The effective search for serious personal injury can also be done by civil courts. No criminal or disciplinary investigation is required for the purposes of Article 3 of the ECHR if the finding was completed in civil proceedings
JUDGMENT
Isayeva v. Ukraine 4.12.2018 (no. 35523/06)
SUMMARY
Serious physical injury to a psychiatric patient from the aggressive behavior of another patient. There was no prosecution or disciplinary investigation to investigate the incident and the existence of liability for this (patient and / or nurses). The victim and the applicant filed two appeals before the civil courts against the Psychiatric Hospital and was awarded an amount of approximately € 8640 for damages and non-pecuniary damage. In the first instance, the court judged that only the nurses were responsible for the non-observance of the aggressive patient, and the second that there was coexistence (80% of the nurses and 20% of the patient) for the applicant’s serious bodily injury. The applicant appealed to the ECtHR for the non-criminal punishment of those responsible for the incident and that the length of the civil court’s indemnification procedure was excessive.
The Court found that no criminal and disciplinary investigation had been carried out in the case but considered that it was sufficient for the civil court to find out the facts and the persons responsible and to compensate. As a result, there was no violation of the procedural leg (effective investigation) of Article 3 of the ECHR. For the breach of reasonable time, the ECtHR awarded the amount offered by Ukraine.
PROVISIONS
Article 3 (research)
Article 6
PRINCIPAL FACTS
The applicant, Natalya Isayeva, is a Ukrainian national who was born in 1974 and lives in Luhansk
(Ukraine).
The case concerned Ms Isayeva’s complaint that she had been seriously hurt by another patient in a
State-run mental institution in 1998.
She suffered grievous bodily harm following the attack, including concussion and a fractured jaw and
nose. Her injuries later resulted in her going blind in one eye.
The prosecuting authorities decided in 1998 and 2013 not to institute or pursue criminal
proceedings. They found in particular that the patient who had attacked Ms Isayeva could not be
held criminally responsible and that, even though two of the asylum’s orderlies had apparently been
negligent by failing to supervise the patients, it was not possible to prosecute them under the
relevant domestic law because they could not be considered as “officials”.
Between 1999 and 2014 she did however obtain court decisions on two of her civil claims for
compensation. The first set of proceedings terminated by a court decision finding that solely the
asylum orderlies were at fault for the harm inflicted on her, while the second set of proceedings
divided liability for the incident between the orderlies and the patient who had assaulted her.
She was awarded 74,130 Ukrainian hryvnias (approximately 8,000 euros at the time) in total in those
proceedings.
In the meantime, in 2006, the prosecutor’s office requested that the asylum conduct an internal
investigation into the incident, but this demand has apparently never been complied with.
Ms Isayeva complained that the State had failed to hold those responsible for the incident to
account and that the length of the proceedings for damages had been excessive. The Court
examined her complaints under Article 3 (prohibition of inhuman or degrading treatment) and Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human
Rights.
THE DECISION OF THE COURT
i) Criminal-law remedies
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 remains uncertain.
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.
In addition, according to the prosecutor’s decision of 8 May 1998 not to institute criminal proceedings 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.
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.
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 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
The Court notes that the asylum did not react in time to the alleged negligence of its employees as it was supposed to . According to the prosecutor’s demand of 13 December 2006 the asylum was requested to conduct an internal investigation into the incident.
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, in October 1998, which made it impossible to impose disciplinary measures on the orderlies supposedly responsible for the incident.
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.
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
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..
The Court observes that the first set of proceedings lasted for more than seven years and seven months at one level of jurisdiction . 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, it was not appealed against by the asylum either.
The next set of proceedings for compensation for pecuniary damage instituted by the applicant on 18 February 2008, after the court decision of 3 October 2006, 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.
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.
The Court, bearing in mind the minimum standards of effectiveness laid down by its case-law in respect of investigation in criminal cases , 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. 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 she does not question.
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.
There has accordingly been no violation of this provision.
No violation of Article 3 (investigation)
Application struck out of the Court’s list of cases in so far as it concerns Ms Isayeva’s complaint
under Article 6 of the Convention regarding the excessive length of the proceedings, the Court
taking note of the unilateral declaration submitted by the Ukrainian Government, whereby the
Government undertakes to pay Ms Isayeva 1,080 euros (EUR) in respect of just satisfaction(echrcaselaw.com editing).
