CASE OF ISAYEVA v. UKRAINE

FOURTH SECTION

CASE OF ISAYEVA v. UKRAINE

(Application no. 35523/06)

JUDGMENT

STRASBOURG

4 December 2018

FINAL

04/03/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Isayeva v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Paulo Pinto de Albuquerque, President,
Ganna Yudkivska,
Egidijus Kūris,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 2 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 35523/06) against Ukraine lodged with the Court on 22 August 2006 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Natalya Viktorovna Isayeva (“the applicant”), represented by her mother, Ms V. Isayeva, and Ms N. Tselovalnichenko, a lawyer practising in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna from the Ministry of Justice.

3. The case concerns the infliction of grievous bodily harm on the applicant by another patient while in a State-run mental institution. The applicant alleged, in particular, that the State had failed to make those responsible for the incident accountable and had not provided proper redress for the harm inflicted on her within a reasonable time.

4. On 12 December 2012 the application was communicated to the Government, with the parties being invited to submit further observations in writing on 28 August 2013 (Rule 54 § 2 (c) of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and lives in Luhansk. She has had a first-degree disability since childhood.

6. On 2 April 1998, during her time at the Slavyanoserbskiy Psychoneurological Asylum run by the Luhansk Regional Council (Слав’яносербський психоневрологічний інтернат Луганської обласної ради) (“the asylum”), another patient, B., inflicted grievous bodily harm on the applicant. Her injuries included concussion, a fractured jaw and nose, and numerous cuts on her face. Later she also lost the sight in her right eye and the sight in her left eye deteriorated which, according to the forensic examination report of 25 June 2007, was also due to the trauma sustained by the applicant on 2 April 1998.

7. On 16 September 1998 B. died.

A. Criminal proceedings

8. On 8 May 1998 the Slavyanoserbskiy district prosecutor’s office of the Luhansk Region (прокуратура Слов’яносербського району Луганської області  “the prosecutor’s office”) refused to institute criminal proceedings against two asylum employees (orderlies), N. and L. When questioned about the incident, the orderlies testified that on the morning of 2 April 1998 they had been cleaning the rooms when they had heard someone crying. They had found the applicant on her bed with her face smashed. Other patients had told N. and L. that B. had beaten the applicant with a mop because she had hit B. The prosecutor noted that (i) B. was “without legal capacity because of a mental disorder” (недієздатна внаслідок психічного розладу) and thus could not be held criminally responsible for assaulting the applicant, and (ii) even though it appeared that orderlies N. and L. had been negligent in their duties (according to the asylum orderlies’ list of duties submitted by the Government they were not allowed to leave patients unsupervised), which could possibly constitute a crime under Article 167 of the 1960 Criminal Code (see paragraph 27 below), they were not considered to be “officials” who could be prosecuted under that provision.

9. On 9 December 2004, within civil proceedings (see paragraphs 11–16 below), the applicant’s representative requested that the first-instance court reopen a criminal investigation into the incident. On the same date the request was rejected. The court noted that the prosecutor’s office had already issued a decision on 8 May 1998, which had not been appealed against. Moreover, B. had died and therefore, in accordance with the law in force, no criminal proceedings could be instituted against her. The ruling was upheld by the Luhansk Regional Court of Appeal and the Supreme Court of Ukraine on 3 August 2005 and 31 March 2006 respectively.

10. Following the entry into force of a new Criminal Procedure Code, on 26 December 2012 the applicant lodged a complaint with the police, alleging negligence by the orderlies. The complaint was registered and two separate investigations launched into negligent performance of duties by members of the medical or pharmaceutical profession and negligence of duties by officials. On 19 February 2013 both investigations were merged. Several witnesses were questioned including the applicant, her mother and orderly L. The latter testified that she had not seen the incident take place but had later learned that for an unknown reason B. had hit the applicant with a mop left by L. in their room. On 30 June 2013 the proceedings were terminated by a police investigator of the Slyavyanoserbskyy District Police Department (слідчій слідчого відділу Слов’яносербського районного відділу ГУМВС України в Луганській області). That decision was identical to the one of 8 May 1998 (see paragraph 8 above) and referred to the investigator’s findings (i) that B. had been “without legal capacity because of a mental disorder” (недієздатна внаслідок психічного розладу) and thus could not be held responsible for assaulting the applicant, and (ii) that even though it appeared that the orderlies N. and L. had been negligent in their duties, which could constitute a crime under Article 167 (negligence of duties by officials) or Article 140 of the new 2001 Criminal Code (negligent performance of duties by members of the medical profession), they were not considered to be “officials” or “members of the medical profession” who could be prosecuted under those provisions of the law.

B. First set of civil proceedings

11. On 10 February 1999 the applicant instituted civil proceedings against the asylum in the Zhovtnevyy Local Court of Luhansk, seeking compensation for non-pecuniary and pecuniary damage (the cost of medications and food expenses incurred while staying in a hospital between 2 and 30 April 1998 and between 18 and 26 May 1998 and the costs of dental prosthesis care). The applicant claimed that following negligence on the part of the asylum employees L. and N. she had been beaten by B. The applicant also indicated that the asylum should not have placed B. in one room with the applicant since B. had been known for her violent behaviour.

12. On 4 May 1999, at the request of a prosecutor, the court launched proceedings to establish the applicant’s legal capacity. Eight days later the consideration of the applicant’s claim for compensation was suspended pending the outcome of the legal capacity proceedings.

13. On 9 October 2002 the legal capacity proceedings were terminated because the prosecutor failed to appear at the hearing.

14. On 19 June 2003 the first-instance court ordered a medical examination of the applicant and the case was forwarded to the Luhansk Bureau of Forensic Medical Examinations. On 19 October 2004 the case was returned to the first-instance court with an expert report confirming that the applicant had sustained grievous bodily harm.

15. On 3 October 2006 the Zhovtnevyy District Court of Luhansk awarded the applicant 30,000 Ukrainian hryvnias (UAH) in compensation for non‑pecuniary damage (approximately 4,500 euros (EUR) at the material time). In a court hearing the asylum’s representative submitted that in his view the applicant had initiated the conflict with B. herself and thus there had been no negligence on the part of the asylum’s employees. The court, having listened to the parties and witnesses and having examined the case material, concluded that on 2 April 1998 as a result of a fight between the applicant and B., “who at the material time was found to be without legal capacity” (яка на той момент була визнана недієздатною), the applicant had received injuries. The court expressly noted that those conclusions were not disputed by the parties. The court further referred to the decision of the prosecutor’s office of 8 May 1998 (see paragraph 8 above) and held that harm had been inflicted on the applicant as a result of negligence by the asylum employees (orderlies). Lastly, the court rejected the applicant’s claims for pecuniary damages (compensation for medication, food, loss of income and travel expenses) as not supported by relevant evidence.

16. The applicant lodged an appeal challenging the refusal of the court to award her pecuniary damages but later withdrew it. The decision of 3 October 2006 thus became final and enforceable.

C. Disciplinary proceedings

17. On 13 December 2006 the prosecutor’s office sent a demand to the asylum pointing out violations of work safety regulations which required remediation. According to the demand, the applicant’s rights had been violated because there had been no internal investigation into the incident within the statutory time‑limit (of within ten days of the incident).

18. There is no information to suggest that the asylum complied with the demand.

D. Proceedings concerning the facts surrounding the incident

19. On 3 October 2007 the applicant lodged a complaint with the Zhovtnevyy District Court of Luhansk, seeking an acknowledgement that bodily harm had been inflicted on her. The applicant asserted, in particular, that the asylum was avoiding delivering a report on the incident even though it was necessary to establish the facts surrounding the incident and to recover damages for the injuries sustained.

20. On 22 November 2007 the complaint was allowed by the court. Referring to its decision of 3 October 2006, which had become final (see paragraph 16 above), the court established that the applicant had had a fight with B. and had received injuries while at the asylum.

E. Second set of civil proceedings

21. On 18 February 2008 the applicant instituted a new set of proceedings against the asylum, seeking compensation for loss of labour capacity and expenses for medications which the applicant permanently needed.

22. On 15 June 2012 the Zhovtnevyy District Court allowed the claim. Referring to its judgment of 3 October 2006 (see paragraph 15 above), the court established that harm had been inflicted on the applicant as a result of negligence by the asylum employees. The court also noted that even though B. had not been declared to be without legal capacity, at the time of the incident both she and the applicant had been under the supervision of the asylum, which should accordingly have been held responsible for the incident. On 23 October 2012 the Luhansk Regional Court of Appeal upheld this decision.

23. On 30 January 2013 the Higher Specialised Civil and Criminal Court of Ukraine, following an appeal by the defendant, quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh consideration. It held that since B. “ha[d] not been declared to be without legal capacity” (не була визнана недієздатною), she had been partially responsible for the incident and thus the lower courts should have considered the extent of her liability.

24. On 27 September 2013 the first-instance court allowed the applicant’s claim in part and awarded her UAH 44,130 (around EUR 4,140 at the material time). The asylum was ordered to pay the applicant each month UAH 779.52 (approximately EUR 71), which was 64% of the monthly minimum wage. The court noted that, according to the court decision of 3 October 2006, harm had been inflicted on the applicant as a result of negligence by the asylum employees. However, since B. had not been officially declared to be without legal capacity and thus had been partially liable for the incident, liability for the incident and damages were divided between the asylum and B. as to 80% and 20%, respectively. No particular grounds for that assessment were given.

25. Both parties appealed against this judgment. The applicant argued that the asylum had been solely responsible for her injuries, referring to the court’s findings on 3 October 2006 (see paragraph 15 above) and 22 November 2007 (see paragraph 20 above). On 18 December 2013 the Luhansk Regional Court of Appeal upheld the judgment of 27 September 2013, noting that “the first-instance court had correctly established the degree of guilt of those who had inflicted harm”. On 17 February 2014 the Higher Specialised Civil and Criminal Court of Ukraine rejected the applicant’s request for leave for appeal as unsubstantiated.

II. RELEVANT DOMESTIC LAW

A. Relevant provisions of the criminal law and procedure

1. 1960 Criminal Code (in force at the material time)

26. Under Article 12 of the Criminal Code, a person was excused from criminal liability if at the time the crime was committed he or she was “mentally unfit to stand trial” (неосудна), that is to say if he or she could not understand the meaning of his or her actions or control them.

27. Pursuant to Article 167, negligence of duties by officials which severely harmed the interests of the State and/or individuals and legal entities was punishable by imprisonment or a fine and a restriction on the right to occupy certain posts for a term of up to three years. Under Article 164, “officials” were defined as individuals who occupied posts in State agencies or in State-run or private legal entities and by virtue of their posts carried out managerial duties.

2. 1961 Code of Criminal Procedure (in force until November 2012)

28. Article 6 of the Code of Criminal Procedure provided that if an alleged perpetrator died, no criminal proceedings could be initiated and any proceedings already underway had to be terminated.

29. Under Article 97, before launching criminal proceedings an investigator could conduct a pre-investigation inquiry lasting no longer than ten days. The investigator’s actions during the inquiry were limited to receiving explanations from the individuals and officials concerned and requesting documents.

30. Article 99-1 stipulated that a refusal to institute criminal proceedings could be appealed against within seven days of receipt.

31. Article 204 provided that if an investigation officer had reason to believe that an accused might be “mentally unfit to stand trial”, (“в неосудному стані”) the investigator was to order a forensic psychiatric examination to assess whether this was the case. Furthermore, under Article 417, during a pre-trial investigation into acts committed by individuals considered to be mentally unfit to stand trial and crimes committed by individuals mentally fit to stand trial but who had become mentally ill before their conviction, all necessary investigative measures had to be taken in order to establish the full circumstances of the misdeed and identify the person who committed it, and the circumstances which characterised the perpetrator and his or her mental illness.

32. Under Articles 226, 417 and 420, following the results of a forensic examination, an investigation officer, with a prosecutor’s approval, could apply to court for compulsory medical treatment of a perpetrator. After hearing the opinion of the prosecutor and the defence the court was to decide, inter alia, whether the crime had been committed by an individual fully or partially mental unfit to stand trial or whether he or she had become mentally ill after committing the crime, which exempted him or her from punishment.

B. Legislation on investigating accidents in the workplace and imposing disciplinary measures

33. Article 171 of the Labour Code states that employers must conduct an investigation into the circumstances of every accident involving injuries which have occurred within their facilities. On 5 May 1997 the Cabinet of Ministers of Ukraine adopted Decree no. 421, which states that an investigation into an accident must be conducted within ten days. The results of the investigation must be formalised in an accident report.

34. Article 148 of the Labour Code specifies that disciplinary measures should be imposed on an employee within no later than six months of the misdeed.

C. Relevant provisions of the civil law and procedure

1. 1963 Civil Code (in force at the material time)

35. Under Article 16 of the Civil Code, a person could be declared by a court to be without legal capacity (недієздатна), which necessitated the establishment of guardianship over the person, if he or she could not understand the meaning of his or her actions or control them. Incapacity restricted the person’s right to enter into transactions (Article 52). Damages inflicted by a person without capacity were to be recovered by his or her guardian (Article 448).

36. Article 440 stated that harm or damage inflicted on an individual was to be compensated by the person who had caused that harm or damage. Article 441 stated that employers were liable for the damage caused by their employees during the performance of their duties. Under Article 451, if the harm or damage was inflicted by two or more people, they were held jointly liable.

2. 2004 Code of Civil Procedure

37. Article 61 § 3 of the Code of Civil Procedure reads as follows:

“Facts established by a decision in a civil, commercial or administrative case which became final, shall not be subject to probation in other pending cases which involve the same parties or a party concerning which the respective facts were established”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

38. Relying on Article 6 of the Convention, the applicant complained that the State had failed to hold those responsible for the incident accountable. She also complained about the length of the domestic proceedings.

39. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see, for instance, Scoppola v. Italy (No. 2) [GC], no. 10249/03, § 54, 17 September 2009; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013). In the present case, it finds that while the part of the applicant’s complaint concerning the length of the domestic proceedings is to be examined under Article 6 § 1 of the Convention, the issue of the alleged failure to identify and hold accountable those responsible for the incident of 2 April 1998 falls to be examined under Article 3 of the Convention (see, mutatis mutandis, Tautkus v. Lithuania, no. 29474/09, § 62, 27 November 2012).

The latter provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

A. Admissibility

40. In view of the domestic decisions delivered in the applicant’s favour (see paragraphs 15 and 24 above), the question arises as to whether she has lost her victim status for the purposes of Article 34 of the Convention. In the Court’s view, this issue is closely linked to the merits of the complaint under Article 3 of the Convention. The Court will therefore have regard to it in determining whether there has been a violation of that provision.

41. The Court notes that the 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

(a) The applicant

42. The applicant asserted that the State had failed to hold those responsible for the incident accountable and provide proper redress to her.

(b) The Government

43. The Government contested that statement. They pointed out that, according to the Court’s case-law, damage to personal integrity did not necessarily require a criminal-law remedy, especially where the harm had been inflicted as a result of negligence. Hence, a lack of criminal-law remedies in itself could not constitute a breach of the State’s positive obligations under Article 3 of the Convention.

44. At the same time, the Government pointed out that the applicant had availed herself of the available civil-law remedies by virtue of which the fault of the asylum employees had been established and had been compensated for both pecuniary and non-pecuniary damage. Thus, according to the Government, those remedies had proved to be effective in practice, so the State had met its positive obligations under Article 3 of the Convention.

2. The Court’s assessment

45. The Court notes at the outset that on 2 April 1998 the applicant was severely beaten by a private individual, B., and suffered grievous bodily harm. Her injuries included concussion, a fractured jaw and nose, numerous cuts on her face and, at a later stage, a loss of sight in her right eye (see paragraph 6 above). The situation therefore attains the threshold of severity required for it to fall within the scope of Article 3 of the Convention.

(a) General principles

46. The Court reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI, and Valiulienė v. Lithuania, no. 33234/07, § 74, 26 March 2013).

47. Furthermore, Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals (see Muta v. Ukraine, no. 37246/06, § 59, 31 July 2012, and O’Keeffe v. Ireland [GC], no. 35810/09, § 172, ECHR 2014 (extracts)). The investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible for an offence. This is not an obligation of result, but one of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, such as by taking witness statements and gathering forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see N.D. v. Slovenia, no. 16605/09, § 57, 15 January 2015, and Kraulaidis v. Lithuania, no. 76805/11, § 57, 8 November 2016, with further references).

48. The Court has previously found on numerous occasions, when examining complaints related to the deaths of patients in the care of the medical profession, that States are required to make regulations compelling asylums, whether public or private, to adopt appropriate measures for the protection of their patients’ lives and to set up an effective independent judicial system so that the cause of death of patients, whether in the public or the private sector, can be determined and those responsible made accountable (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I, and Dodov v. Bulgaria, no. 59548/00, § 80, 17 January 2008). The same conclusions were reached by the Court in respect of securing the well-being of detainees or other persons under the control of the State authorities (see Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § 69, 19 April 2012; Mosendz v. Ukraine, no. 52013/08, § 92, 17 January 2013; and Yuri Illarionovitch Shchokin v. Ukraine, no. 4299/03, §§ 35-37, 3 October 2013). The Court also pointed out that in the case of mentally ill patients, consideration had to be given to their particular vulnerability (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001‑III; Rivière v. France, no. 33834/03, § 63, 11 July 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014).

49. The Court, however, reiterates that in cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by the Convention to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy. The choice of means for ensuring the positive obligations under the Convention is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, mutatis mutandis and in the ambit of Article 2 of the Convention, Calvelli and Ciglio, cited above, § 51; Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006; Dodov, cited above, § 87; and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 215-216, ECHR 2017, with further references).

(b) Application of these principles to the present case

50. The Court must examine, therefore, whether in the present case the available legal remedies, taken together, as provided by law and applied in practice, could be said to have secured legal means capable of establishing the facts, holding those at fault accountable and providing appropriate redress to the victim (see, mutatis mutandis, Dodov, cited above, § 83).

51. As already mentioned (see paragraph 45 above), the applicant suffered grievous bodily harm at the hands of another patient while in a State-run mental institution. The relevant domestic law provided that criminal, disciplinary and civil proceedings could be used to determine who should be held accountable. The Court will examine whether those remedies, taken separately or jointly, satisfied the above requirements under Article 3 of the Convention.

(i) Criminal-law remedies

52. The Court notes that in the instant case it is not in dispute that the injuries in question were inflicted on the applicant by a private individual, B. However, it is unclear whether B., who at the material time was confined with the applicant in a State-owned mental health asylum, was mentally fit at the time of the incident and at any other time before her death to understand the consequences of her actions and be held liable for them. As a result, the question whether B.’s actual discharge from criminal liability by prosecution authorities was lawful (see paragraph 8 above), remains uncertain.

53. Be as it may, B. had died on 16 September 1998 (see paragraph 7 above), little more than four months after the refusal to institute criminal proceedings in 1998; thus her prosecution would not have had any prospects of success anyway.

54. In addition, according to the prosecutor’s decision of 8 May 1998 not to institute criminal proceedings (see paragraph 8 above), the incident apparently happened owing to the orderlies’ negligent performance of their duties. The same conclusion was reached on 30 June 2013 following the investigation initiated on 26 December 2012 (see paragraph 10 above).

55. The decisions not to institute or pursue criminal proceedings were taken because the orderlies could not be considered to be “officials” within the meaning of the relevant provisions of the Criminal Code in force at the material time. Therefore, the absence of legislation establishing the orderlies’ liability in negligence and the objective fact of B.’s death rendered all attempts on behalf of the applicant to institute criminal proceedings futile in this particular case.

56. However, given that the Court’s relevant case-law provides that an effective judicial system does not necessarily require the provision of a criminal-law remedy if, as in the case of the orderlies, the infringement of the right to personal integrity is not caused intentionally (see the case-law quoted in paragraph 49 above), the Court must also examine whether the respondent State made available other legal remedies that satisfied the requirements of Article 3 of the Convention.

(ii) Disciplinary remedies

57. The Court notes that the asylum did not react in time to the alleged negligence of its employees as it was supposed to (see the relevant provisions of the Labour Code, quoted in paragraphs 33 and 34 above). According to the prosecutor’s demand of 13 December 2006 (see paragraph 17 above), the asylum was requested to conduct an internal investigation into the incident.

58. It appears that the prosecutor’s demand was not complied with and that a disciplinary investigation was not conducted. In any event, the statutory time-limit as to the imposition of disciplinary measures expired six months after the misdeed (see paragraph 34 above), in October 1998, which made it impossible to impose disciplinary measures on the orderlies supposedly responsible for the incident.

59. The failure to conduct a disciplinary investigation into the circumstances of the incident, as required by law, also made it impossible to establish the circumstances of the incident (including those responsible for it) and identify any errors in management, training or control over the asylum employees that may have made the incident in question possible.

60. In view of this, the Court concludes that no disciplinary remedies were used to ensure that the facts were established and that those responsible for the incident were held accountable.

(iii) Civil-law remedies

61. The Court notes that the applicant also claimed compensation for non-pecuniary and pecuniary damage under the civil procedure. Those claims were allowed by the domestic courts in part (see paragraphs 15 and 24-25 above).

62. The Court observes that the first set of proceedings lasted for more than seven years and seven months at one level of jurisdiction (from 10 February 1999 until 3 October 2006 – see paragraphs 11–16 above). They were terminated by a court decision finding that harm had been inflicted on the applicant solely as a result of negligence by the asylum employees. Although the applicant withdrew her appeal against that decision (see paragraph 25 above), it was not appealed against by the asylum either.

63. The next set of proceedings for compensation for pecuniary damage instituted by the applicant on 18 February 2008 (see paragraph 21 above), after the court decision of 3 October 2006 (see paragraph 15 above), lasted for six years (until 17 February 2014) at three levels of jurisdiction and ended with a slightly different conclusion, namely that the extent of the asylum employees’ responsibility for the incident reached 80 % while the remainder of the fault (20%) was put on B. (see paragraphs 24-25 above).

64. As a result, although the applicant was awarded compensation, it took her fifteen years (from 10 February 1999 until 17 February 2014) to obtain court decisions on her civil claims. However, firstly, the length could be partially attributed to the applicant since she had lodged her claims for pecuniary damages in two subsequent sets of proceedings. Moreover, the lengthy consideration of the applicant’s claims does not, in itself, automatically entail a breach of the State’s positive obligation under Article 3 of the Convention (see, mutatis mutandis and in respect of procedural obligations under Article 2, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015, and Sarbyanova Pashaliyska and Pashaliyska v. Bulgaria, no. 3524/14, § 37, 12 January 2017).

65. The Court, bearing in mind the minimum standards of effectiveness laid down by its case-law in respect of investigation in criminal cases (see Muta, cited above, § 61), reiterates that the essence of such an obligation is for the State to ensure existence of legal means capable of establishing the facts of the incident, holding those at fault accountable and providing appropriate redress to the victim (see the case-law quoted in paragraph 47 above). In the present case, having examined the evidence before them, the civil courts established the facts surrounding the infliction of the grievous bodily harm upon the applicant and awarded her compensation, the amount of which (approximately a total of EUR 8,640 at the material time, plus a monthly contribution of approximately EUR 71 – see paragraphs 15 and 24 above) she does not question.

66. That, in the Court’s view, is sufficient to enable it to conclude that the civil proceedings brought about the result desired by Article 3 of the Convention – establishing and holding accountable those responsible in an effective manner.

67. There has accordingly been no violation of this provision.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

68. The applicant also complained that the proceedings for damages had been unreasonably long, in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

69. On 8 April 2013 the Government submitted a unilateral declaration stating that they were prepared to acknowledge a violation of the applicant’s rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the civil proceedings in which she had been involved. They also offered to pay her EUR 1,080 as just satisfaction. That amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay this amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The payment will constitute the final resolution of the case.

70. The applicant did not accept the terms of the declaration.

71. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

72. Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the cases to be continued (see the principles emerging from the Court’s case-law, and in particular the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).

73. The Court has established clear and extensive case-law concerning complaints relating to the excessive length of civil proceedings (see, for example, Krasnoshapka v. Ukraine, no. 23786/02, 30 November 2006).

74. Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases (see, for example, Dulskiy v. Ukraine, no. 61679/00, 1 June 2006, and Yuryeva and Yuryev v. Ukraine, no. 3431/03, 31 July 2012) – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

75. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

76. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

77. In view of the above, it is appropriate to strike this part of the application out of the Court’s list of cases under Article 37 § 1 (c) of the Convention.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the applicant’s complaint under Article 3 of the Convention admissible;

2. Holds, by four votes to three, that there has been no violation of Article 3 of the Convention under its procedural limb;

3. Decides, unanimously, to strike the application out of its list of cases in so far as it concerns the complaint under Article 6 of the Convention regarding the excessive length of the proceedings.

Done in English, and notified in writing on 4 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliPaulo Pinto de Albuquerque
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pinto de Albuquerque, Yudkivska and Paczolay is annexed to this judgment.

P.P.A.
M.T.

JOINT DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE, YUDKIVSKA AND PACZOLAY

1. The present case raises a legal question of the utmost importance regarding the domestic remedies provided to redress a violation of Article 3 of the Convention, namely whether an award of compensation on the basis of the objective civil liability of a psychiatric institution constitutes a sufficient remedy for injuries sustained by a person confined in that institution.

2. The majority’s decision was based on the fact that the domestic court, albeit after lengthy proceedings, awarded the applicant compensation for the injuries she sustained while she was confined in the asylum. They relied, inter alia, on the principle according to which, in cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by the Convention to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see paragraph 49 of the judgment). The majority concluded that “the civil courts established the facts surrounding the infliction of the grievous bodily harm upon the applicant and awarded her compensation” (see paragraph 65 of the judgment), and that therefore the State had complied with its obligations under Article 3.

3. We cannot share this conclusion. We respectfully disagree with our learned colleagues that there has been no violation of Article 3 of the Convention in the present case. Contrary to the majority, we find that the compensation awarded to the applicant on the basis of the objective civil liability of the asylum cannot be considered a sufficient means of redress for a violation of Article 3, for the following reasons.

The Court’s standards

4. In previous judgments the Court has noted that compensation for non‑pecuniary damage should, in principle, be part of the range of available remedies if the infringement of the right to personal safety is not caused intentionally or in cases which do not concern the infliction of ill-treatment contrary to Article 3 of the Convention, but rather a failure by the authorities to protect persons from a breach of their rights under this provision. This consideration, nonetheless, by no means diminishes the duty to investigate and eventually prosecute, particularly where an applicant is under the care and responsibility of the authorities (see Sizarev v. Ukraine, no. 17116/04, § 120, 17 January 2013). In addition, the Court has repeatedly pointed out that in cases which concern medical negligence it is important to ensure that the measures chosen by the Government are capable of establishing any liability of the doctors concerned (see, mutatis mutandis, Calvelli and Ciglio v. Italy, no. 32967/96, § 51, ECHR 2002-I; Vo v. France, no. 53924/00, § 90, ECHR 2004-VIII; and Tarariyeva v. Russia, no. 4353/03, § 75, ECHR 2006‑XV (extracts)).

5. In some cases the Court has found that it is only by recourse to criminal-law remedies that it can be ensured that situations are investigated and evidence is collected in conformity with the Convention requirements (see Mitkus v. Latvia, no. 7259/03, § 76, 2 October 2012, and Gorodovych v. Ukraine, no. 71050/11, § 18, 19 January 2017). For example, in Mitkus, the Court concluded that civil proceedings had not offered the applicant a sufficient possibility to establish facts, gather evidence and find out the truth about the circumstances of his infection with HIV. In Arskaya v. Ukraine (no. 45076/05, 5 December 2013), which concerned medical negligence allegedly leading to the death of the applicant’s son, the Court examined whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Rather than assessing the legal regime in abstracto, the Court decided to examine whether the legal system as a whole had adequately dealt with the case at hand (see Arskaya, cited above, § 66). Thus, the Court has stressed that providing compensation to the victims is only one of the aspects of the State’s obligations when it comes to protecting the life and physical integrity of a person. It must also be accompanied by measures that are capable of identifying the individuals whose actions or omission led to the infliction of bodily harm on the applicant. In Arskaya the Court found a violation of Article 2 owing to the failure of the domestic authorities to examine all the relevant facts concerning the death of the applicant’s son and to identify the persons responsible (§ 71). Furthermore, the Court noted the lack of adequate domestic regulations establishing a stringent procedure for the treatment of patients in a situation similar to that of the applicant’s son (ibid., §§ 90-91).

6. We further reiterate that Article 3 imposes on the State a duty to protect the physical well-being of individuals who find themselves in a vulnerable position by virtue of being under the control of the authorities (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, and Bataliny v. Russia, no. 10060/07, § 107, 23 July 2015). The position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with (see M.S. v. Croatia (no. 2), no. 75450/12, § 98, 19 February 2015), and the authorities should demonstrate special care in guaranteeing safe conditions corresponding to the special needs of persons with mental illnesses (see Hiller v. Austria, no. 1967/14, § 48, 22 November 2016).

The case at hand

7. Turning to the case at hand, we note that the bodily injuries were inflicted on the applicant by another patient in the asylum and that the asylum bore full responsibility for people admitted for treatment. In this respect we note that, in the second set of proceedings, responsibility was divided between the asylum and Ms B., respectively, in a proportion of 80% to 20%. The domestic courts did not provide reasons for this distribution of responsibility. They failed to establish all the circumstances of the incident which led to the infliction of severe bodily injuries on the applicant. In particular, it was never established whether B. had lacked legal capacity at the moment of the incident, since in the two sets of civil proceedings different conclusions were reached in this regard (see paragraphs 17 and 23 of the judgment). Hence, we do not think that the national authorities demonstrated due diligence when considering the complaint about ill‑treatment, establishing all the circumstances of the case and identifying the individuals responsible (see Virabyan v. Armenia, no. 40094/05, §§ 177‑178, 2 October 2012).

8. Furthermore, the domestic proceedings had several other serious shortcomings. Neither the first nor the second set of civil proceedings identified who exactly was responsible for the applicant’s placement in the same ward as B., allegedly known for her violent behaviour, and for leaving them both unattended for a certain period of time. Although the Government provided the Court with the asylum orderlies’ list of duties, according to which the psychiatric patients should not have been left unsupervised, it remains unclear if these duties were made known to the asylum employees and, if that was the case, to what extent, if at all, they were implemented. This Court has underscored many times that the positive obligations under Article 2 require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives (see Oyal v. Turkey, no. 4864/05, § 54, 23 March 2010, and Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts)).

9. Worse still, the disciplinary investigation that would have made it possible to establish all the circumstances of the case, including any errors in management, training or control over the asylum employees, was never conducted, despite the direct demand to that effect by the prosecutor. In these circumstances we are unable to conclude that the national authorities demonstrated genuine efforts towards finding out the actual causes of the incident.

10. Against this background we find that the compensation awarded to the applicant on the basis of the objective civil liability of the asylum was not a sufficient domestic remedy, since the domestic courts did not identify the specific individuals responsible for the injuries caused and the control mechanisms put in place. The domestic courts did not bother to consider whether the existing regulations on psychiatric institutions and the responsibility of their employees could have served as a sufficient means of preventing danger to the lives and health of the individuals confined therein. We also stress the fact that no measures were taken in order to prevent similar incidents in the future. These crucial flaws, unfortunately, were ignored by the majority.

11. Our assessment of the facts of the case in the light of the principles established in the Court’s jurisprudence leaves us no other choice than to conclude that the national authorities did not comply with their obligations under Article 3 of the Convention.

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