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FOURTH SECTION

CASE OF DVOŘÁČEK AND DVOŘÁČKOVÁ v. SLOVAKIA

(Application no. 30754/04)

JUDGMENT

STRASBOURG

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:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
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:

PROCEDURE

The case originated in an application (no. 30754/04) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovak nationals, Mr Ivan Dvořáček and Mrs Jozefa Dvořáčková (“the applicants”), on 18 August 2004.

The applicants were represented by Mr M. Benedik, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by Mrs M. Pirošíková, their Agent.

The applicants alleged, in particular, that civil proceedings for compensation for damage to their daughter's health had been excessively long.

On 29 May 2006 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant, Mr Ivan Dvořáček, was born in 1942. The second applicant, Mrs Jozefa Dvořáčková, was born in 1945. They are married and live in Bratislava. They filed the application also on behalf of Ms Ivana Dvořáčková, their daughter.

Ms Ivana Dvořáčková was born in 1981 with Down Syndrome (trisomy 21) and a damaged heart and lungs. She was in the care of a specialised health institution in Bratislava. In 1986 she was examined in the Centre of Paediatric Cardiology in Prague Motole where it was established that, due to post-natal pathological developments, her heart chamber defect could no longer be remedied.

On 1987 she underwent vascular surgery in Prague. However, the doctors considered that comprehensive heart surgery with a view to eliminating the cardio-vascular defect was no longer feasible. A conservative treatment was recommended and the medical prognosis was that her heart or lungs would fail in the second or third decade of her life.

Ms Ivana Dvořáčková died of heart failure on 14 March 2004 at the age of 23.

A. Proceedings concerning the claim for compensation

On 26 October 1987 Ms Ivana Dvořáčková and her parents instituted proceedings in the Bratislava I District Court. They claimed compensation for damage on the ground that Ms Ivana Dvořáčková's health had been seriously and irreparably damaged as a result of shortcomings in the post-natal treatment she had received in a hospital to which the defendant was the legal successor. In particular, on the basis of the aforementioned examination in the Centre of Paediatric Cardiology in Prague, they alleged that the health institution in Bratislava had failed to diagnose in time the extent of the damage to her health and to ensure appropriate and timely treatment of the defect.

The District Court held eleven hearings in the case and dismissed the action on 9 August 1990. On 19 June 1991 the Regional Court in Bratislava quashed that judgment. The case file was returned to the District Court on 5 August 1991.

In 1994 and 1995 the District Court took various procedural steps. It scheduled two hearings in 1997.

On 2 March 1998 the District Court appointed an expert, who submitted an opinion on 17 November 1999.

Another hearing in the case was scheduled for 3 October 2000. The plaintiffs requested an adjournment but the District Court dismissed their request on 18 May 2001. On 30 November 2001 the Regional Court quashed that decision. After obtaining further evidence, the District Court stayed the proceedings on 19 March 2002 at the applicants' request. On 13 June 2003 the plaintiffs requested that the proceedings be resumed.

On 11 December 2003 the District Court held a hearing at which Ms Ivana Dvořáčková challenged the expert.

On 20 April 2004, after their daughter had died, the first and second applicants asked the District Court to proceed with their case and determine whether the defendant was liable for damage to their daughter's health. They indicated that the question arose whether her death had been caused by shortcomings in her medical treatment and that they intended to claim damages in that respect. On 5 May 2004 the first and second applicants specified their claims for damages with the District Court.

On 7 June 2004 the District Court dismissed the request for the exclusion of the expert. In a separate decision, which was rectified on 30 August 2004, it discontinued the proceedings. On 30 September 2004 the Bratislava Regional Court varied the first-instance court's decision in that it discontinued the proceedings only to the extent that they concerned part of Ms Dvořáčková's claim for compensation which under the relevant law could not pass to her heirs. The appellate court remitted the case to the District Court for further examination.

On 26 May 2005 the District Court adjourned the case as the defendant's representative did not attend the hearing.

A further hearing was held on 28 June 2005. The first applicant stated that he challenged the three expert opinions included in the file as the experts involved either lacked the requisite qualifications or were biased. The District Court decided to obtain another expert opinion. A hearing scheduled for 20 March 2006 had to be adjourned as the judge was ill.

After the case had been transferred to a different judge, a hearing was held on 24 April 2006. The first applicant urged the court to determine the case. He maintained that the evidence available was sufficient and that obtaining another expert opinion was not necessary. The judge decided to obtain a fourth expert opinion in the case. In a decision of 25 May 2006 the District Court instructed the Medical Faculty of the P.J. Šafárik University in Košice to submit an opinion on the relevant issues within 40 days.

On 24 July 2008 the Bratislava I District Court asked the Hradec Králové District Court (Czech Republic) for assistance in obtaining a further opinion by two Czech medical experts.

In January 2009 the parties informed the Court that the proceedings were pending.

B. Constitutional proceedings

1. Complaint of Ms I. Dvořáčková

On 4 March 2004 the Constitutional Court held that the Bratislava I District Court had violated Ms I. Dvořáčková's right to a hearing within a reasonable time. It found that the case was not particularly complex and that the plaintiff had not by her conduct contributed to the length of the proceedings in a substantial manner. The decision stated that there had been unjustified delays in the proceedings before the District Court, totalling approximately six years.

The Constitutional Court ordered the Bratislava I District Court to proceed with the case without further delay and to pay to the plaintiff, within two months from its judgment becoming final, the equivalent of 3,452 euros (EUR) as just satisfaction. It also ordered the Bratislava I District Court to reimburse the plaintiff's costs related to the constitutional proceedings within fifteen days.

2. Complaint of Ms I. Dvořáčková's parents

On 21 April 2004 the parents of Ms I. Dvořáčková, represented by an advocate, lodged a complaint with the Constitutional Court alleging a violation of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time.

They submitted further arguments and documents subsequently. In particular, in two letters which they personally sent by registered mail to the Constitutional Court and its President on 23 July 2004, they alleged that the inactivity of the District Court amounted to a denial of justice and that Articles 2, 8 and 14 of the Convention had also been violated. As regards Article 2 in particular, they submitted that their daughter had died as a result of medical negligence. The applicants referred to the States' obligation to protect the life of persons within their jurisdiction and to “apply all civil-law remedies, such as compensation for damage, in cases of medical negligence”.

On 11 October 2004 the applicants appointed a different advocate to represent them in the proceedings before the Constitutional Court. In a submission of 21 October 2004 the advocate asked the Constitutional Court to have regard to all earlier submissions in the case and to consider the scope of the breach of the applicants' rights guaranteed by both the Constitution and the Convention. At the request of the Constitutional Court the advocate submitted, on 18 February 2005, further information about the scope of the proceedings complained of and about the complaint under Article 127 of the Constitution. He indicated in his letter that in the proceedings before the Constitutional Court the plaintiffs “alleged a breach of their right under Article 48 § 2 of the Constitution to a hearing without unjustified delays and that they also complained of interference with their human rights guaranteed by the European Convention on Human Rights”.

On 23 May 2005 the Constitutional Court declared admissible the complaint of unjustified delays in the proceedings before the Bratislava I District Court. It stated that the plaintiffs had claimed damages in the action brought on 26 October 1987 and therefore had standing as a party to the proceedings complained of.

To the extent that the plaintiffs complained of “interference with their human rights guaranteed by the European Convention on Human Rights” the Constitutional Court rejected their complaint as not complying with the statutory requirements. In particular, the plaintiffs had not specified the rights which they alleged had been violated, submitted any arguments in support of their allegation or provided draft wording for the operative part of the decision they sought to obtain from the Constitutional Court with respect to that complaint.

On 11 October 2005 the Constitutional Court found that the Bratislava I District Court had violated the plaintiffs' right to a hearing within a reasonable time. It ordered the District Court to proceed with the case without further delay and granted the equivalent of EUR 1,287 each to the first and second applicants as just satisfaction payable within two months. It also ordered the Bratislava I District Court to reimburse the costs of the constitutional proceedings to the applicants (the equivalent of EUR 807).

The Constitutional Court noted that the proceedings in issue concerned a claim for compensation for serious damage to the health of Ms Ivana Dvořáčková. That claim was based on allegedly incorrect medical diagnoses as a result of which I. Dvořáčková's lung and heart had been damaged to the extent that she had been permanently handicapped as from 7 April 1987. Subsequently the plaintiffs had extended the claim to include, inter alia, compensation for the costs of medical treatment and care for their daughter, expenses relating to her burial and damages for unjustified interference with their privacy.

The Constitutional Court found that the case was not particularly complex and that the overall duration of the proceedings could not be imputed to the plaintiffs. In addition to the delays in the proceedings to which it had pointed in its judgment of 4 March 2004 (see paragraph 22 above), the Constitutional Court found that the case had been with an expert for eighteen months. During the subsequent period the District Court had not proceeded with the case effectively with the exception of a period of approximately one year between March 2002 and April 2003 when the proceedings had been stayed.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The following provisions of the Constitutional Court Act 1993 are relevant in the present case.

Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support.

Pursuant to paragraph 2 of section 20, plaintiffs are required to submit an authority for a lawyer to represent them in the proceedings before the Constitutional Court.

Under paragraph 3 of section 20, the Constitutional Court is bound by a plaintiff's request for proceedings to be started unless the Act expressly provides otherwise.

The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act 1993, by a party's submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the submission was particularly relevant as regards the wording of the order which parties sought to obtain from it as it could only decide those matters which a party had requested be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002).

THE LAW

I. LOCUS STANDI OF THE PERSONS CONCERNED

The application was lodged on 18 August 2004 by Mr Ivan Dvořáček and Mrs Jozefa Dvořáčková. In addition to alleging a violation of their own rights, they stated that they wished to complain also on behalf of their daughter, Ms Ivana Dvořáčková, who had died on 14 March 2004.

The Court reiterates that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings
(see Karner v. Austria, 40016/98, § 25, ECHR 2003-IX).

In the present case Ms Ivana Dvořáčková had died before the application was introduced, and the case is therefore to be distinguished from cases in which an applicant's heirs were permitted to pursue an application which had already been introduced (see Fairfield and Others v. the United Kingdom, (dec.), no. 24790/04, 8 March 2005, with reference back to Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999 VI).

Individuals, who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right under that provision; this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system. However complaints brought under, inter alia, Article 6 § 1 do not in principle fall within this category (see Grădinar v. Moldova, no. 7170/02, § 91, 8 April 2008; Biç and Others v. Turkey, no. 55955/00, § 22, 2 February 2006 and Georgia Makri and others v. Greece (dec.), no. 5977/03, 24 March 2005).

Accordingly, since Ms Ivana Dvořáčková died prior to the introduction of the application, the Court cannot accept her standing as an applicant for the purposes of Article 34 of the Convention. It follows that in this respect the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

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

The applicants alleged that the respondent State had failed to ensure appropriate medical treatment for their daughter, which had led to heart and lung damage and finally to her death. The civil proceedings they had instituted had not resulted in the effective and prompt establishment of the cause of death and the liability of the medical profession. The applicants relied on Article 2 of the Convention, the relevant part of which provides:

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life...”

A. Admissibility

The Government argued that it was questionable whether the case attracted the guarantees of Article 2 at all. In particular, there was no indication, either in the statements of the medical experts or elsewhere that the death of the applicants' daughter was attributable to shortcomings in the medical care she had received.

The complaint about shortcomings in the medical treatment was in any event inadmissible as it was incompatible ratione temporis with the provisions of the Convention. The alleged shortcomings had occurred shortly after the birth of the applicant's daughter in 1981, that is prior to the date on which the Slovak Republic became bound by the Convention.

Finally, the Government objected that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. Firstly, they had not shown that they had sought redress in accordance with the Peoples Health Care Act 1966, which had been in force until the end of 1994, that is at the time when the alleged shortcomings had occurred. Secondly, the proceedings which the applicants had initiated in 1987 pursuant to Articles 420 et seq. of the Civil Code solely concerned compensation for pecuniary damage and were still pending. Thirdly, as regards any non-pecuniary damage which the applicants had suffered, they should have sought redress by means of an action for the protection of their personal rights pursuant to Articles 11 et seq. of the Civil Code.

The applicants argued that the medical negligence complained of had produced continuing effects that had resulted in a gradual deterioration in their daughter's health up to her death. They contested the Government's objection relating to their obligation to exhaust domestic remedies.

1. Alleged violation of Article 2 in its substantive limb

The Court notes that the applicants alleged that shortcomings in post-natal medical care provided to their daughter had irreparably damaged her health and ultimately lead to her death. It has not been contested that those shortcomings had occurred between 1981 and 1986 (see paragraphs 6 and 9 above).

However, the Czech and Slovak Federal Republic, to which Slovakia is one of the successor States, recognised the right of individual petition under Article 34 of the Convention on 18 March 1992. The Court therefore lacks jurisdiction to examine the alleged shortcomings in the applicants' daughter's medical treatment in the 1980s.

