AS TO THE ADMISSIBILITY OF
by Teodora ZAHARIEVA and Iva ZAHARIEVA
The European Court of Human Rights (Fifth Section), sitting on 13 October 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 27 January 2006,
Having deliberated, decides as follows:
The applicants, Ms Teodora Zaharieva and her daughter Ms Iva Zaharieva, are Bulgarian nationals who were born in 1965 and 1990 respectively and live in Sofia. They are represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practising in Plovdiv.
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first applicant’s illness and her medical treatment
In 1998 the first applicant had a breast tumour and underwent surgical removal of her right breast. In the following years she also underwent chemotherapy.
In November 2002 the first applicant developed a tumour in her left breast, which was also removed; she underwent chemotherapy again.
The above medical treatment was provided to the first applicant free of charge by the public health system.
In November 2002 she was prescribed a course of hormonal therapy which required the administration, once every twenty-eight days, of a drug whose active component was goserelin.
At the relevant time goserelin was on the list of medicines provided free of charge by the Ministry of Health. Between November 2002 and February 2004 the first applicant received it regularly free of charge.
In March 2004 she was informed that there was a problem with the supplies of goserelin. Having been advised that interrupting the intake of goserelin for longer than a month could be dangerous for her health, the first applicant had no choice but to purchase the medicine from a pharmacy. She did so for several months. The price of goserelin for each injection was 480 Bulgarian levs (BGN) (EUR 246) – an amount which corresponded approximately to the average monthly salary in Bulgaria during the relevant period.
Being unable to continue paying for goserelin each month, in July 2004 the first applicant underwent an alternative treatment in the form of radiocastration, which results in definitive cessation of the patient’s ovarian function. The first applicant could thus no longer have children.
Following this treatment another medicine, whose active substance was letrozole, was prescribed to the first applicant. Letrozole too was on the list of medicines provided free of charge by the Ministry of Health. However, the first applicant never received the drug free of charge and had to pay for it. Since she could not afford to pay for a full course of treatment with letrozole, she took it irregularly and in smaller quantities than prescribed.
In March 2005 metastases in the first applicant’s liver were discovered. She underwent chemotherapy for the third time.
In May 2005 she was not provided free of charge with docetaxel, another expensive drug, although it was necessary for the chemotherapy and figured on the list of medicines provided by the Ministry of Health free of charge.
The first applicant repeatedly protested, in letters and complaints addressed to the Ministry of Health and other institutions, about the recurring problems with the supply of medicines for persons suffering from cancer.
In 2006 the first applicant continued to experience irregular supplies of free medicines.
2. The civil proceedings brought by the first applicant
On 2 February 2005 the first applicant brought civil proceedings for damages against the Ministry of Health. She sought reimbursement of BGN 1,280 paid by her for medicines that should have been provided free of charge and BGN 50,000 in respect of non-pecuniary damage resulting from the deterioration of her health caused by the Ministry’s failure to supply medicines. The statement of claim did not clarify the legal ground of the claim.
Between February and April 2005 the Sofia City Court returned the claim to the first applicant four times, pointing to deficiencies in the statement of claim. In particular, she was invited to clarify the specific actions and inactions which had led to the alleged damage and to give more details about the damage she had suffered.
The first hearing was held on 23 June 2005. The court commissioned an expert report and adjourned the hearing until 15 December 2005.
On 15 December 2005 the court heard evidence from one witness and from the expert, who presented her report. The hearing was adjourned until 9 February 2006.
On 18 January 2006 the first applicant made written submissions clarifying that the legal basis for her action was section 1 of the State and Municipalities Responsibility for Damage Act (the SMRDA).
At the hearing held on 9 February 2006 the parties made submissions on the evidence. The court also dealt with the first applicant’s submissions of 18 January 2006 and instructed her to submit further clarifications.
Having received the first applicant’s clarifications, on 23 April 2006 the Sofia City Court, sitting in private, found that the first applicant had based her claim on section 1 SMRDA and that therefore its examination had to start afresh since the procedure under the SMRDA, unlike that in cases under general tort law, required the presence of a prosecutor.
On an unspecified date in April or May 2006 the first applicant increased her claim for non-pecuniary damages to BGN 398,500. At that time she was represented by two lawyers.
The next hearing, held on 25 May 2006, was adjourned until 20 October 2006 to allow the collection of evidence.
On 6 November 2006 the Sofia City Court delivered its judgment. It awarded the first applicant BGN 960 in respect of pecuniary damage and BGN 80,000 in respect of non-pecuniary damage.
Both parties appealed.
The Sofia Court of Appeal held an unspecified number of hearings and delivered its judgment on 1 August 2007. It increased the award of non-pecuniary damages to BGN 100,000.
On 20 May 2008 the Supreme Court of Cassation upheld the judgment of the Court of Appeal.
The courts’ conclusion that the Ministry of Health was liable for the cost of the drugs the first applicant had purchased on the open market and for non-pecuniary damages was based on the following findings. On the basis of documentary evidence and the testimony of witnesses and experts, the courts found that the Ministry of Health, acting in breach of its duties under domestic law, had failed to organise in a timely manner certain public procurement tenders and, moreover, had purchased insufficient quantities of certain medicines, which had not covered the needs of all persons suffering from cancer in Bulgaria. Also, the distribution system had not been organised efficiently. The courts found that these unlawful omissions had resulted in interruptions in the first applicant’s treatment necessitating recourse to radiocastration, which had had the effect of irreversibly terminating her ovarian function and, moreover, had exposed her to harmful irradiation possibly causing tumours. The courts also found that as a result of the authorities’ inaction the first applicant’s chances of overcoming her illness had diminished and she had suffered pain and distress.
On the question of court fees, applying the SMRDA as in force at the relevant time, on conclusion of the proceedings the courts ordered the first applicant to pay court fees in the amount of BGN 23,880 (the equivalent of approximately EUR 12,245), as an automatic result of the fact that she had claimed BGN 398,500 (the equivalent of approximately EUR 204,360) in non-pecuniary damages and had only been awarded BGN 100,000 (the equivalent of approximately EUR 51,280).
3. Other developments
In August 2009 the applicant gave an interview to the press in which she stated, inter alia, that her health had improved significantly.
Referring to the same events, the first applicant also alleged violations of Articles 3 and 8 of the Convention, stating that the lack of understanding on the part of the State authorities for her problem and their attitude in general amounted to inhuman and degrading treatment and disclosed a failure to secure respect for her private life.
The first applicant stressed that her case was not isolated and referred to the case of another person who had died of cancer during the proceedings for damages she had brought against the State.
The first applicant also alleged violations of Articles 3 and 8 of the Convention, stating that the lack of understanding on the part of the State authorities for her problem and their attitude in general amounted to inhuman and degrading treatment and disclosed a failure to secure respect for her private life.
The relevant provisions of the Convention provide:
“Everyone’s right to life shall be protected by law... “
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. Everyone has the right to respect for his private ... life ...
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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court considers that the complaint concerning the length of the proceedings falls to be examined under Article 6 § 1 only and the complaint concerning the alleged lack of effective remedies in that respect – under Article 13.
It further considers that it cannot, on the basis of the case file, determine the admissibility of the above complaints under Articles 6 § 1 and 13 and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court considers that this complaint falls to be examined under Article 6 § 1 only.
It further considers that it cannot, on the basis of the case file, determine the admissibility of the above complaint under Article 6 § 1 and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the first applicant’s complaints concerning the State’s failure to secure uninterrupted supply of free life-saving medicines to her, the length of the proceedings for damages, the alleged lack of effective remedies in that respect and the allegedly excessive court fees;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen