In the case of Bajić v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Anatoly Kovler,
President,
Nina Vajić,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41108/10) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Dutch national, Mr Pero Bajić (“the
applicant”), on 2 July 2010.
The applicant was represented by Ms R. Plešnar, a
lawyer practising in Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
On 8 June 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
On 15 June 2011 the Government of the Netherlands was informed of the case and invited to exercise their right to intervene if
they wished to do so. On 15 July 2011 the Government of the Netherlands informed the Court that they did not wish to exercise their right to intervene in the
present case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in
Garevac.
A. Background to the case
On 23 August 1994 the applicant’s sister,
F.Č. was admitted to the Rebro Hospital in Zagreb (Klinički
bolnički centar Zagreb - Rebro) as an emergency case. She required
surgery for an abdominal tumour. Dr V.B. assumed charge of her treatment.
Dr. V.B. was a surgery professor at the University of Zagreb Medical Faculty (Medicinski fakultet Sveučilišta u Zagrebu).
At the time of the events he worked as a surgeon in the Rebro Hospital where he
had been for more than thirty years, and around the period at issue he ran for
a managerial position in that hospital.
On 26 August 1994 the applicant paid Dr V.B.
5,000 German marks (DEM) in order to perform the surgery and on 30 August 1994
Dr V.B. operated on the applicant’s sister.
A day after surgery the applicant’s sister was
transferred from the intensive-care unit to a regular ward. In the early
morning of 1 September 1994 she died. Dr V.B. established massive pulmonary
embolism as the cause of death.
B. Disciplinary proceedings against V.B.
On 17 May 1995 the applicant complained to the
Ministry of Health (Ministarstvo zdravstva Republike Hrvatske) about the
circumstances of the medical treatment of his sister in the Rebro Hospital.
The Ministry of Health forwarded the applicant’s
complaint to the director of the Rebro Hospital on 8 June 1995 and ordered an
inquiry.
On 28 June 1995 disciplinary proceedings were
opened against the doctor before the Disciplinary Commission of the Rebro Hospital (Disciplinska komisija Kliničkog bolničkog centra Zagreb) on
charges of having committed a disciplinary offence of receiving payment for
performing surgery.
On 19 July 1995 Dr V.B. was found to have
committed the disciplinary offence as charged and dismissed from the Rebro Hospital. As to the allegations of medical negligence the Disciplinary Commission
noted:
“The medical records concerning F.Č. are incomplete; there
is no information concerning her treatment (her previous and present condition,
her personal medical history is missing, as well as information on her general
status, local status, pre-surgery treatment, indication, the surgery itself,
post-surgery treatment, histological record and the cause of death), there is
no record concerning her release from hospital or information concerning her
reanimation in the intensive care unit. The Commission finds that, by failing
to [ensure the] proper administration of the medical records, Prof Dr V.B. has
failed to perform his duties diligently, but it does not wish to make any
conclusions concerning his professional conduct in treating F.Č.”
Dr V.B. lodged an appeal against that decision
before the Administrative Panel of the Rebro Hospital (Upravno vijeće
Kliničkog bolničkog centra Zagreb) and on 22 August 1995 the
Administrative Panel overturned the first-instance decision and ordered his suspension
from work for one year. The enforcement of this measure was suspended.
C. Criminal proceedings against V.B.
On 20 October 1994 the applicant and two other
relatives of the deceased lodged a criminal complaint against Dr V.B. with the
Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo
u Zagrebu), accusing him of the criminal offences of accepting bribes and
medical malpractice. The Zagreb Municipal State Attorney’s Office asked the
investigating judge of the Zagreb County Court (Županijski sud u Zagrebu)
to hear Dr V.B. and potential witnesses and to commission a medical report.
Responsibility for producing the medical report was given to doctors J.Š. and
B.C., both employed at the University of Zagreb Medical Faculty.
On 24 October 1997 they produced their report.
They found that there had been no failures in the treatment of the applicant’s
sister that could have resulted in her death.
Based on their findings, on 19 February 1998 the
Zagreb Municipal State Attorney’s Office rejected the criminal complaint in
respect of the alleged medical malpractice. The applicant and other relatives
of the deceased were instructed that they could take over the prosecution of
Dr V.B. by lodging an indictment as subsidiary prosecutors in the Zagreb
Municipal Criminal Court (Općinski kazneni sud u Zagrebu).
On 9 March 1998 the applicant and two other
relatives of the deceased lodged an indictment in the Zagreb Municipal Criminal
Court against Dr V.B. on charges of medical malpractice. They challenged the
medical report made by J.Š. and B.C. and asked that a new medical report be
commissioned. The relevant part of their submissions reads:
“As a result of such [a cursory approach] when assessing the
responsibility of the accused, the injured parties propose that another medical
report be commissioned [from] a medical institution outside the University of
Zagreb Medical Faculty, so that a more objective opinion can be produced.”
On 17 March 1998 the Zagreb Municipal State
Attorney’s Office indicted Dr V.B. in the Zagreb Municipal Criminal Court on
charges of taking bribes, but these proceedings were discontinued on 31 August
2000 on the ground that the prosecution had become time-barred.
At a hearing on 21 November 2000 Dr V.B. pleaded
not guilty to the charges of medical malpractice. The applicant asked that a
number of persons be called as witnesses for the prosecution and reiterated the
request for a new medical report to be commissioned from experts who did not
have any connection with the University of Zagreb Medical Faculty. In support
of the request the applicant argued that Dr V.B., in addition to acting as a
medical doctor at the Rebro Hospital, was also attached to the University of Zagreb Medical Faculty in a capacity of professor. The applicant pointed out
that J.Š., one of the experts to whom responsibility for producing the medical
report of 24 October 1997 had been given during the investigation, was a
professor at the same University.
At a hearing on 23 February 2001 the applicant
again asked that a new medical report be commissioned from an institution
outside Zagreb and reiterated his previous arguments of the incompatible
professional relationship between the experts and the accused. On the same day,
and having regard to the arguments submitted, the Municipal Criminal Court decided
that a new medical report would be commissioned from the Rijeka University
Medical Faculty (Medicinski fakultet Sveučilišta u Rijeci). The
court relied on Article 250 § 2 of the Code of Criminal Procedure (Zakon o
kaznenom postupku).
On 31 May 2001 M.U., a doctor from the Rijeka
University Medical Faculty, submitted a report to the Zagreb Municipal Criminal
Court. He found that there had been no indication of any failures in the course
of the medical treatment of the applicant’s sister.
On 5 July 2001 the applicant’s lawyer submitted
a written objection to M.U.’s findings to the Zagreb Municipal Criminal Court.
At a hearing on 6 July 2001 M.U. gave oral
evidence. In addition to explaining the content of his report he stated that he
was not a permanently appointed medical expert but rather an ad hoc medical
expert. He also confirmed that he was not employed in the same institution as
Dr V.B., nor did he have any other connection with him.
On 13 November 2001 the applicant submitted a
privately commissioned medical report by D.M., a medical specialist in urology
and surgery from Wiesbaden, Germany. In his report D.M. excluded the massive
pulmonary embolism as the cause of death and found that the applicant’s sister
had died from pulmonary edema which had been caused by an acute cardiac arrest.
D.M. also noted that in order to exclude any failures in the postoperative
course of treatment, it would be necessary to consult other documentation and
make further examinations.
At the final hearing held on 9 June 2003 the
applicant asked that D.M. be called as a witness for the prosecution. He
further requested that another medical report be commissioned from an
institution outside Croatia. On the same day the Zagreb Municipal Criminal Court
pronounced judgment in the case whereby it acquitted Dr V.B. of the charges of
medical malpractice. The Zagreb Municipal Criminal Court relied in its findings
on the submissions of M.U. including his expert report which had concluded that
there been no flaws in the medical treatment of the applicant’s sister. The
court further held that this finding had been corroborated by other witnesses
and relevant documents. In respect of the applicant’s request for the
commission of another medical report, the court noted:
“It has to be noted that the court commissioned the decisive
medical report from a surgeon who was not a permanently appointed medical
expert. This is because the accused himself has stated in his defence that he
had been a recognised doctor and also a medical expert for a number of years.
Therefore, in order to prevent any possible doubt as to the truthfulness and
objectivity of experts from a relatively small professional environment such as
Zagreb, the report was commissioned from an expert from another city, namely, Rijeka.
The Court also dismissed the request by the prosecution that a
report be commissioned from a medical institution outside Croatia, as there was no doubt as to the expertise and objectivity of [M.U.] ...”
On 17 September 2004 the applicant lodged an
appeal with the Zagreb County Court, complaining that the first-instance court
had erred in its factual findings and in the application of substantive and
procedural law.
On 22 February 2005 the Zagreb County Court
quashed the first-instance judgment and ordered a retrial, on the grounds that
the medical report had been drawn up by a doctor who had not been a sworn
medical expert. It also instructed the Zagreb Municipal Criminal Court to hear
again J.Š. and B.C., the experts who had previously drawn up a report during
the investigation. The relevant part of the decision reads:
“Since in the case at issue the medical report was not drawn up
by a permanently appointed expert or a specialised institution, and the
judgment is based on such evidence, the appellants correctly pointed out that
there had been a miscarriage of justice ...
In the retrial the first-instance court shall again take all
the evidence and question the permanently appointed experts who drew up the
medical report during the investigation, Prof Dr J.Š. and Prof Dr B.C. They
must give their evidence at the trial and only then, if the parties make any
objection which could raise doubts as to the accuracy and relevancy of their
opinion, may the court commission a new report from a specialised institution
in or experts from Croatia ...”
On 4 October 2005 the Zagreb Municipal Criminal
Court commissioned a new medical report from J.Š. and B.C., but on 6 October
2005 J.Š. informed the court that B.C. had died. At a hearing on 1 December
2005 the court assigned the report only to J.Š.
At a hearing on 10 February 2006 J.Š. asked the
Zagreb Municipal Criminal Court to reassign responsibility for producing the
medical report to two other experts. On the same day responsibility for
producing the report was reassigned to doctors J.Š., M.D. and S.J., who were
all professors at the Zagreb Medical Faculty. S.J. was also the Head of the
Department for Pathology of the Rebro Hospital.
On 14 November 2006 the applicant lodged with
the Zagreb Municipal Criminal Court a motion to disqualify the medical expert witnesses,
claiming that they did not have necessary expertise and that they were close
associates and friends of the accused. He pointed out that S.J. was employed at
the Rebro Hospital.
On 3 January 2007 J.Š., M.D. and S.J. issued
their medical report. They found that there had been no failures in the medical
treatment of the applicant’s sister by the accused or by other medical staff at
the Rebro Hospital.
On 25 April 2007 the Zagreb Municipal Criminal
Court denied the applicant’s motion to disqualify the expert witnesses on the
grounds that there had been nothing in their report to suggest any bias or
unlawfulness on their part. The relevant part of the decision reads:
“Following the decision of the appellate court, a first hearing
in this case was held on 4 October 2005 ... at which a medical report was
commissioned from experts Dr [J.]Š. and Dr [B.]C. Since the court was informed
that Dr [B.]C. had died in the meantime, another expert report was commissioned
from Dr [J.]Š. at the hearing held on 1 December 2005 ... As the case in issue
essentially required a combined medical report, it was decided at a hearing on
10 February 2006 that a report would be commissioned from Dr [J.]Š., Dr [M.]D.
and Dr [S.]J., a forensic expert, a pathologist and a surgeon respectively. The
records of the hearings show that the subsidiary prosecutor, who was legally
represented, made no objection when the report was commissioned from these
experts.
In view of the fact that the victim was hospitalised with a
diagnosis of an abdominal tumour, it was necessary to commission a report from
a forensic expert, a pathologist and a surgeon. Moreover, as regards the
objection that [S.J.] was not a consultant cardiologist or endocrinologist,
[that] is not a ground for his disqualification, as an expert’s knowledge and
specialisation can only be grounds for an objection concerning [his or her]
findings ...
There are no reasons to doubt the impartiality of Prof Dr S.J.,
since he is a permanently appointed expert and, moreover, Head of the Pathology
Department at the University of Zagreb’s Medical Faculty. The fact that he is
also Head of the Pathology Department at the Rebro Hospital does not call into
doubt his impartiality as the said institution employs hundreds of individuals
and the accused has retired in the meantime. This is also the case because
[S.J.] is obliged to draft his report conscientiously and to his best
knowledge, as well as to present his findings accurately, comprehensively and
objectively, and with due regard to the relevant rules. The arguments of the
subsidiary prosecutor that the said experts are close associates and friends of
the accused are unsubstantiated and there was nothing else to suggest a lack of
impartiality on their part.”
On 22 October 2007 the applicant again asked for
another medical report to be commissioned from an institution outside Croatia. He pointed out that the accused had been a professor for many doctors over the
years in Croatia and, as an example, referred to a statement by a witness,
doctor M., who had testified before the Zagreb Municipal Criminal Court that he
had a good, friendly relationship with the accused.
At a hearing on 22 November and again during the
final hearing on 19 December 2007 the applicant reiterated in vain his request
that another medical report be commissioned from an institution outside Croatia, but the judge conducting the proceedings dismissed it and concluded the trial. On
the latter date the Zagreb Municipal Criminal Court acquitted Dr V.B. of the
charges of medical malpractice, on the grounds that the medical report had
excluded any failures in the medical treatment of the applicant’s sister, which
was corroborated by the statements of witnesses and other medical
documentation. As to the applicant’s claim of bias on the part of the medical
experts, the relevant part of the judgment reads:
“Disregarding the fact that these experts are colleagues and
[that] they perhaps know the accused, their report did not disclose any
appearance of their bias in favour of the accused. Moreover, on 25 April 2007
this court had already dismissed the prosecutor’s motion to disqualify the
experts as ill-founded ...”
On 29 January 2008 the applicant lodged an
appeal with the Zagreb County Court, complaining that the first-instance court
had erred in its factual findings and in the application of procedural law.
On 24 February 2009 the Zagreb County Court
dismissed the applicant’s appeal and upheld the first-instance judgment. The
County Court found that there had been no need to commission a medical report
from outside Croatia because the applicant’s complaints that Croatia was a relatively small professional environment and that the case concerned a well known
doctor had merely been his subjective impression and were without any
justification. The relevant part of the decision reads:
“The report - drafted by three well known
experts - was not called into doubt. Since the proceedings were conducted in Croatia, where Croatian law applied, there was no reason to commission a medical report
from experts from another country. The medical report privately commissioned by
the subsidiary prosecutor could have served [as a basis] for formulating
questions. But, since they have not called into doubt the expert knowledge of
the experts who drafted the medical report in the present case, and the report
is not self-contradictory or dubious, there was no reason to commission a
medical report from a medical institution abroad, particularly since that was
neither expedient nor necessary. The mere assertion by the prosecutors that
Croatia was a “relatively small professional environment” where the accused was
a well known doctor, and that there was solidarity among doctors, which was
only the [subsidiary] prosecutor’s subjective opinion, without having called
into doubt the accuracy of the report’s findings, did not mandate the
commission of another report. The fact that the said objection was not
addressed by the first-instance court can only be considered as an
insignificant breach of procedural rules which did not call into doubt its
findings as to whether the accused had committed the offence or not.”
On 21 May 2009 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud
Republike Hrvatske), complaining that there had been flaws in the
proceedings concerning the death of his sister and Dr V.B.’s alleged medical
malpractice. He submitted that the medical experts who had drawn up the medical
report had not been impartial.
On 26 November 2009 the Constitutional Court
declared the applicant’s constitutional complaint inadmissible on the grounds
that the proceedings in issue had not concerned any of his civil rights or
obligations or any criminal charge against him. This decision was served on the
applicant on 4 January 2010.
D. Civil proceedings instituted by the applicant
On 23 March 2001 the applicant brought a civil
action in the Zagreb Municipal Civil Court (Općinski
građanski sud u Zagrebu) against Dr V.B., seeking repayment of the DEM
5,000 that he had paid for his sister’s surgery.
On 10 January 2006 the Zagreb Municipal Civil
Court found in the applicant’s favour and ordered Dr V.B. to pay the
applicant the requested amount.
On 27 February 2006 Dr V.B. lodged an appeal
with the Zagreb County Court.
On 6 November 2007 the Zagreb County Court
quashed the first-instance judgment and ordered a retrial, on the grounds that
the Zagreb Municipal Civil Court had failed to establish all the facts relevant
in respect of the statute of limitations applicable to the applicant’s civil
action and in the light of the fact that the criminal proceedings against Dr
V.B. on charges of taking bribes had been discontinued as time-barred (see
paragraph 19 above).
Following new proceedings before the
first-instance court, on 10 September 2009 the Zagreb Municipal Civil
Court again found in the applicant’s favour. As to the statute of
limitations, the court held that the applicant had not caused the criminal
proceedings against Dr V.B. to become time-barred and therefore found that his
civil action had not become time-barred.
On 10 November 2009 Dr V.B. lodged an appeal
with the Zagreb County Court.
On 11 May 2010 the Zagreb County Court
overturned the first-instance judgment and dismissed the applicant’s civil
action on the grounds that it had become time-barred.
The applicant lodged a constitutional complaint
with the Constitutional Court against the judgment of the Zagreb County Court
and these proceedings appear to be still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution of the Republic of Croatia
The Constitution
of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette
nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001,
55/2001, 76/2010, 85/2010) in Article 21, under Head III - Protection of Human
Rights and Fundamental Freedoms, Part 2 - Personal and Political Rights and
Freedoms, provides:
“Every human
being has the right to life.
...”
2. Constitutional Court Act
The relevant part of section 62 of the
Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske,
Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:
“1. Everyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that a decision of a state body, a body
of local and regional self-government, or a legal person with public authority
concerning his or her rights and obligations, or about a suspicion or an
accusation of a criminal act, has violated his or her human rights or
fundamental freedoms, or his or her right to local and regional self-government
guaranteed by the Constitution (hereinafter: a constitutional right) ...
2. If another legal remedy exists against the violation of the
constitutional right [complained of], the constitutional complaint may be
lodged only after that remedy has been exhausted.
3. In matters in which an administrative action or, in civil and
non-contentious proceedings, an appeal on points of law is allowed, remedies
shall be considered to have been exhausted only after a decision on these legal
remedies has been given.”
3. Criminal Code
The relevant parts of the Criminal Code (Kazneni
zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001,
111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011)
provide:
Article 8
“(1) Criminal proceedings in respect of criminal offences shall
be instituted by the State Attorney’s Office in the interests of the Republic of Croatia and its citizens.
(2) In exceptional circumstances, the law may provide for
criminal proceedings in respect of certain criminal offences to be instituted
on the basis of a private prosecution or for the State Attorney’s Office to
institute criminal proceedings following [a private] application.”
MEDICAL MALPRACTICE
Article 240
“(1) A physician or a dentist who, in rendering medical
services, does not apply measures for the protection of patients in accordance
with professional standards, or applies an obviously inadequate remedy or
method of treatment, or in general acts carelessly, thus causing the
deterioration of an illness or the impairment of a person’s health, shall be
punished by a fine or by imprisonment not exceeding two years.”
SERIOUS DAMAGE TO HEALTH
Article 249
“(1) If, by the criminal offence referred to in ... Article 240
paragraphs 1 and 2 ... of this Code, serious bodily injury to a person is
caused, or his health is severely impaired, or an existing illness considerably
deteriorates, the perpetrator shall be punished by imprisonment for one to
eight years.
(2) If the death of one or more persons is caused by a criminal
offence referred to in paragraph 1 of this Article, the perpetrator shall be
punished by imprisonment for three to ten years.”
4. Code of Criminal Procedure
At the time, the relevant provisions of the Code
of Criminal Procedure (Zakon o kaznenom postupku,
Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and
62/2003) provided:
Article 2
“(1) Criminal proceedings shall be instituted and conducted at
the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public
prosecution the qualified prosecutor shall be the State Attorney and in respect
of criminal offences to be prosecuted privately the qualified prosecutor shall
be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall
undertake a criminal prosecution where there is a reasonable suspicion that an
identified person has committed a criminal offence subject to public
prosecution and where there are no legal impediments to the prosecution of that
person.
(4) Where the State Attorney finds that there are no grounds to
institute or conduct criminal proceedings, the injured party may take his place
as a subsidiary prosecutor under the conditions prescribed by this Act.”
Article 248
“(1) An expert report shall be commissioned by a written order
of the authority conducting the proceedings. The order shall state the facts
relevant for the report and the name of the expert witness. The order shall be
served on the parties.”
Article 250
“(1) A person who may not testify as a witness or who is
exempted from testifying shall not be appointed as an expert witness, and
neither shall a person against whom the offence was committed, and if such a
person is appointed, the court’s decision may not be based on his findings or
opinion.
(2) A reason for the disqualification of an expert witness
applies also to a person who is employed by the same State authority or by the
same employer as the accused or the injured person.”
5. Civil Obligations Act
The relevant provisions of the Civil Obligations
Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991
and 3/1994) provided:
DAMAGES
Section 200
“(1) For any physical or mental pain concerning the ... death
of a close person ... the court shall, if appropriate under the circumstances
of a given case, and particular if the intensity of the pain or fear and their
duration so require, award non-pecuniary damages ... “
PERSON WHO CAN CLAIM DAMAGES
Section 201
“(1) In the event of the death of a person the court can award
an appropriate non-pecuniary damage to the members of his or her immediate
family (spouse, child, a parent).
(2) The same damages can be awarded also to the brothers and
sisters if sufficient family ties existed between them.
... “
6. Health Care Act
The relevant provisions of the Health Care Act (Zakon
o zdravstvenoj zaštiti, Official Gazette, nos. 75/1993, 11/1994, 55/1996,
and 1/1997 - consolidated text) provided:
“Anyone has a right to direct a verbal or written complaint to
the director of a health care institution ... concerning the quality, substance
and the type of health care provided.
The director ... shall immediately take [the] necessary
measures and he shall inform the complainant about the measures that were taken
by letter and within a period of three days.
If the complainant is not satisfied with the measures that were
taken, he can seek [to assert] his rights before the competent bar association,
the Ministry of Health or the competent court.”
B. Constitutional Court’s practice
On 14 May 2001 in case no. U-III-791/1997 the Constitutional Court accepted an injured party’s constitutional complaint concerning a
violation of the right to life. The relevant part of the decision reads:
“Under the [Code of Criminal Procedure], in a situation where
the State Attorney is the prosecutor, the injured party has only very limited rights
in the proceedings. However, as soon as the State Attorney is no longer a party
(if he drops the charges) the injured party can act as a subsidiary prosecutor
in the proceedings. In other words, when the State Attorney does not appear [as
a prosecutor] in the proceedings, the [injured] party is (or can be) the
subsidiary prosecutor. This should be, mutatis mutandis, applied in
respect of a constitutional complaint. Since the State Attorney cannot lodge a
constitutional complaint ... the injured party can represent himself. In this
case [the injured party] can lodge a constitutional complaint.”
In its decision of 13 February 2004 in case no.
U-IIIA-232/2003 the Constitutional Court declared a subsidiary prosecutor’s
constitutional complaint concerning the length of criminal proceedings
inadmissible on the grounds that the proceedings in issue had not concerned his
civil rights or obligations or any criminal charge against him. The relevant
part of the decision reads:
“It is clear from the constitutional complaint that the
criminal proceedings ... did not concern the applicant’s civil rights or
obligations or any criminal charge against him. In the criminal proceedings the
applicant was not the defendant and he failed to lodge a civil claim, which he
had notably pursued in separate civil proceedings.
Therefore ... the applicant does not have the necessary locus
standi before the Constitutional Court ...”
The Constitutional Court followed the same approach
in its decision of 23 December 2004 in case no. U-III-2729/2004 in which it
declared a subsidiary prosecutor’s constitutional complaint concerning the
outcome of criminal proceedings inadmissible on the same basis as noted above.
In its decision of 22 October 2008 in case no.
U-IIIVs-3511/2006, the Constitutional Court accepted a constitutional complaint
concerning the length of criminal proceedings lodged by a subsidiary prosecutor
who had not lodged a civil claim in those criminal proceedings. The relevant
part of the decision reads:
“The approach taken by the lower courts, by which the applicant
did not have the right to lodge a length-of-proceedings complaint because she,
as a subsidiary prosecutor in criminal proceedings, ... had failed to lodge a
civil claim ... reflects the approach previously taken by this court.
... [T]he Constitutional Court considers that that approach
should be revisited on the grounds of the public interest and the protection of
victims’ rights.
...
Therefore, the Constitutional Court considers that the question
of whether a subsidiary prosecutor in criminal proceedings has a right to have
the competent court decide within a reasonable time [whether] the defendant be
found guilty and punished according to law, cannot be considered only from the
perspective of the civil claim which the injured party may have against the
defendant. Such a restrictive approach would deprive the subsidiary prosecutor
[of the ability] to exercise his right to bring a subsidiary prosecution and it
would run contrary to the principle that rights should be effective ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained that all the relevant
facts concerning the death of his sister had not been properly established in
the unreasonably long criminal proceedings against Dr V.B. The Court,
being master of the characterisation to be given in law to the facts of the
case, will consider this complaint under Article 2 of the Convention, the
relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.”
A. Admissibility
1. Applicability ratione temporis
(a) The parties’ arguments
The Government argued that all complaints in
respect of the death and medical treatment of the applicant’s sister were
outside of the Court’s temporal jurisdiction. They pointed out that the
Convention had entered into force in respect of Croatia on 5 November 1997 and
that the applicant’s sister had died in 1994. Therefore, the Government
concluded that any substantive complaint under Article 2 of the Convention was
incompatible ratione temporis.
The applicant pointed out that the proceedings
in respect of the death of his sister had commenced in 1998, which was after
the Convention had entered into force in respect of Croatia. He also pointed
out that the present case concerned the procedural protection of the right to
life under Article 2 of the Convention.
(b) The Court’s assessment
The Court reiterates that the procedural
obligation to carry out an effective investigation under Article 2 of the
Convention constituted a separate and autonomous obligation on the domestic
authorities, which was binding on them even though the death of the applicant’s
sister took place before the date the Convention entered into force in respect
of Croatia. The Court’s temporal jurisdiction, as regards compliance with the
procedural obligation of Article 2 in respect of deaths occurring before the
entry into force of the Convention, exists if there is a genuine connection
between the death and the entry into force of the Convention and if a
significant proportion of the procedural steps were or ought to have been
carried out after the critical date (see Šilih v. Slovenia [GC], no.
71463/01, §§ 159, 161-163, 9 April 2009).
. The Court notes that in the present
case proceedings concerning the death of the applicant’s sister were instituted
before the domestic courts on 9 March 1998 when the applicant lodged an
indictment with the Zagreb Municipal Criminal Court and ended on 26 November
2009 when the Constitutional Court adopted its decision. Therefore, the Court
notes that all relevant procedural steps in connection with the death of the
applicant’s sister were carried out after the Convention entered into force in
respect of Croatia on 5 November 1997. It follows that the applicant’s
complaint falls within the Court’s jurisdiction ratione temporis.
2. Compliance with the six-month time-limit
(a) The parties’ arguments
The Government argued that the applicant had
failed to bring his complaint before the Court within the six-month time-limit.
In the Government’s view, the final domestic decision had been the judgment of
the Zagreb County Court of 24 February 2009 and not the decision of the
Constitutional Court of 26 November 2009 on which the applicant had relied when
he had lodged his application with the Court. In the Government’s view, the
applicant should have been aware of the case-law of the Constitutional Court to
the effect that constitutional complaints brought by subsidiary prosecutors in
criminal proceedings were inadmissible.
The applicant argued that he had brought his
complaint before the Constitutional Court because he had been obliged to
exhaust all domestic remedies.
(b) The Court’s assessment
The Court reiterates that the object of the
six-month time-limit under Article 35 § 1 is to promote legal certainty,
by ensuring that cases raising issues under the Convention are dealt with in a
reasonable time and that past decisions are not continuously open to challenge.
It marks out the temporal limits of supervision carried out by the organs of
the Convention and signals to both individuals and State authorities the period
beyond which such supervision is no longer possible (see, amongst other
authorities, Walker
v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
As a rule, the six-month period runs from the
date of the final decision in the process of exhaustion of domestic remedies.
Article 35 § 1 cannot be interpreted in a manner which would require an
applicant to inform the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic level. In
this respect the Court has already held that before bringing complaints against
Croatia to the Court, in
order to comply with the principle of subsidiarity, applicants are in principle
required to afford the Croatian Constitutional Court the opportunity to remedy
their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011).
The Court also reiterates that the requirements
contained in Article 35 § 1 concerning the exhaustion of domestic remedies
and the six-month period are closely interrelated, since not only are they
combined in the same Article, but they are also expressed in a single sentence
whose grammatical construction implies such correlation (see Hatjianastasiou
v. Greece, no. 12945/87, Commission decision of 4 April 1990, and
Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II
(extracts)).
. The Court notes at the outset that
the Croatian Constitution in Article 21 recognises and guarantees the right to
life as a fundamental human right. Furthermore, the Court notes that, contrary
to the Government’s arguments, the practice of the Constitutional Court as
regards the admissibility of complaints submitted by subsidiary prosecutors in
criminal proceedings, is inconclusive (see §§ 54-57 above). In this respect the
Court reiterates its findings in the Dolenec case that under
section 62 of the Constitutional Court Act, anyone who deems that a decision of
a State body concerning his or her rights and obligations, or a suspicion or an
accusation of a criminal act, has violated his or her human rights or fundamental
freedoms may lodge a constitutional complaint against that decision and that,
from the wording of section 62 of the Constitutional Court Act, the applicant
had reason to believe that his constitutional complaint was a remedy that
required to be exhausted (see Dolenec v. Croatia, no. 25282/06, § 200, 26 November 2009).
In view of these findings and importance of the
protection afforded to the right to life, the Court considers that it cannot be
held against the applicant if he afforded the Constitutional Court, as the
highest Court in Croatia, the opportunity to take appropriate steps to remedy
the alleged failures in the proceedings which had been instituted before the
lower courts in respect of the infringement of his sister’s right to life. This
conclusion is supported by the fact that only by using this remedy did the
applicant comply with the principle of exhaustion of domestic remedies in line
with the principle of subsidiarity. Therefore, the Government’s argument must
be rejected.
3. Exhaustion of domestic remedies
(a) The parties’ arguments
The Government argued that the applicant had
failed to exhaust all domestic remedies. The Government considered that the
applicant had failed to bring a civil action against Rebro Hospital under the Civil Obligations Act where he could have claimed damages for the alleged
medical malpractice and the death of his sister. That could have also allowed
him to lodge a constitutional complaint if he had not succeeded with his civil
action.
The applicant argued that he had exhausted all
domestic remedies. He pointed out that he had had two sets of proceedings at
his disposal - civil and criminal - and that he had opted for criminal
proceedings. He noted that after the death of his sister he had suffered
profound grief that could only have been alleviated by establishing all the
circumstances of the case and not by compensation of damages. He also argued
that, even if he had not expressly cited Article 2 of the Convention, his
complaints both before the Court and before the Constitutional Court had in
substance concerned the procedural aspect of Article 2 of the Convention.
(b) The Court’s assessment
The Court reiterates that under Article
35 § 1 of the Convention, it may only deal with an application after
all domestic remedies have been exhausted. The purpose of Article 35 is to
afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
the Court (see, for example, Mifsud
v. France (dec.) [GC], no. 57220/00, § 15, ECHR
2002-VIII). The obligation to exhaust domestic remedies requires an applicant
to make normal use of remedies which are effective, sufficient and accessible
in respect of his Convention grievances. To be effective, a remedy must be
capable of resolving directly the impugned state of affairs (see Balogh
v. Hungary, no. 47940/99, § 30, 20 July 2004).
The rule of exhaustion of domestic remedies must
be applied with some degree of flexibility and without excessive formalism. At
the same time it requires in principle that the complaints intended to be made
subsequently at international level should have been aired before domestic
authorities, at least in substance and in compliance with the formal
requirements laid down in domestic law (see Azinas v. Cyprus [GC],
no. 56679/00, § 38, ECHR 2004-III; Melnik v. Ukraine, no. 72286/01,
§ 67, 28 March 2006; Hummatov v. Azerbaijan, nos. 9852/03 and
13413/04, § 91, 29 November 2007; and Dvořáček and
Dvořáčková v. Slovakia, no. 30754/04, § 54, 28 July 2009).
However, in the event of there being a number of
domestic remedies which an individual can pursue, that person is entitled to
choose a remedy which addresses his or her essential grievance. In other words,
when a remedy has been pursued, use of another remedy which has essentially the
same objective is not required (see T.W. v. Malta [GC], no. 25644/94,
§ 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no.
65681/01, ECHR 2004-V; and Jeličić v. Bosnia and Herzegovina
(dec.), no. 41183/02, 15 November 2005; and Jasinskis v. Latvia,
no. 45744/08, § 50, 21 December 2010).
The Court has held, as regards cases of alleged
medical negligence, that the positive obligations under Article 2 of the
Convention require States to set up an effective independent judicial system so
that the cause of death of patients in the care of the medical profession,
whether in the public or the private sector, can be determined and those
responsible held accountable (see Erikson v. Italy (dec.), no. 37900/97,
26 October 1999; Powell v. the United Kingdom (dec.), no.
45305/99, ECHR 2000-V; and Byrzykowski v. Poland, no.
11562/05, § 104, 27 June 2006).
In this respect, the Court has held that if the
infringement of the right to life or to personal integrity is not caused
intentionally, the positive obligation imposed by Article 2 of the
Convention to set up an effective judicial system does not necessarily require
the provision of a criminal-law remedy in every case. In the specific sphere of
medical negligence the obligation may, for instance, also be satisfied if the
legal system affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any liability of the
doctors concerned to be established and any appropriate civil redress, such as
an order for damages and/or for the publication of the decision, to be
obtained. Disciplinary measures may also be envisaged (see Šilih, cited
above, § 194).
However, even if the procedural obligation under
Article 2 of the Convention does not necessarily require the State to provide
for criminal proceedings in medical negligence cases, such proceedings could by
themselves have fulfilled the requirements of Article 2 of the Convention (Šilih,
cited above, § 202).
This accordingly means that applicants alleging a violation of the positive
obligation of Article 2 of the Convention in cases of alleged medical
negligence, before bringing their complaints to the Court, must avail
themselves of the best means available in the domestic system with which to
identify the extent of the doctor’s liability for the death of their relative
(see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 55, ECHR 2002-I).
Consequently, if the domestic system allows for
more remedies which could in principle, if pursued successfully, be considered
as the best way in which to determine the extent of the doctor’s liability for
the death of their relative, the applicants are obliged to exhaust a remedy
which addresses their essential grievance. Use of another remedy which has
essentially the same objective and which would not necessarily result in a more
effective examination of the case is not required (see Jasinskis, cited
above, §§ 52-53).
The Court notes that in the present case the
applicant instituted criminal proceedings in which he, acting as a subsidiary
prosecutor after his criminal complaint was rejected by the Zagreb Municipal
State Attorney’s Office, pursued his claim of medical malpractice resulting in
the death of his sister through the courts (see Šilih, cited above, §§
169, 197-199). In addition, he instituted disciplinary proceedings against the
doctor involved in the treatment of his sister by complaining to the Ministry
of Health about the circumstances of her medical treatment in the Rebro Hospital.
It appears to be common ground that both avenues
- the criminal prosecution and the administrative disciplinary proceedings -
could in principle, if pursued successfully, have led to the extent of the
doctor’s liability being established and eventually to the award of appropriate
redress and/or publication of the decision (see Jasinskis, cited above,
§ 52, and Šilih, cited above, § 194). The Government have failed to
demonstrate that the remedy offered by civil proceedings would have enabled the
applicant to pursue objectives that are any different from the ones pursued
through the use of the aforementioned remedies (see Jasinskis, cited
above, § 53).
The Court therefore considers that in the light
of the circumstances of the present case there was no reason for the applicant
to institute another set of civil proceedings in addition to the criminal
prosecution and the administrative disciplinary proceedings instituted by him.
Accordingly, the applicant has exhausted
domestic remedies and the Government’s objection has to be dismissed.
4. Conclusion
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’
arguments
The applicant argued that during the criminal
proceedings before the domestic courts in respect of the alleged medical
malpractice and the death of his sister, the domestic courts had failed to
commission an independent medical report. In the applicant’s view, there had
been doubt as to the objectivity and independence of the medical experts who
had drawn up the medical report, since both the accused and the experts had
been professors of medicine at the same faculty. Moreover, the accused had been
a mentor to many physicians over the years and a prominent figure in the
Croatian health system. According to the applicant this had resulted in serious
flaws in the findings of the experts. However, his objections in that respect
had not been thoroughly examined by the domestic courts. The applicant also
complained that the requirement of promptness had not been met in the criminal
proceedings at issue.
The Government argued that the investigation and
the proceedings before the domestic authorities in respect of the alleged
medical malpractice and the death of the applicant’s sister had been prompt and
effective. During the criminal proceedings three separate medical reports had
been commissioned by the domestic courts and none of them had suggested any
failures in the medical treatment of the applicant’s sister. On the contrary,
the medical report that had been privately commissioned by the applicant had
been drawn up by a doctor who had not been an expert and had been based on
incomplete medical documentation. Dr V.B. had been acquitted by the domestic
courts on the basis of the reports submitted by sworn court experts, which
could not be considered arbitrary action.
2. The Court’s
assessment
(a) General principles
The Court reiterates that the acts and omissions
of the authorities in the field of health care may in certain circumstances
engage their responsibility under the positive limb of Article 2 of the
Convention. However, where a Contracting State has made adequate provision for
securing high professional standards among health professionals and the protection
of the lives of patients, it cannot accept that matters such as error of
judgment on the part of a health professional or negligent co-ordination among
health professionals in the treatment of a particular patient are sufficient of
themselves to call a Contracting State to account from the standpoint of its
positive obligations under Article 2 of the Convention to protect life (Byrzykowski
v. Poland, cited above, § 104).
The positive obligations require States to make
regulations compelling hospitals, whether public or private, to adopt
appropriate measures for the protection of their patients’ lives. They also
require an effective independent judicial system to be set up so that the cause
of death of patients in the care of the medical profession, whether in the
public or the private sector, can be determined and those responsible held
accountable (see, among other authorities, Calvelli and Ciglio,
cited above, § 49).
In order to satisfy its positive obligation
under Article 2 of the Convention, the State has a duty to ensure, by all means
at its disposal, that the legislative and administrative framework set up to
protect patients’ rights is properly implemented and any breaches of these
rights are put right and punished. Therefore, the Court’s task is to examine
whether there was an adequate procedural response on the part of the State to
the infringement of the right to life (see Konczelska v. Poland (dec.),
no. 27294/08, § 35, 20 September 2011). Moreover, the requirements of
Article 2 go beyond the stage of the official investigation, where it has led
to the institution of proceedings in the national courts: the proceedings as a
whole, including the trial stage, must satisfy the requirements of the
positive obligation to protect lives through the law and the
prohibition of ill-treatment (see Beganović v. Croatia, no.
46423/06, § 77, 25 June 2009).
A requirement of independence of the effective
domestic system set up to determine the cause of death of patients in the care
of the medical profession is implicit in this context (see Byrzykowski,
cited above, § 104). This above all means not only a lack of hierarchical or
institutional connection, but also the formal and de facto independence
of all parties tasked with conducting an assessment as part of proceedings set
up to determine the cause of death of patients from those implicated in the
events (see, mutatis mutandis, Denis Vasilyev v. Russia, no.
32704/04, § 148, 17 December
2009).
(b) Application
of these principles to the present case
The Court notes that the present case concerns
the death of a patient receiving health care and which was allegedly caused by
medical negligence. In addition, the circumstances of the case were complicated
by an allegation that the doctor allegedly responsible for the malpractice and
death of the patient had taken bribes and the findings of the disciplinary
bodies in that respect (see paragraphs 10-14 above).
In such circumstances, and having in mind the
fundamental importance of the right to life guaranteed under Article 2 of the
Convention, the Court considers that when scrutinising the effectiveness of the
domestic system as a whole, and in particular independence of the proceedings
set in motion to determine the cause of death of the patient, it must be strict
in order to determine whether the system as a whole and the particular
proceedings satisfied all of the guarantees required by the Convention (see the
approach taken in Dodov v. Bulgaria, no. 59548/00, §§ 87-98, 17 January
2008).
In the present case the Court has to examine
whether the criminal proceedings, which the applicant instituted by lodging a
criminal complaint with the Zagreb Municipal State Attorney’s Office, and the
administrative disciplinary proceedings, instituted by the applicant by
complaining to the Ministry of Health, satisfied all the guarantees required by
the Convention.
As to the criminal proceedings, the Court notes
that based on the findings of medical experts J.Š. and B.C. the Zagreb
Municipal State Attorney’s Office dismissed the applicant’s criminal complaint
concerning the alleged medical malpractice of Dr V.B. (see paragraph 17 above).
The applicant, however, pursued his complaints by lodging an indictment in the
Zagreb Municipal Criminal Court against Dr V.B. on charges of medical
malpractice. Upon doing so, he challenged the medical report made by J.Š. and
B.C. on the grounds of their personal relationship with Dr V.B.
In this respect the Court would reiterate that
one of the fundamental aspects of the procedural guarantees enjoyed by Article
2 of the Convention is that proceedings capable of determining the cause of
death of patients in the care of medical professionals must be conducted with
sufficient care so as to ensure the independence of the findings of the experts
involved. The requirement of independence is particularly important when
obtaining medical reports from expert witnesses, who must have formal and de facto
independence from those implicated in the events (see Barabanshchikov
v. Russia, no. 36220/02, § 59, 8 January 2009, and Denis Vasilyev, cited above, § 148). The medical reports
of expert witnesses are very likely to carry crucial weight in a court’s
assessment of the highly complex issues of medical negligence, which gives them
a particularly special role in the proceedings (see Sara Lind Eggertsdóttir
v. Iceland, no. 31930/04, § 47, 5 July 2007).
In the present case the Zagreb Municipal
Criminal Court commissioned three medical reports. The first medical report was
commissioned during the investigation from doctors J.Š. and B.C. of the Zagreb
University Medical Faculty; the second medical report was commissioned during
the criminal proceedings from M.U., a professor at the Rijeka University
Medical Faculty; and the third medical report was commissioned first from J.Š.
and B.C., then from two other experts, M.D. and S.J., who were supposed to replace
B.C., who had died in the meantime. The medical reports were commissioned with
an instruction to the medical experts to examine the circumstances of the
treatment and death of the applicant’s sister and the actions of the accused,
Dr V.B.
The Court further notes that in their findings
the national authorites relied exclusively on the reports drawn up by doctors
J.Š., B.C., M.D. and S.J. Their reports thus played a crucial role in the
proceedings because all of the domestic authorities relied on their findings to
a decisive degree. The State Attorney’s Office, relying exclusively on the
findings of J.Š. and B.C., rejected the applicant’s criminal complaint against
Dr V.B., and the domestic courts, also relying on the reports drawn up by J.Š.,
M.D. and S.J., acquitted Dr V.B. of the charges of medical malpractice.
It is not disputed between the parties that all
these medical experts, on whose reports the domestic authorities based their
decisions, were professors at the Zagreb University Medical Faculty and that
the accused, Dr V.B., was also a professor at the same faculty and a well
known medical expert from Zagreb. Furthermore, doctor S.J. worked as the Head
of the Pathology Department of the Rebro Hospital. In this respect the Court
notes, however, that Article 250 paragraph 2 of the Croatian Code of Criminal
Procedure expressly provides that an expert who is employed by the same State
authority or by the same employer as the accused or the injured person has to
be disqualified.
Moreover, the Court notes that the Zagreb
Municipal Criminal Court initially refused to accept the medical report by J.Š.
and B.C. which was produced during the investigation and commissioned another
medical report from the Rijeka University Medical Faculty, relying on Article 250
paragraph 2 of the Code of Criminal Procedure. That court explained that this
was necessary in order to “prevent any possible doubt as to the truthfulness
and objectivity of experts from a relatively small professional environment
such as Zagreb” (see paragraphs 21 and 26 above).
However, the Zagreb County Court, when quashing
the first-instance judgment on the grounds that the expert from the Rijeka
University Medical Faculty who was intended to replace the experts from the
Zagreb University Medical Faculty was not a sworn court expert, ordered that
the medical report be commissioned again from the experts at the Zagreb
University Medical Faculty, the colleagues of the accused.
It is also to be noted that the applicant
requested on numerous occasions throughout the proceedings that the medical
experts from Zagreb University Medical Faculty be disqualified from the
criminal case against their colleague, Dr V.B. However, the domestic courts,
without ever asking directly these expert witnesses as to their connection with
Dr V.B., dismissed the applicant’s motions to disqualify them, saying
nothing more than that there was nothing to suggest bias on their part.
The Court stresses that what is at stake here
is not the content of the medical reports or the question of whether the
applicant’s sister truly died owing to medical negligence, but the fact that
the medical experts in the judicial proceedings were professors at the same
Medical Faculty as the accused and as such could not be seen as objectively
impartial according to Croatian law. What is at stake is the trust of the
public in the criminal justice system, where appearances have a high
importance.
Furthermore, the Court reiterates that in
Article 2 cases concerning medical negligence a requirement of promptness and
reasonable expedition is implicit in determining the effectiveness of the
domestic proceedings set up to elucidate the circumstances of the patient’s
death. Even where there may be obstacles or difficulties which prevent progress
in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining
public confidence in their adherence to the rule of law and in preventing any
appearance of collusion in or tolerance of unlawful acts. The State’s
obligation under Article 2 of the Convention will not be satisfied if the
protection afforded by domestic law exists only in theory: above all, it must
also operate effectively in practice and that requires a prompt examination of
the case without unnecessary delays (see Šilih, cited above, § 195).
In this connection the Court notes that the
applicant lodged his criminal complaint with the Zagreb Municipal State
Attorney’s Office in October 1994, only to have his complaint rejected in
February 1998, after more than three years. He then lodged an indictment
against Dr V.B. in the Zagreb Municipal Criminal Court on 9 March 1998 and the
final judgment in those proceedings was adopted on 24 February 2009 when the
Zagreb County Court dismissed the applicant’s appeal. The proceedings further
continued before the Constitutional Court upon the applicant’s constitutional
complaint and ended on 26 November 2009 when that court adopted its decision.
The Court is not called upon to determine or to
identify what sort of steps the domestic authorities should have taken in the
case at hand. Therefore, it confines itself to noting that the criminal
proceedings, in view of the fact that they lasted for more than fifteen years,
were excessively long and that neither the conduct of the applicant nor the
complexity of the case can suffice to explain such length.
As to the administrative disciplinary
proceedings which the applicant instituted by complaining to the Ministry of
Health, the Court notes that the applicant complained about the circumstances
of the medical treatment of his sister in the Rebro Hospital. However, the
Ministry of Health only opened disciplinary proceedings against Dr V.B. in
respect of the allegation that he had taken bribes, without giving any answer
about the complaint of medical malpractice.
Against the above background, the Court finds
that the domestic system as a whole, faced with a case of an allegation of
medical negligence resulting in death of the applicant’s sister, failed to
provide an adequate and timely response consonant with the State’s procedural
obligations under Article 2 of the Convention.
There has accordingly been a violation of
Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained that he had not had an
effective domestic remedy in respect of the alleged medical malpractice and the
death of his sister. He relied on Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth in [the] Convention
are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.”
A. Admissibility
The Court considers that this complaint is
closely linked to the one concerning the procedural aspect of Article 2 of the
Convention and must also therefore be declared admissible.
B. Merits
The Court notes that the applicant was able to
pursue a criminal prosecution of the doctor allegedly responsible for the death
of his sister. The issue of effectiveness of the remedies used has already been
addressed in the context of Article 2 of the Convention. In view of its
findings under Article 2 of the Convention, the Court considers that there is
no need to examine further the complaint under Article 13 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6
of the Convention about the lack of fairness of the criminal proceedings.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 44,072,32 euros (EUR) in
respect of pecuniary damage on the grounds that he had travelled from Rotterdam
to Zagreb because of the domestic proceedings, and he had raised his sister’s
children who had come to live with him in the Netherlands, although their
father had stayed in Croatia. The applicant also claimed EUR 30,000 in respect
of non-pecuniary damage.
The Government considered the applicant’s claim
excessive, unfounded and unsubstantiated, because there was no causal link
between the violations complained of and the applicant’s pecuniary claims.
Having
regard to all the circumstances of the present case, the Court accepts that the
applicant suffered non-pecuniary damage which cannot be compensated solely by
the finding of a violation. Making its assessment on an equitable basis, the
Court awards the applicant EUR 10,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable to him.
118. As regards pecuniary damage, the Court
notes that the applicant was represented by a lawyer throughout the domestic
proceedings and that it was not therefore necessary for the applicant to travel
to Croatia because of the proceedings. The Court also considers that he failed
to demonstrate any direct causal link between his sister’s death and the fact
that her children had come to live with him in the Netherlands. Therefore, as
the Court does not see any causal link between the claimed amount and the
finding of a violation, the applicant’s claim for pecuniary damage is
dismissed.
B. Costs and expenses
The applicant also claimed EUR 19,024 for costs
and expenses incurred before the domestic courts and in the proceedings before
the Court.
The Government considered that the applicant
had failed to substantiate his claim for costs and expenses in any way.
121. According to the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. As to the criminal proceedings instituted by the
applicant before the national authorities, the Court agrees that, as they were
essentially aimed at remedying the violation of the Convention alleged before
the Court, the domestic legal costs may be taken into account in assessing the
claim for costs (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 284, ECHR 2006-V). In the present case, regard being
had to the information in its possession and the above criteria, the Court
awards the applicant the sum of EUR 6,300 for costs and expenses in the
proceedings before the national authorities. As to the Convention proceedings,
making its assessment on an equitable basis and in the light of its practice in
comparable cases, the Court considers it reasonable to award the applicant, who
was legally represented, the sum of EUR 1,600, plus any tax that may be
chargeable to the applicant on these amounts.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Articles
2 and 13 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
the procedural aspect of Article 2 of the Convention;
3. Holds that there is no need to examine the
complaint under Article 13 of the Convention;
4. Holds
(a) that
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, which
are to be converted into the national currency of the respondent State at the
rate applicable at the date of settlement:
(i) EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 7,900
(seven thousand nine hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three percentage
points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Anatoly
Kovler
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sicilianos is
annexed to this judgment.
A.K.
S.N.
CONCURRING OPINION OF JUDGE SICILIANOS
I have voted in favour of finding a violation of the
procedural aspect of Article 2 of the Convention in the present case. As the
judgment rightly underlines, “in Article 2 cases concerning medical negligence
a requirement of promptness and reasonable expedition is implicit in
determining the effectiveness of the domestic proceedings set up to elucidate
the circumstances of the patient’s death” (paragraph 103 of the judgment). In this
connection the Court noted that the applicant lodged his criminal complaint
with the Zagreb Municipal State Attorney’s Office in October 1994 and that the
proceedings ended on 26 November 2009, when the Constitutional Court adopted
its decision. In other words, the domestic proceedings lasted for more than
fifteen years. Neither the conduct of the applicant nor the complexity of the
case could explain such length (paragraph 105).
With all due respect to my colleagues, I believe that this
finding would have been sufficient and that it was unnecessary to go into the
somewhat controversial issue of whether the findings of the experts involved
were impartial. In fact the domestic courts commissioned three medical reports
(paragraphs 15, 21, 29-30). Five experts and University Professors from both
the Zagreb and the Rijeka University Medical Faculties found that there had
been no medical malpractice. Furthermore, the expert report submitted by the
applicant himself (by a professor in another discipline, namely urology) did
not find that there had been malpractice by doctor V.B. It simply stated that
“in order to exclude any failures in the postoperative course of treatment, it
would be necessary to consult other documentation and make further
examinations” (paragraph 25). Moreover, the Zagreb Municipal Criminal Court
acquitted doctor V.B. of the charges of medical malpractice not merely on the
basis of the impugned medical report, but also by taking into account the
witness statements and other relevant medical documentation (paragraph 35). In
those circumstances, the impugned judgments of the domestic courts do not
disclose any arbitrariness or lack of impartiality. Consequently, the
corresponding complaint by the applicant was of a ‘fourth-instance’ nature and should
have been dismissed as manifestly ill-founded.
