FIFTH SECTION

CASE OF MARCHUK v. UKRAINE

(Application no. 65663/12)

JUDGMENT

STRASBOURG
28 July 2016

This judgment is final but it may be subject to editorial revision.

MARCHUK v. UKRAINE JUDGMENT

In the case of Marchuk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Erik Mse, President,
Yonko Grozev,
Mrti Mits, judges,
and Milan Blako, Deputy Section Registrar,
Having deliberated in private on 5 July 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 65663/12) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Ukrainian national, Mr Andriy Vasylyovych Marchuk (the applicant), on
3 October 2012.
2. The applicant was represented by Ms G. Artyushenko, a lawyer
practising in Kovel. The Ukrainian Government (the Government) were
represented by their Agent.
3. On 18 December 2014 the complaints under Articles 2, 6 and 13 of
the Convention concerning the effectiveness of the domestic criminal and
civil proceedings in relation to the death of the applicants daughter were
communicated to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 3 of the Rules of Court.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1969 and lives in Kovel.
5. At about 1.30 p.m. on 27 August 2003 the applicants daughter (two
years old at that time) was admitted in a critical condition to the infectious
diseases ward of the Kovel City Hospital. She was diagnosed with acute
enterocolitis with concomitant illnesses. At 3.45 p.m. her condition
aggravated, and acrocyanosis of the lips and nose were noted. At 4 p.m. the
resuscitation specialists performed artificial pulmonary ventilation and
cardiac massage. At 5.40 p.m. the doctors stated that the applicants
daughter had died.

MARCHUK v. UKRAINE JUDGMENT

A. Criminal proceedings
6. On 9 September 2003 the applicant complained to the Kovel
inter-district prosecutors office (the prosecutors office) about the death
of his daughter in hospital.
7. On 19 September 2003 the prosecutors office, having conducted a
pre-investigation inquiry, decided not to institute criminal proceedings
against the doctors of the hospital for lack of corpus delicti. The next day
that decision was quashed by the supervising prosecutor and further inquiry
was ordered.
8. On 10 October 2003 the prosecutors office instituted criminal
proceedings to investigate the allegations of medical negligence and failure
to ensure the right of the applicants daughter to free medical aid.
9. On 16 June 2004 a panel of forensic medical experts found, inter alia,
that the resuscitation measures had been delayed; however, there was no
guarantee that the outcome would have been positive had those measures
been taken in a timely fashion. The experts considered that the principal
cause of death was the nature and seriousness of the illnesses, which had
caused the patients brain to swell.
10. On 24 June 2005 the Volyn regional prosecutors office informed the
applicant that the investigation had been delayed and that instructions had
been given to investigate the case properly.
11. On 16 September 2006 the forensic medical experts issued an
additional report stating, inter alia, that the applicants daughter had been
admitted to hospital five days after the first symptoms of the pathological
process. If her family had sought medical aid in due time, her life and health
prognosis could have been more favourable.
12. On 3 December 2007 the investigators in charge of the criminal case
were disciplined for causing delays and for failure to take all the necessary
measures during the investigations.
13. On 24 July 2008 Dr G. was charged with the offences of failure to
provide medical aid to a patient by a medical practitioner and violation of
the right to free medical aid.
14. On 7 August 2008 the investigation was completed. The case was
referred to the court for trial.
15. On 5 November 2008 the Turiysk District Court returned the case to
the prosecutors office stating that the prosecutor had not complied with
procedural requirements when submitting the case file to the court.
16. On 8 January 2009 the prosecutors office decided that additional
investigative steps should be carried out in the case.
17. On 30 March 2009 the Turiysk District Court committed Dr G. for
trial.
18. On 26 October 2009 the Turiysk District Court found that on
27 August 2003 Dr G. had committed the offence of failing to provide the

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applicants daughter with medical aid. It also released her from any
punishment due to the expiry of the time-limit for criminal responsibility.
The court then acquitted Dr G. of a violation of the right to free medical aid,
finding that that charge had been unsubstantiated. The applicant and the
prosecutor appealed against that judgment.
19. On 23 February 2010 the Volyn Regional Court of Appeal upheld
the judgment of 26 October 2009 as regards Dr G.s partial acquittal. As
regards her conviction, it stated that the trial court had failed to specify the
punishment from which she had been released. The Court of Appeal
therefore quashed the judgment in that part and remitted the case to the trial
court for fresh consideration.
20. On 30 June 2010 the Turiysk District Court held that Dr G. was
guilty of failing to provide medical aid to the applicants daughter. It found
that between 3.45 p.m. and 4 p.m. on 27 August 2003 she had failed to carry
out artificial respiration and cardiac massage and that those failures had
reduced the chances of success of the resuscitation measures carried out
subsequently by the other doctors. The court sentenced Dr G. to a fine and a
three-year ban on medical practice. It nevertheless released her from that
punishment due to the expiry of the time-limit for criminal responsibility.
21. On 24 September 2010 the Volyn Regional Court of Appeal upheld
that judgment.
B. Civil proceedings
22. On 23 September 2011 the applicant initiated civil proceedings
seeking compensation for the non-pecuniary damage caused by the
hospitals failure to ensure appropriate medical treatment for his daughter.
Dr G. was admitted to the proceedings as a third party.
23. On 7 March 2012 the Starovyzhivskyy District Court found that the
applicant had sustained non-pecuniary damage on account of the
professional misconduct of Dr G. The court awarded the applicant 20,0001
Ukrainian hryvnias in respect of non-pecuniary damage. In its reasons the
court referred to the findings of the domestic court dealing with the criminal
case against Dr G. The court further found that, in accordance with the
statutory documents of the Kovel Inter-District Territorial Medical
Association, that legal entity was obliged to pay the amount awarded.
24. On 18 April 2012 the Volyn Regional Court of Appeal upheld the
decision of 7 March 2012.
25. On 25 May 2012 the Higher Specialised Court for Criminal and
Civil Matters refused the applicant leave to appeal in cassation against these
decisions.

About EUR 1,865.

MARCHUK v. UKRAINE JUDGMENT

II. RELEVANT DOMESTIC LAW

26. The relevant provisions of domestic law can be found in the
judgment in the case of Arskaya v. Ukraine (no. 45076/05, 52-55,
5 December 2013).

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
27. The applicant complained that the domestic criminal and civil
proceedings had not been compatible with the procedural requirements of
Article 2 of the Convention. That Article reads as follows:
1. Everyones 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. ...

A. Admissibility
28. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties submissions
29. The applicant argued that the criminal investigation had not been
conducted with reasonable expedition. The criminal proceedings had been
groundlessly delayed and civil redress had only been possible following the
determination of the criminal charges against the doctor.
30. The Government submitted that the relevant circumstances had been
effectively examined at the domestic level and that there had been no
procedural violation of Article 2 of the Convention. They admitted that the
civil claim had been closely linked to the determination of the criminal
charges against Dr G. However, the civil courts had been prompt in their
consideration of the applicants claims in a separate set of civil proceedings.
2. The Courts assessment
31. The Court has stated on a number of occasions that an effective
judicial system, as required by Article 2, may, and under certain

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circumstances must, include recourse to criminal law. However, if the

infringement of the right to life or to physical integrity has not been caused
intentionally, the positive obligation imposed by Article 2 to set up an
effective judicial system does not necessarily require the provision of a
criminal-law remedy in every case. In the specific sphere of medical
negligence, this obligation may for instance also be satisfied if the legal
system affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any liability of
the doctors concerned to be established and any appropriate civil redress,
such as an order for damages and for the publication of the decision, to be
obtained. Disciplinary measures may also be envisaged (see Vo v. France
[GC], no. 53924/00, 90, ECHR 2004-VIII, with further references).
32. Article 2 of the Convention will not be satisfied if the protection
afforded by domestic law exists only in theory: above all, it must also
operate effectively in practice and that requires a prompt examination of the
case without unnecessary delays (see ilih v. Slovenia [GC], no. 71463/01,
195, 9 April 2009, with further references). In cases of this type, the Court
must examine whether the legal system as a whole adequately dealt with the
matter at hand (see Byrzykowski v. Poland, no. 11562/05, 107, 27 June
2006, and Dodov v. Bulgaria, no. 59548/00, 83 and 86, 17 January
2008).
33. In the present case, the principal issue in the applicants complaint is
the question of promptness and reasonable expedition of the domestic
proceedings. In that regard the Court notes that while the identification and
punishment of those responsible for a death and the availability of
compensatory remedies to the applicant are important criteria in the
assessment of whether or not the State has discharged its Article 2
obligations, in a number of cases before the Court the finding of a violation
of that provision was essentially based on the existence of unreasonable
delays and a lack of diligence on the authorities part in conducting the
proceedings, regardless of their final outcome (see, for example, ilih, cited
above, 211, and Sergiyenko v. Ukraine, no. 47690/07, 50 and 54,
19 April 2012, with further references).
34. In the light of these principles, the Court notes that following the
death of his daughter, the applicant complained to the prosecutors office
seeking the criminal prosecution of the medical staff. In view of the facts of
the case, his recourse to a criminal-law remedy does not appear to have been
unreasonable. Nor was it regarded as such by the domestic authorities, who
initiated a criminal investigation and eventually convicted the doctor who
had been in charge of the applicants child. It is common ground between
the parties that any parallel civil proceedings for damages would not have
been an effective course of action while the criminal proceedings were
pending. The parties agreed that in such circumstances the civil courts
would not have been in a position to determine the civil claims based on the

MARCHUK v. UKRAINE JUDGMENT

facts, specifically acts or inactivity by the medical staff, which were also the
subject-matter of the pending criminal case. The Court must therefore
examine whether the criminal proceedings were conducted promptly for the
purposes of Article 2.
35. In that regard the Court notes that the criminal proceedings were
concluded after a period of seven years. During that time the domestic
authorities repeatedly admitted that the investigation had been delayed and
informed the applicant that they had taken measures to expedite the
proceedings (see paragraphs 10 and 12 above). Subsequently, following the
trial courts instructions, it took a considerable period of time for the
investigating authorities to carry out additional investigative measures and
resubmit the case to the trial court (see paragraphs 14-17 above).
Furthermore, the available material does not suggest that the length of the
investigation and court proceedings could be justified by the complexity of
the case or by the applicants behaviour. Having examined the parties
submissions, the Court finds that the criminal proceedings in the present
case were unreasonably delayed by the authorities.
36. As to the subsequent set of civil proceedings initiated in 2011, it is
true that the civil courts considered the applicants claim within a short
period of time. However, such promptness was possible largely because
most of the evidence had been assembled by the investigating authorities in
the course of the criminal proceedings and the civil courts could rely on the
findings of the criminal courts. Therefore, the effectiveness of this remedy
cannot be considered in isolation. By contrast, assessing the overall length
of both sets of proceedings cumulatively, the Court considers that the
domestic authorities failed to carry out a prompt examination of the
applicants civil claim.
37. Taken overall, the domestic legal procedures concerning the
circumstances of the death of the applicants daughter lasted for an
excessively long period of time and were therefore incompatible with the
States obligation under Article 2 of the Convention to carry out an effective
investigation. The consequence of this delay was that the responsible doctor
was absolved of the punishment (a fine and a three years ban, see paragraph
20 above).
38. There has therefore been a procedural violation of Article 2 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
39. The applicant complained that the ineffective domestic proceedings
in the present case gave also rise to violations of Articles 6 1 and 13 of the
Convention.

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40. Having regard to the finding of a violation under Article 2 of the

Convention and the reasoning leading to thereto, the Court considers that
this part of application is admissible but it does not give rise to any issues
separate to those examined already under Article 2 of the Convention.
41. The Court holds that it is not necessary to examine separately the
complaints under Articles 6 and 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
42. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage
43. The applicant claimed 100,000 euros (EUR) in respect of
non-pecuniary damage.
44. The Government contended that that claim was groundless.
45. The Court considers that the applicant must have suffered anguish
and distress on account of the facts giving rise to the finding of a violation
in the present case. Ruling on an equitable basis, the Court awards the
applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
46. The applicant did not submit any claims under this head. The Court
therefore makes no award.
C. Default interest
47. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 2 of the Convention in its
procedural limb;

MARCHUK v. UKRAINE JUDGMENT

3. Holds that there is no need to examine the complaints under Articles

6 1 and 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three
months, EUR 4,000 (four thousand euros) plus any tax that may be
chargeable thereon, in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at the rate applicable on the
date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
5. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 28 July 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Milan Blako
Deputy Registrar

Erik Mse
President