AS TO THE ADMISSIBILITY OF
by Valentina Aleksandrovna DATSER
The European Court of Human Rights (First Section), sitting on 14 May 2009 as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 10 November 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Valentina Aleksandrovna Datser, is a Russian national who was born in 2001 and lives in Biysk, Altay Region. The application is lodged on her behalf by her father, Mr Aleksandr Ervinovich Datser. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born to Ms Yelena Donova and Mr Aleksandr Datser, a Russian citizen of German ethnic origin. The applicant’s mother was HIV-positive; she also suffered from tuberculosis, hepatitis and a number of other diseases.
On 18 January 2001 the applicant was born in the Town Hospital no. 2. The birth was premature and the applicant suffered from serious health problems, in particular, respiratory troubles, a non-expanding lung, third-degree prenatal malnutrition, central nervous system affliction caused by oxygen deprivation in utero, foetal infection, conjugated jaundice and rickets. The mother chose not to put the father’s name on the birth certificate because the applicant was born out of wedlock and the father was serving a prison sentence at the time.
1. The applicant’s transfer into State care and subsequent placement in the Biysk Central Town Hospital
On 23 January 2001 the mother, being unable to perform parental duties, waived her parental authority in favour of the Biysk Town Council.
On the same day the applicant was transferred to the pathology ward for babies of the Town Hospital no. 2. On 24 January 2001 the applicant was diagnosed with cerebral oedema.
On 16 February 2001 the Biysk Town Council ordered the transfer of the applicant into State care and her placement in the Biysk Orphanage (Дом ребенка). However, the applicant remained in the Town Hospital no. 2. On 27 April 2001 she was transferred to the Biysk Central Town Hospital. She was kept in an isolation ward in the infectious diseases section of the hospital as a child born to an HIV positive mother.
According to the applicant’s father, the ward was overcrowded, the babies were underfed, they were not taken out for walks and did not have outdoor clothing, and sanitary requirements were not respected. He also alleged that the applicant’s health had deteriorated in the hospital and that her development was retarded. The applicant’s father submitted no documents to corroborate his allegations and it appears that he did not visit the applicant in the hospital.
According to the Government, in the Biysk Central Town Hospital the applicant was placed in a ward that measured 24 square metres with two other babies with similar diagnosis: prenatal contact with an HIV-positive mother. The ward corresponded to the requirements of the Ministry of Healthcare. It contained a bed for each baby, a cupboard, a nappy changing table, toys and baby care products. Babies were provided with both indoor and outdoor clothes. Crockery was provided individually for each baby. It was cleansed in compliance with sanitary requirements. The ward was washed two or three times every day with special products authorised for use in children’s hospitals. Thorough cleansing of the wards was conducted once in seven days. During this time the babies were placed in a different ward which had already been cleansed.
Nurses washed, dressed and bathed the babies and changed their linen on a daily basis. They took them out for walks in accordance with sanitary requirements and medical indications. Nurses also attended to the babies so they could develop various skills corresponding to their age, such as sitting up, walking or holding a spoon.
On being admitted to the Biysk Central Town Hospital the applicant was examined by an immunologist and a neuropathologist. She was diagnosed with prenatal damage to the nervous system of hypoxic genesis, pyramidal insufficiency, psychomotor and speech retardation, rickets and anaemia. She underwent HIV tests on 31 August and 2 October 2001 and 14 March and 8 August 2002, all of which were negative. She underwent blood tests on 10 August and 16 October 2001, 22 January and 22 April 2002 and a biochemical blood test on 3 October 2001. In the Biysk Central Town Hospital the applicant also underwent electrocardiogram and ultrasonic scanning of internal organs. She was also examined a number of times by otolaryngologists, ophthalmologists, surgeons, neuropathologists and dermatologists.
The applicant was examined daily by a doctor and permanently cared for by the ward’s nurse and a hospital attendant. The nurse fed the applicant six or seven times a day and carried out medical interventions prescribed by the doctor. All parenteral interventions were carried out using disposable instruments. The babies’ temperatures were taken daily.
The Government enclosed extracts from the applicant’s medical file and the Biysk Central Town Hospital’s internal documents to corroborate their submissions.
On 7 August 2002 the applicant was transferred from the Biysk Central Town Hospital to the Biysk Orphanage.
On 28 August and 2 September 2002 the applicant was examined by a paediatrician who stated, in particular, that her state of health was satisfactory, she was receiving sufficient nutrition, could walk independently, spoke in syllables and played with toys.
2. Proceedings concerning paternity rights
On 31 December 2001 the applicant’s mother died of tuberculosis. Some time later the applicant’s father was released from prison and returned to the town. He brought proceedings seeking the acknowledgement of his paternity vis-à-vis the applicant.
On 21 August 2002 the Vostochny District Court of Biysk established paternity on the part of the applicant’s father. On 17 September the Town Council ordered the applicant’s transfer to her father’s custody and the next day he took the applicant from the orphanage.
3. Proceedings concerning the applicant’s placement in the Biysk Central Town Hospital
On 27 November 2002 the father brought proceedings before the Vostochny District Court of Biysk on the applicant’s behalf against the social security office and the finance office of the Town Council, claiming non-pecuniary damages for the applicant’s allegedly unlawful placement in the Biysk Central Town Hospital. He maintained that, instead of having been transferred to a specialised institution, the Biysk Orphanage, his daughter had been kept for 600 days in the isolation ward of the hospital, as a result of which she had allegedly contracted conjugated jaundice, damage to the central nervous system, dystrophy, chicken pox and anaemia and her development was retarded. He claimed, on behalf of the applicant, 3,000,000 Russian roubles (RUB) in respect of non-pecuniary damage.
On an unspecified date the Vostochny District Court granted the applicant’s father’s request to order a medical expert examination of the applicant with the purpose of establishing a cause and effect relationship between the applicant’s placement in the hospital and her state of health. It was ordered at the father’s expense. However, he refused to pay for it, and the court proceeded with the case without conducting the examination.
On 26 February 2003 the Vostochny District Court dismissed the claim in full as unsubstantiated. The court established that the placement of the applicant in the hospital was lawful and served the interests of the child. The father appealed.
On 16 April 2003 the Altay Regional Court upheld the decision of 26 February 2003.
The courts at both instances examined the applicant’s father’s allegations that her placement at the Biysk Central Town Hospital was unlawful. They did not examine the allegations of inadequate conditions and treatment in the hospital since those had not been properly raised. The Altay Regional Court specifically noted in its decision of 16 April 2003 that the applicant’s father did not make a claim for damages against the Biysk Central Town Hospital, which remained open to him.
4. Other developments
On an unspecified date in 2002 the father wrote a letter to the regional office of the Federal Security Service seeking institution of criminal proceedings against various officials of the Town Council alleging that, while the applicant’s mother was pregnant with her, certain doctors or social workers had tried to persuade her to have an abortion.
On 25 November 2002 the Deputy Town Prosecutor decided not to open a criminal investigation in that respect. The applicant complained to a higher prosecutor about the refusal.
On 21 December 2002 the Prosecutor’s Office of the Altay Region informed the applicant’s father that his complaint was dismissed and the refusal to open criminal investigation was upheld. The applicant’s father did not appeal to a court.
The applicant’s father maintained that their family was constantly discriminated against on the ground of their German origin. In particular, the applicant had allegedly been denied free hospitalisation in the town hospital when she had bronchitis. Furthermore, a municipal official had allegedly shouted at them, suggesting that they should “pack themselves off to Germany”.
On 20 January 2003 the father applied to the Biysk Prosecutor’s Office seeking institution of a criminal investigation. He alleged that on 6 January 2003 a group of people, according to him, social security workers accompanied by a policeman, had come to his flat, had tried to abduct the applicant and had stolen 10,000 United States dollars.
On 23 January 2003 the complaint was transferred to the Biysk town police department.
On 6 February 2003 the police opened a criminal investigation into the alleged theft.
On 7 April 2003 the investigation was suspended for failure to identify the culprits.
The applicant’s father then complained to the Vostochny District Court that the Biysk Prosecutor’s Office had taken no action in connection with his allegations of trespassing and “attempted hostage taking”.
On 28 July 2003 the Vostochny District Court allowed the complaint. The decision was upheld by the Altay Regional Court on 4 September 2004.
On 20 October 2003 the Biysk Prosecutor’s Office refused to institute criminal proceedings into the allegation of trespassing and “attempted hostage taking”. The applicant’s father complained about the refusal to the Vostochny District Court.
On 2 December 2003 the Vostochny District Court dismissed the complaint and found the refusal to be lawful. The Altay Regional Court upheld the decision on 15 January 2004.
