory objectives.

On 24 October 2009 the Oleksandriya Prosecutors ’ Office took the next decision not to institute criminal proceedings, which was annulled by the Kirovograd Regional Prosecutors ’ Office on 20 November 2009.

On an unspecified date the Oleksandriya Prosecutors ’ Office informed the first applicant by a letter that there were no grounds for criminal prosecution of any person of the laboratory staff.

On 4 February 2010 the first applicant lodged a civil claim with the Svitlovodsk Court seeking damages for allegedly wrongful refusal to institute criminal proceedings into mismanagement of the Oleksandriya Hospital laboratory. The courts of three instances rejected his claims as unsubstantiated, the last decision having been taken on 10 December 2010 by the Higher Specialised Court of Ukraine.

B. Relevant domestic law

1. Constitution of Ukraine of 1996

Article 49 of the Constitution of Ukraine, insofar as relevant, reads as follows:

Article 49

“Everyone has the right to health protection, medical care and medical insurance.

Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary, health improvement and prophylactic programmes.

The State creates conditions for effective medical service accessible to all citizens. State and communal health protection institutions provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical institutions of all forms of ownership ...”

2. Criminal Code of Ukraine of 2001

Article 140 of the Criminal Code of Ukraine, insofar as relevant, reads as follows:

Article 140. Improper performance of professional duty by a member of medical or pharmaceutical profession

“1. Failure to perform or improper performance of professional duty by a member of medical or pharmaceutical profession due to neglect or careless discharge of this duty, which caused grave consequences for a patient, -

shall be punishable by deprivation of the right to occupy certain positions or engage in certain activities for a term of up to five years, or correctional labor for a term of up to two years, or restraint of liberty for a term of up to two years, or imprisonment for the same term... ”

COMPLAINTS

The applicants complain that there was no effective investigations into their allegations of medical malpractice resulting in their son ’ s death. They invoke Article 2 of the Convention in this respect.

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

The applicants also complain under Article 13 of the Convention about lack of effective domestic remedies for their Convention complaints.

Finally, the first applicant complains that his civil and administrative proceedings against the prosecutors ’ office and the appeal proceedings against the refusals to institute criminal proceedings were unfair within the meaning of Article 6 of the Convention, since the domestic courts incorrectly interpreted the facts and applied the law.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life, was the investigation by the domestic authorities into the circumstances leading to Oleksandr Kutsevych ’ s death in breach of Article 2 of the Convention?

2. Was the length of the criminal proceedings against M. and F. in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

[1] 1. For internal reference: around 207 euros at the material time.

[2] 2. For internal reference: around 450 euros at the material time.