FIFTH SECTION
DECISION
Application no. 41468/13
Iryna Ivanivna VOLKOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 February 2023 as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Mattias Guyomar,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 41468/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 June 2013 by a Ukrainian national, Ms Iryna Ivanivna Volkova (“the applicant”), who was born in 1953 and lives in Konotop, and was represented by Mr O. Ovchynnykov, a lawyer practising in Strasbourg;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the death of the applicant’s son, who contracted tuberculosis and diabetes in prison and was allegedly not provided with adequate treatment for those diseases, in breach of Articles 2, 3, 6 § 1 and Article 14 of the Convention.
2. On 25 April 2006, following an X-ray examination in the course of a regular medical check-up, the applicant’s son K., who was serving a prison sentence in Shostka Prison at the time, was given an initial diagnosis of infiltrative tuberculosis of the lungs. Two days later he was placed in the prison’s medical unit for care and treatment of the disease. On 22 May 2006 a panel of doctors established a final diagnosis of disseminated tuberculosis at the stage of destruction of the lung tissue.
3. In June and July 2006 K. underwent medical treatment for tuberculosis in the hospital at Shostka Prison and then from July 2006 to February 2009 in the tuberculosis hospital at Zhovtnevska Prison. While in the tuberculosis hospital, he received several courses of treatment. During that time, he was also diagnosed with diabetes and was provided with appropriate treatment.
4. On 19 February 2009, in view of a favourable prognosis, K. was discharged from the tuberculosis hospital and returned to Shostka Prison with a recommendation to continue the treatment for tuberculosis. That recommendation was followed on 17 June 2009, when K. was placed in a hospital in Konotop for treatment of tuberculosis and diabetes. While in the Konotop hospital, K. was granted early release from serving his sentence, pursuant to a decision of the Konotop Court of 8 December 2009.
5. On 5 February 2010 K. was discharged from the Konotop hospital of his own volition. He was advised to continue inpatient treatment for tuberculosis. The applicant did not provide any information about whether her son had undergone medical treatment for tuberculosis after his discharge from the Konotop hospital. On 18 December 2010 K. died of tuberculosis.
6. In July 2011 the applicant instituted compensation proceedings against the prison authorities, asserting that her son’s death had been the result of inadequate medical treatment for tuberculosis. In the course of the proceedings, a forensic medical expert established that the medical treatment and care provided to K. while he served his term of imprisonment had been in accordance with the relevant treatment protocols. In particular, while he was in the tuberculosis hospital, his treatment for tuberculosis had been adjusted several times in order to achieve a positive result and this had proved to be effective. The treatment of K.’s diabetes had been affected by his refusals to start taking insulin, to comply with diet recommendations and to undergo regular blood tests. These elements had worsened the effectiveness of treatment for both diabetes and tuberculosis, since both diseases had mutually affected the recovery process. Lastly, the forensic expert concluded that there had been no direct causal link between the level of K.’s medical treatment and his death.
7. On 31 October 2012 the Shostka Local Court dismissed the applicant’s claims against the prison authorities as unsubstantiated. The court took into account the results of the forensic examination and noted that K. had not followed the recommendation to continue inpatient treatment after his discharge from the Konotop hospital on 5 February 2010. The applicant appealed without contesting the accuracy of the results of the forensic examination. On 6 December 2012 and 8 January 2013 respectively the Sumy Regional Court of Appeal and the Higher Specialised Civil and Criminal Court upheld the decision of the Shostka Local Court.
8. The applicant complained under Article 2, raised in substance, and Article 3, Article 6 § 1 and Article 14 of the Convention that her son had not been provided with adequate medical treatment for tuberculosis during his detention, which had led to his death, and that the domestic courts had failed to properly examine her claim for damages. Given the circumstances of the case and the substance of the applicant’s complaints, they fall to be examined under Article 2 of the Convention only.
THE COURT’S ASSESSMENT
9. The relevant principles under Article 2 of the Convention concerning the State’s obligations in the area of healthcare can be found in Makharadze and Sikharulidze v. Georgia (no. 35254/07, §§ 71-73, 22 November 2011).
10. The Court notes that the applicant focused her grievances on the alleged inadequacy of medical treatment given to her son from 2006 to 2009 while he was serving his prison sentence. It further notes that the applicant’s son died of tuberculosis one year after he had been released from prison. It cannot therefore be said that he died while under the authorities’ control. In assessing whether the authorities did everything reasonably possible, in good faith and in a timely manner, to try to prevent the irreversible consequences of the applicant’s son’s disease which resulted in his subsequent death, the Court refers to the forensic expert’s conclusion, reached in the course of the compensation proceedings against the prison authorities, establishing that there had been no direct causal link between the level of K.’s medical treatment and his death (see paragraph 6 above). Noting that the applicant did not contest the accuracy of the forensic examination report, the Court does not see any reason to doubt its results.
11. However, even assuming that the medical treatment of K. for tuberculosis might have had certain deficiencies and thus could have had a direct impact on K.’s death one year after his release from serving his prison sentence, the Court is not in a position to assess the extent of that impact, as it has not been provided with information about K.’s medical treatment for tuberculosis after his discharge from the Konotop hospital on 5 February 2010. In the circumstances of the present case, the Court does not consider it established that the authorities failed to discharge their obligation to provide the applicant’s son with appropriate medical care and treatment under Article 2 of the Convention.
12. The Court further notes that there is nothing in the material available to it which shows that the domestic courts, in examining the applicant’s compensation claim, failed to address her specific arguments or improperly assessed the circumstances of the case before them.
13. In view of the foregoing, the Court finds that the applicant’s complaints under both the substantive and procedural limb of Article 2 of the Convention are manifestly ill-founded. The application must therefore be declared inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 March 2023.
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President