Even assuming that an issue under the substantive aspect of Article 2 arises in view of the fact that the death of the applicants' daughter occurred after the entry into force of the Convention with respect to Slovakia, civil proceeding are pending before domestic courts in which liability for the alleged medical negligence is to be determined. It is not appropriate for the Court to rely on the documentary material provided by the parties to reach any conclusions as to responsibility for the death of the applicants' daughter. The Court considers that there are no concrete factors which could deprive the civil courts of their ability to establish the facts and determine any liability for Ms I. Dvořáčková's death notwithstanding the lapse of time following the relevant events which will make it difficult for the civil courts to piece together the evidence (see also, mutatis mutandis, McKerr v. the United Kingdom, no. 28883/95, §§ 118-119, ECHR 2001 III).

Accordingly, this part of the application is in any event premature.

It follows that this complaint must be rejected under Article 35 §§ 1, 3 and 4 as being incompatible ratione temporis with the provisions of the Convention and for non-exhaustion of domestic remedies.

2. Alleged violation of Article 2 in its procedural limb

The Court reiterates that Article 2 of the Convention enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. Those principles apply in the public-health sphere too. The aforementioned procedural obligations require, inter alia, an effective independent judicial system to be set up so that the cause of death of persons in the care of the medical profession can be determined and those responsible made accountable. The Court has recently found that this procedural obligation has evolved into a separate and autonomous duty (for a recapitulation of the relevant principles see, for example, Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§48-49, ECHR 2002 I; Dodov v. Bulgaria, no. 59548/00, § 70, ECHR 2008 ... and Šilih v. Slovenia [GC], no. 71463/01, §§ 157 and 159, 9 April 2009, with further references).

In the present case the applicants, on 20 April 2004, that is one month after their daughter had died, indicated to the District Court before which their claim for damages was pending that the question arose whether their daughter's death had been caused by shortcomings in her medical treatment and that they intended to claim damages in that respect. On 5 May 2004 they specified their claims for damages (see paragraph 15 above).

It is true that more than 20 years separate the alleged shortcomings in the applicants' daughter's medical treatment and her death which, as the applicants alleged, was imputable to those shortcomings. Nevertheless, the Court considers that in the present case, and irrespective of the outcome of the proceedings which the applicants instituted, the procedural obligation under Article 2 to carry out an effective investigation came into being in the context of the proceedings complained of following Ms I. Dvořáčková's death in 2004 (see also Šilih v. Slovenia [GC] referred to above, § 156).

As regards the objection relating to the applicants' failure to exhaust domestic remedies, the Court reiterates that 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 or Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 91, 29 November 2007).

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.

As the Health Care Act 1966 was repealed at the end of 1994, the applicants cannot be required to have had recourse to that remedy in respect of the State's alleged failure to comply with its procedural obligation under Article 2, which, as the Court found above, came into existence in 2004.

As to the constitutional remedy, the applicants, in two letters sent by registered mail on 23 July 2004, alleged that the inactivity of the District Court amounted to a denial of justice and that Articles 2, 8 and 14 of the Convention had also been violated. As regards Article 2 in particular, they submitted that their daughter had died as a result of medical negligence. The applicants referred to the States' obligation to protect the life of persons within their jurisdiction and to “apply all civil-law remedies, such as compensation for damage, in cases of medical negligence” (see paragraph 25 above).

In the subsequent submissions, their legal representative indicated that the applicants relied on all their earlier submissions and that in the proceedings before the Constitutional Court the plaintiffs “alleged a breach of their right under Article 48 § 2 of the Constitution to a hearing without unjustified delays and that they also complained of interference with their human rights guaranteed by the European Convention on Human Rights” (see paragraph 26 above).

On 23 May 2005 the Constitutional Court rejected their complaint in that respect holding that the plaintiffs had not specified the rights which they alleged had been violated, submitted any arguments in support of their allegation or provided draft wording for the operative part of the decision they sought to obtain from the Constitutional Court with respect to that complaint.

In applications against Slovakia the Court has held that applicants should use the constitutional remedy in accordance with the formal requirements, as interpreted and applied by the Constitutional Court. This included indication of the rights allegedly breached and specifying the wording of the decision which plaintiffs seek to obtain. For example, in Lubina v. Slovakia (no. 77688/01, judgment of 19 September 2006, §§ 46 and 63) the Court accepted that the applicant had not used the constitutional remedy in accordance with the formal requirements. In that case the applicant had relied on Article 8 of the Convention in the reasons for his complaint to the Constitutional Court, but he had not included that particular complaint in the text of the finding which he requested the Constitutional Court to make.

