CASE OF MARUSEVA v. RUSSIA
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1962 and lives in Smolensk. 7. The applicant’s 6 year old son, Sergey, suffered from a serious congenital heart disease. On 8 February 1995 he died during heart surgery in a State-owned clinic. The applicant requested the Smolensk town prosecutor’s office to investigate her son’s death. She suspected that he had died as a result of medical negligence. On several occasions the case was opened and then closed by the prosecutor’s office on the ground that no fault on the part of the doctors had been established. The conclusions of the investigative authorities relied, in particular, on the results of the forensic examination carried out after the death of Sergey Marusev. The applicant challenged the refusal to prosecute the doctors in court, but to no avail. On 12 February 1997 the Zadneprovskiy District Court of Smolensk (“the District Court”) upheld the prosecution’s decision to discontinue the criminal proceedings. That judgment was upheld by the Smolensk Regional Court on 11 March 1997. 8. On 23 August 1995 the applicant brought a civil action for negligence against Dr M., who had performed the operation, and Hospital no. 1 of Smolensk, in which the operation had been carried out (“the hospital”). She sought compensation for pecuniary and non-pecuniary damage. 9. On 23 December 1996 the District Court rejected her claim, holding that her son had died of natural causes. On 11 February 1997 that judgment was upheld by the Smolensk Regional Court. 10. On an unspecified date the applicant requested the Supreme Court of the Russian Federation to examine her case by way of supervisory review (see the “Relevant Domestic Law” part below). 11. On 23 February 1999 the Vice-President of the Supreme Court brought an extraordinary appeal (протест), pointing to numerous errors of fact and law in the lower courts’ decisions. On 18 March 1999 the Presidium of the Regional Court examined the case, allowed the extraordinary appeal and quashed the impugned judgments of 23 December 1996 and 11 February 1997. The case was remitted to the first-instance court. 12. According to the Government, on 21 March 1999 the District Court received the case file from the Supreme Court. The judge invited the parties to an informal preliminary meeting, which took place on 11 May 1999. The first hearing was held on 20 May 1999. The judge decided to summon additional witnesses and the case was adjourned to 8 July 1999. 13. On 9 July 1999 the District Court dismissed the applicant’s action, holding that the defendants could not be held responsible for the death of Sergey Marusev. On an appeal by the applicant, on 21 October 1999 the Regional Court quashed that judgment, pointing out that the first-instance court had failed to assess important medical aspects of the case. It also recommended that certain additional steps be taken. The case was remitted to the first-instance court. 14. On 17 November 1999 the District Court again dismissed the applicant’s action. On 28 December 1999 the Regional Court overruled the first-instance court and remitted the case to it for a fresh examination. The Regional Court noted that the first-instance court had failed to take certain procedural steps, breached procedural rules and failed to establish and analyse all the pertinent facts of the case. 15. On 19 January 2000 the District Court received the case file from the Regional Court. According to the Government, after having received the case file the judge tried to initiate a supervisory review of the decision of the Regional Court, but to no avail – on 30 March 2000 his request for supervisory review was rejected. 16. On 8 April 2000 the judge invited the parties to an informal preliminary meeting. The first hearing took place on 29 May 2000. On that date the judge decided that an additional forensic examination was needed to establish the cause of death of Sergey Marusev. He formulated eighteen questions to be answered by medical experts and transferred the documents from the case file to a clinic based in the Moscow Region. It took the court several months to obtain the results of that examination. 17. The next hearing was held on 21 December 2000. On that date the court decided to examine two more witnesses – Mr B., the director of the Scientific Centre of Cardiovascular Surgery of the Russian Academy of Sciences, and Mr P., his deputy. 18. On 11 January 2001 the District Court sent a rogatory letter to the Zamoskvoretskiy District Court of Moscow, requesting the questioning of those witnesses. The rogatory letter was received by the Zamoskvoretskiy District Court on 12 March 2001. Mr B. and Mr P. were summoned to the court but failed to appear. On several occasions the court bailiffs tried to reach them at their home and professional addresses, but to no avail. 19. In 2002 the applicant complained about the court’s inactivity to the Administration of the President of Russia and to the Federal Ombudsman’s Office. Her complaints were forwarded to the Moscow City Court. Finally, on 11 February 2002 the judge of the Zamoskvoretskiy District Court of Moscow questioned Mr B. and Mr P. and sent the transcript of their testimonies to the Zadneprovskiy District Court of Smolensk. It was received on 4 March 2002. 20. On 14 March 2002 the Zadneprovskiy District Court set the date for the next hearing at 15 May 2002. On 17 May 2002 it dismissed the applicant’s action against the hospital and doctor M. The applicant appealed. On 15 October 2002 the Regional Court quashed the first-instance judgment and remitted the case to the first-instance court. 21. On 26 December 2002 the District Court delivered a new judgment. This time the court found that there had been certain counter-indications to performing the surgery and that the hospital had not obtained the relevant medical information before the operation. The court concluded that the surgical team and the hospital had therefore been responsible for the death of the applicant’s son due to negligence and satisfied the applicant’s claims in part, awarding her 15,000 Russian roubles (“RUB”, approximately 457 euros) in compensation for non-pecuniary damage and 16,430 RUB ( 500 euros) for pecuniary damage. The court held that the above sums should be paid by the hospital, exonerating Doctor M. from any liability. The remaining part of the applicant’s claims (248,569 RUB in compensation for non-pecuniary damage) was rejected. 22. On 4 January 2003 the applicant appealed. By a decision of 11 March 2003 the Regional Court increased the award for non-pecuniary damage to 100,000 RUB. As regards compensation for pecuniary damage, the judgment of 26 December 2002 was quashed and the case remitted to the first-instance court. 23. On 25 April 2003 the District Court awarded the applicant RUB 6,304 for pecuniary damage. On 24 June 2003 that judgment was quashed by the Regional Court. 24. On 22 August 2003 the District Court examined the case again. It partly satisfied the applicant’s claims, awarding her RUB 43,984 in compensation for pecuniary damage. On 21 October 2003 that judgment was upheld by the Regional Court.