FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24429/03
by Sergey Dmitriyevich SOLOMAKHIN
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 6 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Volodymyr Butkevych,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 22 July 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Dmitriyevich Solomakhin, is a Ukrainian national who was born in 1964 and lives in Donetsk, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 23 November 1998 the applicant sought medical assistance from the Donetsk City Hospital No. 16 [Центральна міська клінічна лікарня № 16 м. Донецька] (“the Hospital”) where he was diagnosed as having an acute respiratory disease. According to the applicant, he had a contraindication to vaccinations. However, on 27 November 1998 the applicant was vaccinated against diphtheria (according to the official documents from the case-file, the applicant’s vaccination took place on 28 November 1998).
Subsequently, the applicant’s state of health worsened. He spent more than half a year at different medical institutions receiving treatment for a number of chronic diseases (for instance, pancreatitis, cholecystitis, hepatitis, colitis, etc.).
On 4 February 1999 a doctor practicing at the Hospital was reprimanded for violation of the rules governing vaccination in relation to the applicant’s vaccination in November 1998.
First set of proceedings
On 26 April 1999 the applicant instituted proceedings in the Budyonnovskiy District Court of Donetsk (“the Budyonnovskiy Court”) against the local department of public health [Донецький міський відділ охорони здоров’я] and the Hospital, seeking compensation for damage to his health. He alleged that the vaccination of 27 November 1998 had resulted in a number of chronic diseases.
On 2 June 2003 the court found no causal link between the applicant’s vaccination and his subsequent diseases. Accordingly it rejected the applicant’s claim.
The applicant appealed against the judgment of 2 June 2003. He also challenged the record of the court hearing. On 30 July 2003 the Budyonnovskiy Court rejected this complaint as being submitted out of time.
Subsequently the applicant appealed against the ruling of 30 July 2003, filing successive appeals and complaints about the records of further court hearings. He also challenged judges examining his case. Eventually, on 7 May 2007 the Donetsk Regional Court of Appeal quashed inter alia the decision of 30 July 2003 and remitted this matter for a fresh consideration.
It appears that on 30 November 2007 the Donetsk Regional Court of Appeal reminded the Budyonnovskiy Court to comply with its ruling of 7 May 2007 and to examine till 30 December 2007 the applicant’s complaints about a number of court hearings records.
The applicant’s appeal against the judgment of 2 June 2003 is apparently still awaiting judicial determination.
Second set of proceedings
In April 2000 the applicant requested the local Prosecutor’s Office to institute criminal proceedings against the Hospital authorities who allegedly had caused damage to his health. On 12 February 2001, following investigation, the Prosecutor’s Office refused to institute the requested proceedings because of lack of corpus delicti. Subsequently this ruling was quashed and the investigation resumed.
In 2001-2005 the proceedings were several times terminated and subsequently reopened.
In July 2007 the criminal case was transferred to the local police. The investigation is still pending.
Third set of proceedings
On 17 August 2000 the applicant was dismissed.
In October 2001 the applicant instituted proceedings in the Budyonnovskiy Court against his employer, seeking reinstatement and compensation. On 14 May 2001 the court found against the applicant. On 22 April 2002 the Donetsk Regional Court of Appeal upheld this judgment. On 27 August 2002 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation.
On 3 October 2002 the applicant requested the Supreme Court of Ukraine to review its ruling under the extraordinary review procedure. On 13 February 2003 the court rejected the applicant’s request.
Fourth set of proceedings
On an unspecified date the Donetsk Heating Systems Company [ОП «Донецькміськтепломережа»] instituted proceedings in the Budyonnovskiy Court against the applicant and his family seeking payment of debt for communal charges.
On 17 December 2002 the court allowed this claim in part and ordered the defendants to pay the debt. On 18 August 2003 and 16 June 2005 the Donetsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively, upheld this judgment.
B. Relevant domestic law
1. The Code of Civil Procedure of 1963 (repealed as of 1 September 2005)
Article 201 § 2, in force at the material time, provided, inter alia, that complaints concerning court record were to be examined by the court which had taken decision, at a public hearing and in the presence of the parties to the case.
2. The Code of Civil Procedure of 2004 (entered into force on 1 September 2005 and as amended on 16 March 2006)
Article 297 § 4 of the Code provides that the court of appeal remits the case to a lower court if, inter alia, the latter has not examined complaints concerning court record submitted to it.
COMPLAINTS
The applicant complained under Article 2 of the Convention about damage to his health as a result of the alleged medical malpractice.
Referring to Article 6 § 1 of the Convention, the applicant complained of the courts’ assessment of evidence and interpretation of the law and challenged the outcome of the third and fourth sets of proceedings. He also complained of the length of the first set of proceedings.
The applicant further complained under Article 13 of the Convention about the lack of effective investigation following his complaint about medical malpractice and about refusal to pay him compensation. He also invoked Article 14 of the Convention.
THE LAW
A. The length of the proceedings
The applicant complained that the length of the first set of proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. The physical integrity of the applicant
Referring to Article 2 of the Convention, the applicant complained about damage to his health as a result of the alleged medical malpractice. In particular, he submitted that the vaccination of 27 November 1998 had resulted in a number of chronic diseases.
The Court, which is master of the characterisation to be given in law to the facts of the case, decides ex officio to examine the problem raised by the applicant under Article 8 of the Convention which is the relevant provision and which provides insofar as relevant as follows:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
C. Other complaints
The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the first set of proceedings and the applicant’s right to physical integrity;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy