Communicated on 26 August 2015
FIRST SECTION
Application no. 53068/08
Igor Pavlovich FEDULOV
against Russia
lodged on 17 October 2008
STATEMENT OF FACTS
The applicant, Mr Igor Pavlovich Fedulov, is a Russian national, who was born in 1949 and lives in St. Petersburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant is suffering from advanced metastatic prostate cancer.
It appears that he was first diagnosed with that cancer in early 2007. In that connection, on 26 February 2007 the applicant was granted a status of a disabled person, with the result that, by virtue of Federal Law no. 178-FZ “On State Social Assistance” of 17 July 1999 (“the Law on State Social Assistance”), he became entitled to provision of free medicines on the basis of competent doctors’ medical prescriptions. A list of those medicines was approved by decree no. 665 of the Russian Ministry of Health Care and Social Development of 18 September 2006.
In February 2007 the applicant was also put on the federal register of persons entitled to State social assistance, including provision of free medicines. The applicant was assigned to pharmacy no. 162 of St. Petersburg where he was entitled to get free medicines for treatment of his disease.
2. The applicant’s attempts to obtain free medicines
At the time of the events described below, the applicant was following treatment with Bicalutamide. The treatment protocol required him to take one pill every day for a period of eight up to twelve months. In accordance with relevant regulations, a prescription for that type of a medicine was only valid for one month; therefore the applicant obtained a new prescription every month. However, he was able to get Bicalutamide free of charge only once, on 5 July 2007. On all the other occasions, the pharmacy was out of stock of that medicine available for free distribution. It kept the applicant’s prescriptions for “deferred service”, that is promised to inform him of the availability of Bicalutamide free of charge as soon as the medicine arrived. At the same time, the applicant was informed that he could obtain the required medicine at his own expense. Since the applicant had to follow the treatment protocol uninterruptedly, he bought the medicine on 8 June, 1 and 25 October and 26 November 2007 for a total amount of 49,400 Russian roubles (“RUB”, approximately 1,400 euros, “EUR”).
According to the applicant, his aggregate monthly income, stemming from his old-age and disability pension and his extra earnings on account of his consulting of a private firm until 31 October 2007, totalled RUB 7,105.15 (approximately EUR 200).
The applicant applied to various public bodies complaining about the unavailability of the Bicalutamide medicine free of charge, and also in an attempt to have his expenses carried in connection with the purchase of that medicine reimbursed.
In a letter of 11 May 2007 the St. Petersburg Committee of Health Care (Комитет по здравоохранению г. Санкт-Петербурга, “the Health Care Committee”) replied to the applicant’s relevant complaint, stating that free provision of medicines was funded by the federal budget, and that, by virtue of decree no. 328 of the Russian Ministry of Health Care and Social Development, in the absence of the necessary medicine a patient’s prescription should be taken by a pharmacy for a “deferred service”. The letter further stated that the Health Care Committee had sent a relevant request to a pharmaceutical company with a view to obtaining Bicalutamide, and that as soon as the medicine arrived at the pharmacy to which the applicant was assigned, he would be informed accordingly. The letter also informed the applicant that, in accordance with Federal Law no. 195 on Fundamentals of Social Support of the Population in the Russian Federation, individuals in difficult financial situation could be provided with financial aid in district centres of social support located at the place those individuals’ domicile; the amount of that aid was determined by the local authorities.
In a letter of 10 September 2007 the Health Care Committee stated that it did not reimburse the costs of the medicines which patients had obtained at their own expense. The letter further invited the applicant to apply to a relevant district centre of social support for financial aid.
On 7 November 2007 the St. Petersburg Fund of Compulsory Medical Insurance (Территориальный фонд обязательного медицинского страхования г. Санкт-Петербурга, “the St. Petersburg Medical Insurance Fund”) informed the applicant that the federal legislation on social support did not provide for reimbursement of patients’ expenses for the medicines included in the list of those provided free of charge in the context of the relevant State programs. It further stated that it was the Health Care Committee that was entrusted with a task of satisfying the population’s needs in medicines, and therefore the applicant should address his queries to that latter State body.
3. The applicant’s attempts to obtain free legal assistance
According to the applicant, between October 2007 and February 2008 he also applied to various State bodies, non-governmental and human rights organisations, bar associations in an attempt to obtain free legal advice and legal representation in eventual court proceedings. These attempts proved unsuccessful.
In a letter of 14 January 2008 a deputy president of the St. Petersburg bar association informed the applicant that free legal advice could be provided to a disabled person only in connection with an individual program of that person’s rehabilitation.
4. Proceedings before courts
On 10 December 2007 the applicant started civil proceedings against the Health Care Committee and the St. Petersburg Medical Insurance Fund in the Moskovskiy District Court of St. Petersburg (“the District Court”). He sought compensation of pecuniary damage he incurred being compelled to obtain Bicalutamide at his own expense, and compensation of non‑pecuniary damage as a result of his moral suffering.
In the proceedings before the court, the defendants objected to the applicant’s claim. In particular, a representative of the St. Petersburg Medical Insurance Fund argued that it was an obligation of the federal authorities to provide relevant categories of citizens with free medicines, and that the entire amount earmarked by the Federal Fund of Compulsory Medical Insurance (“the Federal Medical Insurance Fund”) for that purpose to the St. Petersburg Medical Insurance Fund had been transferred by the latter to a relevant pharmaceutical company with a view to obtaining necessary medicines; in spite of this fact, the St. Petersburg Medical Insurance Fund had an outstanding debt before that company in respect of the medicines which the residents of St. Petersburg had obtained free of charge in the city’s pharmacies. The representative of the St. Petersburg Medical Insurance Fund further argued that in 2007, with reference to the limits of the federal budget, the Federal Medical Insurance Fund had rejected its request for provisions of necessary medicines for the inhabitants of St. Petersburg in the quantity covering their needs.
A representative of the Health Care Committee stated that the latter had never been earmarked any financial resources from the federal budget to ensure provision of free medicines, as that committee only performed coordinating and monitoring functions for implementation of the relevant federal program.
On 5 February 2008 the District Court rejected the applicant’s claim in full.
In its judgment, the District Court noted that, by virtue of Article 1069 of the Russian Civil Code, damage inflicted on an individual as a result of unlawful action or inaction of State bodies or officials was to be compensated for. It also stated that under the Law on State Social Assistance and presidential decree “On additional measures of a State support for disabled person” individuals with specials needs had a right to a State aid in the form of provision of various social services, including free medicines, and that it was the State’s obligation to provide that aid. It further quoted decree no. 864 of 29 December 2004 of the Russian Government, which had imposed an obligation on territorial funds of compulsory medical insurance to submit requests to the Federal Medical Insurance Fund for allocation of financial resources necessary for provision of free medicines. It was the Federal Medical Insurance Fund which, under the decree, earmarked necessary amounts from the federal budget to territorial funds, and the latter transferred those amounts on a monthly basis to a relevant pharmaceutical organisation; whereas a relevant territorial health care committee – an executive agency – monitored the use of the financial resources by a relevant territorial fund of compulsory medical insurance.
The court further observed that the applicant had a status of a disabled person and that on several occasions between April and November 2007 he had obtained prescriptions for the Bicalutamide medicine, which he had then several times bought at his own expenses for a total amount of RUB 49,400 Russian roubles (approximately EUR 1,400). The court further noted the applicant’s unsuccessful attempts to seek the assistance of the St. Petersburg Medical Insurance Fund or the Health Care Committee in obtaining the free medicine or having his expenses reimbursed.
The District Court then noted that in 2007 the Federal Medical Insurance Fund had rejected the request of the St. Petersburg Medical Insurance Fund for supply of free medicines based on the assessment of the needs of the inhabitants of St. Petersburg. The Federal Medical Insurance Funds had stated that the limits of the financial resources allocated for that purpose in the federal budget had been exceeded. The court also stated that the St. Petersburg Medical insurance Fund had submitted in due course an additional request for provision of the residents of St. Petersburg with free medicines, including Bicalutamide, for the second half of the year 2007; that it had duly spent the entire amount earmarked for that purpose from the federal budget and still had an outstanding debt before the relevant pharmaceutical company.
The court went on to note that the Health Care Committee did not get any allocation from the federal budget for provision of the relevant categories of residents of St. Petersburg with free medicines.
In the light of the foregoing, the District Court concluded that there were no grounds to allow the applicant’s claim, as it had not been established during those proceedings that the applicant had sustained pecuniary losses and suffered non-pecuniary damage because of any unlawful actions on the part of the St. Petersburg Medical Insurance Fund or the Health Care Committee. The court found it established, in particular, that the St. Petersburg Medical Insurance Fund had fully complied with its relevant obligations concerning provision of certain categories of individuals with free medicines within the limits of the sums allocated for that purpose from the federal budget. The court further referred to the fact that the request of the St. Petersburg Medical Insurance Fund for supply of free medicines corresponding to the needs of the inhabitants of St. Petersburg had been rejected by the Federal Medical Insurance Fund. Therefore, in the District Court’s view, there had been no fault of the St. Petersburg Medical Insurance Fund in a failure to provide the residents of St. Petersburg, including the applicant, with necessary medicines, with the result that there were no grounds to hold the St. Petersburg Medical Insurance Fund liable to reimbursement of the applicant’s expenses for Bicalutamide.
The District Court further found no grounds to impose any such responsibility on the Health Insurance Committee either, stating that its relevant programs were financed from the federal budget and that the Committee only monitored and coordinated the provision of the patients with free medicines. The court went on to state that it had not established any fault on the part of the Health Care Committee in a failure to provide the residents of St. Petersburg with free medicines under the relevant federal program. The court furthermore had not established a causal link between the action or inaction of the health Care Committee and the applicant’s expenses he had incurred as a result of the purchase of the Bicalutamide medicine. Therefore, in the court’s view, the committee had no obligation to reimburse those expenses.
On 23 April 2008 the St. Petersburg City Court upheld the judgment of 5 February 2008 on appeal, endorsing the reasoning of the District Court.
The applicant’s further attempts to have his case reviewed in a supervisory review proved futile.
B. Relevant domestic law
1. Social protection of disabled persons and provision of free medicines
Federal Law no. 178-FZ “On State Social Assistance” of 17 July 1999, as in force at the relevant time, provided, inter alia, that certain vulnerable categories of the Russian citizens, individuals with disabilities being amongst their number, were entitled to a number of social services, including provision of free medicines (sections 6.1 and 6.2). It also established that the persons who were entitled to the benefits listed therein should be included in the relevant federal register (section 6.4) and that the list of free medicines shall be approved by the competent federal executive agency – the Russian Ministry of Health Care and Social Development – (section 6.2.2).
By decree no. 328 of 29 December 2004 the Russian Ministry of Health Care and Social Development approved the rules governing the procedure of provision of the individuals concerned with social services, including supply with free medicines. It provided, in particular, that free medicines should be provided to such individuals on the basis of competent doctors’ medical prescriptions; that those medicines should be obtained in the pharmacies specially designated for that purpose, and that if a particular medicine was momentarily unavailable, a patient’s prescription should be taken by a pharmacy for a “deferred service” and the necessary medicine should be provided within ten working days, or be replaced by a similar medicine from the relevant list.
By decree no. 864 of 29 December 2004 the Russian Government approved the rules on financing of expenses for providing State social support in the form of social services. The decree established that a territorial fund of compulsory medical insurance should submit requests to the Federal Fund of Compulsory Medical Insurance (“the Federal Medical Insurance Fund”) for allocation of financial resources necessary for provision of free medicines to those concerned. It was the Federal Medical Insurance Fund which, under the decree, decided on the amounts which should be allocated from the federal budget to a territorial fund, and the latter transferred those amounts on a monthly basis to a relevant pharmaceutical organisation. The use of the allocated financial resources was monitored by competent federal executive agencies.
By decree no. 665 of 18 September 2006 the Russian Ministry of Health Care and Social Development included the Bicalutamide medicine in the list of medicines that should be provided free of charge in accordance with the Law of State Social Assistance.
2. Free legal assistance in civil cases
Section 26 of Federal Law no. 63-FZ “On Legal Practice and Advocacy in the Russian Federation” of 31 May 2002, as in force at the relevant time, provided, in so far as relevant, that free legal assistance in civil proceedings should be granted to Russian nationals, with an income lower than the minimum amount of subsistence, who were plaintiffs in cases concerning recovery of alimonies, compensation of damage caused by the loss of a breadwinner, compensation of damage caused by an injury or any other harm to health sustained at work.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about a number of shortcomings during the proceedings for compensation, which in his view deprived his of access to court. He alleges, in particular, that, being a pensioner with a low income, he could not afford to be represented by a lawyer, and could not benefit from legal aid, even though the case was sensitive as it involved an allegation of the State’s failure to fulfil its obligation in the social sphere to support vulnerable categories of citizens, and clearly had a pecuniary dimension, with the result that if he had been successful that might have provoked a significant number of actions against the State from the persons in his situation. The case was moreover quite complex, requiring a thorough knowledge of numerous legal norms adopted by the authorities at various levels and applicable procedures. It was also emotionally difficult for him, as it involved issues of his provision with medicines indispensable to support his life; he felt helpless and abandoned as a result of the State’s failure to honour its relevant obligations. Furthermore, the defendants, two State bodies, were represented by professional lawyers, whereas the applicant had no legal knowledge or any experience of participating in court proceedings, with the result that, in the absence of a professional legal assistance, he was unable to present his case before the courts effectively, which placed him at a substantial disadvantage vis-à-vis the defendants.
The applicant further complains that during the proceeding in questions the first-instance court declined almost all his motions, by which he sought the court’s assistance in obtaining evidence relevant for the case. The first‑instance court also refused his request to postpone the hearing of 5 February 2008 as he did not feel well, and that he was unable to study certain documentary evidence adduced by the defendants during the hearing of 5 February 2008. The applicant also complains that the courts, in fact, only examined a general question regarding the defendants’ compliance with their obligations under the relevant legal instruments, having left his main arguments regarding the unavailability of a life-supporting medicine unanswered.
The applicant also relies on Article 13 of the Convention in respect of the above complaints.
The applicant further complains under Article 1 of Protocol No. 1 that the authorities failed to ensure his right to free medicines for treatment of his cancer, which was conferred on him by the relevant domestic legislation, with the result that he was compelled to obtain the necessary medicines at his own expense. He also complains about the authorities’ refusal to reimburse those expenses.
QUESTIONS TO THE PARTIES
1. Was legal aid available to the applicant in the proceedings described in the statement of facts?
If so, did the applicant comply with necessary requirements and/or procedures to get that aid?
If not, did the applicant have a fair hearing within the meaning of Article 6 § 1 of the Convention (see Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-72, ECHR 2005‑II)?
2. Regard being had to the applicant’s complaints that:
(a) the Moskovskiy District Court of St. Petersburg declined almost all his motions, by which he sought that court’s assistance in obtaining evidence relevant for the case;
(b) the Moskovskiy District Court of St. Petersburg refused his request to postpone the hearing of 5 February 2008 as he did not feel well;
(c) he was unable to study certain documentary evidence adduced by the defendants during the hearing of 5 February 2008;
(d) the domestic courts did not address all of his arguments, having only examined a general question regarding the defendants’ compliance with their obligations under the relevant legal instruments,
did the applicant have a fair hearing within the meaning of Article 6 § 1 of the Convention?
3. Regard being had to the provisions of the domestic law referred to by the domestic courts in their decisions in the applicant’s case, and/or to any other relevant provisions of the domestic law, did the applicant have a “legitimate expectation” of being provided with free medicines necessary for treatment of his oncological condition, or with monetary compensation to reimburse his expenses he incurred when having purchased the necessary medicine? In particular, did the applicant satisfy the criteria established in the relevant legal instruments to benefit from the provision of free medicines? If so, was Article 1 of Protocol No. 1 respected in the present case?
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