DATSER v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
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. 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. 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 HIVpositive 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. 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. 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. 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. 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.