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SILIH v. SLOVENIA - 71463/01 [2009] ECHR 571 (9 April 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/571.html
Cite as:
49 EHRR 37,
[2009] Inquest LR 117,
(2009) 49 EHRR 37,
[2009] ECHR 571
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GRAND
CHAMBER
CASE OF
ŠILIH v. SLOVENIA
(Application
no. 71463/01)
JUDGMENT
STRASBOURG
9 April
2009
This
judgment is final but may be subject to editorial revision.
In the case of Šilih v. Slovenia,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Christos Rozakis,
President,
Nicolas Bratza,
Peer Lorenzen,
Josep
Casadevall,
Ireneu Cabral Barreto,
Rıza
Türmen,
Karel Jungwiert,
Boštjan M.
Zupančič,
Rait Maruste,
Snejana
Botoucharova,
Anatoly Kovler,
Vladimiro
Zagrebelsky,
Dean Spielmann,
Päivi
Hirvelä,
Giorgio
Malinverni,
András Sajó,
Nona
Tsotsoria, judges,
and
Michael O'Boyle, Deputy
Registrar,
Having
deliberated in private on 2 April 2008 and on 18 February 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 71463/01) against the Republic
of Slovenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Slovenian nationals, Ms Franja Šilih
and Mr Ivan Šilih (“the applicants”), on 19
May 2001.
The
applicants complained that their son had died as a result of medical
negligence and that their rights under Articles 2, 3, 6, 13 and 14 of
the Convention had been breached by the inefficiency of the Slovenian
judicial system in establishing responsibility for his death.
The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
On
11 October 2004 the President of the Chamber decided that the
admissibility and merits should be examined jointly, in accordance
with Article 29 § 3 of the Convention and Rule 54A and, under
Rule 54 § 2 (b), that the Government should be invited to submit
written observations on the admissibility and merits of the case.
On
28 June 2007 the Chamber composed of Corneliu Bîrsan,
President, Boštjan M. Zupančič, Jean-Paul Costa,
Alvina Gyulumyan, Davíd Thór Björgvinsson, Ineta
Ziemele, Isabelle Berro-Lefèvre, judges, and also of Santiago
Quesada, Section Registrar, delivered a judgment in which it
unanimously declared the application partly admissible and held
unanimously that there had been a procedural violation of Article 2
of the Convention and that there was no need to examine separately
the complaints concerning the length of the civil and criminal
proceedings and the alleged unfairness of the criminal proceedings
under Article 6 of the Convention, or the alleged violation of
Article 13 of the Convention.
On
27 September 2007 the Government requested the referral of the case
to the Grand Chamber in accordance with Article 43 of the Convention.
On 12 November 2007 a panel of the
Grand Chamber granted the request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court. At the final deliberations, Päivi
Hirvelä, substitute judge, replaced Antonella Mularoni,
who was unable to take part in the further consideration of the case
(Rule 24 § 3).
The
applicants and the Government each filed a memorial on the
admissibility and merits. The parties replied in writing to each
other's memorials.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 2 April 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms T. Mihelič,
State Attorney,
Ms Z.
Cilenšek Bončina,
State
Attorney, Co-Agents,
Ms V. Klemenc, Adviser;
(b) for the applicants
Mr B. Grubar, Counsel,
Ms F. Šilih,
Mr I.
Šilih,
Applicants,
Mr T.
Ziger,
Mr U.
Grubar, Advisers.
The
Court heard addresses by Mr Grubar, Mrs Šilih and Mrs Mihelič
as well as Mr Grubar's and Mrs Mihelič's answers to questions
put by Judges Maruste and Spielmann.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, Franja and Ivan Šilih, were born in 1949 and 1940
respectively and live in Slovenj Gradec.
On
3 May 1993, at some point between midday and 1 p.m., the
applicants' twenty-year-old son, Gregor Šilih, sought medical
assistance in the Slovenj Gradec General Hospital for, inter alia,
nausea and itching skin. He was examined by a duty doctor, M.E. On
the basis of a diagnosis of urticaria (a type of allergic reaction),
M.E. ordered the administration of intravenous injections of a drug
containing glucocorticosteroid (Dexamethason)
and an antihistaminic (Synopen).
Following the injections, the applicants' son's condition
significantly deteriorated. This was probably a result of him being
allergic to one or both of the drugs. His skin became very pale, he
began to tremble and to feel cold; M.E. noticed signs of tachycardia.
A diagnosis of anaphylactic shock was made. Subsequently, at 1.30
p.m., the applicant's son was transferred to intensive care. M.E.
ordered the administration of, inter alia, adrenaline. By the
time the cardiologist arrived, the applicants' son had stopped
breathing and had no pulse. Cardiopulmonary resuscitation
was given. At around 2.15 p.m. the applicants' son was connected to a
respirator and his blood pressure and pulse returned to normal, but
he remained in a coma; his brain was severely damaged.
On
4 May 1993 he was transferred to the Ljubljana Clinical
Centre (Klinični center v Ljubljani), where he died on
19 May 1993.
The
exact timing of the events which led to the death of the applicants'
son and the action taken by M.E. in response to his deteriorating
condition were disputed in the domestic proceedings.
On
13 May 1993 the applicants lodged a criminal complaint
(ovadba) with the Slovenj Gradec Unit of the Maribor
First-Instance Public Prosecutor's Office (Temeljno javno
toZilstvo Maribor, Enota v Slovenj Gradcu) against M.E. for
the criminal offence of “negligent medical treatment”
(nevestno zdravljenje) which, following the applicants' son's
death, was characterised as “a serious criminal offence that
[had] caused damage to health” (hudo kaznivo dejanje zoper
človekovo zdravje). The applicants argued that, through the
intravenous injection of the two drugs, M.E. had given their son the
wrong treatment and had subsequently failed to take appropriate
corrective measures after his condition deteriorated.
In
the course of the preliminary proceedings (predkazenski postopek)
medical documents concerning the treatment administered to the
applicants' son were seized by the police and, following his death,
the duty investigating judge (preiskovalni sodnik) directed
the Ljubljana Institute for Forensic Medicine (Inštitut za
sodno medicino v Ljubljani) to conduct an autopsy and prepare a
forensic report.
On
26 August 1993 the police submitted a report to the public
prosecutor from which it appears that the Ministry of Health
(Ministrstvo za zdravstvo) requested the Medical Association
(Zdravniško Društvo) to set up a commission to
prepare an opinion in the case. The commission was composed of the
same experts as those who were preparing the forensic report (see
paragraph 17 below). According to the report, the opinion was sent on
11 June 1993 to the Ministry of Health, which published it in two of
Slovenia's main newspapers on 19 June 1993.
On
1 July 1993 the Ljubljana Institute for Forensic Medicine submitted
their report, which stated, inter alia:
“The anaphylactic shock which ... followed the
administration of Dexamethason and Synopen was most likely due to
sensitivity to one of the mentioned drugs.
The medical treatment of anaphylactic shock in the
Slovenj Gradec Hospital was, on the basis of the medical records, in
accordance with established medical practice.
The consequent ventricular fibrillation was influenced
by the infection of the heart muscle, which Gregor Šilih must
have contracted several weeks before 3 May 1993.
After the ventricular fibrillation occurred, the
hospital staff gave resuscitation. According to the medical records,
this was performed in accordance with established medical practice.
In the period from Gregor Šilih's admission to
the Slovenj Gradec Hospital until his death, we have not found any
acts or omissions in his medical treatment which could be
characterised as clearly inappropriate or negligent.”
On
8 April 1994 the public prosecutor dismissed the
applicants' criminal complaint on the ground of insufficient
evidence.
A. Criminal proceedings
On 1 August 1994 the applicants, acting as
“subsidiary” prosecutors (subsidiarni toZilec),
lodged a request for the opening of a criminal investigation (zahteva
za preiskavo) into M.E.'s conduct.
On
8 November 1994, having heard representations from
M.E. on 26 October 1994, the investigating judge of the
Maribor First-Instance Court (Temeljno sodišče v
Mariboru) granted their request. On 27 December 1994,
on an appeal (pritoZba) by M.E., the interlocutory-proceedings
panel (zunaj-obravnavni senat) of the Maribor First-Instance
Court overturned the investigating judge's decision after finding
that the evidence in the case-file, in particular the forensic
report, did not afford reasonable grounds for suspecting M.E. of
manifestly acting in breach of professional standards.
An
appeal by the applicants and a request for the protection of legality
(zahteva za varstvo zakonitosti) were dismissed, the latter in
a decision of 29 June 1995 by the Slovenj Gradec District
Court (OkroZno sodišče v Slovenj Gradcu), which
obtained jurisdiction in the case after the reorganisation of the
judiciary in 1995. The applicants contested that decision. On
5 October 1995 the Maribor Higher Court (Višje
sodišče v Mariboru) dismissed their appeal on
essentially the same grounds as those on which the previous appeal
and request for the protection of legality had been rejected, namely
that the applicants were not entitled to appeal against the
interlocutory-proceedings panel's decision not to institute criminal
proceedings against the doctor.
Subsequently
the applicants obtained a medical opinion from Doctor T.V. who
stated, inter alia, that myocarditis (inflammation of
the heart muscle), which had previously been considered a
contributory factor in the death of the applicants' son, could have
occurred when he was in anaphylactic shock or even later. As a
result, on 30 November 1995 they lodged a request to reopen
the criminal investigation (see paragraph 90 below). In addition,
they lodged a motion to change the venue of the proceedings to the
Maribor District Court (OkroZno sodišče v Mariboru).
On 31 January 1996 the Maribor Higher Court granted their motion for
a change of venue.
On
26 April 1996 the interlocutory-proceedings panel of the
Maribor District Court granted the applicants' request for the
reopening of the investigation. An appeal by M.E. was rejected by the
Maribor Higher Court on 4 July 1996.
In
the course of the investigation, the investigating judge examined
witnesses and obtained an opinion from P.G., an expert at the
Institute of Forensic Medicine in Graz (Austria). P.G. stated in his
report that the administration of the antihistaminic had led to the
applicants' son's serious allergic reaction. He expressed doubts as
to the pre-existence of myocarditis.
On
10 February 1997 the investigating judge closed the
investigation.
Owing
to the complexity of the case, the applicants asked the Maribor
District Public Prosecutor's Office (OkroZno drZavno toZilstvo v
Mariboru) to take over the conduct of the prosecution. Their
request was rejected on 21 February 1997. The Head of the
Maribor District Public Prosecutor's Office subsequently explained to
the Supreme Public Prosecutor (Vrhovni drZavni toZilec) that,
while P.G.'s report confirmed the existence of reasonable suspicion
that M.E. had caused the death by negligence, it was not a sufficient
basis on which to lodge an indictment as that required a degree of
certainty.
On
28 February 1997 the applicants lodged an indictment
accusing M.E. of the criminal offence of “causing death by
negligence” (povzročitev smrti iz malomarnosti).
On
7 May 1997, upon M.E.'s objection to the indictment, the
interlocutory-proceedings panel of the Maribor District Court
directed the applicants to request, within three days, additional
investigative measures (see paragraph 93 below).
The
investigating judge subsequently examined several witnesses and
ordered a forensic report by K.H., an Austrian forensic expert in the
field of emergency medicine and anaesthesia. K.H. stated in his
report that the ultimate reason for the death of the applicants' son
was relatively uncertain, so that the issue of the effectiveness of
the measures taken by M.E in response to the son's condition was of
no relevance.
On
22 June 1998 the investigating judge informed the applicants that it
had been decided to close the investigation. He reminded them that
they must either lodge an indictment or a further request for
additional investigating measures within fifteen days (see paragraphs
91-92 below).
On
30 June 1998 the applicants asked the investigating judge
to question K.H., P.G. and T.V.
On
24 November 1998, after questioning K.H., the investigating
judge informed the applicants that the investigation had been closed.
They were again reminded that they must either lodge an indictment or
a further request for additional investigative measures within
fifteen days.
On
10 December 1998 the applicants lodged an indictment
supplemented by evidence that had been obtained in the extended
investigation. On 12 January 1999 an
interlocutory-proceedings panel rejected M.E.'s objection to the
initial indictment as unfounded.
On
22 January 1999 M.E. lodged a request for the protection of
legality, claiming that the indictment submitted on 10 December 1998
had not been served on her. On 25 February 1999 the Supreme
Court (Vrhovno sodišče) quashed the Maribor
District Court's decision of 12 January 1999 and remitted
the case to the District Court with instructions to serve the
indictment of 10 December 1998 on M.E. M.E. subsequently
lodged an objection to that indictment and on 3 June 1999
the interlocutory-proceedings panel decided to refer the case back to
the applicants, directing them to obtain further evidence – by
requesting additional investigative measures – within
three days from the service of its decision.
The
applicants complied with the directions and on 21 June 1999
requested additional investigative measures, in particular
the examination of K.H., P.G. and T.V. In their request, they
complained of the remittal of the case since they considered that the
evidence should have been further assessed at the trial and not at
that stage of the proceedings.
Further
to their request, the investigating judge ordered a supplementary
report from K.H. and, on 3 December 1999, informed the applicants
that further investigative measures had been taken and that they had
15 days in which to lodge an indictment or request additional
measures.
Following
a request by the applicants on 16 December 1999 for further measures,
the investigating judge ordered a reconstruction of the events of
3 May 1993 and the examination of two witnesses.
The
investigation was closed on 3 May 2000. The applicants were
reminded of the requirements under section 186, paragraph 3, of the
Criminal Procedure Act (“the CPA” – see paragraph
92 below).
In
the meantime, on 28 June 1999 the applicants again made an
unsuccessful request to the public prosecutor to take over the
conduct of the prosecution.
On
19 May 2000 the applicants filed a further indictment and
the additional evidence they had been directed to obtain.
In
August 2000 the applicants complained to the Judicial Council
(Sodni svet) about the length of the criminal proceedings.
They also challenged the three judges sitting on the
interlocutory-proceedings panel which had previously heard M.E.'s
objection to the indictment. On 10 October 2000 the
President of the Maribor District Court rejected the applicants'
request for the judges to stand down.
Following
a further objection to the indictment by M.E., the
interlocutory-proceedings panel examined the case on 18 October 2000
and decided to discontinue the criminal proceedings. Relying in
particular on the opinions of the Ljubljana Institute of Forensic
Medicine and K.H., it found that the applicants' son's reaction to
the administration of Dexamethason and/or Synopen was a consequence
of his sensitivity to those drugs and of myocarditis, which was
undoubtedly a pre-existing condition. As regards the conduct of M.E.,
the interlocutory-proceedings panel found that there was insufficient
evidence to substantiate the applicants' accusation that she had
committed the criminal offence alleged. The applicants were ordered
to pay the court fees and the expenses incurred in the proceedings
since 23 January 1999 (the date the CPA was amended so as to
require the aggrieved party to pay costs if the proceedings ended
with the dismissal of the indictment).
On
7 November 2000 the applicants lodged an appeal which the Maribor
Higher Court dismissed on 20 December 2000. They then petitioned the
Public Prosecutor-General (Generalni drZavni toZilec), asking
him to lodge a request for the protection of legality with the
Supreme Court. Their petition was rejected on 18 May 2001.
In
the meantime, on 13 March 2001 the applicants lodged a constitutional
appeal with the Constitutional Court (Ustavno sodišče),
complaining of procedural unfairness and the length of the
proceedings and that they had been denied access to a court since the
indictment had been rejected by the interlocutory-proceedings panel.
On 9 October 2001 the Constitutional Court dismissed their appeal on
the ground that after the final discontinuance of criminal
proceedings a “subsidiary” prosecutor could not appeal to
the Constitutional Court, as he had no locus standi before
that court.
On
27 March 2001 the applicants also lodged a criminal complaint
alleging improper conduct on the part of seven judges of the Maribor
District and Higher Courts who had sat in their case. The complaint
was dismissed as unfounded by the Maribor District Public
Prosecutor's Office on 13 June 2001.
Subsequently,
the applicants made several attempts to reopen the case. Among other
motions filed by the applicants that were rejected as inadmissible by
the authorities were the following.
On
3 July 2001 they lodged a “request for the criminal
proceedings to be reinstated”, which was considered in
substance to be a request for the reopening of the case. On 29 August
2001 the interlocutory-proceedings panel of the Maribor District
Court dismissed the request on the grounds that the criminal
proceedings had been discontinued in a decision that was final and
that it would be detrimental to the accused to reopen the case. On
9 November 2001 the Maribor Higher Court rejected an appeal
by the applicants dated 4 September 2001.
On 24
June 2002 the applicants lodged with the Maribor Higher Court a
“request for immediate annulment of the entire criminal
proceedings ... conducted before the Maribor District Court”.
This was also considered in substance to be a request for the
reopening of the case and was likewise dismissed. On 27 November
2002 the Maribor Higher Court rejected an appeal by the applicants.
Ultimately,
on 17 July 2002 the applicants lodged a fresh
indictment against M.E. On 14 July 2003 the Slovenj Gradec
District Court struck the indictment out because the prosecution of
the alleged offence had become time-barred on 3 May 2003.
B. Civil proceedings
On
6 July 1995 the applicants instituted civil proceedings against the
Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec
District Court for the non-pecuniary damage they had sustained as a
result of their son's death in the amount of 24,300,000 Slovenian
tolars (SIT).
On
10 August 1995 they also instituted proceedings against the
head of the internal medical care unit, F.V., and the director of the
Slovenj Gradec General Hospital, D.P. Further to a request by the
applicants, the court joined the two sets of proceedings.
All
the defendants in the proceedings had lodged their written pleadings
by October 1995.
On
30 August 1997, in a supervisory appeal (nadzorstvena
pritoZba) to the President of the Slovenj Gradec District Court,
the applicants argued that the civil proceedings should proceed
despite the fact that criminal proceedings were pending since the
latter had already been considerably delayed.
On
21 October 1997, referring to sub-paragraph 1 of section
213 of the Civil Procedure Act (see paragraph 97 below), the court
stayed the civil proceedings pending a final decision in the criminal
proceedings. It noted that the outcome of the civil proceedings would
depend to a large extent on the determination of the preliminary
question (predhodno vprašanje), namely the verdict in
the criminal proceedings. The applicants did not appeal against that
decision, which therefore became final on 17 November 1997.
On
22 October 1998 Judge S.P. replied to a supervisory appeal
by the applicants dated 15 October 1998, inter alia
in the following terms:
“[The applicants] are 'subsidiary' prosecutors in
the criminal proceedings and therefore are very well aware that the
proceedings before the Maribor District Court, where the preliminary
question is being determined, have not been completed. Their
supervisory appeal concerning the stay of the [civil] proceedings is
therefore pure hypocrisy.”
Upon
a complaint by the applicants lodged with the Ministry of Justice,
Judge S.P. was ordered to explain her reply to the applicants.
In
February 1999 the applicants again filed a supervisory appeal; the
stay, however, remained in force.
On
27 August 1999 Judge P.P., to whom the case appears to have
been assigned in the meantime, sent the applicants a letter, in which
he stated, inter alia:
“In the instant case the determination of criminal
liability is a preliminary question which is relevant to the
determination of the civil claim, since a civil court cannot
establish facts which are different from those established by the
criminal court.”
On
8 September 1999 the applicants filed a motion for a change
of venue which the Supreme Court rejected on 13 October 1999.
On
6 December 1999 the Slovenj Gradec District Court informed
the applicants that the reasons for staying the proceedings still
obtained.
On
12 March 2001 the applicants filed a supervisory appeal
requesting that the stay of the civil proceedings be lifted. On
19 May 2001 Judge P.P. scheduled a hearing for
13 June 2001. However, that hearing was subsequently
cancelled at the applicants' request after their representative
explained that she had been injured in a road accident and was on
sick leave.
On
11 June 2001 the applicants filed a further motion for a
change of venue. On 27 September 2001 the Supreme Court
decided to move the venue to the Maribor District Court on the
grounds of “tension that was impeding and delaying the trial”.
The
case was subsequently assigned to Judge M.T.Z. On 3 April 2002
the Maribor District Court held a hearing which was adjourned as the
applicants indicated that they wished to lodge a request for the
judges officiating at that court to stand down.
After
lodging a criminal complaint against some of the judges (see
paragraph 45 above), the applicants filed a motion on 8 April 2002
for all the judges at the Maribor District Court and Maribor Higher
Court to stand down. Having been asked to comment on the applicants'
request, Judge M.T.Z. stated, inter alia, that she had
realised at the hearing on 3 April 2002 that one of the
defendants, with whom she had shaken hands at the hearing, was a
close acquaintance (“dober znanec”) of her father.
She added that the applicants were constantly lodging objections
which had made it impossible to conduct the proceedings properly. It
would appear that Judge M.T.Z subsequently herself requested
permission to withdraw from the case. On 12 August 2002 the
request for the judges to stand down was granted in so far as it
concerned Judge M.T.Z. The case was assigned to Judge K.P.
On
21 November 2002 and 20 March 2003 the Supreme
Court rejected the applicants' motions for a change of venue.
A
hearing scheduled for 12 June 2003 was adjourned at the
applicants' request, after they had alleged that their lawyer was
unwilling to represent them since her daughter had been denied
medical care in the Ljubljana Clinical Centre. They subsequently
informed the court that their lawyer would, in fact, continue to
represent them.
On
28 October 2003 the Maribor District Court held a hearing
at which it examined F.V. and M.E. It would appear from the records
of the hearing that the applicants were not allowed to ask a series
of twelve questions they wished to put. The judge's decision not to
allow the questions was based mostly on objections made by the
defendant, although on four occasions the court does appear to have
stated reasons for its decision not to allow the question concerned.
On
8 December 2003 the applicants filed a motion for Judge
K.P. to stand down. That request was rejected on 18 December 2003.
A
hearing scheduled for 16 January 2004 was adjourned because the
applicants had lodged a further motion for a change of venue. On
5 March 2004 the applicants lodged another motion. Both
motions were rejected by the Supreme Court (on 22 January 2004
and 13 May 2004 respectively).
It
appears that hearings scheduled for 23 and 24 March 2005
were adjourned because of the applicants' newly appointed lawyer's
commitments in another, unrelated case.
On
4 May 2005 the applicants filed written submissions and amended their
claim for damages. They also requested that the proceedings be
expedited.
On
12 October 2005 Judge D.M., to whom the case had apparently meanwhile
been assigned, was ordered by the President of the Maribor District
Court to treat the case with priority and to report every sixty days
on the status of the proceedings. The President explained his
decision by referring to the length of the proceedings, the case's
high profile and the intervention by the Ombudsman (Varuh
človekovih pravic).
A
hearing was held on 23, 25 and 27 January 2006 before Judge D.M. The
applicants withdrew their claims in respect of F.V. and D.P. After
the hearing, they requested Judge D.M. to stand down on the grounds
that she had refused to allow them adequate time to reply to their
opponent's extensive submissions which had been filed on the same
day. Their request was rejected by the President of the Maribor
District Court on 30 January 2006. However, on 31 January
2006 Judge D.M. herself asked to withdraw from the proceedings on the
ground that her full name had been mentioned in a newspaper article
on 28 January 2006 which had also stated that she had been
asked to stand down owing to the alleged unequal treatment of the
parties in the proceedings. The president of the court upheld her
request as being “certainly well-founded”.
The
case was subsequently assigned to Judge A.Z.
Hearings
were held on 16 June and 25 August 2006.
On
25 August 2006 the Maribor District Court delivered a judgment
rejecting the applicants' claim, which ultimately amounted to
SIT 10,508,000 in respect of non-pecuniary damage and SIT
5,467,000 in respect of pecuniary damage. The applicants were ordered
to pay legal costs to the defendants. Relying on the expert opinions,
the court concluded that M.E. could not have foreseen the applicants'
son's reaction to the drugs that were administered to him and that
she and the hospital staff had acted in accordance with the required
standard of care. In addition, the court rejected as unsubstantiated
the applicants' claim that the hospital was not properly equipped.
On
25 October 2006 the applicants lodged an appeal with the Maribor
Higher Court. They argued that the first-instance court had not
correctly established all the relevant facts, had wrongly applied the
substantive law and had committed a procedural error by not allowing
or taking into account certain evidence and, in particular, by
refusing to obtain a further expert opinion.
On
15 January 2008 the Maribor Higher Court rejected the appeal as
unsubstantiated and upheld the first-instance court's judgment.
On
28 February 2008 the applicants lodged an appeal on points of law
(revizija).
On
10 July 2008 the Supreme Court rejected the applicants' appeal on
points of law after noting that, apart from the reference to the
European Court of Human Rights' judgment finding a violation of
Article 2 of the Convention, it raised essentially the same complaint
as their appeal to the Higher Court, namely the refusal to obtain or
consider certain evidence the applicants considered relevant. It
rejected the complaint as unsubstantiated, finding that the lower
courts had acted in accordance with the law. It further held that the
European Court of Human Rights' judgment, which related to the
requirement for the prompt examination of cases concerning death in a
hospital setting, could not have influenced its conclusion as to the
lawfulness of the refusal to obtain or consider the evidence in
question.
On
15 September 2008 the applicants lodged a constitutional appeal with
the Constitutional Court alleging a violation of the following
constitutional guarantees: the right to equality before the law, the
inviolability of human life, the right to equal protection, the right
to judicial protection and the right to legal remedies.
The
proceedings are still pending.
C. The criminal complaint filed against the first
applicant
On
29 April 2002 the Maribor District Public Prosecutor lodged a bill of
indictment (obtoZni predlog) against the first applicant
alleging that she had engaged in insulting behaviour by saying to an
official at the Maribor District Court “I have had enough of
this f*** court, the damn State does not do anything, isn't it aware
that our son was killed!”. The prosecution was based on a
criminal complaint filed by the Maribor District Court.
On
5 October 2004 the Maribor District Court withdrew the criminal
complaint as a result of the Ombudsman's intervention (see paragraph
85 below). The Maribor Local Court subsequently dismissed the bill of
indictment.
D. Findings of the Ombudsman
The
applicants lodged several petitions with the Ombudsman's office
concerning the conduct of the civil proceedings. Their case was
reported in the Ombudsman's Annual Reports of 2002, 2003 and 2004.
In
a letter to the President of the Slovenj Gradec District Court on 24
April 2001, the Deputy Ombudsman stressed that the issue of criminal
liability could not be regarded as a preliminary question in the
civil proceedings instituted against the doctor and the hospital. He
further stated that there was no justification for staying the civil
proceedings.
In
a letter to the applicants of 29 August 2002 and his Annual Report of
2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge
M.T.Z. He stressed that the judge had expressed concerns about her
ability to appear impartial only after the applicants had filed the
request for her to stand down and after the Ombudsman's intervention
in the case, although she had been aware of the reasons for the
concerns beforehand.
The
section of the Ombudsman's Report of 2003 (pp. 226-228) dealing with
the applicants' case and in particular criticising aspects of the
judge's conduct of the civil proceedings states, inter alia:
“In the record of the hearing [of 28 October 2003]
reference is made to twelve questions which the plaintiffs were not
permitted to ask. ... As regards the majority of these twelve
questions, the record contains no indication why the judge did not
allow the plaintiffs to put the questions. In each instance, there
was a prior objection by the defendants' representatives to the
question.
...
Although [the applicants'] reactions, statements and
proposals were perhaps extreme on occasion, the authorities,
including the courts, ought to have taken into account their
emotional distress ... [a factor which] may necessitate the trial
being conducted in a particularly tolerant and flexible way, [though]
without breaching procedural rules to the detriment of the
defendants. However, the record of the hearing gives the impression
of a tense rather than dispassionate atmosphere at the hearing, an
impression that is reinforced also by the records of the exchanges
between the judge and the plaintiffs' representative.”
In
his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the
Maribor District Court for filing the criminal complaint against the
first applicant. The report drew attention to the Maribor District
Court's explanation that it was required by law to file and pursue
the criminal complaint as it would be guilty of a criminal offence if
it did not. The Ombudsman stressed that there was no legal basis for
such a conclusion. On the contrary, a criminal charge for an offence
of insulting behaviour could only be pursued on the basis of the
aggrieved party's criminal complaint, which in the instant case was
the Maribor District Court's complaint. Following the Ombudsman's
intervention and in view of the arguments set out in his letters, the
Maribor District Court decided to withdraw the criminal complaint
against the first applicant.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
The
Criminal Code (Kazenski zakonik, Official Gazette no. 63/94),
as amended, defines, under the heading “Criminal Offences
causing Damage to Health” criminal offences concerning injury
caused by negligent health care. In addition, Article 129 of the
Criminal Code provides that anyone who causes the death of another by
negligence shall be sentenced to imprisonment for not less than six
months and not more than five years. These offences are subject to
mandatory prosecution by the public prosecutor, but a “subsidiary”
prosecution by an aggrieved party will also lie (see paragraph 88
below).
B. The Criminal Procedure Act
Criminal
proceedings in Slovenia are regulated by the Criminal Procedure Act
(Zakon o kazenskem postopku, Official Gazette no. 63/94 –
“the CPA”) and are based on the principles of legality
and officiality. Prosecution is mandatory when reasonable suspicion
(utemeljeni sum) exists that a criminal offence subject to
mandatory prosecution has been committed.
Public
prosecutions are conducted by the public prosecutor's office.
However, if the public prosecutor dismisses the criminal complaint or
drops the prosecution at any time during the course of the
proceedings, the aggrieved party has the right to take over the
conduct of the proceedings in the capacity of “subsidiary”
prosecutor, that is, as an aggrieved party acting as a prosecutor
(CPA, section 19(3)). A “subsidiary” prosecutor has, in
principle, the same procedural rights as the public prosecutor,
except those that are vested in the public prosecutor as an official
authority (CPA, section 63(1)). If the “subsidiary”
prosecutor takes over the conduct of the proceedings, the public
prosecutor is entitled at any time pending the conclusion of the main
hearing to resume the conduct of the prosecution (CPA, section
63(2)).
Criminal
investigations are conducted by the investigating judge at the
request of a public or “subsidiary” prosecutor. If the
investigating judge does not agree with a request to open an
investigation, he must refer it to an interlocutory-proceedings panel
of three judges, which then decides whether to open a criminal
investigation. If the investigating judge grants the request, the
accused may lodge an appeal with the interlocutory-proceedings panel.
Parties to the proceedings may appeal against the
interlocutory-proceedings panel's decision to the Higher Court (višje
sodišče). Appeals do not stay the execution of the
decision to open an investigation (section 169 of the CPA).
If
a request for an investigation has been dismissed owing to a lack of
reasonable suspicion that the suspect has committed a criminal
offence, the criminal proceedings may be reopened at the request of
the public or “subsidiary” prosecutor provided new
evidence is adduced on the basis of which the
interlocutory-proceedings panel is able to satisfy itself that the
conditions for instituting criminal proceedings are met (CPA, section
409).
Section
184 of the CPA provides that the investigating judge must end the
investigation once the circumstances of the case have been
sufficiently elucidated. The prosecutor must within the following
fifteen days either request further investigative measures, lodge an
indictment or drop the charges.
As
regards the aggrieved party's role in the investigation, the relevant
part of section 186 of the CPA provides:
“(1) An aggrieved party acting as a prosecutor
... may request the investigating judge to open an investigation or
propose additional investigative measures. During the course of the
investigation they may also submit other proposals to the
investigating judge.
(2) The institution, conduct, suspension and termination
of an investigation shall be governed, mutatis mutandis, by
the provisions of the present Act applying to ... the investigation
conducted at the request of the public prosecutor...
(3) When the investigating judge considers that the
investigation is complete he or she shall inform the aggrieved party
acting as a prosecutor... The investigating judge shall also advise
such aggrieved party .... that he or she must file the indictment ...
within fifteen days, failing which he or she may be deemed to have
withdrawn from the prosecution and a decision may be taken to
discontinue the proceedings. The investigating judge shall also be
bound to give such warning to the aggrieved party acting as a
prosecutor ... in cases where the panel has dismissed his or her
motion to supplement the investigation because it is of the opinion
that the matter has been sufficiently investigated.”
After
the investigation has ended, court proceedings may be conducted only
on the basis of an indictment (CPA, section 268).
Under
section 274 of the CPA, the accused may lodge an objection to the
indictment within eight days after its receipt. The objection is
examined by the interlocutory-proceedings panel. Section 276 of the
CPA provides, inter alia:
“(2) If in considering the
objection the interlocutory-proceedings panel discovers errors or
defects in the indictment (section 269) or in the procedure itself,
or finds that further investigations are required before the decision
on the indictment is taken, it shall return the indictment to the
prosecutor with directions to correct the established defects or to
supplement ... the investigation. The prosecutor shall within three
days of being informed of the decision of the panel submit an amended
indictment or request a ... supplementary investigation. ...”
In
addition, the relevant part of section 277 of the CPA provides:
“(1) In deciding an objection to the indictment
the interlocutory-proceedings panel shall not accept the indictment
and shall discontinue the criminal proceedings if it finds that:
...
(3) a criminal prosecution is statute-barred ...
(4) there is not enough evidence to justify reasonable
suspicion that the accused has committed the act with which he is
charged.”
C. The Code of Obligations
Under
the provisions of the Obligations Act (Zakon o obligacijskih
razmerjih, Socialist Federative Republic of Yugoslavia's (“SFRJ”)
Official Gazette no. 29/1978,) and its successor from 1 January 2002,
the Code of Obligations (Obligacijski zakonik, Official
Gazette no. 83/2001), health institutions and their employees
are liable for pecuniary and non-pecuniary damage resulting from the
death of a patient through medical malpractice. The employer may
incur civil liability for its own acts or omissions or vicarious
liability for damage caused by its employees provided that the death
or injury resulted from the employee's failure to conform to the
relevant standard of care. Employees are directly liable for death or
injury under the civil law only if it is caused intentionally.
However, the employer has a right to bring a claim for a contribution
from the employee if the death or injury was caused by the latter's
gross negligence.
D. The Civil Procedure Act
Section
12 of the Civil Procedure Act (Zakon o pravdnem postopku, SFRJ
Official Gazette no. 4-37/77), as amended, provides:
“When the decision of the court depends on a
preliminary determination of the question whether a certain right or
legal relationship exists, but [the question] has not yet been
decided by a court or other competent authority (preliminary
question), the court may determine the question by itself, save as
otherwise provided in special legislation.
The court's decision on the preliminary question shall
be effective only in the proceedings in which the question was
determined.
In civil proceedings, the court shall be bound with
respect to the existence of a criminal offence and criminal liability
by a finding of guilt by a criminal court judgment that is final.”
The
relevant part of section 213 of the Civil Procedure Act provides as
follows:
“In addition to the examples specifically given in
this Act, the court may order a stay of proceedings:
1. if it decides not to determine the preliminary
question itself (section 12)...”
The
relevant part of section 215 of the Civil Procedure Act provides:
“If the court has stayed the proceedings in
accordance with the first line of the first paragraph of ... section
213, the proceedings shall resume once the [other] proceedings are
finally concluded (pravnomočno končan postopek) ...
or when the court finds that there is no longer any reason to await
the end [of the other proceedings].
In all cases, the discontinued proceedings shall
continue at the relevant party's request, immediately after the
reasons justifying the stay cease to exist.”
Equivalent
provisions can be found in sections 13, 14, 206 and 208 of the new
Civil Procedure Act (Zakon o pravdnem postopku, Official
Gazette no. 83/2001), which came into force on 14 July 1999.
E. Regulation concerning the organisation and
functioning of the Tribunal of the Medical Association
The
Regulation on the organisation and functioning of the Tribunal of the
Medical Association of Slovenia (“the Medical Tribunal”)
(Pravilnik o organizaciji in delu razsodišča
Zdravniške Zbornice Slovenije), issued on 20 March 2002,
lays down, inter alia, the procedure for establishing the
responsibility of doctors for breaches of the professional rules and
the disciplinary measures which can be taken as a result. The
Commissioner of the Medical Association (toZilec Zbornice –
“the Commissioner”), who is elected from among the
members of the Medical Association, is autonomous and has authority
to lodge a case with the first-instance Medical Tribunal. An
aggrieved party may request the Commissioner to start the
proceedings, but the Commissioner may reject such a request. If so,
the aggrieved party may invite the Medical Tribunal to conduct a
preliminary investigation. However, the power to file a formal case
with the Medical Tribunal is vested solely in the Commissioner.
Article
7 of the Regulation provides that the Medical Tribunal must base its
decision solely on the indictment and the evidence submitted by the
Commissioner and the accused doctor. If the accused doctor or the
Commissioner is dissatisfied with the verdict, he or she may appeal
to the second-instance Medical Tribunal.
F. The Act on the Protection of the Right to a Trial
without Undue Delay
On
1 January 2007 the Act on the Protection of the Right to a Trial
without Undue Delay (Zakon o varstvu pravice do sojenja brez
nepotrebnega odlašanja, Official Gazette no.
49/2006 – “the 2006 Act”) became operational. The
2006 Act provides for two remedies to expedite pending proceedings –
a supervisory appeal and a motion for a deadline to be set (rokovni
predlog) – and, ultimately, for a claim for just
satisfaction in respect of damage sustained because of undue delay
(zahteva za pravično zadoščenje).
The
above remedies are available, inter alia, to parties to civil
proceedings and aggrieved parties in criminal proceedings.
The
acceleratory remedies can be applied for during first- or
second-instance proceedings. In addition, the 2006 Act also provides
the possibility of redress through a compensatory remedy, namely by
bringing a claim for just satisfaction. By virtue of sections 15, 19
and 20 of the 2006 Act a party wishing to lodge a claim for just
satisfaction must satisfy two cumulative conditions. Firstly, during
the first- and/or second-instance proceedings the applicant must have
used the supervisory-appeal procedure or lodged a motion for a
deadline. Secondly, the proceedings must have been finally resolved
(pravnomočno končan). The final resolution of the
case in principle refers to the final decision against which no
ordinary appeal lies; this is normally the first-, or if an appeal
has been lodged, the second-instance court's decision. Moreover, the
amount which can be awarded in respect of non-pecuniary damage
sustained as a result of the excessive length of the proceedings in
each finally resolved case cannot exceed 5,000 euros (EUR) (for a
more detailed presentation of the relevant provisions of the 2006
Act, see Zunič v. Slovenia, (dec) no. 24342/04,
18 October 2007).
III. DECLARATION OF SLOVENIA UNDER FORMER ARTICLES 25 AND
46 OF THE CONVENTION OF 28 JUNE 1994:
On
28 June 1994, when depositing the instrument of ratification of the
Convention with the Secretary General of the Council of Europe, the
Ministry of Foreign Affairs of the Republic of Slovenia made the
following declaration:
“The Republic of Slovenia declares that it
recognizes for an indefinite period of time, in accordance with
Article 25 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of
Protocol No. 7, the competence of the European Commission of Human
Rights to deal with petitions addressed to the Secretary General of
the Council of Europe by any person, non-governmental organisation or
group of individuals claiming to be the victim of [a] violation of
the rights set forth in the Convention and its Protocols, where the
facts of the alleged violation of these rights occur after the
Convention and its Protocols have come into force in respect of the
Republic of Slovenia.
The Republic of Slovenia declares that it recognizes for
an indefinite period of time, in accordance with Article 46 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol
No. 7, as compulsory ipso facto and without special
agreement, on condition of reciprocity, the jurisdiction of the
European Court of Human Rights in all matters concerning the
interpretation and application of the Convention and its Protocols
and relating to facts occurring after the Convention and its
Protocols have come into force in respect of the Republic of
Slovenia.”
IV. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The Vienna Convention of 1969 on the Law of Treaties
The
Vienna Convention on the Law of Treaties (the Vienna Convention)
entered into force on 27 January 1980. Article 28, which contains the
principle of the non-retroactivity of treaties, provides:
“Unless a different intention appears from the
treaty or is otherwise established, its provisions do not bind a
party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into
force of the treaty with respect to that party.”
B. International Law Commission's Draft Articles on
Responsibility of States for Internationally Wrongful Acts (adopted
by the International Law Commission on 9 August 2001)
Article
13, which is headed “International obligation in force for a
State”, provides:
“An act of a State does not constitute a breach of
an international obligation unless the State is bound by the
obligation in question at the time the act occurs.”
Furthermore,
Article 14, which is headed “Extension in time of the breach of
an international obligation”, reads as follows:
“1. The breach of an international obligation
by an act of a State not having a continuing character occurs at the
moment when the act is performed, even if its effects continue.
2. The breach of an international obligation
by an act of a State having a continuing character extends over the
entire period during which the act continues and remains not in
conformity with the international obligation.
3. The breach of an international obligation
requiring a State to prevent a given event occurs when the event
occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.”
C. The International Court of Justice
The
approach adopted by the International Court of Justice (ICJ) in cases
raising an issue as to ratione temporis jurisdiction has
focused on the source or real cause of the dispute (see also the
case-law cited in Blečić v. Croatia [GC],
no. 59532/00, § 74, ECHR 2006 III). In the Case
concerning Right of Passage over Indian Territory (Merits)
(Judgment of 12 April 1960: I.C.J. Reports 1960 p.p.
33-36), the ICJ, relying on the jurisprudence of the Permanent Court
of International Justice (PCIJ), found it had temporal jurisdiction
to deal with a dispute concerning India's denial to Portugal of
passage between its territory and its two enclaves in Indian
Territory in 1954. India argued, inter alia, that the dispute
was inadmissible ratione temporis as the Portuguese claim to a
right of passage predated the court's jurisdiction, which had begun
on 5 February 1930. The ICJ, however, found that:
“... it
appeared ..., that the dispute submitted to the Court has a threefold
subject: (1) The disputed existence of a right of passage in favour
of Portugal; (2) The alleged failure of India in July 1954 to comply
with its obligations concerning that right of passage; (3) The
redress of the illegal situation flowing from that failure. The
dispute before the Court, having this three-fold subject, could not
arise until all its constituent elements had come into existence.
Among these are the obstacles which India is alleged to have placed
in the way of exercise of passage by Portugal in 1954. The dispute
therefore as submitted to the Court could not have originated until
1954.”
The ICJ therefore found that there was not, so far as
the date of the birth of the dispute was concerned, any bar to its
jurisdiction. Referring to the terms of the Indian Declaration of
Acceptance of the court's jurisdiction, the ICJ noted that the
Declaration did not proceed on the principle of excluding from the
acceptance any given dispute, but proceeded in a positive manner on
the basis of indicating the disputes which were included within that
acceptance. The ICJ found:
“.... By its terms, the jurisdiction of the Court
is accepted 'over all disputes arising after February 5th, 1930, with
regard to situations or facts subsequent to the same date'. In
accordance with the terms of the Declaration, the Court must hold
that it has jurisdiction if it finds that the dispute submitted to it
is a dispute with regard
to a situation subsequent to 5 February 1930 or is one with regard to
facts subsequent to that date.
The
facts or situations to which regard must be had in this connection
are those with regard to which the dispute has arisen or, in other
words, as was said by the Permanent Court in the case concerning the
Electricity Company of Sofia and Bulgaria, only 'those which must be
considered as being the source of the dispute', those which are its
'real cause'. ... The Permanent Court thus drew a distinction between
the situations or facts which constitute the source of the rights
claimed by one of the Parties and the situations or facts which are
the source of the dispute. Only the latter are to be taken into
account for the purpose of applying the Declaration accepting the
jurisdiction of the Court.”
The
ICJ went on to find that:
“...it
was only in 1954 that such a controversy arose and the dispute
relates both to the existence of a right of passage to go into the
enclaved territories and to India's failure to comply with
obligations which, according to Portugal, were binding upon it in
this connection. It was from all of this that the dispute referred to
the Court arose; it is with regard to all of this that the dispute
exists. This whole, whatever may have been the earlier origin of one
of its parts, came into existence only after 5 February 1930. The
time-condition to which acceptance of the jurisdiction of the Court
was made subject by the Declaration of India is therefore complied
with.”
D. The United Nations Human Rights Committee
The
United Nations Human Rights Committee (“the Committee”)
has recognised that the States have positive obligations to protect
the right to life. These include an obligation to carry out effective
investigations. The Committee has inferred these obligations from a
combination of both Articles 2 (respecting rights and effective
remedy) and 6 (right to life) of the International Covenant on Civil
and Political Rights (“the Covenant”). In this
connection, it is important to note that according to the Committee's
jurisprudence, the right to
a remedy can only be breached in conjunction with
a substantive right, which means that in cases where the
death occurred outside its temporal jurisdiction, there
could be no breach of Article 2
with regard to
Article 6 (see paragraph 112 below – S.E.
v. Argentina).
The Committee, however, found that a lack of investigation into the
disappearance or death may result in inhuman treatment (Article 7 of
the Covenant) of the victim's family, even
if the disappearance or death took place before the entry into
force of the Optional Protocol granting a
right to submit individual communications (see
paragraph 113 below – Sankara
et al. v. Burkina Faso).
In
the case of S.E. v. Argentina (Communication No. 275/1988,
which was declared inadmissible on 26 March 1990),
the applicant's three children had been abducted by Argentine
security forces in 1976 and their whereabouts had been unknown ever
since. On 8 November 1986 the Covenant and the Optional
Protocol entered into force in respect of Argentina. In December 1986
and June 1987 the Argentine legislature enacted legislation
preventing new investigations into the so-called “dirty-war”
and providing an amnesty for members of the security forces for
related crimes. The applicant claimed that the enactment of this
legislation constituted violations by Argentina of its obligations
under Article 2, paragraphs 2 and 3, of the Covenant. Taking into
account that in order for the right to a remedy to arise, a violation
of a substantive right must be established, the Committee observed
that:
“ 5.3.
... the events which could have constituted violations of several
articles of the Covenant and in respect of which remedies could have
been invoked, occurred prior to the entry into force of the Covenant
and of the Optional Protocol for Argentina. Therefore, the matter
cannot be considered by the Committee, as this aspect of the
communication is inadmissible ratione
temporis.”
In
the more recent case of Mariam Sankara et al. v. Burkina Faso
(Communication No. 1159/2003, 28 March 2006), the Committee found it
did have jurisdiction ratione temporis in relation to the
investigation into the disappearance of Thomas Sankara, who had been
abducted and murdered in 1987, that is to say well before 4 April
1999, when the State became a party to the Optional Protocol. In
1997, within the ten-year limitation period, his wife lodged a
complaint with a court against a person or persons unknown for the
assassination of Mr Sankara and the falsification of a death
certificate. She claimed that no inquiry had been conducted. The
Committee, which ultimately found violations of Article 7, on account
of the suffering of Mr Sankara's family, and Article 14, on account
of the breach of the guarantee of equality in the proceedings,
considered that:
“6.2 ... a distinction should be drawn between the
complaint relating to Mr Thomas Sankara and the complaint concerning
Ms Sankara and her children. The Committee considered that the death
of Thomas Sankara, which may have involved violations of several
articles of the Covenant, occurred on 15 October 1987, hence before
the Covenant and the Optional Protocol entered into force for Burkina
Faso. This part of the communication was therefore inadmissible
ratione temporis. Thomas Sankara's death certificate of 17
January 1988, stating that he died of natural causes - contrary to
the facts, which are public knowledge and confirmed by the State
party (paras. 4.2 and 4.7) - and the authorities' failure to correct
the certificate during the period since that time must be considered
in the light of their continuing effect on Ms Sankara and her
children.”
The
Committee went on to find that:
“6.3 ... it could not consider violations which
occurred before the entry into force of the Optional Protocol for the
State party unless those violations continued after the Protocol's
entry into force. A continuing violation is to be interpreted as an
affirmation, after the entry into force of the Optional Protocol, by
act or by clear implication, of previous violations by the State
party. The Committee took note of the authors' arguments concerning,
first, the failure of the authorities to conduct an inquiry into the
death of Thomas Sankara (which was public knowledge) and to prosecute
those responsible - allegations which are not in fact challenged by
the State party. These constitute violations of their rights and of
the obligations of States under the Covenant. Secondly, it was clear
that in order to remedy this situation, the authors initiated
judicial proceedings on 29 September 1997, i.e. within the limits of
the 10-year statute of limitations, and these proceedings continued
after the Covenant and the Optional Protocol entered into force for
Burkina Faso. Contrary to the arguments of the State party, the
Committee considered that the proceedings were prolonged, not because
of a procedural error on the part of the authors, but because of a
conflict of competence between authorities. Consequently, insofar as,
according to the information provided by the authors, the alleged
violations resulting from the failure to conduct an inquiry and
prosecute the guilty parties have affected them since the entry into
force of the Covenant and the Optional Protocol because the
proceedings have not concluded to date, the Committee considered that
this part of the communication was admissible ratione temporis.”
E. The Inter-American Court of Human Rights
114. The
Inter-American Court of Human Rights (IACHR) has established
the procedural obligations arising in respect of killings or
disappearances under several provisions of the American Convention on
Human Rights (“the American Convention”). In cases
concerning breaches of procedural obligations, in particular where it
found that the substantive aspect of the right to life had also been
violated, the IACHR was ready to find a violation of Article 4 (right
to life) taken together with Article 1 § 1 (obligation to
respect rights) of the American
Convention (see Velásquez
Rodríguez v. Honduras,
judgment of 29 July 1988, and Godínez
Cruz Case
v. Honduras,
judgment of 20 January 1989). In many cases, in particular those
where the substantive limb of Article 4 had not been
breached, the IACHR examined such procedural complaints autonomously
under Article 8, which, unlike the European Convention,
guarantees the right to a fair trial for the determination of rights
and obligations of any nature, and Article 25, which protects the
right to judicial protection, taken together with Article 1 § 1.
