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«ПРАКТИКА ЕВРОПЕЙСКОГО СУДА С ПРАВ ЧЕЛОВЕКА В СФЕРЕ ОХРАНЫ ЗДОРОВЬЯ: ОПЫТ ДЛЯ УКРАИНЫ»
Назарко Ю.В.
аспирантка кафедры конституционного права и прав человека Национальной академии внутренних дел Украины
«PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE FIELD OF HEALTH:
EXPERIENCE FOR UKRAINE»
Nazarko Yu.V.
Post-graduate student correspondence course Chair of Constitutional Law and Human Rights National Academy of Internal Affairs of Ukraine
Аннотация
В статье исследованы судебные дела по защите прав человека в сфере охраны здоровья в Европейском суде по правам человека. Проанализированы общие понятия, признаки, нормативное закрепление права человека на охрану здоровья в Украине. Приведены данные по поводу международного опыта в вопросах защиты прав на охрану здоровья. Предложены возможные пути внедрения качественной защиты прав в сфере охраны здоровья в Украине, опираясь на опыт Европейского суда по правам человека.
Abstract
The article investigates the protection of human heath rights in the European Court of Human Rights. The general concepts, signs, normative consolidation of the human right to health protection in Ukraine are analyzed in the article. The data on international experience in protecting the health right protection is presented here. In addition, possible ways of introducing high-quality protection of the health to right care in Ukraine based on the experience of the European Court of Human Rights are represented in the research.
Ключевые слова: право на охрану здоровья; право на здоровье; охрана здоровья; Европейский суд по правам человека; права человека; судебное разбирательство.
Keywords: right to health care; right to health; health protection; European Court of Human Rights; Human Rights; trial.
Human rights in the field of health include all rights attached at the national and international levels relating to a particular area. These include the right to informed consent, the right to freely choose a doctor and health care institution, medical secrecy and confidentiality, the right to protect violated rights and the right to access services in the healthcare system to different population groups etc. An important issue is the understanding of the rights of the health system that pass between medicine and the wider concept of the health system, including the peculiar dependence of the right to health and the implementation of all other related human rights. According the experience of the European Court of Human Rights a protection of fundamental health rights can be explored.
Many scholars, including M. Antonovich, V. But-kevich, S. Holovaty, V. Kapustynsky, M. Kozyubra, V.
Paliyuk, S. Shevchuk, A. Glashev, V. Malyarenko, I. Senyuta, V. Galay and many other scholars engaged in the study of the right to health protection and the practical application of the judgments of the European Court of Human Rights.. Studies on the analysis of judgments of the European Court of Human Rights and the impact of judicial practice in Ukraine have not yet been conducted.
The purpose of this article is to study the jurisprudence of the European Court of Human Rights and the impact of the practice of this court on national judicial practice in matters related to health care.
Human rights in the field of health supplement the bioethics, but it covers a set of generally accepted norms and procedures that allow conclusions are drawn about rights violations in the context of health care and provide protection against such violations. Based on the
international human rights standards, many of which are reflected in regional international treaties and national constitutions [1, p.3]. In Ukraine, two key laws were adopted on the impact of the European Court of Human Rights: the Law of Ukraine "On Ratification of the 1950 Convention on the Protection of Human Rights and Fundamental Freedoms, First Protocol and Protocols No. 2, 4, 7 and 11 to the Convention" and the Law of Ukraine " On enforcement of decisions and application of the practice of the European Court of Human Rights ".
According to Article 17 of the Law of Ukraine "On enforcement of decisions and application of the practice of the European Court of Human Rights", courts apply the Convention on the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights are a source of national law. V. Kapustinsky notes that the decisions of the European Court of Human Rights have become one of the main sources of law for national legal systems in the field of human rights, including the Ukrainian system of law, for the formation of European and national standards for the protection of human rights. [2, c.22]
The text of the European Convention on Human Rights does not contain a separate article defining the human right to health, but we will consider how the European Court of Human Rights resolves the issue of violating the right to health care.
Let us start with the lawsuits against Ukraine regarding the non-exercise of the right to health care in the institutions of restraint of liberty. Case Kucheruk v. Ukraine [3], on September 6, 2007, the European Court of Human Rights ruled on a violation of Article 3 of the Convention about the inadequate provision of medical care and treatment.
The applicant argued that he was not provided with the necessary medical care during his detention at the prison. The Government argued that the applicant had received the necessary medical care during detention. The court recalled that the authorities are obliged to protect the health of persons deprived of their liberty. The lack of appropriate medical care can turn into a mistreatment that violates Article 3. In particular, in assessing whether treatment or punishment complies with the standards of Article 3, it is necessary in case of mentally ill persons to take into account their vulnerability and their inability to report on how they were affected by some kind of behavior. The Court also noted its findings with regard to the solitary confinement of the applicant and his possession in handcuffs, which in themselves suggest that the authorities did not provide appropriate medical care and treatment to the applicant during his stay in the custody. Thus, the experts' opinion contained a recommendation that the applicant be provided with treatment at a specialized hospital. However, this recommendation was not implemented immediately.
In the Court's view, this cannot be considered adequate and reasonable medical observation in view of the applicant's menacing mental health. In those circumstances, the Court considered that there had been a violation of Article 3 of the Convention as regards the
lack of adequate medical care and treatment of the applicant during his detention as inhuman or degrading treatment.
Similar cases against Ukraine in the European Court of Human Rights were: Bendersky v. Ukraine [4], regarding the inadequate and untimely provision of medical care and the failure of the state authorities to use all necessary means to avoid deterioration in the health of people in detention; Gorshkov v. Ukraine [5], concerning the illegal placement of a person to a psychiatric and others.
Regarding cases connected directly with medicine, one should mention the case of Arskaya v. Ukraine [6]. Based on the case file, the applicant's son, S., who was forty-two years old, was taken to the pulmonary department of the Simferopol anti-tuberculosis dispensary by ambulance and hospitalized with the diagnoses: left-sided pneumonia; tuberculosis of the left lung; hemoptysis and pulmonary insufficiency. The doctors treated him for a while, but the true cause of the illness was never found and the applicant's son died.
The court noted that the first sentence of Article 2 (right to life) obliges the state not only to refrain from "deliberate" deprivation of life, but also to respond appropriately to protect the lives of persons under its jurisdiction. These principles are also applied in the field of public health. Taking into account the inconsistency of subordinate regulations with regard to the admission of patients to intensive care units and the lack of appropriate rules for determining the ability of patients to make decisions, including obtaining their informed consent for treatment, the authorities did not take adequate measures to create a regulatory framework. So that adequate protection of the applicant's son's life, as required by Art. 2 of the Convention was held. However, applicant received a certain amount of non-pecuniary damage by a court order.
Analyzing private information, Panteleenko v. Ukraine [7], which states that the applicant complained, in particular, for disclosure during the court hearing of confidential information regarding his mental condition and psychiatric treatment.
The court found that the receipt of confidential information from a psychiatric hospital regarding the applicant's mental condition and appropriate treatment and disclosure in open hearings was an interference with the applicant's right to respect for his private life. The court decided that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, noting in particular that the details of the matter could not affect the outcome of the trial, and that the request of the court of first instance to obtain information was superfluous, as the information was not "important for investigation, pre-trial investigation or trial", and thus illegitimate.
Let us consider a few more interesting cases, about access to experimental treatment or a remedy in the case of Hristozov and others v. Bulgaria [8]. Ten applicants who had cancer were complaining that they were denied access to unauthorized experimental cancer therapies. In accordance with the law of Bulgaria, such a permit can be issued only if the medicine has been authorized in another country. While medications were
allowed for "philanthropic use" in some countries, they were officially not allowed. Accordingly, the authorities of Bulgaria refused to issue a permit.
The European Court of Human Rights ruled that Article 8 (right to respect for private and family life) of the European Convention on Human Rights had not been violated. Given the limitation of the patient's right to respect for private life, as provided for in Article 8 of the Convention, the tendency was to provide the possibility, in exceptional circumstances, of the use of unauthorized medicine in European countries. However, the court acknowledged that this consensus was based not on the consistent principles of the legislation of these countries and did not extend to the precise order governing the use of such drugs. The Court also held that Article 2 (right to life) and article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention were not infringed in this case.
In addition, the right to medical information is the case of K. H. and others v. Slovakia [9]. The applicants, eight women of Roman origin, could no longer become pregnant after being treated at a gynecological department in two different hospitals and suspected of having been sterilized while staying in these hospitals. They complained that they could not get a copy of their disease history. The Court ruled that Article 8 (right to respect for private and family life) of the Convention was infringed by the fact that the applicants were not able to make photocopies of their medical records.
In the case of N. v. The United Kingdom, [10] the applicant, a Ugandan citizen, was hospitalized after she arrived in Great Britain, as she was seriously ill and suffering from AIDS-related illnesses. Her application for asylum was unsuccessful. She argued that she would be subjected to inhuman or degrading treatment if she returned to Uganda because she would not be able to obtain the necessary medical care there.
The court noted that the United Kingdom authorities had provided the applicant treatment for nine years and accepted her application for asylum, which was determined by the domestic courts and the court. The Convention does not oblige States parties to explain the discrepancy of treatment in States not party to the Convention, providing free and unrestricted treatment for all foreigners without the right to remain within their jurisdiction. Therefore, the United Kingdom is not required to continue to provide treatment to the applicant. If she had returned to Uganda, Article 3 (Prohibition of Inhuman or Degrading Treatment) would not be violated.
Regarding the provision of the right to health in connection with a particular area of activity, consider Vilnes and other v. Norway [11]. This case concerned previous complaints by diverges about the fact that they lost their capacity because of the immersion in the North Sea for oil companies during the initial oil exploration period (from 1965 to 1990). All the applicants complained that Norway had not taken the necessary measures to protect the health and life of deep-water divers in the North Sea and, in the case of the three applicants, in the testing facilities.
The court ruled that there had been a violation of Article 8 (right to respect for private life) of the Convention, in that the Norwegian authorities did not guarantee the applicants the necessary information to assess the health and life risks as a result of the use of rapid pressure reduction tables. In addition, the court ruled that Article 2 (right to life) and Article 8 of the Convention had not been violated in relation to the remaining applicants' complaints about the inability of the authorities to prevent their health and life from being endangered. However, there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) degrading treatment) of the Convention.
This case is complementary to the Court's case law on access to information in accordance with Articles 2 and 8 of the Convention, in particular to the extent that it establishes the obligation of the authorities to ensure that employees receive important information that would enable them to assess occupational health and safety risks.
Another case is J.N. and others v. Italy [12], this case concerned the infection of the applicants or their relatives with the AIDS or hepatitis C. The interested parties suffered from hereditary disorders (thalassemia) and were infected during blood transfusion, conducted by the State Health Service. The applicants complained, in particular, that the authorities did not carry out the necessary screening to prevent infection. They also complained about shortcomings in the subsequent civil proceedings and the refusal to pay them compensation. In addition, they claimed to have been discriminated against in other groups of infected individuals.
The Court held that Article 2 (right to life) of the Convention had not been violated in relation to the protection of life of applicants and their relatives, taking into account, that it had not been established that at the time of the proceedings the Ministry of Health was aware or one should be aware of the risk of transmission of ACID or hepatitis through blood transfusions, and it was impossible to determine from what moment the Ministry knew or should have been aware of the risk. The Court also held that there had been a violation of Article 2 of the Convention in respect of civil proceedings, given that the Italian judiciary, when considering disputed complaints under Article 2, was not able to provide an appropriate and prompt response in accordance with the procedural obligations of the State in accordance with the ruling. It has been found that there has been a violation of Article 14 (prohibition of discrimination), in conjunction with Article 2 of the Convention, by establishing that applicants, patients with thalassemia or their heirs were discriminated against in comparison with hemophiliac patients who had the opportunity to use the extrajudicial decision of the case proposed by the Ministry.
In the case of Silih v. Slovenia [13], the 20-year-old son of the applicants who sought medical assistance for nausea and pruritus of the skin died at a hospital in 1993 after he was given medications to which he had an allergy. The applicants complained that their son had died due to medical negligence and the lack of an effective investigation into his death.
The court ruled that there had been a violation of Article 2 (right to life) of the Convention due to the ineffectiveness of the Slovenian judicial system in determining the cause and responsibility for the death of the applicant's son. It was noted in particular that the criminal case and, in particular, the proceedings continued for too long that six judges had been changed during the civil trial of the first instance court, which was awaiting a decision 13 years after the commencement of proceedings.
There are interesting cases of organ transplants. The case of Petrova v. Latvia [14], from the case file, having received life-threatening injuries during an automobile accident, the applicant's son was taken to a hospital where he died. Thereafter, laparotomy was carried out on his body, during which his kidneys and spleen were removed for the purpose of transplantation of organs. The applicant alleged that the removal of her son's organs was carried out without her consent or with the prior consent of her son, and that, in any case, no attempt was made to substantiate her opinion.
The court ruled that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It was established that the law of Latvia on organ transplantation at the time of the death of the applicant's son was insufficiently clear, which led to the emergence of circumstances in which the applicant, as the closest relative of her son, had certain rights regarding the removal of his organs, but was not informed - not to mention any explanation of how and when these rights could be used.
In addition, Elberte v. Latvia [15] concerned the removal of body tissue from an applicant's deceased husband by medical experts after his death without her knowledge. Without the consent of the applicant, an agreement approved by the state, the fabric was removed from the body of the man after it was opened and sent to a pharmaceutical company in Germany for the creation of bio-implants. She learned about the course of events two years after her husband's death, when a criminal investigation was launched in Latvia in connection with allegations of large-scale illegal extraction of organs and tissues from the dead. However, the local authorities did not establish any form of crime.
The applicant complained, in particular, that the removal of her husband's organs was carried out without her prior consent. She also complained about emotional suffering, when she remained in a state of uncertainty as to the circumstance of removing the tissue from the body of her husband, her husband's body was returned to her after having been crucified with her legs.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) and violation of Article 3 (Inhuman or Degrading Treatment) Convention. It has been established, in particular, that the Latvian law on the functioning of the requirements for obtaining consent for tissue removal is lacking in clarity and does not have sufficient legal safeguards against arbitrariness, although it establishes the legal framework that allows the closest relatives to consent or refuse to remove tissues, this law is not defines clearly the respective responsibilities or discretion
of the experts for obtaining an agreement. Indeed, the way used to apply the rights of relatives to express their wishes and the extent of the responsibilities for obtaining consent was the subject of disagreement in the national authorities. The Court further found that the applicant had experienced a long period of uncertainty and suffering in relation to the origin, method and purpose of removing the tissue from her husband's body, noting that, in the field of organ transplantation, the human body should be respected even after death.
In the end, let us look at the cost of reimbursement of medical expenses. The case of Nitecki v. Poland [16], the applicant, who had a very rare and fatal illness, argued that he had no means to pay for his treatment. He complained to the court about the refusal of the authorities to reimburse the full cost of his treatment (according to the general system of insurance for the disease was covered only 70% of the cost). The court found the application inadmissible (unfounded). While a legal issue could arise under Article 2 (right to life) of the Convention, which stated that the authorities of a Contracting State put human life at risk because of the health refusal they made available to the public. It was found that this case did not concern the applicant.
Case Panaitescu v. Romania [17], in which the applicant argued in particular that the authorities had cynically and abusively refused to comply with final court decisions confirming the right of the father to receive appropriate free medical care and that this was putting his life at risk.
The court held that there had been a procedural violation of Article 2 (right to life) of the Convention due to the refusal of the Romanian authorities to provide the applicant's father with special cancer drugs free of charge, in accordance with the decision of the domestic courts.
Consequently, after considering a number of cases of the European Court of Human Rights, one can conclude that the rights in this area can be protected by reference to a violation of Article 3 of the Convention if the process and results of failure to provide or insufficient medical treatment were actually tortured or subjected to torture or to inhuman or degrading treatment. In some cases, violation of Article 8 (right to respect for private and family life) or article 14 on the prohibition of discrimination may also be violated in some cases. In the event that the consequences of failure to provide or insufficient health care are more substantial, reference should be made to the violation of Article 2 - if the death of the person has happened.
The complexity and intricacies of such cases, the unwillingness of the Court to analyze the objective part of the actions of doctors and give them an assessment. Instead, the Court is ready to resolve the issue of whether a government has investigation within the criminal process of causing damage to the patient's health by the actions or inactivity of the physician.
In our opinion, it is very important to study in more detail the practice of the European Court of Human Rights to understand the logic and case law of the Court with regard to "medical matters". It is very important for courts to take into account, when making a decision, the extent of the consequences of the actions
or inaction of the defendants; analyze the findings of the forensic examination and expert testimonies within the framework of the trial from the standpoint of its objectivity and substantiation of the findings, as well as compliance with the actual circumstances of the case.
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