Theory and practice of intellectual property
№ 6 / 2018

ISSN (Print) 2308-0361
ISSN (Online) 2519-2744

PDF (Ukrainian)

DOI: https://doi.org/10.33731/62018.162526

Published      2018-12-26

Some issues of application or non-application of medical and technological documents as grounds for judicial protection

Olena Shtefan
Ukraine

Abstract
The article covers certain issues of the civil procedure for the protection of the basic human right — the right to health — the time of application or non-application of medical and technological documents on the standardization of medical care, when the initiator of the process are those who did not take part in the case if the court decided the issue about her rights and responsibilities. On the basis of the analysis of international legal acts, it was concluded that the right to health also includes the right to availability of quality medical care on the basis of the specification and in strict conformity with the standards (Article 8 of the European Charter of Rights of Patients of November 15, 2002). This approach has been implemented in national legislation. Thus, the Constitution of Ukraine declares that everyone has the right to health care, medical care and medical insurance (Part 1, Article 49), and in Part 1 of Art. 284 of the Civil Code of Ukraine established the right of an individual to provide her with medical assistance. In its turn, Art. 129 of the Constitution of Ukraine fixed the basic principles of legal proceedings. These principles are constitutional guarantees of the right to judicial protection. According to Art. 13 of the Constitution of Ukraine, everyone is guaranteed the right to appeal in court decisions, actions or inactivity of state authorities, local self-government bodies, officials and officials. Part 1 of Art. 4 The Civil procedure Code of Ukraine determines that each person has the right, in accordance with the procedure established by this Code, to apply to the court for the protection of their violated, unrecognized or disputed rights, freedoms or legitimate interests. According to Part 12 of Art. 272 of the Civil Procedure Code of Ukraine, a person who did not take part in the case, but on which the court decided on his rights, freedoms, interests and (or) duties, may receive in the court which considered the case as a court of first instance a copy of the decision that is in the materials of this case, passed by the court of any instance. In turn, in accordance with Part 1 of Art. 17 of the CPC of Ukraine persons who did not take part in the case, if the court has decided on their rights, freedoms, interests and (or) duties, have the right to appeal the case and in cases determined by law — on a cassation appeal of a court decision. This provision of the law corresponds to Part 1 of Art. 352 of the Civil Procedure Code of Ukraine — persons who did not take part in the case, if the court has decided on their rights, freedoms, interests and (or) duties, have the right to appeal in full or in part in the appeal decision of the court of first instance. Thus, the right granted to persons who did not participate in the case if the court decided on their rights, freedoms, interests and / or duties is a guarantee of the implementation of the principle of access to court in the meaning of Art. 6 Convention for the Protection of Human Rights and Fundamental Freedoms 1950. At the same time, civil procedural law establishes a certain procedure for implementing the principle of availability to the court. Realization by persons who did not take part in the case if the court decided on their rights, freedoms, interests and / or duties of the right to appeal the decision of the court of first instance in full or in part (Part 1 of Article 17, Part 12 of Art. 272, part 1, Article 352 of the Civil Procedure Code of Ukraine) should not have any signs of abuse of procedural law (Article 44 of the Civil Procedure Code of Ukraine) and violate the principle of the final judgment. The medical protocol, as a medical-technological document for the standardization of medical care, does not fall within the scope of legal acts, and thus does not fall under the broad understanding of the «law», which is identified with the term «legislation». Thus, the application or non-application of a medical protocol can not be regarded as an incorrect application of substantive law, which may result in a significant judicial error that is fundamental to the judicial system. Based on the analysis of the case-law of the European Court of Human Rights regarding the application of paragraph 1 of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 04.11.1950 grounds for renewal of the term for filing an application or appeal are reasons which do not depend on the will of the persons concerned, and the purpose of correcting the «error» which is of fundamental importance for the judicial systems. If, however, the renewal of the terms of appeal for a decision of the court of first instance is exclusively for the purpose of re-examination and approval of a new decision, there is a violation of the principle of legal certainty and the «right to a court» within the meaning of clause 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 04.11.1950. The course of the filing of the appeal, fixed in part 6 of Art. 268 of the Civil Code of Ukraine for persons who did not take part in the case, if the court decided on their rights and obligations, begins the next day from the date of registration in the journal of issuance of court cases on its familiarization with the case and is ten days.

Keywords: medical-technological document, medical protocol, person who did not participate in the case, but on which the court has decided on its rights, freedoms, interests and (or) duties, civil process, the right to a court, a miscarriage , the time limit for lodging an appeal