European Court of Human Rights

 

FIFTH SECTION

DECISION

Application no. 49278/09
Stuart and Rory GRAY
against Germany and the United Kingdom

The European Court of Human Rights (Fifth Section), sitting on 18 December 2012 as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Paul Lemmens,
          Helena Jäderblom,
          Paul Mahoney, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 September 2009,

Having regard to the information transmitted by the German Government on 24 November 2011 in reply to the Court’s related request of 2 November 2011,

Having deliberated, decides as follows:

THE FACTS




  The applicants, Messrs Stuart and Rory Gray, are British nationals and brothers. Mr Stuart Gray (the “first applicant”), a doctor, lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”), a businessman, lives in Darmstadt, Germany. They are represented before the Court by Mr T. Hall, a lawyer practising with Anthony Collins Solicitors LLP, Birmingham.

A.  The circumstances of the case




  The facts of the case, as submitted by the applicants and supplemented by information provided by the German Government in reply to the Court’s related request dated 2 November 2011, may be summarised as follows.

1.  Background to the case




  The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray” or “the deceased”) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom.




  Mr Gray suffered from kidney stones and from 2004 had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom’s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays.




  Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs.




  In 2006 the NHS’ National Patient Safety Agency (“NPSA”) issued a safer practice notice following a number of reports of deaths due to injections of patients with 30mg or higher doses of diamorphine. It emphasised the risks resulting from the similar packaging of different strengths of diamorphine ampoules and pointed out that the concerned health staff was not sufficiently trained as regards the precautions to be observed when administering higher doses of morphines. The NPSA therefore called on the NHS organisations concerned to assess their procedures for the labelling, storing and administering of controlled drugs.




  In 2007 two incidents were reported where TCN doctors had administered overdoses of diamorphine from palliative care boxes to patients on two separate occasions. Both cases involved doctors working out-of-hours shifts for TCN who had trained and practised in Germany and who had erroneously administered the 30mg diamorphine vial from the palliative care box to their patients for acute pain relief. On both occasions the patients’ lives could be saved by injection of an antidote following their transfer to hospital. In view of these incidents, the TCN head of clinical governance circulated a discussion paper in January 2008 proposing the introduction of a referee system, whereby a doctor cannot open the care boxes without permission from the duty manager at base. He further advised that the different dosages of diamorphine should be kept separate and that boxes for the provision of acute pain relief separate from the palliative care boxes should be introduced.




  On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray’s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT’s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills.




  U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U.’s professional competence prior to his first assignment the next day.




  U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intra-muscular injection. Some two hours after U. had left, Mr Gray’s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site.




  On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment.




  On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis.




  On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government (Bezirksregierung), Germany, and by letter of 11 March 2008 his German professional indemnity insurance of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation.




  By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father’s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts.




  A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as cause of Mr Gray’s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death.




  By a letter of 10 July 2008 to the deceased’s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased’s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake.




  On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed.




  It appears that shortly following Mr Gray’s death TCN put in place a referee system requiring that permission be obtained from the duty manager at base before an on call doctor is entitled to open the palliative care box. Subsequently pain relief boxes separate from the palliative care boxes were introduced and in a further step the 100mg doses of diamorphine were removed from the palliative care boxes.

2.  The criminal proceedings instituted against U. in the United Kingdom and Germany




  Following Mr Gray’s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence.




  On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation (Bundeskriminalamt) requesting in particular the supply of data with respect to U.’s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008.




  On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal Letter of Request to the Ministry of Justice of the Land North Rhine-Westphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U.’s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray’s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary.




  The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor (Oberstaatsanwalt) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police.




  Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings (Ermittlungsverfahren) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic law below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview.




  In accordance with the Letter of Request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U.’s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U.’s professional liability insurance, of the public health authorities at the Arnsberg District Government (Bezirksregierung) and the Westphalia-Lippe Medical Association (Ärztekammer) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom.




  Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police’s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray’s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray’s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U.’s treatment of the deceased had thus been inadequate and had violated basic principles of medical care.




  According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray’s partner following the latter’s death.




  By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional liability insurance.




  By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray’s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim’s relatives acting as joint plaintiffs to the prosecution (Nebenkläger) the right to inspect the files in such preliminary proceedings.




  On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter’s apology letter of 10 July 2008 to the deceased’s partner and the first applicant as well as the TCN’s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file.




  On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine.




  On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order (Strafbefehl) to be issued against U. convicting him of having caused Mr Gray’s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a fine of 5,000 euros (EUR). A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence.




  The Chief Public Prosecutor’s assessment of the facts of the case and U.’s guilt set out in the draft penal order relied on the circumstances of the case as reflected in the deceased partner’s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U.’s notification to his professional liability insurance dated 11 March 2008 as well as his apology letter to the deceased’s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim’s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased’s treatment and had thus violated basic principles of the medical profession.




  On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation.




  By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor (Generalstaatsanwalt) was the competent authority to deal with questions regarding U.’s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law below).




  On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final.




  By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions.




  By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file.




  On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below).




  By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) requested the Hamm Higher Regional Court (Oberlandesgericht) to declare U.’s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below).




  By a decision of 14 May 2009 ((2) 4 Ausl A 49/09 (134/09)) the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U.’s extradition inadmissible.




  By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court’s decision to the Colchester Magistrates’ Court in Chelmsford, United Kingdom.




  By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS’s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray’s death through the CPS’s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray’s death. A copy of the related penal order of 20 March 2009 was attached to the letter.




  On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential.




  In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08.




  As a consequence of the German authorities’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued.

3.  Subsequent investigations and proceedings against U. in Germany

(a)  The proceedings regarding U.’s fitness to practice medicine before the Arnsberg District Government




  After U. had informed the Arnsberg District Government of Mr Gray’s death in March 2008, the competent District health authorities commenced investigations regarding U.’s fitness to practice as a doctor (approbationsrechtliches Verfahren). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U.’s fitness to practice in general. Furthermore, at the applicants’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27 September 2010 on the occasion of which they provided further information on the circumstances of the case.




  Following completion of their investigations by the end of 2010 the health authorities, considering U.’s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U.’s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U.’s licence to practice medicine in Germany and discontinued the proceedings regarding U.’s fitness to practice.

(b)  The disciplinary proceedings before the Münster Administrative Court




  By written submissions of 15 April 2010 the Westphalia-Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008.




  By a decision dated 27 April 2011 of the competent Münster Administrative Court (file no. 14 K 791/10.T) sitting in a special formation as disciplinary jurisdiction for the healthcare professions (Berufsgericht für Heilberufe) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined 7,000 EUR. The decision became final on 4 June 2011.

4.  Subsequent investigations and proceedings against U. in the United Kingdom

(a)  The Inquest and resulting investigations




  An Inquest into the circumstances of Mr Gray’s death was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. U. declined to attend the Inquest. The Coroner found that U., in his dealings with patients on 16 February 2008, had been incompetent and that his conduct had not been of acceptable standard. He further pointed out that the induction process U. had undergone before his first shift as a locum doctor had been insufficient and inadequate. The Coroner established that Mr Gray had died as a result of the administration of 100mg diamorphine, a dosage that was possibly at least 10 times the normal therapeutic level. He concluded that U.’s actions qualified as gross negligence manslaughter and returned the verdict that Mr Gray had been unlawfully killed.




  The Coroner made a report to the Secretary of Health under Rule 43 of the Coroners Rules 1984 with a view to preventing a recurrence of similar fatalities. He suggested, inter alia, to establish clear criteria regarding the qualifications foreign locum doctors have to meet before being admitted for out-of-hours services, to provide them with a proper induction course and to guarantee their monitoring as well as to ensure supervision of the quality standards of out-of-hours service providers.

(b)  The proceedings before the General Medical Council Fitness to Practice Panel




  On the occasion of a meeting from 2 to 18 June 2010, which U. did not attend, the GMC Fitness to Practice Panel further investigated the circumstances of the incidents of 16 February 2008 and considered additional evidence obtained from medical expert witnesses, the deceased’s partner etc. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U.’s name from the medical register in the United Kingdom.

(c)  The applicants’ claims for compensation




  On 9 June 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT under section 6 of the Human Rights Act 1998 together with claims for damages under the Law Reform (Miscellaneous Provisions) Act (1934). In their written submissions to the court dated 9 June 2009 the applicants argued in particular that in administering the 100mg diamorphine dose without any precautions to ensure Mr Gray’s safety, U. had acted unlawfully and had breached the deceased’s right under Articles 2 and 8 of the Convention. U. had acted as a servant or agent for TCN and Cambridgeshire PCT which were thus to be held liable for his actions. Moreover, all three defendants had failed to ensure that the precautions required by the relevant provisions of domestic law pertaining to the supply and use of controlled drugs had been observed.




  At the Court’s request by letter of 2 July 2012 to clarify the status of the pending civil proceedings, the applicants replied on 6 July 2012 that their compensation claims had been settled with respect to all three defendants by consent orders of December 2009, January and August 2010 respectively on payment of 25,000 pounds sterling (GBP) by U., GBP 5,000 by TCN and GBP 10,000 by Cambridgeshire PCT, plus legal costs in each case. According to the terms of the consent orders, upon payment of the sums awarded, the defendants have been discharged from all further liability to the claimants arising out of the subject matter of the claims.

(d)  The inquiry by the House of Commons Health Committee on the use of overseas doctors in providing out-of-hours services




  As a result of the circumstances of Mr Gray’s death, the House of Commons Health Committee carried out an inquiry and published a report on 8 April 2010 on “The use of overseas doctors in providing out-of-hours services”. The report states, inter alia, that under the system applicable at the time of the events at issue, overseas locum doctors who were completely unfamiliar with the NHS and its systems could be assigned to treat patients without a thorough induction training and mentoring process. Some PCTs had failed in their responsibility to monitor the standards of out-of-hours care providers. The report emphasised that it was imperative for PCTs to ensure that contracts with out-of-hours service providers set out rigorous standards in respect of the recruitment, induction and the training locum doctors should receive.

(e)  The Care Quality Commission’s investigation into the out-of-hours services provided by TCN




  In June 2009 NHS requested the Care Quality Commission (CQC) to conduct an independent review of the out-of-hours arrangements with TCN following the death of Mr Gray. The CQC is a public body, overseen by the Department of Health which was established under the Health and Social Care Act 2008 and began operating on 1 April 2009 in its capacity as independent regulator of health and adult social care in England. The CQC issued a first progress report in October 2009 followed by the publication of its final report in July 2010. The report states that TCN’s systems for medicine management at the time of the events at issue had been inadequate, leading among other things to controlled drugs being stored and administered inappropriately. Furthermore, the induction and training of front line clinical staff had been poor. The report further denounces that TCN failed to respond quickly enough to the concerns that emerged from the National Patient Agency’s alert in 2006 and the two incidents involving overdoses of diamorphine in 2007. Although these incidents had certain key factors in common, the TCN clinical governance group had not considered that there was a systemic problem and had failed to react accordingly. The fundamental changes that might have helped to prevent similar incidents had only been introduced after Mr Gray’s death. For instance, the referee system had been introduced the day after Mr Gray had died only, the introduction of separate pain relief boxes had occurred in May 2008 and the removal of 100mg diamorphine ampoules from the palliative care boxes in September 2008. The report further criticizes that the PCTs standards of commissioning out-of-hour services from TCN and the related contract and out-of-hours service performance monitoring had been insufficient. No common approach existed among PCTs as regards the criteria for admission of GP’s to their respective Performers Lists and the level of scrutiny of applications to be admitted to such lists had not been equal. