FIRST SECTION
Application no. 49973/10
by Lyudmila Anatolyevna BOCHKAREVA
against Russia
lodged on 21 August 2010
STATEMENT OF FACTS
THE FACTS
The applicant, Ms Lyudmila Anatolyevna Bochkareva, is a Russian national who was born in 1948 and lives in the town of Saratov, the Saratov Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The background of the case
In January 2004 the applicant’s husband, Mr Andrey Bochkarev (AB), was diagnosed with kidney cancer.
On 19 February 2004 AB underwent the surgery in this connection, involving the amputation of a sick kidney.
On 1 March 2005 AB underwent an additional operation in connection with his cancer, this time on an ureter. It appears that during this operation he received some blood transfusion.
On 24 May 2005 AB was diagnosed with hepatitis C. According to the applicant, during the year preceding the medical treatment related to cancer AB twice gave blood samples, each time with negative results for hepatitis C. The respective blood samples had been taken in February 2004.
On 28 June 2005 the applicant gave a blood sample as well, which returned a negative result for hepatitis C.
On the same date the donor whose blood had been transfused to the applicant on 1 March 2005 was diagnosed as having been infected with hepatitis C.
On 22 November 2005 AB died due to intoxications resulting from cancer. It appears that his doctors refused to treat the disease because radiation treatment and chemiotherapy, the only two methods available, could not be used if the patient had hepatitis C.
B. The applicant’s attempts to bring criminal proceedings in connection with the blood transfusion episode
On 14 July 2005 the applicant applied to the Saratov Regional Prosecutor’s office, requesting to investigate the events relating to the blood transfusion of 1 March 2005.
1. The first refusal and reopening of the investigation
On 29 August 2005 an investigator D of a local prosecutor’s office examined and rejected the applicant’s request, having detected no signs of a crime in the incident.
On 26 September 2005 this decision was quashed as incomplete and superficial by a higher prosecutor of the same prosecutor’s office.
By decision dated 28 September 2005 the investigator in charge of the case ordered to carry out an expert examination in this case.
The expert examination took place between 3 October to 4 October 2005 and also between 26 October and 5 December 2005. It resulted in expert report no. 275. The report did not make any clear conclusions concerning the responsibility of any officials and medical officers involved, having noted that, among other things, it could not be excluded that AB had become infected with hepatitis C through the applicant.
2. The second refusal and reopening of the investigation
By decision of an unspecified date the investigator in charge of the case again rejected the applicant’s request, having detected no signs of a crime in the incident.
On 12 December 2005 this decision was again quashed by a higher prosecutor of the prosecutor’s office as incomplete and superficial. The proceedings were reopened accordingly.
3. The third refusal and reopening of the investigation
On 10 January 2006 the investigator in charge of the case admitted the applicant to the proceedings as a victim.
By decision of 12 April 2006 the applicant’s request was again refused for the lack of indication of any crime.
On 5 May 2006 a higher prosecutor of the same prosecutor’s office quashed this decision and remitted the case for additional check to the investigator in charge of the case.
4. The fourth refusal and reopening of the investigation
On 5 May 2006 the investigator ordered a new expert examination, which, as alleged by the applicant, for some reason never took place.
On 7 June 2006 the investigation was suspended.
On 6 November 2006 the proceedings resumed.
By decision of 7 November 2006 the investigator ordered a new expert examination to be carried out by the Voronezh Regional Forensic Expert Centre.
The expert examination took place between 9 and 28 November 2006.
5. The fifth refusal and reopening of the investigation
By decision of 6 December 2006 the investigation was yet again discontinued.
On 11 May 2007 this decision was yet again quashed by a high prosecutor and the investigation was resumed.
6. The sixth refusal and reopening of the investigation
On 14 June 2007 the investigator again decided to discontinue the proceedings for the lack of evidence of any crime.
By decision of 22 August 2007 a higher prosecutor quashed the decision of 14 June 2007, once again as incomplete and superficial. The proceedings resumed.
According to the applicant, two year after the incident, on 3 September 2007, the investigator for the first time seized documents concerning blood donation from the relevant blood donors’ station.
On 7 September 2007 the case was transferred to the Oktyabriskiy District Department of the Investigative Committee of the Prosecutor’s office of the Saratov Region.
7. The seventh refusal and reopening of the investigation
On 28 September 2007 the investigation was again discontinued.
This decision was quashed by a higher prosecutor on 28 August 2008.
The investigator in charge of the case ordered a new expert examination on 23 September 2008, to be carried in a specialised forensic institution located in Moscow.
Accordingly, on 15 October 2008 the proceedings were suspended awaiting the outcome of the examination.
Between 13 May and 10 June 2009 the examination took place in the Russian Centre of Forensic Examinations in Moscow. This resulted is an expert examination no. 54/09.
8. The eighth refusal and the applicant’s first application to a court
On 23 July 2009 the investigator again discontinued the proceedings, having cited the lack of evidence of any crime.
On 1 September 2009 the applicant contested the decision of 23 July 2009 as superficial and generally unlawful.
On 11 September 2009 the Oktyabrskiy District Court (the District Court) upheld the decision of 23 July 2009, having rejected the applicant’s complaint.
The first instance judgment was quashed on 28 October 2009 on appeal by the Saratov Regional Court (the Regional Court) and remitted to a fresh examination at first instance.
On 11 November 2009 the District Court quashed the decision of 23 July 2009 referring to its incompleteness, multiple contradictions and, more generally, the lack of reasoning.
9. The ninth refusal and reopening of the investigation
On 8 December 2009 the Regional Prosecutor’s office complied with the District Court judgment of 11 November 2009, having resumed the investigation in connection with the applicant’s complaints.
On 21 December 2009 the Regional Prosecutor’s office again discontinued the proceedings, referring to the lack of evidence of any crime as well as the expiry of the relevant statutory time-limit.
10. The applicant’s second attempt to resume the investigation by applying to a court
By a first instance judgment of 1 March 2010 the District Court rejected the applicant’s complaints, in which she criticised the conduct and lawfulness of the investigation. This judgment was upheld on appeal by the Regional Court on 21 April 2010.
On 5 May 2010 the District Court rejected the applicant’s complaint about the decision of 21 December 2009.
The judgment of 5 May 2010 was upheld by the Regional Court on appeal on 23 June 2010.
It seems that in the course of the investigation it was essentially established that with high probability the applicant received an infected blood during the operation of 1 March 2005 and that this was an error, which resulted from someone’s failure to comply with a 180 days’ quarantine period following which the infection in the donor’s blood could have been detected. The relevant rule was set out in order of the Ministry of Health Protection no. 193 dated 7 May 2003.
By a final decision of 2 August 2010 the domestic courts also rejected the applicant’s claim for compensation for the allegedly excessive length of the proceedings in her criminal case.
C. The applicant’s attempts to bring other types of court proceedings in connection with the blood transfusion episode
1. The applicant’s claim contesting the lawfulness of blood transfusion
On 9 April 2008, after the seventh refusal to investigate the blood transfusion episode, the applicant applied to domestic courts, asking to declare the blood transfusion of 1 March 2005 unlawful and to compensate the damage sustained by her and her husband.
On 27 June 2008 the Leninskiy District Court refused the applicant’s claim, essentially denying her a victim status with reference to her husband’s death.
This decision was upheld on appeal by the Regional Court on 3 September 2008.
2. The applicant’s claim contesting the conclusions of expert examination no. 275
On 9 December 2008 the applicant brought a libel claim in the Frunzenskiy District Court, contesting the accuracy of the conclusions of expert examination no. 275 and asking for damages in this connection.
By a first instance decision of 14 January 2009 the Frunzenskiy District Court disallowed the claim, having stated that the relevant criminal investigation was pending and that the applicant could only contest the report no. 275 in those proceedings.
The decision was upheld on appeal by the Regional Court on 11 February 2009.
COMPLAINTS
The applicant complains under Articles 2, 6 and 13 of the Convention about the events relating to the demise of her husband and blames the State and its officials for the sufferings sustained by her and her late husband during the cancer treatment and the subsequent lack of proper and effective investigation into the matter. She is specifically dissatisfied with the investigation’s failure to conduct an independent and timeous expert examination of all relevant issues and the fact that the investigation was superficial and extremely long.
QUESTIONS TO THE PARTIES
1. Is the State responsible for the alleged infection of the applicant’s husband with hepatitis C through blood transfusion on 1 March 2005 and the subsequent events leading to his death under the substantive aspects of Articles 2 and 3 of the Convention? If so, the Government are requested to comment whether these two Convention provisions have been respected?
2. Have the State authorities complied with their positive obligation under Articles 2 and 3 of the Convention to investigate the circumstances of the infection of the applicant’s husband with hepatitis C?
Full & Egal Universal Law Academy