CASE OF VALERIY FUKLEV v. UKRAINE
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1951 and lives in Nova Kakhovka. 6. On 4 July 2001 the applicant’s wife, Mrs Yelena Fukleva, was admitted to the gynaecological ward of the Kherson Regional Clinical Hospital (Херсонська обласна клінична лікарня – “the hospital”) with metrofibroma. An operation was scheduled for 5 July 2001. According to the medical file, she signed a written consent to undergo the operation. On that date she underwent an unsuccessful intubation of the trachea for the purpose of anesthetisation. The operation was therefore postponed to 9 July 2001. The applicant’s wife was discharged until that date. 7. On 9 July 2001 the applicant’s wife underwent an operation for metrofibroma in the hospital. According to the medical file, she signed a written consent to undergo that operation. 8. After the operation her condition started to deteriorate rapidly. 9. On 15 July 2001 a panel of doctors found that the applicant’s wife was suffering from post-operative peritonitis. Although she was then treated for peritonitis, she died of peritonitis and sepsis on 18 July 2001. 10. An autopsy was carried out shortly after her death and confirmed that Mrs Fukleva had died of post-operative peritonitis complicated by sepsis. 11. Following the incident, the local health-care authorities set up a commission consisting of three members to investigate the quality of the medical treatment provided to the applicant’s wife by the hospital. Having examined the case, the commission found that the medical staff had committed no errors which could have aggravated the patient’s state of health or accelerated her death. The commission concluded that the patient’s death had not been caused by the medical staff. 12. On 8 August 2001 the hospital commission examined the case and found that the surgical treatment had been carried out correctly; that post-surgical treatment had been fully provided to the patient; and that, despite appropriate treatment, the fatal outcome had been inevitable. 13. Following a complaint by the applicant, on 7 September 2001 the Ministry of Health set up a commission to investigate the adequacy of Mrs Fukleva’s treatment at the hospital. 14. The ministerial commission found that (i) the applicant’s wife had not been properly prepared for the planned operation and had been operated on urgently on 9 July 2001; (ii) the antibacterial and infusion treatment for the peritonitis and sepsis had been insufficient; (iii) the peritonitis had developed due to the decline of the patient’s immune system; and (iv) the difficulties in the early diagnosis of the peritonitis had been caused by the vague clinical symptomatology (namely, subdiaphragmatic and subhepatic abscesses) and, as a result, a relaparotomy had been conducted only on the sixth day. 15. On 24 September 2001 the Health Department of the Kherson Region State Administration (“the Health Department”), having regard to the conclusions of the ministerial commission, ordered that (i) an inspection of the gynaecological ward of the hospital be carried out; (ii) the obstetrician-gynaecologist S. undergo training on the medical treatment for sepsis in obstetrics and gynaecology; and (iii) the case of the applicant’s wife be discussed at the meeting of the regional association of obstetrician-gynaecologists. 16. In a letter of 8 October 2001 the Ministry of Health recommended to the Health Department that it consider disciplinary measures in respect of the doctors involved in the treatment of the applicant’s wife, and advised an early reassessment of the doctors by the qualification commission as to their suitability for the categories that had been granted to them. The Ministry noted that the ministerial commission had found substantial errors in the treatment of the applicant’s wife. The Ministry specified that the death of the applicant’s wife had been caused by the aftereffects of the operation performed on 9 July 2001 in the hospital; the medical file suggested that on 5 July 2001 the patient had not undergone the necessary supplementary examinations and had not been provided with antianaemic treatment; after the unsuccessful anesthetisation procedure on 5 July 2001 the patient had been discharged from the hospital, a measure that had been contraindicated; on 9 July 2001 the patient had been operated upon without having been tested for the most important indicators of homeostasis and correction of anaemic status; the peritonitis had been diagnosed and treated too late; and during the post-operative period the antibacterial and infusion therapy had been insufficient and the antianaemic treatment miserable. The Ministry concluded that the medical treatment afforded to the applicant’s wife had been unsatisfactory. 17. On 30 October 2001 the Health Department informed the Ministry of Health that a thorough inspection of the gynaecological ward of the hospital had been carried out and that it had not revealed any substantial deficiencies in the functioning of the ward. However, the head of the ward had been reprimanded. As to the doctors who had treated the applicant’s wife, it was noted that they would be sent for an extraordinary assessment by the qualification commission. The Health Department further noted that the doctor who had been in charge of the applicant’s wife had resigned of his own volition. 18. On 30 November 2001 the Health Department informed the applicant that the circumstances of his wife’s death had been investigated by the health-care institutions and that it had not been found that his wife had been provided with inappropriate medical treatment. 19. On 27 July 2001 the Suvorivsky District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) decided not to institute criminal proceedings, finding, in the light of the results of the autopsy and the medical specialists’ opinions, that there had been no element of criminal negligence in the conduct of the medical staff. 20. On 1 August 2001, at the applicant’s request, the Kherson Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed that decision as unfounded and ordered further pre-investigation enquiries. 21. On 22 August 2001 the District Prosecutor’s Office decided not to institute criminal proceedings, finding that the death of the applicant’s wife had not resulted from the actions of the medical staff. 22. On 18 September 2001 the Regional Prosecutor’s Office, at the applicant’s request, quashed the decision of 22 August 2001 on the ground that the pre-investigation enquiries had been inadequate. It noted in particular that the file did not contain any final conclusions with regard to the cause of the applicant’s wife’s death, the reasons for the development of the peritonitis or the adequacy of the medical treatment. The Regional Prosecutor’s Office further noted that the impugned decision had been based essentially on the statements of the medical staff whose actions had been complained of, while the other specialists, as well as the applicant and his relatives, had not been questioned. It therefore instituted criminal proceedings for medical malpractice and remitted the case to the District Prosecutor’s Office for the investigation. 23. On 24 September 2001 the investigator ordered a forensic expert opinion on the quality of the medical treatment provided to the applicant’s wife. In reply, the Bureau of Forensic Medical Examinations at the Mykolayiv Regional Health Department provided a report suggesting that the applicant’s wife had been properly treated in the hospital. 24. On 1 October 2001 the applicant was granted the status of victim in the criminal proceedings. 25. On 3 January 2002 the District Prosecutor’s Office, having obtained further evidence, decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. The applicant challenged that decision in court. 26. On 31 January 2002 the Suvorovsky District Court of Kherson (“the District Court”) quashed the decision of 3 January 2002 as unfounded and ordered a further investigation. The District Court noted that it was necessary to investigate allegations of forgery in respect of the medical file and, in particular, in relation to the signature of the applicant’s wife indicating her consent to the operation of 9 July 2001. It also found it necessary to question witnesses, and to take other measures. 27. On 26 March 2002 the Kherson Regional Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision of 31 January 2002 as unfounded and remitted the case to the District Court for fresh consideration. 28. On 28 August 2002 the District Court upheld the decision of 3 January 2002 discontinuing the criminal investigation. It considered that the District Prosecutor’s decision was well founded and supported by the available evidence. The applicant appealed. 29. On 12 November 2002 the Court of Appeal upheld the decision of 28 August 2002. The applicant appealed on points of law to the Supreme Court. 30. On 19 December 2002 the Supreme Court dismissed the applicant’s appeal as inadmissible. 31. On 11 March 2003, following a complaint by the applicant, the General Prosecutor’s Office quashed the District Prosecutor’s decision of 3 January 2002 and ordered a further investigation, noting that additional measures had to be taken in order to determine all the relevant circumstances in the case. In particular, it had to be determined whether or not the signatures of the applicant’s wife had been forged in her medical file, certain pieces of evidence had to be enclosed in the investigation file, and contradictions in the medical evidence had to be resolved. 32. On 29 October 2003 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued a report concluding, inter alia, that the applicant’s wife had been properly and fully diagnosed in the gynaecological ward of the hospital; it had been necessary to operate on the applicant’s wife; however, she should have undergone supplementary examinations and measures to control the bleeding should have been taken; the correct surgical method had been chosen and the operation had been conducted correctly. According to the report, the death of the applicant’s wife had been caused by several factors: (i) a weak immune system which had led to the development of post-operative peritonitis; (ii) the failure by the gynaecologists to use all possible means to control the bleeding without resorting to urgent surgical intervention; and (iii) belated treatment for the peritonitis. It was specified that if the peritonitis had been diagnosed and treated in time it was possible that the patient’s life would have been saved. 33. On 3 January 2004 the investigator ordered an additional forensic medical examination, finding that the report of 29 October 2003 was incomplete and contradictory. 