FIFTH SECTION
DECISION
Application no. 45076/05
by Lyubov Nikolayevna ARSKAYA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 4 October 2011 as a Chamber composed of:
	Dean Spielmann, President,
	Elisabet Fura,
	Karel Jungwiert,
	Boštjan M. Zupančič,
	Isabelle Berro-Lefèvre,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 17 October 2005,
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 FACTS
The applicant, Ms Lyubov Nikolayevna Arskaya, is a Ukrainian and Russian national who was born in 1937 and lives in Simferopol. The applicant was initially represented before the Court by Mr K. Sizarev, a lawyer practising in Yevpatoriya. On 12 August 2011 she was granted leave to present her own case. The Ukrainian Government (“the Government”) are represented by their Agent, Ms V. Lutkovska. By the letter of 24 January 2011 the Government of the Russian Federation informed the Court that at this stage they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings concerning the present application.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events of March and April 2001
At the time of the events the applicant’s son, S., was forty-two years old.
S. had caught a cold and became ill during the night of 18-19 March 2001.
On 22 March 2001 he was taken by ambulance to the Simferopol Anti-Tuberculosis Clinic (“the hospital”) and hospitalised with the following diagnosis: left-sided pneumonia; tuberculosis of the left lung; haemoptysis; and pulmonary insufficiency. S. was prescribed intramuscular and intravenous injections.
On 23 March 2001 S. was X-rayed. He was further invited to undergo a bronchoscopy, which would allow a specific diagnosis to be achieved and localise the source of bleeding he was suffering. S. refused. On the same date the applicant was informed of the need to buy medicine for S.
On 26 March 2001 S. was X-rayed and again offered a bronchoscopy. He refused to undergo the procedure. The doctors assessed S.’s condition as serious. The applicant was again informed of the need to buy medicine for S.
On 27 March 2001 S. remained in a serious condition. He refused to be examined by a psychiatrist.
On 28 March 2001 S. was diagnosed with an acute abscess on the left lung. He again refused to undergo a bronchoscopy. On the same date he was taken to the thoracic surgery department of the hospital for a radioscopy and examination. He refused to undergo the radioscopy and left the surgical department of the hospital.
On 29 March 2001 S.’s condition was assessed as extremely serious. He refused all medical treatment, including surgical interventions.
On 30 March 2001 the doctors noted that S. was in a serious condition and was refusing to accept intramuscular and intravenous injections. The doctors explained to the applicant that S. required an examination and surgical treatment.
On the same date S. was examined by a psychiatrist and diagnosed with a paranoid disorder.
Between 31 March and 3 April 2001 S. remained in an extremely serious condition and continued to refuse intramuscular injections.
On 3 April 2001 he was still suffering from an acute abscess on the left lung. At 3 p.m. that day his condition was again assessed as extremely serious. At 11.45 p.m. S. died.
The case file contains one written refusal from treatment of 29 March 2001 signed by the applicant’s son. The document does not specify whether the applicant’s son had been explained of the consequences of the refusal and whether his mental ability to take such decisions had been established.
2. Official investigations into the doctors’ alleged malpractice
On 12 July 2001 an internal disciplinary inquiry into the incident was held. It found that S. had died as a result of intoxication and increasing respiratory and cardiovascular insufficiency caused by an acute abscess on the left lung. In the board of inquiry’s opinion, S. had only asked for medical aid belatedly, when he had already been very seriously ill. The inquiry found the following shortcomings on the part of the doctors: on 22 March 2001 a medical treatment plan had not been drawn up; on 23 March 2001 X-ray images had been interpreted wrongly; on 24 and 25 March 2001 S. had not been sufficiently supervised; and on 26 March 2001 S. should have been examined by a resuscitation specialist and provided with specialised intensive therapy. The board also noted that S. had repeatedly refused the treatment which was offered.
On 13 July 2001 the Deputy Minister of Health for the Autonomous Republic of Crimea responded to the applicant and acknowledged that between 22 and 25 March 2001 the medical staff had not taken appropriate organisational and therapeutic measures in respect of S. In particular, on 26 March 2001 he should have been transferred to the resuscitation department for further treatment, but this had not been done. A number of doctors had been disciplined on this account.
The applicant complained to the local prosecutor’s office on account of alleged malpractice by the medical staff.
On 16 January 2002 the Kyivskyy District Prosecutor’s Office made a submission to the local court that one of the doctors, Ch., not be prosecuted, in view of the Amnesty Act.
On 17 April 2002 the local court endorsed that submission. The applicant appealed.
On 13 August 2002 the court of appeal quashed the decision of 17 April 2002. It noted that: the local court had failed to determine the precise reason for the death of the applicant’s son; it had not paid attention to section 43 § 2 of the Health Protection Standards Act 1992 (see “Relevant domestic law” below) stating that a patient’s refusal of medical treatment could not be a valid excuse for failure to provide such treatment in urgent situations where the patient’s life is subjected to real risk; the behaviour of the rest of the medical staff had not been examined. The court of appeal requested additional inquiry by the prosecutor’s office.
On 21 May 2003 the local prosecutor’s office commenced a criminal investigation into the alleged malpractice by the medical staff. A forensic examination was ordered in the case.
On 30 March 2004 the experts issued their report, which mostly repeated the conclusions that the board of internal inquiry made on 12 July 2001.
On 6 May 2005 the local prosecutor’s office found that S.’s death had been caused by a serious chronic lung disease, which had required proper surgical intervention. This had been offered to S. but he had refused it several times. The refusal of treatment had aggravated his condition and had resulted in his death. It followed that there had been no causal link between the doctors’ behaviour and S.’s death. The prosecutor’s office therefore terminated the proceedings in the case. The applicant challenged that decision before the supervising prosecutor’s office.
On 18 October 2005 the Prosecutor for the Autonomous Republic of Crimea informed the applicant that the decision of 6 May 2005 had been quashed as unfounded and that he had remitted the case for additional investigation.
On 3 April 2006 the local prosecutor’s office, having conducted an additional investigation, found that S. had died as a result of a serious chronic lung disease which had required proper surgical intervention. This had been repeatedly refused by S., which had aggravated his condition and had caused his death. In such circumstances, there had been no causal link between the doctors’ behaviour and S.’s death. The proceedings in the case were therefore terminated. The applicant challenged that decision before the supervising prosecutor’s office.
On 2 October 2006 the Prosecutor for the Autonomous Republic of Crimea informed the applicant that the decision of 3 April 2006 had been quashed, as the investigation held had not been thorough or comprehensive.
In November 2006 the Deputy Minister of Health for the Autonomous Republic of Crimea informed the local prosecutor’s office that the X-ray images of S. made on 23 and 26 March 2001 and requested by the prosecutor’s office could not be found. He noted that the retention period for such files had expired in 2004.
On 28 December 2006 the local prosecutor’s office terminated the criminal proceedings in the case for the reason that no causal link had been identified between the doctors’ conduct and S.’s death.
On 22 March 2007 the Prosecutor for the Autonomous Republic of Crimea informed the applicant that her requests to examine the materials of the case file could not be met, as under domestic law she had no such right.
On 17 May 2007 the General Prosecutor’s Office quashed the decision of 28 December 2006 for the reason that the investigation had been incomplete.
On 2 July 2007 the Ministry of Health for the Autonomous Republic of Crimea informed the applicant that in 2001 S.’s X-ray images had been transferred to the prosecutor’s office.
On 12 July 2007 the local prosecutor’s office terminated the criminal proceedings in the case for the reason that there had been no corpus delicti in the conduct of the medical staff.
On 1 August 2007 the General Prosecutor’s Office quashed the decision of 12 July 2007 as unfounded and ordered a further investigation.
On 1 September 2007 a post-mortem forensic psychiatric assessment was carried out. The experts concluded that while on 30 March 2001 S. had been diagnosed with a paranoid disorder, in the period between 30 March and 3 April 2001 his mind had been clear and he had been able to understand the consequences of his actions. The refusal of treatment had not been caused by S.’s mental illness.
On 4 October 2007 the local prosecutor’s office terminated the criminal proceedings in the case for the reason that there had been no corpus delicti in the conduct of the medical staff.
On 7 November 2007 the General Prosecutor’s Office quashed the decision of 4 October 2007 as unfounded and ordered further investigation.
