CASE OF DVOŘÁČEK AND DVOŘÁČKOVÁ v. SLOVAKIA
(Application no. 30754/04)
28 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Dvořáček and Dvořáčková v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 7 July 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings concerning the claim for compensation
B. Constitutional proceedings
1. Complaint of Ms I. Dvořáčková
2. Complaint of Ms I. Dvořáčková's parents
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. LOCUS STANDI OF THE PERSONS CONCERNED
The Court accepts, however, that her parents (“the applicants”) have standing to allege, in their own capacity, also a breach of Article 2 of the Convention in the context of the death of their daughter. Since the applicants have been a party to the proceedings in issue, no issue arises as to their standing to allege a breach of their rights under Article 6 of the Convention in those proceedings.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life...”
1. Alleged violation of Article 2 in its substantive limb
Accordingly, this part of the application is in any event premature.
2. Alleged violation of Article 2 in its procedural limb
55. The applicants have claimed compensation under Articles 420 et seq. of the Civil Code. The domestic courts' failure to determine their action in an effective manner is at the core of their complaint under Article 2. As to the argument that they should have sought redress by means of an action under Articles 11 et seq. of the Civil Code for the protection of their personal rights, the Court takes the view that that argument may be relevant in determining the scope of the compensation which the applicants, if successful, can obtain. However, the prejudicial issue in proceedings under Articles 11 et seq. of the Civil Code would be the same as the issue which still remains to be determined in the proceedings which the applicants have brought, namely whether their daughter's death was attributable to shortcomings in the medical care she received. In these circumstances, the applicants were not required, for the purposes of Article 35 § 1 of the Convention, to seek redress by means of an action under Article 11 et seq. of the Civil Code in parallel to the proceedings complained of.
The Government's objection relating to non-exhaustion of domestic remedies must therefore be dismissed.
There has therefore been a violation of Article 2 of the Convention in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time by an independent and impartial tribunal established by law.”
1. Complaint about the length of the proceedings
2. The other complaints
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. Repercussions on the applicants' private and family life of the alleged damage to health and the subsequent death of their daughter
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Protracted duration of the proceedings for damages
B. Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
They further claimed EUR 200,000 by way of compensation for non-pecuniary damage.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, 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;
Done in English, and notified in writing on 28 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Hirvelä is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE HIRVELÄ
Although I can follow the majority in finding a violation of Article 6 § 1 of the Convention and that no separate issue arises under Article 8 as regards the length of the proceedings, I am nevertheless unable to join the majority in finding a violation of the procedural aspect of Article 2.
1. The death of the applicants' daughter in 2004 triggered the procedural obligation under Article 2 of the Convention to investigate the cause of the death. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of those responsible (Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005 VII). In the case Šilih v. Slovénia.[GC], no. 71463/01, § 192, 9 April 2009 this general principle of investigating a death in medical care is outlined as follows:
“As the Court has held on several occasions, the procedural obligation of Article 2 requires the 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 made accountable (see, among other authorities, Calvelli and Ciglio, cited above, § 49, and Powell v. the United Kingdom, (dec.), no. 45305/99, ECHR 2000-V).”