CASE OF GAZIN v. UKRAINE

 

 

FIFTH SECTION

CASE OF GAZIN v. UKRAINE

(Application no. 43898/19)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

5 March 2026

 

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

In the case of Gazin v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 María Elósegui, President,
 Diana Sârcu,
 Sébastien Biancheri, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 43898/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 August 2019 by a Ukrainian national, Mr Andriy Yuriyovych Gazin (“the applicant”), who was born in 1967 and lives in Dnipro, and was represented by Ms T. Ulyanova, a lawyer practising in Dnipro;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, of the Ministry of Justice;

the parties’ observations;

 

Having deliberated in private on 5 February 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns allegedly ineffective domestic proceedings in respect of medical malpractice.

2.  On 3 August 2012 the applicant was admitted to Dnipro Municipal Clinic no. 4 with complaints of acute flank pain. He was diagnosed with a ureteral stone and renal colic and, in the early hours of 4 August 2012, duty doctor M.P. performed a urinary catheterisation on him.

3.  The applicant stated that, in the following days while he remained in the clinic, his condition had deteriorated. He had developed fever, pain in the lower abdomen and increased urinary frequency. The applicant was further diagnosed with acute pyelonephritis (kidney infection), for which he received medical treatment. On 17 August 2012 he was discharged in satisfactory condition.

4.  In October 2012 the applicant was readmitted to the same clinic with complaints of increased urinary frequency (up to once every hour) and blood in the urine. A series of medical tests further revealed a urethral stricture (a traumatic narrowing of the urethra) and chronic cystitis. On his discharge from the clinic, the doctors observed that, despite medical treatment, his urinary frequency had not significantly improved.

5.  On 6 June 2013, following a complaint lodged by the applicant against duty doctor M.P., the police instituted criminal proceedings into medical malpractice.

6.  Throughout the investigation, the police obtained copies of the applicant’s medical records and questioned both the applicant and M.P. Furthermore, three forensic examinations were performed. The final forensic report, completed in December 2015, concluded that the applicant’s injuries (including a urethral stricture, cystitis and chronic urinary retention), classified as injuries of medium severity, had resulted from an improperly performed catheterisation.

7.  Within the criminal proceedings, the applicant lodged a civil claim, firstly against the clinic and then against M.P. Arguing that M.P.’s medical intervention had caused him severe pain and suffering, the applicant sought more than 3 million Ukrainian hryvnias (UAH; equivalent to more than 100,000 euros at the relevant time) in pecuniary and non-pecuniary damages.

8.  On 28 September 2016 M.P. was formally notified of suspicion of medical negligence under Article 140 § 1 of the Criminal Code. On 5 December 2016 the criminal case against him and the applicant’s civil claim were referred to the Leninskyi District Court of Dnipro for trial.

9.   During the trial, the court heard the applicant and four witnesses. In addition, both the applicant and M.P. submitted to the District Court new forensic evidence. While M.P. relied on a forensic report pointing out that his actions had corresponded to the standards of medical practice and the applicant’s health complications might have been caused by reasons unrelated to the catheterisation performed by him, the applicant submitted a report indicating otherwise.

10.  As of October 2025, the trial against M.P. has been pending at first instance with no decision taken either on the criminal charges or on the applicant’s civil claim.

THE COURT’S ASSESSMENT

scope of the case

11.  In submissions of 7 May 2025, made in reply to the Government’s observations, the applicant complained for the first time that his catheterisation had been carried out with the use of uncertified medical equipment and that M.P. had lacked appropriate training.

12.  The Court considers that these new complaints do not constitute an elaboration or elucidation of the applicant’s original complaint on which the parties have commented. It considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Svit Rozvag, TOV and Others v. Ukraine, nos. 13290/11 and 2 others, § 80, 27 June 2019).

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

13.  The applicant complained that the criminal proceedings in respect of his allegations of medical malpractice had been lengthy and ineffective. While he originally relied on Articles 3 and 13 of the Convention, following communication of the application to the respondent Government, he additionally relied on Articles 6 and 8 of the Convention.

14.  The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the applicant’s complaints from the standpoint of the procedural limb of Article 8 of the Convention only (see Botoyan v. Armenia, no. 5766/17, §§ 90-92, 8 February 2022).

Admissibility

15.  The Government submitted that the applicant had failed to exhaust domestic remedies, as he had not sought compensation from the State for allegedly ineffective proceedings against M.P. In support of their argument, the Government referred to decisions of domestic courts in two civil cases in which claimants had been awarded non-pecuniary damages for excessive length of pre-trial investigations into the deaths of their relatives.[1] They further argued that the application was premature, as the criminal proceedings against M.P. were still pending and the applicant’s civil claim had yet to be examined by the domestic courts.

16.  The applicant disagreed, arguing that, as he had lodged a civil claim within the criminal proceedings against M.P., he could not be expected to initiate any separate civil proceedings. He further submitted that with the passage of time he had realised that the chosen remedy had ceased to be effective.

17.  The Court considers that the Government’s objections are closely linked to the substance of the applicant’s complaint under Article 8 and must therefore be joined to the merits.

18.  It further notes that this application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

Merits

19.  The applicant reiterated his complaint. He blamed the authorities for the frequent postponements of M.P.’s trial and the excessive overall duration of the criminal proceedings.

20.  The Government argued that the criminal proceedings in the present case had been conducted without unjustified periods of inactivity on the part of the authorities. The overall length of the proceedings had been caused by the number of forensic examinations and the objective impossibility of scheduling court sessions more frequently. In addition, the parties, including the applicant, had themselves contributed to the length of the trial. In particular, out of 98 scheduled sessions, 25 were postponed at the request of the applicant or his representatives.

21.  The general principles concerning the procedural obligation of the State in the field of medical negligence have been summarised in Jurica v. Croatia (no. 30376/13, §§ 84-85, 2 May 2017) and Mehmet Ulusoy and Others v. Turkey (no. 54969/09, §§ 90-93, 25 June 2019). In particular, victims of medical negligence must have access to proceedings capable of establishing the relevant facts, holding accountable those at fault and providing victims with appropriate redress. Such proceedings must operate effectively in practice, which entails, inter alia, that they be completed within a reasonable time (see Vasileva v. Bulgaria, no. 23796/10, §§ 64-65, 17 March 2016).

22.  In the present case, the applicant pursued allegations of medical negligence against M.P. within the framework of criminal proceedings. Given that the domestic rules on criminal procedure afforded the possibility of a joint examination of criminal responsibility and civil liability arising from the same culpable actions, the Court does not consider that the applicant acted inappropriately when choosing this course of action, which, moreover, offered procedural advantages as regards the burden of proof and the legal costs (see, for example, Arskaya v. Ukraine, no. 45076/05, § 78, 5 December 2013). Nor was it regarded as such by the domestic authorities, who launched a criminal investigation and eventually charged M.P. with the criminal offence of medical negligence (see paragraph 8 above).

23.  The Government argued that the applicant could have claimed compensation for ineffectiveness of the criminal proceedings. In this regard, the Court has previously established in relation to Ukraine that while criminal proceedings in medical negligence cases were pending, any parallel civil-law remedy would not have been an effective course of action (see Marchuk v. Ukraine [Committee], no. 65663/12, § 34, 28 July 2016, and Blagoveshchenska and Borysenko v. Ukraine [Committee], nos. 30182/17 and 32155/17, §§ 24-25, 10 October 2024). Moreover, the domestic court decisions provided by the Government in support of their argument (see paragraph 15 above) were based on materially different facts. In particular, both cases concerned ineffectiveness of pre-trial investigations, whereas in the present case, when the applicant lodged his application with the Court, the pre-trial investigation concerning M.P. had already been completed and the case had remained pending at the trial stage for a number of years.

24.  The Court therefore sees no reason to depart from its previous findings and takes it as established that no effective civil-law remedy was available to the applicant before the end of the criminal proceedings. It must therefore examine whether those proceedings operated effectively in practice.

25.  The Court answers this question in the negative. The criminal proceedings were launched by the authorities on 6 June 2013, and on 5 December 2016 the criminal case against M.P. and the applicant’s civil claim were sent to the domestic court for trial. Since then, the proceedings have remained pending at first instance with no final judgment and no decision in the applicant’s civil claim delivered to date.

26.  The Court acknowledges that the case was of some complexity, as it required an assessment of whether there was a causal link between the applicant’s multiple health complications and the actions of M.P. during a seemingly routine urological intervention. This was a question on which even the forensic experts expressed divergent opinions (see paragraph 9 above). It also notes that a significant number of court sessions were postponed at the request of the applicant and his lawyers (see paragraph 20 above).

However, these factors alone cannot justify proceedings that have now lasted for more than 12 years while the case remains pending at first instance. The Court reiterates that it is for the State to organise its judicial system in such a way as to enable its courts to meet the requirements of the Convention (see Zafer Öztürk v. Turkey, no. 25774/09, § 58, 21 July 2015) and that the prompt response of the authorities in medical negligence cases is crucial to maintaining public confidence and adherence to the rule of law (see Eryiğit v. Turkey, no. 18356/11, § 51, 10 April 2018).

27.  The fact that the domestic proceedings in respect of medical malpractice have lasted so long without any decision taken on the extent of the doctor’s liability and the applicant’s civil claim demonstrates that such proceedings did not operate effectively in practice (see Tusă v. Romania, no. 21854/18, § 99, 30 August 2022).

28.  The Court therefore rejects the Government’s preliminary objections previously joined to the merits (see paragraph 17 above) and concludes that there has been a violation of Article 8 of the Convention in its procedural aspect.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  The applicant claimed 6,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. He also sought EUR 3,000 in respect of legal costs and expenses. In addition, the applicant asked that the Government adopt general measures which were aimed at preventing the occurrence of similar cases in the future.

30.  The Government contested those claims.

31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

32.   Since the applicant failed to provide any evidence in respect of the legal costs and expenses incurred, his claim under this head must be dismissed.

33.  As to the request for general measures, the Court considers that it is unnecessary to indicate them (see Vyshnyakov v. Ukraine, no. 25612/12, §§ 64-65, 24 July 2018, and the case-law cited therein).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join to the merits the Government’s preliminary objections on admissibility and dismisses them;Declares the application admissible;Holds that there has been a violation of Article 8 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at 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;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Martina Keller María Elósegui
 Deputy Registrar President

[1] Domestic proceedings nos. 757/33629/19-ц and 180/2044/19.

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