The IACHR followed the latter approach in cases where the killing or
disappearance took place before the recognition of its jurisdiction
by a respondent State.
In Serrano-Cruz Sisters v. El Salvador
(judgment of 23 November 2004 – Preliminary
Objections), which concerned the disappearance of two girls thirteen
years before El Salvador recognised the IACHR's jurisdiction, the
IACHR decided that:
“77. ... the facts that the Commission alleges in
relation to the alleged violation of Articles 4 (Right to Life), 5
(Right to Personal Integrity) and 7 (Right to Personal Liberty) of
the Convention, in relation to Article 1(1) (Obligation to Respect
Rights) thereof, to the detriment of Ernestina and Erlinda Serrano
Cruz, are excluded owing to the limitation to the recognition of the
Court's jurisdiction established by El Salvador, because they relate
to violations which commenced in June 1982, with the alleged
'capture' or 'taking into custody' of the girls by soldiers of the
Atlacatl Battalion and their subsequent disappearance, 13 years
before El Salvador recognized the contentious jurisdiction of the
Inter-American Court.
78. In view of these considerations and
pursuant to the provisions of Article 28 of the 1969 Vienna
Convention on the Law of Treaties, the Court admits the preliminary
objection ratione temporis...”
As
regards alleged deficiencies in the domestic criminal investigations
into the disappearances in this case, the IACHR found that the
allegations concerned judicial proceedings and thus independent facts
which had taken place after the recognition of the IACHR's
jurisdiction. It therefore concluded that it had temporal
jurisdiction to deal with these allegations as they constituted
specific and autonomous violations concerning the denial of justice
that had occurred after the recognition of the IACHR's jurisdiction.
It noted, more specifically, that:
...
the Commission has submitted to the Court's consideration several
facts related to an alleged violation of Articles 8 (Right to a Fair
Trial) and 25 (Judicial Protection) of the Convention, in relation to
Article 1(1) (Obligation to Respect Rights) thereof, which allegedly
took place after recognition of the Court's jurisdiction and which
occurred in the context of the domestic criminal investigations to
determine what happened to Ernestina and Erlinda Serrano Cruz...
...
84. The Court considers that all the facts
that occurred following El Salvador's recognition of the Court's
jurisdiction and which refer to the alleged violations of Articles 8
and 25 of the Convention, in relation to Article 1(1) thereof, are
not excluded by the limitation established by the State, because they
refer to judicial proceedings that constitute independent facts. They
commenced after El Salvador had recognized the Court's jurisdiction
and can constitute specific and autonomous violations concerning
denial of justice occurring after the recognition of the Court's
jurisdiction.
...
94. Therefore, the Court decides to reject
the preliminary objection ratione temporis in relation to the
alleged violations of Articles 8 and 25 of the Convention, in
relation to Article 1(1) thereof, and to any other violation whose
facts or commencement was subsequent to June 6, 1995, the date on
which the State deposited with the OAS General Secretariat the
instrument recognizing the Court's jurisdiction.”
In Moiwana Village v. Suriname (judgment of 15
June 2005) Suriname made a preliminary objection arguing that the
IACHR lacked jurisdiction ratione temporis, since the acts
complained of by the Commission and the victims (alleged massacre in
1986 by army forces of forty villagers and the destruction of village
buildings, causing the subsequent displacement of the surviving
villagers) had occurred one year prior to Suriname's becoming a State
Party to the American Convention and its recognition of the IACHR's
jurisdiction. The IACHR, referring to Article 28 of the Vienna
Convention, noted that:
“39. ... [a]ccording to this principle of
non-retroactivity, in the case of a continuing or permanent
violation, which begins before the acceptance of the Court's
jurisdiction and persists even after that acceptance, the Tribunal is
competent to examine the actions and omissions occurring subsequent
to the recognition of jurisdiction, as well as their respective
effects.”
Noting
that the obligation to investigate arose from the allegations of a
massacre and relying on the continuing nature of the alleged failure
to investigate the past events, the IACHR found in this case the
following:
“43. ... [T]he Court distinguishes between
alleged violations of the American Convention that are of a
continuing nature, and those that occurred after November 12, 1987.
With respect to the former, the Tribunal observes that the
perpetration of a massacre in 1986 has been alleged; in consequence,
an obligation arose for the State to investigate, prosecute and
punish the responsible parties. In that regard, Suriname initiated an
investigation in 1989. Yet, the State's obligation to investigate can
be assessed by the Court starting from the date when Suriname
recognized the Tribunal's competence. Thus, an analysis of the
State's actions and omissions with respect to that investigation, in
light of Articles 8, 25 and 1.1 of the Convention, falls within the
jurisdiction of this Court. ...
44. Consequently, the instant preliminary
objection is dismissed on the grounds set out above.
...
141. The Court has held above that it lacks
jurisdiction over the events of November 29, 1986 in Moiwana Village;
nevertheless, the Tribunal does have competence to examine the
State's fulfilment of its obligation to investigate those occurrences
(supra paragraph 43). The following assessment will establish
whether that obligation was carried out pursuant to the standards set
forth in Articles 8 and 25 of the American Convention.
...
163. In consideration of the many facets
analyzed above, the Court holds that Suriname's seriously deficient
investigation into the 1986 attack upon Moiwana Village, its violent
obstruction of justice, and the extended period of time that has
transpired without the clarification of the facts and the punishment
of the responsible parties have defied the standards for access to
justice and due process established in the American Convention.
164. As a result, the Tribunal declares that
the State violated Articles 8(1) and 25 of the American Convention,
in relation to Article 1(1) of that treaty, to the detriment of the
Moiwana community members.”
THE LAW
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
In its judgment of 28 June
2007, the Chamber declared admissible the complaints concerning the
procedural aspect of Article 2 of the Convention, the length of the
civil and criminal proceedings and the fairness of the criminal
proceedings under Article 6 and the alleged lack of an effective
remedy under Article 13. The complaints concerning the
substantive aspect of Article 2, the fairness of the civil
proceedings under Article 6, and the complaints under Articles 3 and
14 were declared inadmissible.
The
Court reiterates that in the context of Article 43 § 3 the
“case” referred to the Grand Chamber embraces all aspects
of the application as it has been declared admissible by the Chamber.
Yet this does not mean that the Grand Chamber may not also examine,
where appropriate, issues relating to the admissibility of the
application in the same manner as a Chamber, for example by virtue of
Article 35 § 4 in fine of the Convention (which empowers
the Court to “reject any application which it considers
inadmissible ... at any stage of the proceedings”), or where
such issues have been joined to the merits or are otherwise relevant
at the merits stage (K. and T. v. Finland [GC], no. 25702/94,
§§ 140-41, ECHR 2001 VII).
In
view of the foregoing and having regard to the parties' submissions
before the Grand Chamber, the Court will proceed to examine the part
of the application which was declared admissible by the Chamber.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN
ITS PROCEDURAL LIMB
The
applicants complained that the criminal and civil proceedings they
had instituted did not allow for the prompt and effective
establishment of responsibility for their son's death.
The
relevant part of Article 2 of the Convention provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life...”
A. The Government's preliminary objections
The
Government raised two preliminary objections altogether. In the
proceedings before the Chamber they pleaded a failure to exhaust
domestic remedies. In the proceedings before the Grand Chamber they
contested the Court's jurisdiction ratione temporis to deal
with the applicants' complaint.
1. Jurisdiction ratione
temporis
(a) The Chamber judgment
The
Chamber examined the ratione temporis issue of its own motion
in its judgment of 28 June 2007. It held that it had no jurisdiction
ratione temporis to deal with the applicants' complaint
concerning the substantive limb of Article 2 as the applicants' son's
death had clearly taken place before the date of the ratification of
the Convention by Slovenia. As to the procedural aspect of Article 2,
the Chamber, having regard to the previous case-law on the issue and
to the principle of the time of interference established in Blečić
v. Croatia (§§ 72 and 82, cited above), found
that its competence to examine this complaint would depend on the
facts of the case and the scope of the right involved.
In
this connection, the Chamber held that the State's obligation to set
up an effective judicial system for establishing the cause of and
responsibility for the death of an individual in receipt of medical
care had an autonomous scope. It also observed that it was not
disputed in the present case that the applicants' son's condition had
started significantly to deteriorate in the hospital and that his
death was potentially related to the medical treatment he had
received. Moreover, the Chamber was satisfied that the two sets of
proceedings that had been instituted were theoretically capable of
leading to the establishment of the exact circumstances which had led
to the death and potential responsibility for it at all levels.
The
Chamber went on to determine whether the facts constitutive of the
alleged procedural violation of Article 2 fell within the period
under the Court's temporal jurisdiction. It observed that the
criminal proceedings had been successfully reopened on 4 July 1996
and that the civil proceedings were instituted in 1995. Taking into
consideration that the alleged defects in the proceedings had
originated at the earliest on the date the proceedings were
instituted, which was after the date of the ratification, the Chamber
concluded that it had temporal jurisdiction to examine the
applicants' complaint concerning the procedural aspect of Article 2.
Referring to Broniowski v. Poland ((dec.) [GC], no. 31443/96,
§ 74, ECHR 2002 X) the Chamber also held that it could have
regard to the facts prior to ratification inasmuch as they might be
relevant for the understanding of facts occurring after that date.
(b) Submissions of those appearing before
the Court
(i) The Government
Relying
on the Court's position in Blečić v. Croatia (cited
above, §§ 63-69) and on the fact that the Chamber had
considered the ratione temporis issue of its own motion in its
judgment of 28 June 2007, the Government raised a plea of
inadmissibility on account of the Court's lack of jurisdiction
ratione temporis.
The
Government stressed before the Grand Chamber that while the criminal
and civil proceedings concerning the death of the applicants' son had
both started after the ratification of the Convention by Slovenia on
28 June 1994, the death had occurred before that date.
They
argued that by declaring the complaint concerning the procedural
aspect of Article 2 admissible, the Chamber had contravened the
general principles of international law on the non-retroactivity of
treaties, adding that this section of the Chamber's judgment was
inconsistent with the Court's established case-law, in particular the
decisions in Moldovan and Others and Rostaş and Others
v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March
2001; Voroshilov v. Russia (dec.), no. 21501/02,
8 December 2005; Stamoulakatos v. Greece (no. 1), 26
October 1993, § 33, Series A no. 271; Kadiķis v.
Latvia (dec.) no. 47634/99, 29 June 2000; and Jovanović
v. Croatia (dec.), no. 59109/00, ECHR 2002-III.
In
their submission, the above case-law established that the acts or
omissions by which a Convention right was allegedly infringed and the
proceedings related thereto were indissociable and so could not be
examined separately. On that point, the Government argued that the
initial event – the applicants' son's death – was
non-existent so far as the Court was concerned and the Court was
therefore precluded from examining whether it gave rise to any
obligation.
The
Government further asserted that individual aspects of Article 2,
such as the procedural aspect, could have no independent existence.
By examining the procedural aspect of Article 2, the Chamber had
not looked at the death merely as a background fact but had
inevitably examined the alleged violation of the substantive limb of
Article 2 of the Convention.
In
support of that contention, the Government pointed to the difference
between the cases under Article 2 and the length-of-proceedings
cases under Article 6 of the Convention, which fell partly outside
and partly within the Court's jurisdiction ratione temporis.
In their submission, the examination of the length of proceedings did
not depend on the subject-matter of the proceedings. Likewise, the
length of the proceedings after ratification of the Convention was
independent of the part of the proceedings conducted before that
date. In contrast, in Article 2 cases, the Court did not examine the
proceedings as an independent issue but as part of the investigation
of a concrete event.
The
Government further submitted that the Chamber's conclusion in respect
of its ratione temporis jurisdiction disregarded the
principles set out in paragraphs 68 and 77-81 of the Blečić
judgment (cited above). In particular, they emphasised that the
remedies should not be able to bring the interference within the
Court's jurisdiction and that affording a remedy usually presupposed
a finding that the interference had been unlawful under the law in
force when the interference occurred.
Finally,
the Government maintained that in cases such as the present one
neither the initial event nor the subsequent proceedings could be
understood as constituting a continuing violation.
(ii) The applicants
The
applicants did not dispute the Government's right to raise the
preliminary objection ratione temporis before the Grand
Chamber.
They
argued that it was not possible simply to ignore the fact that during
the period within the Court's temporal jurisdiction the domestic
authorities had done nothing to establish the cause of their son's
death.
In
their submission, the States had a particular obligation to create an
effective judicial system to establish the cause of death of an
individual in receipt of medical care. This obligation was an
autonomous one.
Referring
to Yağcı and Sargın v. Turkey (judgment of 8
June 1995, Series A no. 319 A), they submitted that
after ratification of the Convention the State had to comply with the
Convention; subsequent events came within the Court's competence even
if they were the prolongation of a pre-existing situation. Since the
defects in the proceedings had occurred after Slovenia had ratified
the Convention, the Court had jurisdiction ratione temporis to
deal with the complaint concerning the procedural limb of Article 2
of the Convention.
(c) The Grand Chamber's assessment
For
the reasons stated in its judgment in Blečić (cited
above, §§ 66-9) and noting that there is nothing that would
lead it to reach a different conclusion in the present case, the
Court finds that the Government are not precluded from raising the
ratione temporis objection at this stage of the proceedings
(see paragraphs 124, 127 and 135 above). The Court will therefore
examine whether it has temporal jurisdiction to deal with the
applicants' complaint concerning the procedural aspect of Article 2.
(i) General principles
The
Court reiterates that the provisions of the Convention do not bind a
Contracting Party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into
force of the Convention with respect to that Party or, as the case
may be, prior to the entry into force of Protocol No. 11, before the
date on which the respondent Party recognized the right of individual
petition, when this recognition was still optional (“the
critical date”). This is an established principle in the
Court's case-law (see Blečić, § 70, cited
above) based on the general rule of international law embodied in
Article 28 of the Vienna Convention (see paragraph 106 above).
The
Court further notes that, in applying the principle of
non-retroactivity, it has been prepared in previous cases to have
some regard to facts which occurred prior to the critical date
because of their causal connection with subsequent facts which form
the sole basis of the complaint and of the Court's examination.
For
example, in its consideration of cases concerning length of
proceedings where the civil claim was lodged or the charge was
brought before the critical date, the Court has repeatedly taken into
account by way of background information facts which occurred
prior to this point (Foti and Others v. Italy, 10 December
1982, § 53, Series A no. 56; Yağcı
and Sargın, cited above, § 40; and Humen v.
Poland [GC], no. 26614/95, §§ 58-59, 15 October
1999).
In
an Article 6 case concerning the fairness of criminal proceedings
which started prior to the critical date and continued afterwards,
the Court looked at the proceedings as a whole in order to assess
their fairness. This resulted in it having regard to the safeguards
provided at the investigation stage prior to the critical date in
order to determine whether they compensated for the deficiencies at
the subsequent trial stage (Barberà, Messegué
and Jabardo v. Spain, 6 December 1988, §§ 60, 61
and 84, Series A 146).
By
way of further example, in the case of Zana v. Turkey
([GC], 25 November 1997, §§ 41-42, Reports of
Judgments and Decisions 1997 VII) the Court examined the
interference with the applicant's right under Article 10 caused
by his criminal conviction in the period within the Court's temporal
jurisdiction even though the conviction related to statements made by
the applicant before the critical date. Moreover, it found in a more
recent case that it had temporal jurisdiction in respect of a
complaint concerning the use of evidence obtained through
ill-treatment even though the ill-treatment – but not the
subsequent criminal proceedings – pre-dated the ratification of
the Convention (Haroutyounian v. Armenia, no. 36549/03,
§§ 48-50, 28 June 2007).
In
several other cases, events prior to the critical date have been
taken into account, to varying degrees, as a background to the issues
before the Court (see, for example, Hokkanen v. Finland, 23
September 1994, § 53, Series A no. 299 A;
and Broniowski, cited above, § 74).
The
problem of determining the limits of its jurisdiction ratione
temporis in situations where the facts relied on in the
application fell partly within and partly outside the relevant period
has been most exhaustively addressed by the Court in the case of
Blečić v. Croatia (cited above). In that case the
Court confirmed that its temporal jurisdiction was to be determined
in relation to the facts constitutive of the alleged interference
(§ 77). In so doing, it endorsed the time of interference
principle as a crucial criterion for assessing the Court's temporal
jurisdiction. It found in this respect that “[i]n order to
establish the Court's temporal jurisdiction it is ... essential to
identify, in each specific case, the exact time of the alleged
interference. In doing so the Court must take into account both the
facts of which the applicant complains and the scope of the
Convention right alleged to have been violated” (§ 82).
The Court also indicated that if the interference fell outside the
Court's jurisdiction, the subsequent failure of remedies aimed at
redressing that interference could not bring it within the Court's
temporal jurisdiction (§ 77).
The Court notes that the test and the criteria
established in the Blečić case are of a general
character, which requires that the special nature of certain rights,
such as those laid down in Articles 2 and 3 of the Convention, be
taken into consideration when applying those criteria. The Court
reiterates in this connection that Article 2 together with Article 3
are amongst the most fundamental provisions in the Convention and
also enshrine the basic values of the democratic societies making up
the Council of Europe (see McCann and Others v. the United
Kingdom, 27 September 1995, § 147, Series A
no. 324).
(ii) The Court's jurisdiction ratione
temporis in respect of the procedural complaints under
Article 2 of the Convention
(α) The relevant case-law developed so
far
The
Court has dealt with a number of cases where the facts concerning the
substantive aspect of Article 2 or 3 fell outside the period under
the Court's competence while the facts concerning the related
procedural aspect, that is the subsequent proceedings, fell at least
partly within that period.
The
Court held in Moldovan and Others and Rostaş and
Others v. Romania (decision cited above) that it had no
jurisdiction ratione temporis to deal with the procedural
obligation under Article 2 as that obligation derived
from killings which had taken place before Romania ratified the
Convention. However, it took the events preceding ratification (for
example, the involvement of State agents in the burning of the
applicants' houses) into account when examining the case under
Article 8 (Moldovan v. Romania (no. 2),
nos. 41138/98 and 64320/01, §§ 102-09, ECHR
2005 VII (extracts)).
In
its decision in the case of Bălăşoiu v. Romania
(no. 37424/97, 2 September 2003), which concerned Article 3 of
the Convention, the Court came to a different conclusion. In
circumstances comparable to those in the Moldovan case it
decided to assume jurisdiction ratione temporis to examine the
procedural limb of the complaint notwithstanding the dismissal of the
substantive complaint. It based its decision on the fact that the
proceedings against those responsible for the ill-treatment had
continued after the critical date (see, in contrast, the decision in
Voroshilov, cited in paragraph 129 above).
In
Kholodov and Kholodova v. Russia ((dec.), no. 30651/05,
14 September 2006), the Court declined temporal jurisdiction on
the grounds that it was unable to affirm that any procedural
obligation existed as it had not been able to examine the substantive
limb of the application. It stated:
“Since the Court is prevented ratione temporis
from examining the applicants' assertions relating to the events in
1994, it cannot examine whether or not these events gave rise to an
obligation on the part of the Russian authorities to conduct an
effective investigation in the present case (see Moldovan and
Others v. Romania (dec.), no. 41138/98, 13 March 2001).
Likewise, the alleged failure to ensure identification and punishment
of those responsible cannot be said to have constituted a continuous
situation since the Court is unable to conclude that such an
obligation existed (see Voroshilov v. Russia (dec.), no.
21501/02, 8 December 2005).”
Having
regard to the varying approaches taken by different Chambers of the
Court in the above cases, the Grand Chamber must now determine
whether the procedural obligations arising under Article 2 can be
seen as being detachable from the substantive act and capable of
coming into play in respect of deaths which occurred prior to the
critical date or alternatively whether they are so inextricably
linked to the substantive obligation that an issue may only arise in
respect of deaths which occur after that date.
(β) “Detachability” of the
procedural obligations
The
Court recalls that procedural obligations have been implied in
varying contexts under the Convention (see, for example, B. v. the
United Kingdom, 8 July 1987, § 63, Series A
no. 121; M.C. v. Bulgaria, no. 39272/98, §§
148-153 , ECHR 2003 XII; and Cyprus v. Turkey [GC],
no. 25781/94, § 147, ECHR 2001 IV) where this has
been perceived as necessary to ensure that the rights guaranteed
under the Convention are not theoretical or illusory, but practical
and effective (İlhan v. Turkey [GC], no. 22277/93,
§ 91, ECHR 2000 VII). In particular, the Court has
interpreted Articles 2 and 3 of the Convention, having regard to the
fundamental character of these rights, as containing a procedural
obligation to carry out an effective investigation into alleged
breaches of the substantive limb of these provisions (McCann and
Others, cited above, §§ 157-64; Ergi v. Turkey,
28 July 1998, § 82, Reports 1998 IV;
Mastromatteo v. Italy [GC], no. 37703/97, § 89,
ECHR 2002 VIII; and Assenov and Others v. Bulgaria, 28
October 1998, §§ 101-06, Reports 1998 VIII).
The
Court notes the State's obligation to
carry out an effective investigation or to provide for the
possibility of bringing civil or criminal proceedings as may be
appropriate to the case (Calvelli and Ciglio v. Italy [GC],
no. 32967/96, § 51, ECHR 2002 I) has in the
Court's case-law been considered as an obligation inherent in Article
2 which requires, inter alia, that the right to life be
“protected by law”. Although the failure to comply with
such an obligation may have consequences for the right protected
under Article 13, the procedural obligation of Article 2 is seen as a
distinct obligation (see Öneryıldız v. Turkey [GC],
no. 48939/99, § 148, ECHR 2004 XII; and İlhan,
cited above, §§ 91-92).
In
the sphere of medical negligence, the procedural obligation under
Article 2 has been interpreted by the Court as imposing an obligation
on the State to set up an effective judicial system for establishing
both the cause of death of an individual under the care and
responsibility of health professionals and any responsibility on the
part of the latter (see Calvelli and Ciglio, cited above,
§ 49).
The
Court observes that the procedural obligation has not been considered
dependent on whether the State is ultimately found to be responsible
for the death. When an intentional taking of life is alleged, the
mere fact that the authorities are informed that a death had taken
place gives rise ipso facto to an obligation under Article 2
to carry out an effective official investigation (Yaşa v.
Turkey, 2 September 1998, § 100, Reports 1998 VI;
Ergi, cited above, § 82; and Süheyla Aydın
v. Turkey, no. 25660/94, § 171, 24 May 2005).
In cases where the death was caused unintentionally and in which the
procedural obligation is applicable, this obligation may come into
play upon the institution of proceedings by the deceased's relatives
(Calvelli and Ciglio, cited above, § 51, and Vo v.
France [GC], no. 53924/00, § 94, ECHR 2004-VIII).
Moreover,
while it is normally death in suspicious circumstances that triggers
the procedural obligation under Article 2, this obligation binds the
State throughout the period in which the authorities can reasonably
be expected to take measures with an aim to elucidate the
circumstances of death and establish responsibility for it (see,
mutatis mutandis, Brecknell v. the United Kingdom,
no. 32457/04, §§ 66-72, 27 November 2007, and
Hackett v. the United Kingdom, (dec.) no. 34698/04, 10
May 2005).
The
Court also attaches weight to the fact that it has consistently
examined the question of procedural obligations under Article 2
separately from the question of compliance with the substantive
obligation and, where appropriate, has found a separate violation of
Article 2 on that account (for example, Kaya v. Turkey, 19
February 1998, §§ 74-78 and 86-92, Reports
1998 I; McKerr v. the United Kingdom, no. 28883/95,
§§ 116-61, ECHR 2001 III; Scavuzzo-Hager and Others
v. Switzerland, no. 41773/98, §§ 53-69 and
80-86, 7 February 2006; and Ramsahai and Others v. the Netherlands
[GC], no. 52391/99, §§ 286-89 and 323-57 ECHR
2007-...). In some cases compliance with the procedural obligation
under Article 2 has even been made the subject of a separate vote on
admissibility (see, for example, Slimani v. France,
no. 57671/00, §§ 41-43, 27 July 2004, and Kanlıbaş
v Turkey, (dec.), no. 32444/96, 28 April 2005). What is more, on
several occasions a breach of a procedural obligation under Article 2
has been alleged in the absence of any complaint as to the
substantive aspect of Article 2 (Calvelli and Ciglio, cited
above, § 41-57; Byrzykowski v. Poland, no. 11562/05,
§§ 86 and 94-118, 27 June 2006; and Brecknell,
cited above, § 53).
Against
this background, the Court concludes that the procedural obligation
to carry out an effective investigation under Article 2 has evolved
into a separate and autonomous duty. Although it is triggered
by the acts concerning the substantive aspects of Article 2 it can
give rise to a finding of a separate and independent “interference”
within the meaning of the Blečić judgment (cited
above, § 88). In this sense it can be considered to be
a detachable obligation arising out of Article 2 capable of binding
the State even when the death took place before the critical date.
This
approach finds support also in the jurisprudence of the United
Nations Human Rights Committee and, in particular, of the
Inter-American Court of Human Rights, which, though under different
provisions, accepted jurisdiction ratione temporis over the
procedural complaints relating to deaths which had taken place
outside their temporal jurisdiction (see paragraphs 111-18 above).
However,
having regard to the principle of legal certainty, the Court's
temporal jurisdiction as regards compliance with the procedural
obligation of Article 2 in respect of deaths that occur before
the critical date is not open-ended.
First,
it is clear that, where the death occurred before the critical date,
only procedural acts and/or omissions occurring after that date can
fall within the Court's temporal jurisdiction.
Second,
there must exist a genuine connection between the death and the entry
into force of the Convention in respect of the respondent State for
the procedural obligations imposed by Article 2 to come into effect.
Thus
a significant proportion of the procedural steps required by this
provision – which include not only an effective investigation
into the death of the person concerned but also the institution of
appropriate proceedings for the purpose of determining the cause of
the death and holding those responsible to account (Vo, cited
above, § 89) – will have been or ought to have been
carried out after the critical date.
However,
the Court would not exclude that in certain circumstances the
connection could also be based on the need to ensure that the
guarantees and the underlying values of the Convention are protected
in a real and effective manner.
(iii) Application of the above principles to the
present case
In
its declaration of 28 June 1994 (see paragraph 105 above),
Slovenia recognised the jurisdiction of the Convention organs to deal
with individual petitions “where the facts of the alleged
violation of [these] rights occur after the Convention and its
Protocols have come into force in respect of the Republic of
Slovenia”. While framed in positive terms, the Slovenian
declaration does not introduce any further limitations on the Court's
temporal jurisdiction beyond those already emerging from the general
principle of non-retroactivity considered above.
Applying
the above principles to the circumstances of the present case, the
Court notes that the death of the applicants' son occurred only a
little more than a year before the entry into force of the Convention
in respect of Slovenia, while, with the exception of the preliminary
investigation, all the criminal and civil proceedings were initiated
and conducted after that date. The criminal proceedings opened
effectively on 26 April 1996 (see paragraph 23 above)
following the applicant's request of 30 November 1995, and the civil
proceedings were instituted in 1995 (see paragraph 48 above) and are
still pending.
The
Court notes and the Government did not dispute that the applicants'
procedural complaint essentially related to the aforementioned
judicial proceedings which were conducted after the entry into force
of the Convention precisely with a view to establishing the
circumstances in which the applicants' son had died and any
responsibility for it.
In
view of the above, the Court finds that the alleged interference with
Article 2 in its procedural aspect falls within the Court's temporal
jurisdiction and that it is therefore competent to examine this part
of the application. It will confine itself to determining whether the
events that occurred after the entry into force of the Convention in
respect of Slovenia disclosed a breach of that provision.
2. Exhaustion of domestic remedies
Before the Grand Chamber, the Government, relying on their
observations from the Chamber proceedings, objected that the
applicants had failed to exhaust domestic remedies. They argued,
firstly, that the complaint was premature as the civil proceedings
were still pending and that after the termination of the criminal and
civil proceedings, the applicants would also be able to lodge a civil
claim for compensation against the State on the basis of the alleged
violation of their rights in the proceedings, in accordance with
Article 26 of the Slovenian Constitution (see Lukenda v. Slovenia,
no. 23032/02, § 9, ECHR 2005 X).
Secondly,
they argued that the applicants had failed to avail themselves of the
remedies available in respect of the complaints of undue delay.
The
applicants contested the Government's arguments.
In
its judgment of 28 June 2007, the Chamber found that the
length-of-proceedings remedies were insufficient as it was not merely
the length of the proceedings which was in issue, but the question
whether in the circumstances of the case seen as a whole the State
could be said to have complied with its procedural requirements under
Article 2 of the Convention (see Byrzykowski, cited
above, § 90).
As
regards the first limb of the objection, the Chamber observed that
the applicants had resorted to all the remedies available to them in
the criminal proceedings. As to the civil proceedings, which were
still ongoing, the Chamber considered that this part of the
Government's objection was closely linked to the substance of the
applicants' complaint under the procedural aspect of Article 2
and that its examination should therefore be joined to the merits of
the case.
The
Grand Chamber notes that the parties have not put forward any new
arguments on the issue of the exhaustion of domestic remedies with
regard to the Article 2 complaint in their written or oral
submissions in the proceedings before it. For its part, it sees no
reason to depart from the approach taken by the Chamber.
B. Merits
1. The Chamber judgment
In
its judgment of 28 June 2007, the Chamber found no indication that
there had been any failure on the part of the State to provide a
procedure whereby the criminal and civil responsibility of persons
who might be held answerable for the applicants' son's death could be
established. It went on to examine how this procedure had worked in
the concrete circumstances. In that connection, it did not find it
necessary to determine separately whether the criminal proceedings
ending with the dismissal of the indictment by the
interlocutory-proceedings panel were effective since the applicants
had also instituted civil proceedings against the doctor and the
hospital. The Chamber referred in this respect to the Court's
judgments in Calvelli and Ciglio v. Italy and
Vo v. France (cited above). The Chamber noted that the criminal
proceedings were, as is usual, limited only to the determination of
the charge brought against the doctor concerned and that the scope of
the civil responsibility was significantly broader than criminal
responsibility and did not necessarily depend on it.
As
regards the effectiveness of the proceedings, the Chamber found that
staying the civil proceedings pending the outcome of the criminal
proceedings could be considered reasonable. It noted, however, that
although the decision to stay the proceedings was issued in
October 1997, no steps were taken in the civil proceedings for
almost six years.
While
the criminal proceedings took almost five years to be concluded with
no charges being brought against the accused, it then took the civil
court in the first-instance proceedings an additional five years to
reach a verdict. During that time, the applicants made numerous
applications of a procedural nature, such as for a change of judge
and/or of venue, many of which had no prospect of improving their
situation. However, even after taking into account the applicants'
contribution to the length of the proceedings as a result of those
applications, the Chamber considered that the way the civil
proceedings had been handled (for example, the case had come before
six different judges and was still pending after almost twelve years)
could not be regarded as effective or, therefore, as satisfying the
procedural requirements under Article 2.
2. The parties' submissions
(a) The applicants
The
applicants argued that the judicial system had failed to provide an
effective and prompt examination of the cause of and responsibility
for their son's death.
They
criticised the way the civil proceedings had been conducted, arguing
that the authorities had been reluctant to investigate their case and
had treated them in a discriminatory fashion. They also disagreed
with the Government about the need to stay the civil proceedings. In
their submission, the establishment of criminal liability did not
constitute a preliminary question for the purposes of the Civil
Procedure Act as civil liability could be established even if no
criminal offence had been committed. It could also be apportioned
between various parties and relate to different heads of damage.
The
applicants further criticised the way the courts had dealt with their
requests for certain judges to stand down and the attitude displayed
by some of the judges in their conduct and correspondence with the
applicants and the authorities.
In
their observations before the Grand Chamber, the applicants
criticised the public prosecutor's persistent refusal to pursue the
prosecution of Doctor M.E. In this respect, they emphasised that the
Maribor District Court's decision of 12 January 1999 showed that
there was reasonable suspicion that a criminal offence had been
committed. As a result of the public prosecutor's reluctance to
proceed with the investigation, the applicants had been left with no
option but to take over the conduct of the prosecution themselves and
this had placed them at a disadvantage. Moreover, it had taken the
authorities more than seven years to investigate the case and rule on
the indictment and the criminal proceedings had failed to produce any
significant result.
In
their oral submissions in the proceedings before the Grand Chamber,
the applicants concentrated also on the issue of the impartiality of
forensic experts involved in medical negligence cases in Slovenia,
arguing that the limited number of doctors in Slovenia and the fact
that Slovenian doctors, including forensic experts, were in the same
trade union (FIDES), made it difficult to ensure strict impartiality.
In the applicants' case, it was that trade union which had requested
the applicants to reimburse the expenses for the legal representation
provided to Doctor M.E. in the proceedings before the Maribor
District Court and the Maribor Higher Court. The applicants also
argued that the impartiality of the proceedings before the Medical
Tribunal, to which only the accused doctor and the Medical
Association's Commissioner were parties, should be called into
question.
The
applicants alleged, in general, that there was a tendency on the part
of the civil and criminal courts in Slovenia not to find against
doctors accused of causing death by negligence.
(b) The Government
In
the Government's submission, the Chamber had found a violation of
Article 2 on the grounds that both the criminal and civil proceedings
were ineffective. The preliminary investigation into the applicants'
son's death and, in particular, the subsequent criminal proceedings
had entirely satisfied the procedural obligation imposed by Article
2. While the criminal proceedings were guided by the principles of
substantive truth and officiality, that was not the position with
civil proceedings. For that reason, as a matter of principle, the
civil proceedings were not capable of satisfying the procedural
requirements imposed by Article 2 of the Convention.
The
Government noted that the initial measures following the applicants'
son's death took place before the Convention entered into force. They
submitted that, when examining the procedural aspect of Article 2,
the Court was therefore required to take into account the status of
the investigation and its findings as at that date. Moreover, the
criminal proceedings instituted by the applicants had not led to any
different conclusion than that reached in the initial investigations.
In their oral submissions before the Grand Chamber, the Government
also argued that the public prosecutor had conducted a thorough
review of the decision not to assume the conduct of the prosecution
in 1997 and 1999, adding that the fact that, ultimately, the court in
the criminal proceedings had struck down the indictment proved the
correctness of the public prosecutor's decision.
The
Government criticised the lack of clarity in the Chamber's judgment
as regards the alleged deficiencies in the criminal proceedings. They
argued that the main set of criminal proceedings ending with the
decision of 20 December 2000 had been conducted as quickly as
possible given the complexity of the case, which had required an
extensive investigation, including the appointment of various experts
from Slovenia and abroad, and a chronological reconstruction of the
events. There had been no significant defects or delays in the
criminal proceedings. The domestic courts had sought carefully to
establish the circumstances of the applicants' son's death and any
criminal liability on the part of the doctor concerned.
The
Government commented on the burden of proof borne by the applicants
in the criminal proceedings. They maintained that, as “subsidiary”
prosecutors, the applicants were required to abide by the fundamental
objective of criminal proceedings and the rules applied therein and,
in particular, the safeguards aimed at ensuring respect of the rights
of the accused.
The
Government's observations further concentrated on the applicants'
inability to lodge a constitutional appeal in the criminal
proceedings. They submitted that this remedy was not open to an
aggrieved party in the criminal proceedings for many legitimate
reasons, including the non bis in idem principle.
As
regards the general effectiveness of the criminal proceedings in
practice, the Government referred to data from the Slovenian courts
which showed that “subsidiary” prosecution in cases of
death resulting from alleged medical negligence was rare. Such cases
were normally dealt with by the public prosecutor. In support of that
contention, the Government submitted figures showing that in twelve
recent medical malpractice cases criminal proceedings for the offence
of causing death by negligence had been instituted by the public
prosecutor. In just two of the cases the aggrieved party had later
taken over the conduct of the prosecution.
With regard to civil liability, the Government averred that the
Obligations Act and the Code of Obligations afforded effective
protection of the right to life. In support of that contention, they
produced copies of judgments that had been delivered between 1998 and
2003 in five cases of alleged medical error. In four of these cases
the health-care institutions had been ordered to pay damages to the
plaintiffs. They also provided a list of 124 claims against
health-care institutions that had been lodged with the Ljubljana and
Maribor District Courts between 1995 and 2004, at least 57 of
which had been finally resolved (pravnomočno končanih).
The remainder, including 6 from 1995, appeared to be still pending
before courts of first or second instance.
As
regards the present case, the Government argued that the issues dealt
with by the courts were very complex. In addition, the applicants'
conduct, in particular their repeated challenges of the judges and
motions for a change of venue, had obstructed the proper conduct of
the proceedings. The Government considered that the objective
circumstances in the case had not warranted such a large number of
requests and motions. The applicants bore sole responsibility for the
delays in the proceedings after they had been resumed.
Civil
liability did not depend on the establishment of criminal
responsibility and, in particular, the civil courts were not bound by
the defendant's acquittal. As regards the staying of the civil
proceedings, while the civil courts were not obliged to wait until
the criminal proceedings had been concluded they had power to do so
in appropriate cases. In the instant case, the decision to stay the
civil proceedings was reasonable in view of the extensive process of
evidence gathering that was concurrently taking place in the criminal
court. Moreover, the applicants had not appealed against that
decision.
The
Government further argued that the Chamber had erred in stating that
“the court [had done] nothing for almost six years” as
only three years and seven months had passed between the stay of the
proceedings and their resumption. Furthermore, the Government
considered it unjustified for the Chamber to have emphasised that as
many as six judges had examined the case and to have held the State
responsible for that. The national courts had acted solely in
accordance with domestic law and decided the applicants' requests and
motions as quickly as possible. As regards the two judges that had
stood down, the circumstances that had led to their withdrawal were
linked entirely to the applicants.
It would further appear from the Government's observations before the
Grand Chamber that they disputed the Ombudsman's findings in the
case, in particular those concerning the staying of the proceedings
and the conduct of the hearing of 28 October 2003. They argued that
under domestic law the Ombudsman did not have power to interfere in
proceedings pending before the domestic courts except in the case of
undue delay or manifest abuse of authority. Nor was it the European
Court's role to examine whether the manner in which the domestic
authorities had taken the evidence was appropriate.
In
their observations before the Chamber, the Government also referred
to the proceedings before the Medical Tribunal in order to
demonstrate the effectiveness of the system of protection of the
right to life. They explained that the tribunal had jurisdiction to
establish possible misconduct by a doctor. As a result, disciplinary
measures, including the suspension or revocation of a licence, could
be imposed. They added that the applicants had not availed themselves
of that remedy.
3. The Grand Chamber's assessment
(a) Relevant principles
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
Court reiterates that this procedural obligation is not an obligation
of result but of means only (Paul and Audrey Edwards v. the United
Kingdom, no. 46477/99, § 71, ECHR 2002 II).
Even
if the Convention does not as such guarantee a right to have criminal
proceedings instituted against third parties, the Court has said many
times that the effective judicial system required by Article 2 may,
and under certain circumstances must, include recourse to the
criminal law. However, if the infringement of the right to life or to
personal integrity is not caused intentionally, the procedural
obligation imposed by Article 2 to set up an effective judicial
system does not necessarily require the provision of a criminal-law
remedy in every case (Mastromatteo, cited above, § 90).
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 responsibility 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 (Calvelli and Ciglio, cited above, § 51, and
Vo, cited above, § 90).
195. A requirement of promptness and reasonable expedition is
implicit in this context. 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 (see Paul and Audrey Edwards, cited above,
§ 72). The same applies to Article 2 cases concerning
medical negligence. 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 Calvelli and Ciglio,
cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.),
no. 53749/00, 7 November 2002; and Byrzykowski, cited
above, § 117).
Lastly,
apart from the concern for the respect of the rights inherent in
Article 2 of the Convention in each individual case, more general
considerations also call for a prompt examination of cases concerning
death in a hospital setting. Knowledge of the facts and of possible
errors committed in the course of medical care are essential to
enable the institutions concerned and medical staff to remedy the
potential deficiencies and prevent similar errors. The prompt
examination of such cases is therefore important for the safety of
users of all health services (see Byrzykowski, cited above,
§ 117).
(b) Application of the above principles in
the instant case
The
Court notes that the fact that the applicants' son's condition
started significantly to deteriorate in the hospital and that his
death was possibly related to the medical treatment he received has
not been disputed either before the Court or in the domestic
proceedings. It further observes that the applicants alleged that
their son's death was a result of negligence on the part of the
doctor. It follows that the State was under a duty to ensure that the
proceedings instituted with regard to the death complied with the
standards imposed by the procedural obligation of Article 2 of the
Convention.
In
this connection, the Court notes that the applicants used two legal
remedies with the aim of establishing the circumstances of their
son's death and responsibility for it. Following the preliminary
investigation, they instituted criminal proceedings against Doctor
M.E. and civil proceedings for compensation against both the hospital
and the doctor.
Although
no disciplinary proceedings were instituted as a result of the death,
the Government have not shown that such proceedings before the
Medical Tribunal – to which they referred in the Chamber
proceedings (see paragraph 191 above) – would have afforded an
effective remedy at the material time.
As
regards the criminal proceedings, the Court observes that the
forensic report by the Ljubljana Institute of Forensic Medicine was
drafted soon after the death. Subsequently, the public prosecutor
refused to initiate criminal proceedings against the doctor. Criminal
proceedings were then instituted at the applicants' request and were
conducted by the applicants in their capacity as “subsidiary”
prosecutors. In this respect, it is to be noted that the applicants
first requested the opening of a criminal investigation into Doctor
M.E.'s conduct on 1 August 1994. An initial decision to open the
investigation was overturned in December 1994. A further request
lodged by the applicants on 30 November 1995, after they had obtained
a new medical opinion, was upheld and the investigation was reopened
on 26 April 1996 – almost three years after the
applicants' son's death and almost two years after the applicants'
initial request. After commencing in 1996, those proceedings
continued for more than four years, during which period the case was
twice remitted for further investigation after the indictment was
lodged on 28 February 1997. They were finally discontinued by the
interlocutory-proceedings panel's decision of 18 October 2000.
Furthermore,
despite the public prosecutor's continuing refusal to institute
criminal proceedings (see paragraphs 18, 26 and 39 above), the
domestic courts found that sufficient grounds existed to open the
investigation (see paragraph 23 above) and a significant volume of
evidence, including new forensic reports, was gathered.
It was the applicants who pursued the criminal proceedings and bore
the burden of the investigation, which continued for a considerable
period.
The
Court is not called upon to determine whether in the present case the
criminal proceedings should have been conducted ex-officio or
to identify what sort of steps the public prosecutor should have
taken as the procedural obligation under Article 2 does not
necessarily require the State to provide criminal proceedings in such
cases (see paragraph 194 above), even if it is clear that such
proceedings could by themselves have fulfilled the requirements of
Article 2. The Court therefore confines itself to noting that the
criminal proceedings, in particular the investigation, were
excessively long and that neither the conduct of the applicants nor
the complexity of the case can suffice to explain such length.
Unlike
the Government, the Court finds it significant that the applicants
had recourse to civil proceedings in which they were entitled to an
adversarial trial enabling any responsibility of the doctors or
hospital concerned to be established and any appropriate civil
redress to be obtained (see, mutatis mutandis, Powell,
cited above, and Vo, cited above, § 94). It is common
ground that the scope of any civil liability was significantly
broader than the scope of any criminal liability and not necessarily
dependent on it. The civil proceedings were instituted on 6 July 1995
and, after more than thirteen years, are still pending before the
Constitutional Court (see paragraph 78 above).
As
the Government rightly pointed out, the civil proceedings were stayed
for three years and seven months pending the outcome of the
criminal proceedings which the applicants were pursuing concurrently
(see paragraphs 52-58 above). However, for the two years before they
were officially stayed, the civil proceedings were in fact already at
a standstill (see paragraphs 49-52 above).
The
Court appreciates that evidence adduced in criminal proceedings may
be of relevance to decisions in civil proceedings arising out of the
same incident. Accordingly, it does not find that the stay of the
civil proceedings was in itself unreasonable in the present case.
Having said that, it stresses that the stay did not release the
domestic authorities from their obligation to examine the case
promptly. In this respect, the Court would recall its above findings
concerning the processing of the case in the criminal proceedings. In
addition, it would also note that the civil court before which the
applicants' case was pending remained responsible for the conduct of
the civil proceedings and ought therefore to have weighed the
advantages of a continued stay against the requirement of promptness
when deciding whether or not to resume the proceedings.
The
Court further notes that during the stay of the civil proceedings,
expert evidence was being gathered in the criminal proceedings. This
evidence was available to the civil court when the civil proceedings
resumed. Therefore, and in the light of the steps subsequently taken
in the civil proceedings, the Court considers that from that point
onward the time taken to bring the civil proceedings to an end could
no longer be explained by reference to the particular complexity of
the case. It observes, however, that after the criminal proceedings
were discontinued it took the domestic courts a further five years
and eight months to rule on the applicants' civil claim.
In
this connection, the Court notes that during that period the
applicants repeatedly challenged the judges sitting in their case and
lodged several motions for a change of venue. Many of these steps
caused unnecessary delays and had no prospect of improving their
situation. However, some of the applicants' requests turned out to be
well-founded. For instance, the second motion for a change of venue
was upheld and the proceedings were, as a result, moved to the
Maribor District Court. The applicants were also successful on two
occasions with their call for individual judges to stand down,
although it would appear that the judges concerned ultimately
withdrew on their own initiative.
The
Court would accept that the requests for a change of venue and for
certain judges to stand down delayed the proceedings to a degree. In
the present case, however, it considers that the delays that occurred
after the stay was lifted were in many instances not reasonable in
the circumstances. For example, as a result of the change of venue
following the applicants' request of 11 June 2001, no
hearing was held for a further nine months (paragraphs 59-60 above).
After the hearing of 3 April 2002, the proceedings were dormant for
four months, as the courts were apparently dealing with the
applicants' motions for the judges to stand down. Subsequently Judge
M.T.Z. withdrew from the proceedings. During the following ten
months, the only action taken by the courts was to reject two motions
for a change of venue; no other steps were taken (see paragraphs
61-63 above). In addition, after the adjournment of a hearing
scheduled for 23 and 24 March 2005, and despite the applicants'
letter of 4 May 2005 requesting that the proceedings be expedited, it
took the court ten months to schedule the next hearing, possibly
because the conduct of the case had been taken over by yet another
judge (see paragraphs 67-70 above). After the withdrawal of Judge
D.M. on 31 January 2006, four and a half months elapsed before
the next hearing was held by a new judge on 16 June 2006
(see paragraphs 70-72 above). It is worth noting that, subsequent to
that hearing, the new judge concluded the first-instance proceedings
in less than three months (see paragraph 73 above).
When
considering the present case, the Court cannot fail to note the
Ombudsman's public reports and interventions concerning the conduct
of the proceedings (see paragraphs 81-85 above). The situation
reflected therein could arguably have contributed to the applicants'
mistrust of the manner in which the proceedings were being conducted
and triggered some of their repeated challenges to the judges and the
court. As regards the Government's argument that the Ombudsman lacked
authority to interfere in the impugned domestic proceedings (see
paragraph 190 above), the Court is of the opinion that it is not
within its competence to decide on the Ombudsman's powers under
the domestic law, an issue which, moreover, bears no relevance to the
applicants' complaints.
Lastly,
the Court considers it unsatisfactory for the applicants' case to
have been dealt with by at least six different judges in a single set
of first-instance proceedings. While it accepts that the domestic
courts are better placed to assess whether an individual judge is
able to sit in a particular case, it nevertheless notes that a
frequent change of the sitting judge will undoubtedly impede the
effective processing of the case. It observes in this connection that
it is for the State to organise its judicial system in such a way as
to enable its courts to comply with the requirements of the
Convention, including those enshrined in the procedural obligation of
Article 2 (see, mutatis mutandis, R.M.D. v. Switzerland,
26 September 1997, § 54, Reports 1997-VI).
Having
regard to the above background, the Court considers that the domestic
authorities failed to deal with the applicants' claim arising out of
their son's death with the level of diligence required by Article 2
of the Convention. Consequently, there has been a violation of
Article 2 in its procedural aspect and the Government's preliminary
objection concerning the exhaustion of civil domestic remedies in
respect of the procedural limb of this provision is dismissed.
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
The
applicants complained under Article 6 § 1 of the Convention of
the unfairness of the criminal proceedings and the length of both
sets of proceedings. The relevant part of Article 6 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.”
The
applicants also complained that the Constitutional Court and other
competent authorities had failed to respond to their complaints
concerning the conduct of the proceedings relating to their son's
death. They relied on Article 13 of the Convention, which provides:
“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.”
As
regards Article 6 of the Convention, the Government, referring to the
judgment in Perez v. France ([GC], no. 47287/99, § 70,
ECHR 2004 I), argued before the Grand Chamber that the
complaints concerning the criminal proceedings were incompatible
ratione materiae. In addition, they argued that the part of
the application that related to the criminal proceedings that had
ended with the Maribor Higher Court's decision of 5 October 1995
should be declared inadmissible in accordance with Article 35 §
1 of the Convention. With regard to the civil proceedings, they
argued, referring, inter alia, to the judgment in Grzinčič
v. Slovenia (no. 26867/02, ECHR 2007 ... (extracts)), that
the applicants should have used the remedies available since 1
January 2007 under the 2006 Act (see paragraphs 102-04 above) and
that the related complaint was therefore inadmissible for
non-exhaustion of domestic remedies. They further maintained that the
impugned proceedings had been conducted properly and as promptly as
possible.
The
applicants submitted that on the date the 2006 Act became
operational, their application was already pending before the Court
and the impugned civil proceedings had already been pending for
almost twelve years before the domestic courts. On 25 August 2006 the
first-instance court had delivered its judgment. The use of the
remedies under the 2006 Act would therefore have been totally
ineffective in their case.
Having
regard to the particular circumstances of the present case and to the
reasoning which led it to find a violation of Article 2 in its
procedural limb, the Court considers that it is not necessary also to
examine the case under Article 6 § 1 and Article 13 of the
Convention (see, mutatis mutandis, Öneryıldız,
cited above, § 160).
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
Before the Chamber, the applicants claimed SIT 1,300,000
(approximately EUR 5,440) in respect of pecuniary damage allegedly
resulting from the expenses they had incurred as a result of the
inactivity of the courts in the domestic proceedings and the Public
Prosecutor's refusal to institute criminal proceedings. They further
claimed SIT 1,800,000 (approximately EUR 7,540) in respect of
non-pecuniary damage.
The
Chamber's conclusion as regards the applicants' claim for damage was
as follows:
“150. The Court finds that the
applicants have failed to submit documentary evidence of the expenses
they allegedly incurred as a result of the inactivity of the courts
in the domestic proceedings. As regards the remainder of the claim
for pecuniary damage, the Court does not discern any causal link
between the violation found and the pecuniary damage alleged... It
therefore rejects this claim.
151. As to non-pecuniary damage, the Court,
deciding on an equitable basis and having regard to the sums awarded
in similar cases and the violation which it has found in the present
case, awards the applicants the full sum claimed, namely EUR 7,540.”
In
the proceedings before the Grand Chamber, the applicants invited the
Court to uphold the Chamber's conclusion.
The
Government disputed the applicants' claim.
The
Grand Chamber sees no reason to depart from the Chamber's finding. It
accepts that the violation of the applicants' right under the
procedural limb of Article 2 of the Convention caused the applicants
non-pecuniary damage such as distress and frustration. Making its
assessment on an equitable basis, it awards the applicants the full
sum claimed under this head, namely EUR 7,540.
B. Costs and expenses
The
Chamber's conclusion as regards the applicants' claim for the
reimbursement of their costs and expenses was as follows:
“154. Under
the Court's case-law, an applicant is entitled to the reimbursement
of his 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. In the present case, having regard to the information
in its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the sum of EUR 2,000 for the proceedings before
the Court.”
224. The
applicants claimed EUR 5,000 in respect of the proceedings before the
Grand Chamber. However, their itemised claims amounted to EUR 2,864
only, broken down as follows. Relying on the domestic
scale of lawyer's fees, the applicants claimed EUR 1,184 in respect
of legal fees for the work done by their representative in the
written and oral proceedings before the Grand Chamber. In addition
they claimed EUR 855 in respect of travel and subsistence related to
his attendance at the hearing and a further EUR 825 in respect of
their own travel and subsistence expenses.
The
Government submitted that for the purposes of calculating legal fees
incurred in the proceedings before the Grand Chamber, the amount set
out in lawyer's scale rates for representation before the
Constitutional Court should be used. Accordingly, the overall costs
and expenses in respect of legal representation came to a total of
EUR 1,635. The Government disputed the applicants' entitlement to the
reimbursement of their travel and subsistence expenses on the grounds
that their attendance at the hearing had not been necessary, since
they had been represented by counsel.
226. The
Court has consistently held that costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred, and were reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see, for example, Beyeler v. Italy
(just satisfaction) [GC], no. 33202/96, § 27, 28 May
2002, and Sahin v. Germany [GC], no. 30943/96, §
105, ECHR 2003 VIII).
The
Grand Chamber sees no reason to depart from the Chamber's finding
regarding the amount awarded in respect of the costs and expenses
incurred in the proceedings before the Chamber. As regards the
proceedings before the Grand Chamber, the Court considers that the
costs and expenses claimed in respect of the applicants'
representative's work and attendance at the hearing, namely EUR
2,039, were actually and necessarily incurred and were reasonable as
to quantum. Having regard to the fact that the applicants were
represented by their counsel at the hearing and in view of the nature
of the case, the Court considers that the expenses incurred as a
result of their attendance were not necessary and therefore rejects
this part of the claim.
Consequently,
the Court awards the applicants a total sum of EUR 4,039 in respect
of costs and expenses.
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
Dismisses by fifteen votes to two the
Government's preliminary objection concerning a lack of jurisdiction
ratione temporis;
Joins unanimously to the merits the
Government's preliminary objection concerning the exhaustion of civil
domestic remedies in respect of the procedural limb of Article 2 of
the Convention and dismisses it;
Dismisses unanimously the Government's
preliminary objection relating to the non-exhaustion of other
remedies;
Holds by fifteen votes to two that there has
been a violation of Article 2 of the Convention in its procedural
limb;
Holds by fifteen votes to two that there is no
need to examine separately the complaints under Articles 6 (length of
the civil and criminal proceedings and fairness of the criminal
proceedings) and 13 of the Convention;
Holds by sixteen votes to one
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts:
(i) EUR
7,540 (seven thousand five hundred and forty euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
4,039 (four thousand and thirty-nine 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 in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 9 April 2009.
Michael O'Boyle Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following opinions are annexed to
this judgment:
(a) Concurring
opinion of Judge Lorenzen;
(b) Concurring
opinion of Judge Zupančič;
(c) Concurring
opinion of Judge Zagrebelsky joined by Judges Rozakis, Cabral
Barreto, Spielmann and Sajó;
d) Joint
dissenting opinion of Judges Bratza and Türmen.
C.L.R.
M.O'B.
CONCURRING OPINION OF JUDGE LORENZEN
I
voted with the majority in favour of finding a violation of Article 2
in its procedural limb. However, I am not able fully to agree with
the majority's reasoning in respect of the Court's jurisdiction
ratione temporis.
As
demonstrated in paragraphs 148-152 of the judgment, the Court has not
always been consistent in its case-law when determining whether it
has jurisdiction to examine complaints of a violation of the
procedural requirements under Articles 2 and 3 where the facts
concerning the substantive aspect of these Articles fall outside the
period under the Court's competence even if the subsequent
proceedings fall at least partly within that period. In the case of
Blečić v. Croatia ([GC], no. 59532/00,
ECHR 2006-III) the Court established general principles to be applied
in respect of its jurisdiction ratione temporis but did not
address the specific question of its temporal jurisdiction under
Articles 2 and 3 in the above situation.
For
the reasons stated in paragraphs 153-162 of the judgment I can agree
that the Court has – in certain circumstances –
jurisdiction ratione temporis to examine procedural complaints
relating to deaths which have taken place outside its temporal
jurisdiction, but that, for obvious reasons of legal certainty, such
jurisdiction cannot be open-ended. In this respect, I fully agree
with what is said in paragraph 161 of the judgment. However, I fail
to see that the criteria established by the majority in paragraph 163
are in conformity with this requirement. Thus, it is not easy to
understand what is meant by the requirement for “a genuine
connection” between the death and the entry into force of the
Convention in respect of the respondent State for the procedural
obligations imposed by Article 2 to come into effect. Furthermore the
fact that the majority seem ready to accept such a connection “based
on the need to ensure that the guarantees and the underlying values
of the Convention are protected in a real and effective manner”
appears to confirm that the jurisdictional limits will be difficult
to identify, if they exist at all. I find it incompatible with the
declared intention to respect the principle of legal certainty to
define the Court's temporal jurisdiction in such a vague and
far-reaching way.
In my
opinion, there must be a clear temporal connection between on the one
hand the substantive event – death, ill-treatment etc. –
and the procedural obligation to carry out an investigation and, on
the other, the entry into force of the Convention in respect of the
respondent State. This will be the case where the event occurred and
an investigation was initiated before the entry into force of the
Convention, but a significant part of that investigation was only
carried out after that date. Likewise where the event occurred or was
only discovered so close to the critical date that it was not
possible to commence an investigation before that date. Where on the
other hand no investigation was carried out despite knowledge of the
event or where the investigation was terminated before the critical
date, I would say that the Court would have jurisdiction only where
an obligation to carry out investigative measures was triggered by
relevant new evidence or information (see, mutatis mutandis,
Brecknell v. the United Kingdom, no. 2457/04, §§
70-71, 27 November 2007).
In
the present case, the death of the applicant's son occurred a little
more than a year before the entry into force of the Convention in
respect of Slovenia and, with the exception of the preliminary
investigation, all the criminal and civil proceedings were initiated
and conducted after that date (see paragraph 165 of the judgment). In
these circumstances, I agree that there is a sufficient temporal
connection between the relevant events and the entry into force of
the Convention to find that the Court has jurisdiction ratione
temporis to examine the applicants' procedural complaint under
Article 2. For the reasons stated in the judgment I agree that there
has been a violation of that Article.
CONCURRING OPINION OF JUDGE ZUPANČIČ
I
concur in the outcome in this case but consider it useful to add the
following remarks.
In
Moldovan and Others and Rostaş and Others v. Romania
((dec.), nos. 41138/98 and 64320/01, 13 March 2001), the
critical language of the decision goes as follows:
“In the present case, the Court notes that the
killings happened in September 1993 before the entry into force of
the Convention with regard to Romania, i.e. 20 June 1994. However, in
accordance with the generally recognised rules of international law,
the Convention only applies in respect of each contracting party to
facts subsequent to its coming into force for that party.
The possible existence of a continuing situation must be determined,
if necessary ex officio, in the light of the special
circumstances of each case (e.g., nos. 8560/79 and 8613/79 (joined),
Dec. 3.7.79, D.R. 16, p. 209). The Court must therefore verify
whether it is competent ratione temporis to examine the
present complaint.” (Emphasis added.)
It
would appear that in Blečić v. Croatia ([GC],
no. 59532/00, § 75, ECHR 2006 III), the Grand Chamber
somehow attempted to endorse the Moldovan decision by
including it in the summary of the relevant case-law. The subsequent
cases, such as Kholodov and Kholodova v. Russia ((dec.), no.
30651/05, 14 September 2006), have since then been employing a
formula combining the approaches from Moldovan and Blečić:
“Admittedly, the investigation into Mr Dmitriy
Khodolov's death and the trial of putative perpetrators continued
long after the ratification of the Convention by the Russian
Federation. However, the Court's temporal jurisdiction is to be
determined in relation to the facts constitutive of the alleged
interference. The subsequent failure of remedies aimed at redressing
that interference cannot bring it within its temporal jurisdiction
(see Blečić v. Croatia [GC],
no. 59532/00, § 77, ECHR 2006-...).
Since the Court is prevented ratione
temporis from examining the applicants' assertions
relating to the events in 1994, it cannot examine whether or not
these events gave rise to an obligation on the part of the Russian
authorities to conduct an effective investigation in the present case
(see Moldovan and Others v. Romania (dec.),
no. 41138/98, 13 March 2001).
Likewise, the alleged failure to ensure identification
and punishment of those responsible cannot be said to have
constituted a continuous situation since the Court is unable to
conclude that such an obligation existed [in the first place] (see
Voroshilov v. Russia (dec.), no. 21501/02, 8 December
2005).
The Court reiterates that Article 13 of the Convention
guarantees the availability at national level of a remedy where there
is an “arguable claim” of a violation of a substantive
Convention provision (see Boyle and Rice v. the United
Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
As the Court has found that [the facts underlying
the] applicants' complaint under Article 2 of the Convention [are]
outside its jurisdiction ratione temporis, it is
not competent to examine whether the applicants had an “arguable
claim” of a breach of a substantive Convention right.
Accordingly, their allegations under Article 13 also fall outside the
Court's competence ratione temporis (see Meriakri v.
Moldova (dec.), no. 53487/99, 16 January 2001). It follows that
this part of the application is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected pursuant to Article 35 § 4.”
(Emphasis added.)
The
logic of the decision in Kholodov rests upon the spurious
premise. It maintains, almost explicitly but at any rate implicitly,
that since the facts of the case are outside the Court's temporal
jurisdiction, criminal procedures originating in these facts, too,
are outside the Court's temporal jurisdiction.
However,
it is an established and logical precept for the court of last resort
not to (re)consider the facts, i.e., to leave this business to the
national courts. Thus, to maintain that our Court is prevented from
gauging the derivative procedures because it is prevented from
examining the facts, which it almost never does, of the historical
event is at best formalistic and at worst absurd.
The
key question, therefore, is the meaning of the phrase “facts
subsequent to its coming into force for that party.” More
specifically, the meaning of the word “facts” is the
central issue.
The
sophisticated approach to this question (of interpretation) would
maintain, as Hobbes and Alf Ross did, that outside the norm there are
no “facts”, that facts per se do not exist.
In
Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96,
35532/97 and 44801/98, ECHR 2001 II) we even had a situation in
which the simultaneous and clear existence of both the “facts”
and the norms, because they were not enforced, was, until the change
of (legal) regime, insufficient.
At
the very least, the facts do not become legally relevant unless (1)
the applicable norm pre-exists and (2) the norm is applied.
The
problem with Moldovan, a Section decision, is simply that it
sets out from a naïve premise that facts and laws (questiones
facti, questiones juris) may exist separately – and
independently of one another. It is true, of course, that the
historical event (the killing) may have happened at a certain point
in time, e.g., before the entry into force of the Convention.
However, if that event (“facts”) had not been registered
by the legal system, its legal echoes would never reach, for example,
Strasbourg.
Concerning
ratione temporis jurisdiction there are surprisingly few
combinations of event and procedures that comprise the gamut of
experiment. (1) Both the historical event and the subsequent
procedures might have been in the period prior to the Convention's
entry into force in respect of the country concerned. Clearly, even
if the procedures were allegedly in violation of the procedural limb
of Article 2 or 3, the case was ad acta before the
Convention's entry into force. (2) Both the historical event and the
subsequent procedures might have been posterior to the Convention's
coming into force in respect of the country concerned, in which case,
likewise, there is no ratione temporis issue. (3) However, if
the historical event occurred prior to the Convention's entry into
force whereas the procedures were posterior to that date, there are
further possible combinations: thus, in Kholodov, the case was
processed to a preponderant extent after the entry into force of the
Convention, whereas in Blečić the reverse was true.
Here
it is interesting to note that in Blečić the Court
maintained, in paragraph 85, that:
“... the alleged interference
with the applicant's rights lies in the Supreme Court's judgment of
15 February 1996. The subsequent Constitutional Court decision only
resulted in allowing the interference allegedly caused by that
judgment – a definitive act which was by itself capable of
violating the applicant's rights – to subsist. That decision,
as it stood, did not constitute the interference. Having regard to
the date of the Supreme Court's judgment, the interference falls
outside the Court's temporal jurisdiction.”
The
clear implication of this is that although in Blečić
both the historical event and most of the procedures took
place prior to the coming into force of the Convention in respect of
Croatia, it would have sufficed for the ultimate judgment of the
Croatian Supreme Court to have been posterior to the coming into
force of the Convention for the case to fall within the European
Court's temporal jurisdiction. In other words, the Moldovan
and Kholodov decisions are unmistakably irreconcilable
with Blečić.
Moreover,
this Court's subsidiary supervision of human rights, even by the
language of Article 41, comes into play only after the domestic
procedures have proved inefficacious. The Contracting Party, in this
case Slovenia, cannot be expected to be able to prevent medical
negligence and its sequelae. Ultra posse nemo tenetur –
No one can be expected to do the impossible.
The
State may, however, be expected to react vigorously through its
institutionalised procedures. At issue in all cases in which the
State is not directly involved in the killing, torture etc. as, for
example, in Selmouni v. France ([GC], no. 25803/94, ECHR
1999 V) and Jalloh v. Germany ([GC], no. 54810/00, ECHR
2006 ...), are solely its investigative, prosecutorial and
judicial procedures indirectly consequent upon the incriminated
killing or torture. The rest is the horizontal effect known as
Drittwirkung.
It
follows that the so-called “procedural limb” of Article 2
or 3, often in conjunction with Article 13, habitually represents the
only possible “facts subsequent to the Convention's coming into
force for that party” (supra, Moldovan). In this sense,
it can, after Šilih, be maintained that the “logic”
of Moldovan, Kholodov and similar cases has been superseded by
the language of paragraphs 159, 162 and 163 of Šilih.
Likewise, the impact of Blečić seems to have been
narrowed down to holding merely that the inadmissibility decision by
the Constitutional Court does not suffice to bring the case within
the European Court's temporal jurisdiction.
CONCURRING OPINION OF JUDGE ZAGREBELSKY JOINED BY JUDGES
ROZAKIS, CABRAL BARRETO, SPIELMANN AND SAJÓ
(Translation)
Like
the majority, I consider that there has been a violation of the
procedural limb of Article 2 of the Convention in the present case,
which concerns a death which occurred prior to the entry into force
of the Convention in respect of the respondent State. I agree with
the reasoning set out in paragraphs 153 et seq. of the judgment,
which enables the Court to conclude that the State is under an
obligation to start and carry out an effective investigation even
when the death took place before the critical date (see paragraph
159). This obligation “binds the State throughout the period in
which the authorities can reasonably be expected to take measures
with an aim to elucidate the circumstances of death and establish
responsibility for it” (see paragraph 157).
With
the exception of crimes that are not subject to statutory limitation,
events that occurred in the distant past will not necessarily give
rise to the application of the aforementioned principle. When the
Convention enters into force in respect of a State, the likelihood is
that there will no longer be any victims able to claim to be entitled
to an investigation or to complain to the Court of the lack or
ineffectiveness of an investigation. In any event, if the criminal
law is no longer applicable owing to the expiration of the limitation
period or if an investigation would be pointless because of the
disappearance of evidence and witnesses, there will be no
justification for imposing the obligation. However, this is an issue
relating to the merits of the case before the Court whereas the
question examined in the present judgment concerns the determination
of the Court's jurisdiction ratione temporis and,
consequently, the admissibility of the application.
Despite
this, the majority have found it necessary to indicate that “having
regard to the principle of legal certainty, the Court's temporal
jurisdiction as regards compliance with the procedural obligation of
Article 2 in respect of deaths that occur before the critical date is
not open-ended” (see paragraph 161 of the judgment). To my
mind, the Court may indeed be led by restrictions of a legal or
factual nature to decide in certain cases that the State is not under
a procedural obligation. However, as I have already mentioned, this
would not entail calling into question the Court's jurisdiction
ratione temporis, but excluding a violation of the procedural
limb of Article 2.
In my
view, the introduction (for which there was no need in the present
case) of the notion of “limits” on the “detachability”
of the procedural obligation from the substantive obligation under
Article 2 weakens the reasoning of the Court and makes the
application of the legal principle established by the Grand Chamber
difficult, debatable and unforeseeable. This is particularly true and
troublesome in the light of the vague wording used in paragraph 163
to define the “limits” in question. The Court will be
forced to carry out complex and questionable assessments on a
case-by-case basis that will be difficult to dissociate from the
merits of the case. The impact this is likely to have on “legal
certainty” (which the Court has rightly referred to) is, I
would venture, both obvious and harmful.
JOINT DISSENTING OPINION OF JUDGES BRATZA AND TÜRMEN
To
our regret, we are unable to agree with the majority of the Grand
Chamber that the Court has jurisdiction ratione temporis to
examine the applicants' complaint that the domestic authorities
failed to deal with their claim arising out of their son's death with
the level of diligence required by Article 2 of the Convention. In
our view, the Government's preliminary objection to the Court's
jurisdiction is well-founded and should have been upheld. In
consequence, we have voted against the finding of the majority that
there has been a violation of Article 2 in its procedural aspect.
In
its Blečić judgment (Blečić v. Croatia
[GC], no. 59532/00, § 70, ECHR 2006-III), the Court
reiterated that, according to the general rules of international law,
the provisions of the Convention do not bind a Contracting Party in
relation to any act or fact which took place or any situation which
ceased to exist before the date of entry into force of the Convention
with regard to that Party. It was the application of this rule which
led the Chamber in the present case to reject as inadmissible the
applicants' complaint of a violation of the substantive aspect of
Article 2, the Chamber noting that the applicants' son had died in
hospital on 19 May 1993 and that their complaint was
obviously based on facts which occurred and ended before the date of
ratification (28 June 1994) and was therefore incompatible ratione
temporis with the provisions of the Convention (see paragraph 90
of the judgment of the Chamber ).
In
the Blečić case the Court held that the Court's
temporal jurisdiction was to be determined “in relation to the
facts constitutive of the alleged interference” with a
Convention right and that if such interference occurred prior to
ratification, the subsequent failure of remedies aimed at redressing
that interference could not bring it within the Court's temporal
jurisdiction (paragraph 77). The Court went on to note that, where
the interference pre-dated ratification, while the refusal to remedy
it post-dated ratification,
“... to retain the date of the latter act in
determining the Court's temporal jurisdiction would result in the
Convention being binding for that State in relation to a fact that
had taken place before the Convention came into force in respect of
that State. However, this would be contrary to the general rules of
non-retroactivity of treaties” (paragraph 79).
The
issue raised by the present case differs from that in Blečić.
The complaint concerns not, as in that case, a failure to remedy
after the date of ratification an “interference” with a
Convention right occurring before that date but an alleged breach,
occurring after the date of ratification, of the positive obligation
of the State under Article 2 to investigate a death occurring before
that date. Nevertheless, the principles established in the Blečić
case are, in our view, of some importance in the present case. The
procedural obligation, if any, imposed on a State under Article 2
arises in principle at the moment when a death occurs at the hands of
agents of a State or, as in the present case, when the relevant
authorities of the State are made aware of a credible allegation that
the death resulted from medical negligence on the part of hospital
authorities. Although the obligation is an autonomous one, in the
sense that it is not dependent on the existence of a substantive
violation of Article 2, it is an obligation which not only derives
from the death but is integrally linked with it. Where, as in the
present case, the death occurs prior to the date of ratification, no
Convention obligation is imposed on the State under Article 2 in
either its substantive or procedural aspect and the Court has no
temporal jurisdiction to examine a complaint of a violation of
Article 2 in either of its aspects. To hold otherwise would, as in
the Blečić case, result in the Convention being
binding for that State in relation to a fact or situation (the death
and the omission to investigate the death) that had taken place
before the Convention came into force.
This
principle was established in the Court's decision in the case of
Moldovan and Others and Rostaş and Others v. Romania
((dec.), nos. 41138/98 and 64320/01, 13 March 2001), in which the
applicants complained, inter alia, of a violation of the
procedural aspects of Article 2 in relation to killings which had
occurred in September 1993 before the entry into force of the
Convention with regard to Romania on 20 June 1994. They further
complained under Article 3 that the authorities had failed properly
to investigate the participation of police officers in the attacks on
Roma residents during the Pogrom on the same date and that the
destruction of their property and belongings amounted to treatment
contrary to that Article.
In a
decision which was cited with approval by the Grand Chamber in the
Blečić case, the Court unanimously rejected the
claims under both Articles as falling outside its competence ratione
temporis. As to the former complaint the Court noted that
“... the alleged obligation under the Convention
of the Romanian authorities to conduct an effective investigation
capable of leading to the identification and punishment of all
individuals responsible for the deaths of the applicants' relatives
is derived from the aforementioned killings whose compatibility with
the Convention cannot be examined by the Court. It follows that the
complaint is inadmissible ratione temporis with the provisions
of the Convention within the meaning of Article 35 § 3.”
The
Court reached the same conclusion in relation to the Article 3
complaint, holding that the obligation to carry out an effective
investigation resulted from attacks which had occurred prior to the
date of ratification and whose compatibility with the Convention
could not, accordingly, be examined by the Court.
The
Court arrived at the same result in the case of Voroshilov v.
Russia ((dec.), no. 21501/02, 8 December 2005), dismissing a
complaint under the procedural aspect of Article 3 and under Article
13. The ill-treatment of which complaint was made took place in July
and September 1997 before the entry into force of the Convention in
respect of the Russian Federation on 5 May 1998.
Citing
the decision in the Moldovan case with approval, the Court
observed that the procedural obligation under Article 3 arises when
an individual makes a credible assertion of having suffered treatment
contrary to Article 3. It continued:
“However, since the Court is prevented from
examining the applicant's assertion relating to the events lying
outside its jurisdiction ratione temporis, it is unable to
reach a conclusion as to whether the applicant has made a “credible
assertion” as required by the above provision. Accordingly, it
cannot examine whether the Russian authorities had an obligation
under the Convention to conduct an effective investigation in the
present case... Likewise, the alleged failure to conduct the
investigation cannot be held to constitute a continuous situation
raising an issue under Article 3 in the present case, since the Court
is unable to conclude that such an obligation existed.”
The
Court went on to reject the Article 13 complaint on the same basis,
holding that it was “not competent to examine whether the
applicant had an 'arguable claim' of a breach of a substantive
Convention right and that his submissions in respect of Article 13
therefore also fall outside the Court's competence ratione
temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16
January 2001)”.
The
Court similarly declined jurisdiction to examine whether there had
been a breach of the procedural obligations of the State in respect
of a death which had occurred in 1994 in the case of Kholodov and
Kholodova v. Russia ((dec., no. 30651/05, 14 September 2006). The
investigation into the death had commenced prior to the date of
ratification but, as the Court found, had continued long after that
date, eventually resulting in the final acquittal of the alleged
perpetrators in March 2005. The Court rejected the complaint, citing
with approval its earlier decisions in the cases of Moldovan and
Voroshilov:
“Since the Court is prevented ratione temporis
from examining the applicants' assertions relating to the events in
1994, it cannot examine whether or not these events gave rise to an
obligation on the part of the Russian authorities to conduct an
effective investigation in the present case... Likewise, the alleged
failure to ensure identification and punishment of those responsible
cannot be said to have constituted a continuous situation since the
Court is unable to conclude that such an obligation existed...”.
The
decision of a differently constituted Chamber of the Court in the
case of Bǎlǎşoiu v. Romania ((dec.), no.
37424/97, 2 September 2003) represented a major departure from the
precedent set in the Moldovan case some two and a half years
before. The Chamber there decided that it had temporal jurisdiction
to examine a procedural complaint under Article 3 concerning
ill-treatment which had allegedly occurred in July 1993, having
rejected the substantive complaint on ratione temporis
grounds. It based its decision on the fact that the proceedings
against those responsible for the ill-treatment had continued after
the date of ratification of the Convention by Romania and had ended
with a final judgment of the Supreme Court of Justice in 2002.
However, it was not explained in the decision how the case was to be
distinguished from the Moldovan case, which had been cited by
the respondent Government in argument. Nor was it explained how the
mere fact that an investigation or proceedings continued after the
date of ratification could confer temporal jurisdiction on the Court
to examine whether there had been compliance with the State's
procedural obligations under Article 3 when, at the time of the
events complained of, the State was not bound by the Convention and
no such procedural obligation was thus imposed on the State.
While
we share the view of the majority that this apparent conflict in the
Court's case-law requires to be resolved, we cannot agree with the
majority's apparent preference for the approach in the Bǎlǎşoiu
case or with their reasoning, which is founded on the alleged
“detachability” of the procedural obligation from the
substantive obligation. It is argued that the procedural obligation
has not been considered dependent on whether the State is ultimately
found to be responsible for the death and that the Court has
consistently examined the question of procedural obligations under
Article 2 separately from the question of compliance with the
substantive obligation and, where appropriate, has found a separate
violation of Article 2 on that account even where no substantive
violation has been found.
We
have no quarrel with these propositions or with the majority's view
that the procedural obligation has evolved into a “separate and
autonomous duty”. Where we differ from the majority is as to
their view that the obligation is “detachable” from the
death which gives rise to it, in the sense that it is an obligation
which can be imposed on a State on or after the date of ratification
even where the death took place before that date. Nor can we agree
with the suggestion which is implicit in the judgment that, because
the procedural obligation “binds the State throughout the
period in which the State could reasonably be expected to take
measures to elucidate the circumstances of the death”, a State
which fails to carry out such an investigation into a death occurring
before the date of ratification or which continues beyond that date
an investigation which it has commenced without any Convention
obligation to do so, can become liable for a breach of its procedural
obligations from the moment of ratification. Divorcing the procedural
obligation from the death which gave rise to it in this manner would,
in our view, be tantamount to giving retroactive effect to the
Convention and rendering nugatory the State's declaration recognising
the Court's competence to receive individual applications (cf.,
Kadiķis v. Latvia (dec.), no. 47634/99, 29
June 2000; Jovanović v. Croatia (dec.), no. 59109/00,
ECHR 2002-II).
This
interpretation is open in our view to two further objections. In the
first place, it would appear to give rise to an inconsistency in the
Court's approach, depending on whether the lack of effective
investigation into a death occurring before the date of ratification
is examined under the procedural aspect of Article 2 or under Article
13, whose requirements have been held to be similar to but “broader
than a Contracting State's procedural obligation under Article 2 to
conduct an effective investigation” (see the Court's Kaya v.
Turkey judgment of 19 February 1998, § 107, Reports of
Judgments and Decisions 1998-I). While, applying the principle of
“detachability”, a complaint of a lack of effective
investigation could lead to the finding of a violation of Article 2,
a similar complaint under Article 13 would appear to be inadmissible.
This is not merely because the Court would be unable to examine
whether the applicant had an “arguable claim” of a breach
of a substantive Convention right (see the Voroshilov case
referred to above), but for the more fundamental reason that, where
the substantive complaint is inadmissible as being incompatible with
the Convention, a complaint under Article 13 is similarly
inadmissible, there being no “arguable claim” in such
circumstances (see, for example, Aliev v. Ukraine (dec.),
no. 41220/98, 25 May 1999).
More
importantly, the majority's approach would also, as the judgment
recognises, give rise to serious issues of legal certainty, if the
Court's temporal jurisdiction as regards compliance with the
procedural obligation of Article 2 in respect of deaths that occurred
before the date of ratification were to be regarded as open-ended.
The judgment seeks to dispel such risk by laying down first that,
where the death occurs before the date of ratification, only
procedural acts and/or omissions occurring after that date could fall
within the Court's temporal jurisdiction and secondly, that there
should exist “a genuine connection between the death and the
entry into force of the Convention... for the procedural obligation
imposed by Article 2 to come into effect” (judgment paragraphs
162-163).
In
our view, neither requirement is such as to prevent future
uncertainties arising. In particular, it is unclear whether by a
“genuine connection” between the death and the entry into
force of the Convention is meant a close temporal link between the
two or some other and, if so, what connection. This question does not
appear to be resolved by the subsequent explanation in the judgment
that “a significant proportion of the procedural steps required
by this provision... will have been or ought to have been carried out
after the critical date”. The application of this principle
appears to us to be especially problematic in the case of
“omissions”, where no, or no effective, procedural steps
to investigate a death have been taken prior to the date of
ratification and no such steps are taken after that date. In such an
event, even if a Convention obligation to investigate the death could
be held to arise at the moment of ratification, it is difficult to
see how the “significant proportion” test is to be
applied to the facts of any particular case. The uncertainty is in
our view further compounded by the concluding statement in paragraph
163 of the judgment that the Court would not exclude that, in certain
undefined circumstances, the connection between the death and the
entry into force of the Convention could also be based “on the
need to ensure that the guarantees and the underlying values of the
Convention are protected in a real and effective manner”.
For
these reasons, we are in favour of following the case-law set by the
decision in the Moldovan case, which appears to us to be more
faithful to the principles governing the liability of States for acts
or omissions occurring before the entry into force of the Convention,
to ensure greater coherence in the Court's case-law and to be more
compatible with the important principle of legal certainty.
We
would accordingly conclude that, even though in the present case the
investigative measures and legal proceedings relating to the death
which had begun before the date of ratification by the respondent
State continued after that date, the complaint concerning the breach
of the procedural obligations of the State falls outside the temporal
jurisdiction of the Court.
15. Since
we are unable to share the majority's view that Article 2 was
violated in the present case, we also voted against their conclusion
that, having regard to this finding, it was unnecessary to examine
separately the complaints under Article 6 and 13 of the Convention.
Had the
complaints been examined, we would have found a violation of Article
6 of the Convention on the grounds of the excessive length of the
proceedings, but no violation of Article 13.
As
to Article 41, we are divided as to whether sums should have been
awarded in respect of non-pecuniary damage and costs and expenses,
Judge Bratza voting in favour of such an award in deference to the
view of the majority under Article 2, but Judge Türmen voting
against the making of any award.