34. On 31 March 2005 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued another report concluding, inter alia, that the applicant’s wife’s death had been caused by several factors, including the gravity of the pathology, the patient’s obesity, which had diminished her immunity and contributed to the development of post-operative complications, and the shortcomings in the medical treatment of the patient. It concluded that there was an “indirect relationship” between the shortcomings in the medical treatment in the gynaecological ward of the hospital and the death of the patient. 35. On 11 July 2005 the senior investigator of the Regional Prosecutor’s Office discontinued the criminal proceedings for lack of corpus delicti in the conduct of the medical staff. He found that the death of the applicant’s wife had been caused by the cumulative effect of several factors and it could not be argued that there was a direct relationship between the shortcomings in the medical treatment and the fatal outcome. 36. On 5 August 2005 the Deputy Prosecutor of the Kherson Region quashed the decision of 11 July 2005 as unfounded and ordered a further investigation. He specified that additional measures were necessary to investigate the cause of the applicant’s wife’s death and the alleged forgery of her signatures in the medical file. 37. In the course of the subsequent proceedings, the investigator ordered further expert inquiries on various aspects of the treatment of applicant’s wife. Apart from these issues, the experts concluded that the signatures in the medical file were indeed those of the applicant’s wife. 38. On 11 October 2007 the Regional Prosecutor’s Office decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. On the basis of the expert examination reports and other evidence, the investigator found that the death of the applicant’s wife had been caused by the cumulative effect of several factors, including shortcomings in the medical treatment in the gynaecological ward of the hospital; however, there was no direct causal link between those shortcomings and the death of the patient. 39. At the material time the applicant owned a shop in Nova Kakhovka. 40. On 2 October 2003 a tax police squad visited the applicant’s shop in order to carry out an unscheduled inspection due to the applicant’s alleged failure to submit tax returns. 41. The inspection was not conducted, as the applicant, his relatives and his employees prevented the officers from accessing the store’s tax records. It led to a fracas. 42. As was later established by the investigation, at some point the applicant switched off the light and one of the employees screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. The applicant tried to prevent K. from leaving and jumped on the bonnet of the car, then broke a side window and tried to pull officer K. out of the car. 43. According to the applicant, during the incident he was injured by the officers. 44. On 3 October 2003 the applicant lodged a complaint with the law-enforcement authorities, arguing that on 2 October 2003 he had been ill-treated by the tax police. 45. On the same day the applicant was examined by a doctor, who documented injuries on the applicant’s forearm and lip. 46. On 15 October 2003 a forensic medical expert, relying on the results of the medical examination of 3 October 2003, reported that the applicant had sustained numerous scratches to the right forearm and a bruise to the lower lip. The expert classified the injuries as light and stated that they could have been sustained on 2 October 2003. 47. On 27 October 2003 the investigator of Nova Kakhovka Prosecutor’s Office (“the Town Prosecutor’s Office”) decided not to open criminal proceedings against the officers as their conduct did not disclose any elements of a criminal offence. He found that the scratches on the applicant’s forearm had been caused by the applicant himself, when he had attempted to pull the officer out of the car through the broken window. Similarly, the bruise on his lip could have been caused by the applicant himself at any time during the incident, including the moment when he had jumped on or off the car or broken the window. No evidence had been found which suggested that the bruise had been inflicted by the officers. 48. On 11 February 2004, at the applicant’s request, the Regional Prosecutor’s Office quashed the decision of 27 October 2003, finding that further enquiries were necessary. In particular, the Regional Prosecutor’s Office instructed the investigator to question the applicant and officer K. 49. Subsequently, in the course of additional enquiries on 4 March, 7 June, 4 and 30 December 2004 and 16 December 2005, the investigator of the Town Prosecutor’s Office decided not to institute criminal proceedings for similar reasons to those set out in the decision of 27 October 2003. Those decisions were quashed by the supervising authorities and additional measures were ordered. 50. On 2 February 2006 the Deputy Prosecutor of Nova Kakhovka refused to open criminal proceedings against the officers, finding that their conduct disclosed no elements of a criminal offence. On the basis of the additional evidence gathered, he gave similar reasons for that decision to those set out in the decision of 27 October 2003.