Between January and April 2008 an additional forensic examination was held. On 18 April 2008 the experts issued their report, stating that S. had been diagnosed correctly and that he had been examined and treated appropriately by the medical staff. No violations of law in providing medical aid to S. could be found. The death of S. had been caused by the seriousness of his chronic lung disease and by his repeated refusal of proper surgical treatment, such as abscess cavity drainage and tracheal intubation. If S. had agreed to surgical treatment the outcome might have been favourable.
On 8 July 2008 the case was transferred to the local police for further investigation.
On 13 August 2008 the local police investigator, referring, inter alia, to the latest medical expert report, found that there had been no causal link between the conduct of the medical staff and S.’s death. He therefore terminated the criminal proceedings for lack of corpus delicti in the actions of the medical staff.
The applicant challenged that decision before the supervising prosecutors’ offices.
On 30 September 2008 the Deputy Prosecutor General informed the applicant that the decision of 13 August 2008 was lawful and substantiated.
B.  Relevant domestic law
1. Criminal Code of 28 December 1960 (in force at the material time)
Article 113 of the Code provided as follows:
“A failure to provide assistance to an ill person without a valid reason by a medical practitioner, who, according to the established rules, was obliged to provide such assistance, if such a failure could result in serious consequences for the ill person and the medical practitioner was aware of that [risk], shall be punishable by correctional work for up to two years or by public reprimand.
The same conduct, if it resulted in serious consequences, shall be punishable by imprisonment for up to three years.”
2. Code of Criminal Procedure of 28 December 1960
Article 4 of the Code provides that a court, prosecutor, investigator or 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.
According to Article 28 of the Code, a person who has sustained damage as a result of a crime can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant within criminal proceedings shall be exempt from the court fee for lodging a civil claim.
3. Codes of Civil Procedure
Article 221 of the Code of Civil Procedure of 18 July 1963 (in force until 1 September 2005) provided, inter alia, that a court was obliged to suspend its examination of a civil case if that case could not be examined prior to the outcome of other pending criminal proceedings.
The Code of Civil Procedure of 18 March 2004 (in force as of 1 September 2005) established the same obligation in its Article 201.
4. The Law “On the Fundamentals of Health Protection Legislation” of 19 November 1992 (“the Health Protection Standards Act 1992”) (as worded at the relevant time)
Section 39. The obligation to provide medical information
“A doctor shall be obliged to explain to a patient, in an understandable manner, the state of his health, the purpose of [any] proposed examinations and medical treatment, and the prognosis for the possible development of his or her illness, including any risk to life and health.
The patient shall be entitled to familiarise himself with the illness history and other documents which may be of use for his or her further treatment.
The doctor may restrict access to the patient’s medical information if such access could be detrimental to the patient’s health. In that case, the doctor, taking into account the patient’s personal interests, shall inform the members of the patient’s family or the patient’s legal representative accordingly. The doctor shall act in the same way when the patient is unconscious.”
Section 43. Consent to medical intervention
“Diagnostic and preventive measures and medical treatment shall be carried out with the consent of the patient, who shall have been provided with the information required in accordance with section 39 of this Act. Medical intervention with respect to patients who are under the age of fifteen and patients recognised as incapable shall be carried out with the consent of their legal representatives.
In urgent situations when there is a real risk to the patient’s life, the consent of the patient or his legal representative to medical treatment shall not be required.
If a patient’s refusal of medical treatment may result in serious consequences for him, the doctor shall be obliged to explain this to the patient. If the patient continues to refuse the treatment, the doctor shall be entitled to insist on written confirmation of the refusal by the patient, and if it is impossible to obtain that confirmation the doctor shall be entitled to attest to the patient’s refusal in writing in the presence of witnesses. ...”
C. Relevant international material
1. Universal Declaration on Bioethics and Human Rights (adopted by UNESCO’s General Conference on 19 October 2005)
The relevant extracts of the declaration provide as follows:
Article 6 – Consent
“1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice. ...”
Article 7 – Persons without the capacity to consent
“In accordance with domestic law, special protection is to be given to persons who do not have the capacity to consent:
(a) authorization for research and medical practice should be obtained in accordance with the best interest of the person concerned and in accordance with domestic law. However, the person concerned should be involved to the greatest extent possible in the decision-making process of consent, as well as that of withdrawing consent; ...”
2. The WHO Declaration on the Promotion of Patients’ Rights in Europe (28 - 30 March 1994)
The relevant extracts of the declaration provide as follows:
“3. Consent
3.1 The informed consent of the patient is a prerequisite for any medical intervention.
3.2 A patient has the right to refuse or to halt a medical intervention. The implications of refusing or halting such an intervention must be carefully explained to the patient.
3.3 When a patient is unable to express his or her will and a medical intervention is urgently needed, the consent of the patient may be presumed, unless it is obvious from a previous declared expression of will that consent would be refused in the situation.
3.4 When the consent of a legal representative is required and the proposed intervention is urgently needed, that intervention may be made if it is not possible to obtain, in time, the representative’s consent.
3.5 When the consent of a legal representative is required, patients (whether minor or adult) must nevertheless be involved in the decision-making process to the fullest extent which their capacity allows.
3.6 If a legal representative refuses to give consent and the physician or other provider is of the opinion that the intervention is in the interest of the patient, then the decision must be referred to a court or some form of arbitration.
3.7 In all other situations where the patient is unable to give informed consent and where there is no legal representative or representative designated by the patient for this purpose, appropriate measures should be taken to provide for a substitute decision making process, taking into account what is known and,, to the greatest extent possible, what may be presumed about the wishes of the patient
3.8 The consent of the patient is required for the preservation and use of all substances of the human body. Consent may be presumed when the substances are to be used in the current course of diagnosis, treatment and care of that patient. ...”
3. The Council of Europe Convention for the protection of Human Rights and dignity of the human being with regard to the application of biology and medicine: Convention on Human Rights and Biomedicine (4 April 1997)
The relevant extracts of the Convention provide as follows:
Chapter II – Consent
Article 5 – General rule
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.”
Article 6 –	Protection of persons not able to consent
“1.  Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.
2.  Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.
3.  Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The individual concerned shall as far as possible take part in the authorisation procedure.
4.  The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.
5.  The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”
Article 7 –	Protection of persons who have a mental disorder
“Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.”
Article 8 –	Emergency situation
“When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”
Article 9 –	Previously expressed wishes
“The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”
COMPLAINTS	
The applicant complained under Article 2 of the Convention that the medical staff of the hospital had failed to provide appropriate and urgent medical treatment to her son, which had resulted in his death. She further complained under Articles 6 and 7 of the Convention that the domestic authorities had not carried out an effective investigation into the death of her son.
THE LAW
The applicant complained that her son had died due to a lack of adequate medical treatment and that there had been no effective investigation into the circumstances in which he had died. She relied on Articles 2, 6 and 7 of the Convention.
The Court decided to examine the complaints exclusively under Article 2 of the Convention, which provides, in as much as relevant, as follows:
“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”
1. Arguments of the parties
The Government submitted that the applicant had not exhausted domestic remedies as regards her complaint concerning the ineffectiveness of the investigation. In particular, the applicant had failed to challenge the investigator’s decision of 13 August 2008 before the courts. Moreover, she had failed to lodge a separate civil claim seeking compensation for the alleged medical negligence in respect of her son. In any event, the measures taken by the investigative authorities had been appropriate and sufficient to comply with the procedural requirements of Article 2 of the Convention.
They further insisted that all other necessary steps had been taken to protect the applicant’s son’s life. They specified that domestic law had offered an appropriate legal framework concerning the provision of medical information to patients, documentation of a refusal to undergo medical treatment, and cases in which such refusal had no binding effect on medical staff.
The applicant disagreed. As regards the procedural limb of Article 2, she claimed she had no longer been obliged to pursue the investigation and, in particular, to challenge the investigator’s decision of 13 August 2008, as the investigation had proved to be ineffective. A separate civil claim had not been appropriate.
She further contended that her son’s life had not been properly protected from wrongdoing on the part of the medical staff.
2. The Court’s assessment
The Court considers that the question of whether the applicant has complied with the rule of exhaustion of domestic remedies is closely linked to the merits of her application. The Government’s objections in this respect should therefore be joined to the merits of the application and reserved for later consideration.
In light of the parties’ submissions, the Court considers that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
For these reasons, the Court unanimously
Joins to the merits the Government’s objections relating to the exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
	Claudia Westerdiek	Dean Spielmann	Registrar	President