The Government's objection relating to non-exhaustion of domestic remedies must therefore be dismissed.

The Court further considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B. Merits

The applicants maintained that the medical personnel had breached their duties in that they had not timeously diagnosed and treated their daughter's heart deficiency. By failing to determine their action for more than 20 years the Slovak authorities had not complied with their Article 2 obligation to set up an effective judicial system that would have enabled the cause of their daughter's death and the liability of the medical profession to be established.

The Government contended that there had been no violation of Article 2 in the applicants' case.

The Court reiterates that 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. It is not an obligation of result but of means only. It will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice which includes the requirement of a prompt examination of the case without unnecessary delays. Apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations, such as the safety of users of health services, also call for a prompt examination of cases concerning medical negligence (for recapitulation of the relevant case-law see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; Calvelli and Ciglio, cited above, §§ 49-51; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 71-72, ECHR 2002 II; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006 or Šilih v. Slovenia [GC] referred to above, §§ 192-196).

The Court has found above (see paragraph 53) that in the present case the procedural obligation under Article 2 to carry out an effective investigation came into being following the death of the applicants' daughter in 2004. However, it cannot be overlooked that the very same point in issue, namely whether there had been medical negligence impairing the health of the applicants' daughter, has been pending before the domestic authorities in the context of the same proceedings since 1987. Thus the domestic courts had the possibility of taking measures with a view to elucidating the relevant circumstances and, if appropriate, establishing the responsibility of medical personnel during more than 16 years while the applicants' daughter was still alive.

In these circumstances the Court considers that it must also take into account the stage reached in the proceedings in issue at the time of Ms I. Dvořáčková's death (see also, mutatis mutandis, Foti and Others v. Italy, 10 December 1982, § 53, Series A no. 56; Yağcı and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319 A; Humen v. Poland [GC], no. 26614/95, § 59, 15 October 1999).

Examining the facts of the present case in the light of the above principles, the Court notes that in the second half of 2004 the proceedings were discontinued to the extent that they concerned part of Ms I. Dvořáčková's claim for compensation which under the relevant law could not pass to her heirs. On 26 May 2005 the District Court adjourned the case as the defendant's representative did not attend the hearing. A further hearing was held on 28 June 2005. The first applicant stated that he challenged the three expert opinions included in the file and the District Court decided to obtain another expert opinion. A hearing scheduled for 20 March 2006 had to be adjourned as the judge was ill. After the case had been transferred to a different judge, a hearing was held on 24 April 2006. The first applicant urged the court to determine the case arguing that the evidence available was sufficient and that obtaining another expert opinion was not necessary. On 25 May 2006 the District Court instructed the Medical Faculty of the P.J. Šafárik University in Košice to submit an opinion on the relevant issues within 40 days. Subsequently, on 24 July 2008, the Hradec Králové District Court in the Czech Republic was asked for assistance in obtaining an opinion of two Czech medical experts. According to the information available, the proceedings are pending.

Admittedly, the determination of the points in issue requires special knowledge in the field of medicine. It is therefore natural that the District Court decided to have recourse to experts with a view to obtaining their opinion. However, the documents before the Court contain no information indicating that the determination of the point in issue required so many expert opinions. Furthermore, no explanation has been given as regards the above period of more than two years separating the District Court's decision to obtain the fourth and fifth opinions. In this context particular weight must be attached to the fact that at that time the proceedings had been pending for nearly 20 years.

In these circumstances, and having also regard to the state of the proceedings at the time of death of the applicants' daughter, the Court is not satisfied that in dealing with the case the District Court respected the requirement of promptness and reasonable expedition as required by Article 2 of the Convention.

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

The applicants complained under Article 6 § 1 of the Convention that their right to a fair hearing within a reasonable time had been violated, that the District Court judges involved were not impartial and that the way in which the case had been processed amounted to a denial of justice. The relevant part of Article 6 § 1 reads as follows:

“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.”

Admissibility

1. Complaint about the length of the proceedings

The Government argued that the applicants could no longer claim to be the victims of a violation of their right to a hearing within a reasonable time. The Constitutional Court had speedily provided them and their daughter with preventive and compensatory redress, which the Government considered to have been adequate and sufficient. Furthermore, the applicants had failed to lodge a fresh complaint under Article 127 of the Constitution about the length of the proceedings in the period after the Constitutional Court's decision.

The applicants disagreed and argued that the just satisfaction awarded by the Constitutional Court was insufficient. The District Court had failed to comply with the Constitutional Court's order to expedite the proceedings.

The Court notes that on 11 October 2005 the Constitutional Court awarded the applicants the equivalent of EUR 1,287 each in respect of non-pecuniary damage. This amount is disproportionately low compared with what the Court generally awards in similar cases (see, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-... and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-...). Moreover, the Constitutional Court's direction to the District Court to speed up the proceedings has not been shown to have had the desired effect. The redress obtained by the applicants at the domestic level was thus insufficient (see Scordino (no. 1), cited above, §§ 214-15). The applicants can accordingly still claim to be victims within the meaning of Article 34 of the Convention.

In view of the above conclusion, the Court finds that the applicants were not required, for the purposes of Article 35 § 1 of the Convention, to resort again to the remedy under Article 127 of the Constitution (see Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007) as far as their complaint under Article 6 § 1 about the subsequent duration of the proceedings before the District Court is concerned.

Accordingly, the Government's objection must be rejected.

The proceedings started in 1987, but the period to be taken into consideration began only on 18 March 1992 (see paragraph 48 above). However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of the proceedings at the time.

The period in question has not yet ended. It has thus lasted more than 17 years and 3 months for two levels of jurisdiction.

The Court must however take into consideration that the applicants' constitutional complaint was only directed at the proceedings before the first-instance court, before which the case had been pending for most of the time. This fact has to be taken into account when determining the merits of the application and, if appropriate, the applicants' claims for just satisfaction under Article 41 of the Convention (see, for example, Solárová and Others v. Slovakia, no. 77690/01, § 42, 5 December 2006, and Judt v. Slovakia, no. 70985/01, § 61, 9 October 2007, with further references).

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. The other complaints

The Court has examined also the applicants' other complaints under Article 6 § 1, namely that the proceedings were unfair, that the District Court judges were not impartial and that the way in which the case was processed amounted to a denial of justice. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence and the requirements of Article 35 § 1 have been met, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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.

B. Merits

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

The Court finds no fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court concurs with the Constitutional Court that the length of the proceedings up to the date of the Constitutional Court's judgment of 11 October 2005 was excessive and failed to meet the “reasonable-time” requirement.

The Court further notes that the proceedings before the District Court have subsequently lasted 3 years and more than 8 months without the merits of the case being determined.

Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the overall length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.

There has accordingly been a breach of Article 6 § 1.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A. Article 8 of the Convention

The applicants alleged that the failure to treat their daughter correctly and in time, which had led to the deterioration in her health and her subsequent death, and the manner in which the District Court had dealt with their action were in breach of their right to respect for their private and family life under Article 8 of the Convention, which, in so far as relevant, provides as follows:

“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.”

The Government argued that this part of the application was inadmissible for similar reasons as the applicants' complaint under Article 2 of the Convention (see paragraphs 43-45 above).

The applicants disagreed.

1. Repercussions on the applicants' private and family life of the alleged damage to health and the subsequent death of their daughter

The Court notes that that the issue of liability for the deterioration in the health of the applicants' daughter is the subject-matter of civil proceedings which are still pending before the Slovak courts. The applicants' complaint concerning the repercussions on their private and family life of damage to their daughter's health is therefore premature.

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

To the extent that the applicants complained that there had been a violation of Article 8 as a result of the excessive duration of the proceedings concerning their claim for damages, the Court considers, for similar reasons as set out in paragraphs 54-61 above, that the Government's objection related to non-exhaustion of domestic remedies must be dismissed.

However, having found a violation of Articles 2 and 6 § 1, the Court considers that no separate issue arises under Article 8 of the Convention with regard to the protracted duration of the proceedings concerning the applicants' action for compensation.

B. Article 14 of the Convention

The applicants complained that the District Court judges involved in their case had discriminated against them and their daughter in that they were more favourably disposed to the arguments of the defendant than to those submitted by the plaintiffs. They relied on Article 14 of the Convention, which provides:

“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.”

However, 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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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

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 applicants claimed the equivalent of EUR 17,513 in respect of pecuniary damage. That sum comprised expenses relating to the cost of care for their daughter, including supplementary medical treatment as well as expenses incurred in connection with her death and burial.

They further claimed EUR 200,000 by way of compensation for non-pecuniary damage.

The Government contested the claim for pecuniary damage. They considered the claim for non-pecuniary damage to be exaggerated.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, and having regard to the fact that the applicants obtained partial redress in the proceedings before the Constitutional Court, it awards them jointly EUR 10,000 under that head.

B. Costs and expenses

The applicants claimed the equivalent of EUR 2,157. That sum included the costs of their legal representation before the Constitutional Court (EUR 1,044) and the Court (EUR 790), travel expenses relating to their participation at the hearing before the Constitutional Court (EUR 43), postal expenses (EUR 147) and also sums paid for purchasing paper and photocopying documents (EUR 133).

The Government contested the amount claimed and asked the Court to make an award on the basis of the applicable principles.

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 were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case, regard being had to the information in its possession and the above criteria and the fact that the applicants were only partly successful in the proceedings before it, the Court awards the applicants jointly EUR 1,500 under this head.

C. Default interest

The Court considers it appropriate that the default interest 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

Holds unanimously that Mr I. Dvořáček and Mrs J. Dvořáčková do not have standing under Article 34 of the Convention to complain about a violation of the rights of their deceased daughter and declares the relevant part of the application incompatible ratione personae with the provisions of the Convention;

Declares unanimously the applicants' complaints under Articles 2 (as regards its procedural aspect), 6 § 1 and 8 of the Convention relating to the duration of the proceedings admissible and the remainder of the application inadmissible;

Holds by six votes to one that there has been a violation of Article 2 of the Convention in its procedural aspect;

Holds unanimously that there has been a violation of Article 6 § 1 of the Convention;

Holds unanimously that no separate issue arises under Article 8 of the Convention as regards the length of the proceedings;

Holds by six votes to one

(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;

Dismisses unanimously the remainder of the applicants' claim for just satisfaction.

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
Registrar President

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.

N.B.
T.L.E.

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).”

The requirement of effectiveness contains a number of elements. The persons who are responsible for the investigation and who conduct it must be independent and impartial, the investigation must be adequate in the sense that it must be capable of leading to a decision as to the cause and circumstances of the death and it must be initiated promptly and conducted with reasonable expedition (Nachova and Others v. Bulgaria [GC], § 112, Šilih v. Slovénia[GC], § 195,196). In a word, the duty to examine as expressed in Article 2 calls for effectiveness, which comprises promptness, thoroughness and diligence.

When finding a violation of the procedural part of Article 2, the majority of the Court has taken into account delays in handling the case and the reason for such delays, namely that the national court had considered it necessary to obtain further expert opinions. At issue in the case is the alleged neglect that occurred during the applicants' daughter's medical care in early childhood, and its causal link with her untimely death at 23 years of age.

In my opinion, there are sufficient grounds to believe that investigating the existence of such causal link requires recourse to wide-ranging and profound medical expertise. In my view, the obtaining of several expert opinions was justified and compatible with the obligation to conduct a thorough investigation. In addition, the decision to obtain further opinions was justified by the fact that the first applicant contested the evidential value of the earlier opinions. In my view for the Court to state, without knowing their contents, that the new opinions were superfluous amounts to substituting itself for the national decision-maker.

Thus, the justification for the violation of the procedural part of Article 2 is the long duration of the investigation. As stated above, the delay caused by the need to obtain expert opinions can be explained by the need to examine thoroughly the existence of a causal link. As to the other reasons for delay this same justification has, however, been presented to the Court as a length of proceedings issue under Article 6. In the present case, it is beyond doubt that the length of the proceedings as a whole, which began back in 1987 when the applicants' civil action was lodged and are still pending, is unreasonable. In this sense the alleged excessive length has, however, come to be seen as a violation under Article 6 paragraph 1. In my opinion, this same delay should not be used as a reason for finding a violation under Article 2 as well. This would lead to a finding of a double violation, using the same justification, of both Articles 2 and 6. In the Šilih case the Court, when finding a violation of the procedural aspect of Article 2, considered that it was unnecessary to examine separately whether the length of the proceedings was compatible with the reasonable time requirement under Article 6. In the circumstances of the present case I would have preferred the Court to have found a violation under Article 6 alone.

The above considerations also reflect my dissent on the amount awarded by the majority under Article 41 of the Convention.