The decision to suspend the investigation into the alleged theft of 7 April 2003 was quashed on an unspecified date. However, the investigation was again suspended on 20 May 2005. The applicant’s father also tried unsuccessfully to institute several sets of criminal proceedings against police and prosecution officials involved in the investigation.
B. Relevant domestic law
Article 96 § 3 of the Code of Civil Procedure provides that a court or a justice of peace may exempt a party to the proceedings from payment of, inter alia, costs related to expert fees or reduce such costs, taking into account the party’s financial state.
A. Complaint under Article 3 of the Convention concerning the applicant’s placement in the Biysk Central Town Hospital and subsequent treatment
The applicant complained under Article 3 of the Convention about her placement in a hospital and not in an orphanage, allegedly poor conditions and lack of requisite medical assistance there. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
The Government submitted that in the Biysk Orphanage a specific ward had been created for placement of babies born to HIV-positive parents. Babies were to be placed there for the period pending medical tests to diagnose whether they had HIV or not and to determine their subsequent treatment. However, from 31 January to 28 June 2001 admittance of babies to the Biysk Orphanage was limited due to quarantine, because of an outbreak of chicken pox. Furthermore, according to the results of technical expert examination of the building completed in September 2001 a major overhaul of the premises of the special ward was required. For these reasons, and taking into account the applicant’s state of health, on 27 April 2001 she was transferred to the Biysk Central Town Hospital where she could be provided with due medical care.
In the Government’s view, the allegations that the applicant was not adequately treated in the Biysk Central Town Hospital were unsubstantiated. They pointed out that the applicant’s father had never visited her in the hospital and furnished no evidence to support his allegations. The Government provided detailed information concerning the conditions the applicant had been held in at the hospital and medical aid she had received. They further submitted that, according to the results of examinations by a paediatrician on 28 August and 2 September 2002, upon the applicant’s transfer from the hospital to the Biysk Orphanage she was in a satisfactory physical state and her development corresponded to her age. The illnesses the applicant suffered from upon her discharge from the hospital were congenital and, as well as her slight retardation in psychological development, were due to the applicant’s premature birth and intrauterine infection caused by the tuberculosis her mother had suffered from.
The Government also stressed that the applicant’s father had instituted proceedings on the applicant’s behalf against the social security office and the finance office of the Town Council concerning the fact of the applicant’s transfer to the Biysk Central Town Hospital and not to the Biysk Orphanage. However, he never brought proceedings against the Biysk Central Town Hospital in respect of allegedly inappropriate conditions in the hospital and lack of due medical care. Although the Altay Regional Court had expressly stated that it remained open to him to do so, he had never made such a claim. The Government therefore contended that the applicant had failed to exhaust effective domestic remedies in respect of the complaints concerning the conditions and medical care available to her in Biysk Central Town Hospital.
The applicant maintained that her transfer to the Biysk Central Town Hospital instead of the Biysk Orphanage had been unlawful since she had been healthy previously but on discharge from the hospital had been diagnosed with a number of serious illnesses.
2. The Court’s assessment
The Court observes firstly that the applicant was born with a number of serious congenital illnesses that required close medical supervision. It further notes that after the applicant’s mother had given up her parental rights, on 16 February 2001 the Biysk Town Council ordered the applicant’s transfer into State care and her placement in the Biysk Orphanage. The Biysk Orphanage had a special ward for providing babies born to HIV-positive parents with the required level of medical supervision. However, the applicant could not be placed there, since from 31 January to 28 June 2001 admittance of babies to the orphanage was limited due to the outbreak of chicken pox and later it was established that the ward required major overhaul. Consequently, for the term of the quarantine and then the overhaul the applicant was placed in the Biysk Central Town Hospital.
The Court notes that the applicant’s father brought proceedings on her behalf against the social security office and the finance office of the Town Council claiming that her transfer to the hospital and not to the orphanage had been unlawful and allegedly led to the deterioration of her health. It observes that domestic courts at two instances examined the claim and found that placement of the applicant in the hospital had been lawful and, in the circumstances, had served the applicant’s best interest. The Court has not been provided with any evidence that would enable it to depart from the findings of the domestic courts in this respect. As regards the allegation that the applicant had developed a number of serious illnesses because of her transfer to the hospital, from the materials of the case it follows that the illnesses were congenital and she had been diagnosed with them at birth. The applicant’s transfer to the hospital was effected precisely to provide her with adequate medical assistance in view of her state of health. As for the allegation that in the hospital the applicant had contracted chicken pox, no documents have been provided to the Court to corroborate that she had ever suffered from it.
Accordingly, the Court considers that this aspect of the complaint is unsubstantiated and does not give rise to any issues under Article 3 of the Convention.
The applicant further complained that in the Biysk Central Town Hospital she had been held in inadequate conditions and had not been provided with requisite medical care. The Government plead non-exhaustion in this respect.
The Court observes that in Buzychkin v. Russia, no. 68337/01, § 49, 14 October 2008, where the applicant complained about medical aid and general conditions of detention in a remand prison, it differentiated the two aspects of the complaint for the purpose of establishing whether the applicant was required to exhaust domestic remedies. It found that no effective remedies were available to the applicant as regards the general conditions of detention, since in previous cases that came before the Court it had found that the problem had been apparently of a structural nature and had concerned not only the applicant’s personal situation (see Buzychkin, cited above, § 49). At the same time it found that the applicant was required to exhaust domestic remedies in respect of his complaint concerning allegedly inadequate medical assistance, since it did not concern a structural problem but related to his personal situation (see Buzychkin, cited above, § 83).
The Court notes that the present case does not concern a detention facility but a civilian hospital. It has no materials to suggest the existence of a structural problem as regards general hospital conditions. Furthermore, the complaint concerns conditions and medical treatment available in a given hospital ward in specific circumstances and thus clearly relates to a particular personal situation. Accordingly, the Court sees no reason to differentiate the two aspects of the complaint. Therefore, the Court finds that the applicant was required to have recourse to effective domestic remedies.
The Court reiterates that in Buzychkin, cited above, § 83, it found that where the application was lodged after the applicant had left the institution in respect of which the complaint of inadequate medical care was made, a civil claim for damages was a remedy capable of providing redress in respect of his complaint and offering reasonable prospects of success.
The present application was lodged before the Court several months after the applicant had been discharged from the Biysk Central Town Hospital. However, no claim for damages caused by allegedly inadequate conditions and medical assistance was brought against the hospital even though domestic courts expressly indicated to the applicant’s father that this avenue was open. As far as the proceedings brought by the applicant’s father on her behalf against the local authorities with respect to the fact of her transfer to the hospital are concerned, the Court considers that they did not constitute an effective domestic remedy in respect of this aspect of the complaint.
Therefore, the Court finds that the applicant failed to exhaust effective domestic remedies in respect of the complaint concerning allegedly inadequate conditions and medical assistance in the Biysk Central Town Hospital.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
B. Complaint under Article 13 of the Convention concerning the availability of effective domestic remedies in respect of the complaint under Article 3 of the Convention
The applicant complained that she had had no effective domestic remedies in respect of her complaint under Article 3 of the Convention about her placement in the Biysk Central Town Hospital and subsequent treatment.
The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order, where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
The Court notes that it has declared the applicant’s complaint under Article 3 of the Convention inadmissible. Accordingly, the applicant did not have an “arguable claim” of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable to this part of the application. It follows that the complaint under Article 13 must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 6 of the Convention concerning the failure to conduct an expert examination
The applicant complained under Article 6 of the Convention that in the proceedings against the local authorities the court ordered a medical expert examination at her father’s expense and, since he was unable to pay for it, no examination was conducted.
Article 6 reads, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government submitted that under Article 96 § 3 of the Code of Civil Procedure the applicant’s father could have requested either exemption from payment of the costs related to the expert examination or reduction of the costs which he failed to do. Accordingly, he did not exhaust available domestic remedies.
The applicant maintained that the domestic courts’ failure to conduct the examination free of charge had violated her right to access to a court.
The Court observes that under Article 96 § 3 of the Code of Civil Procedure it was open to the applicant’s father to seek either exemption from payment of the expert fees or reduction of the costs. However, he did not apply to the domestic court with such a request. Accordingly, the Court finds that the applicant failed to exhaust domestic remedies.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
D. Other alleged violations of the Convention
The applicant complained under Article 2 of the Convention that the authorities had allegedly tried to force her mother to discontinue the pregnancy. Relying on Article 14 of the Convention she further alleged that she had been discriminated against on the ground of her ethnic origin. The applicant also complained that investigation into the allegations of theft and trespassing did not result in a trial.
The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols other then those examined above. Accordingly, these complaints must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis