Communicated on 11 May 2015
FIFTH SECTION
Application no. 23902/14
Khrystyna Mykolayivna RUBAS
against Ukraine
lodged on 17 March 2014
STATEMENT OF FACTS
The applicant, Ms Khrystyna Mykolayivna Rubas, is a Ukrainian national, who was born in 1988 and lives in the city of Ternopil, Ukraine. She is represented before the Court by Messrs M.A. Tarakhkalo and M.V. Shcherbatyuk, lawyers practising in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has a first degree disability since childhood (інвалід першої групи). On 4 February 2010 she received a kidney transplant. On 24 February 2010 the applicant was prescribed the immunologic depressants Prohraf (10 mg per day) and Mifortik (1,440 mg per day). According to the applicant, under the decision of the Cabinet of Ministers of Ukraine of 17 August 1998 no. 1303 she had to be provided with those medicines for free.
According to the applicant, between 4 January 2011 and 26 August 2011 she was not provided with the necessary immunologic depressants in full which caused deterioration of her health.
On 19 July 2011 the Ternopil City Council informed the applicant that it was impossible to provide her with the necessary medications because of their absence and the lack of financing in this respect.
In July 2011 the applicant instituted proceedings in the Ternopilskyy Local Court against the Ternopil Regional State Administration and the Ternopil City Council requesting to provide her with the medications she had not received.
Later the defendant in the case was replaced by the Ministry of Health and the case was transferred to the Pecherskyy District Court of Kyiv.
On 11 April 2012 the Pecherskyy District Court of Kyiv found for the applicant.
On 13 June 2012 the Kyiv City Court of Appeal quashed the decision of 11 April 2012 and found against the applicant. The court held that other bodies responsible for supplying the applicant with the immunologic depressants had not been invited to join the case and that the law did not provide for a possibility to receive medications in kind for the period which had already passed.
In September 2012 the applicant instituted a new set of proceedings in the Ternopilskyy Local Court against the Ternopil City Council and its Health Protection Department, Ternopil Regional State Administration, Cabinet of Ministers, President of Ukraine, Ministries of Health and Finances and the Ternopil Communal City Hospital No. 2 claiming compensation for non-pecuniary damage caused by the failure to provide her with the necessary medications in full. According to the applicant, between 11 March 2011 and 1 September 2012 she did not receive Mifortik for 105 days and Prograf for 56 days.
On 29 March 2013 the court found against the applicant. The court noted that the applicant indeed had not been provided with the necessary immunologic depressants in full but the defendants had not acted unlawfully since the relevant financing had been lacking.
On 30 May 2013 the Ternopil Regional Court of Appeal found in part for the applicant and awarded her 10,000 Ukrainian hryvnias to be paid by the Ternopil City Council. The court found that only 40% (2011) and 50% (2012) of the necessary financing had been provided, however, the applicant’s state of health had deteriorated and the Ternopil City Council had not substantiated its argument of a “necessity of priority treatment for other patients”.
On 18 September 2013 the Higher Specialised Court of Ukraine in Civil and Criminal Matters quashed the decision of 30 May 2013 and upheld the decision of 29 March 2013.
COMPLAINT
The applicant complains that she needed the immunologic depressants to prevent her transplant to be rejected and the failure to provide her with those necessary medications guaranteed by the national law was in violation of Article 8 of the Convention.
QUESTION TO THE PARTIES
Has there been a violation of Article 8 of the Convention in view of the applicant’s inability to receive in full the immunologic depressants which were to be provided to her in accordance with the law?
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