Background
Four Ukrainian applicants brought separate complaints before the European Court of Human Rights after domestic criminal investigations into the deaths of their relatives — allegedly caused by medical negligence — proved ineffective. The cases were joined by the Court given their similar subject matter. The deceased included a heart-attack patient who died of pulmonary oedema after doctors were warned of her drug allergies (Kulish); a man whose colorectal cancer was allegedly diagnosed too late (Tsmokalov); a newborn who died following a traumatic delivery in which the disputed Kristeller manoeuvre was used (Pereta); and a road-accident victim who died in hospital after shortcomings in his treatment were identified by the hospital’s own medical conference (Broznytskyy).
In each case, Ukrainian authorities opened criminal proceedings under provisions addressing medical professionals’ failure to perform their duties. However, the investigations were plagued by recurring deficiencies: prolonged inactivity, failure to secure and preserve key evidence (including histological samples and medical records), forensic examinations conducted without addressing critical questions raised by victims, and — in multiple cases — decisions to terminate proceedings that were subsequently quashed by domestic courts or prosecutors, only to stall again.
By the time the applications reached Strasbourg, several proceedings remained unresolved years or even decades after the deaths occurred. In the Broznytskyy case, criminal proceedings opened in 2007 were ultimately terminated by the Supreme Court in 2023 due to the expiration of the statute of limitations — a direct consequence of the protracted delay.
The Court’s Holding
The Court, sitting as a Committee of three judges, unanimously found a violation of the procedural limb of Article 2 (right to life) of the European Convention on Human Rights in all four applications. Applying the general principles summarised in Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, 19 December 2017), the Court held that the domestic proceedings in each case failed to meet the standard of effectiveness required when the State’s procedural obligation is engaged in the healthcare context.
The specific shortcomings identified across the cases included: failure to thoroughly examine the facts surrounding the deaths; undue delay and lack of investigative diligence; evidence lost or destroyed during the investigation (including histological samples); forensic examinations that did not address witnesses’ accounts or victims’ questions; court-ordered investigative steps that were simply ignored; and proceedings criticised as inefficient by the Ukrainian authorities themselves. In the Pereta case, the delay meant that the limitation period for medical negligence expired and doctors questioned for the first time seven years after the events could no longer recall them.
The Court found no material capable of distinguishing these cases from its established case-law, particularly the leading Ukrainian medical negligence judgments in Arskaya v. Ukraine (no. 45076/05, 5 December 2013) and Valeriy Fuklev v. Ukraine (no. 6318/03, 16 January 2014). It awarded each applicant €6,000 in non-pecuniary damages, with costs of €250 awarded per application in three of the four cases.
Key Takeaways
- Ukraine’s procedural obligation under Article 2 requires an effective investigation into deaths allegedly caused by medical negligence — chronic delay, lost evidence, and ignored court orders each independently undermine that obligation.
- When investigators fail to act on quashed termination decisions or court-ordered forensic examinations, the State cannot satisfy its Article 2 procedural duties regardless of the substantive findings of any expert reports obtained.
- Delay can itself cause irreversible harm to accountability: the expiration of the limitation period and the fading of witnesses’ memories are foreseeable consequences of investigative inactivity that the State is responsible for preventing.
- The Committee procedure signals that these violations follow well-established Ukrainian case-law, placing Ukraine on notice that systemic reform of medical negligence investigations is required.
Why It Matters
This judgment reinforces a long-running line of Strasbourg authority finding that Ukraine’s criminal investigation system consistently fails victims of alleged medical negligence. By deciding the four cases in a streamlined Committee format — reserved for cases raising issues already clearly established in the Court’s case-law — the Court signals that these failures are not isolated but represent a structural problem. Ukrainian authorities and courts have themselves repeatedly acknowledged investigative deficiencies in these very cases, yet proceedings stalled, evidence was lost, and accountability was never achieved.
For practitioners and policymakers, the judgment underscores that Article 2’s procedural arm imposes concrete operational requirements: evidence must be secured promptly, forensic examinations must address the victim’s specific allegations, judicial orders must be executed, and investigations must proceed without undue delay. States that treat these obligations as formalities rather than enforceable duties face recurring findings of violation at Strasbourg.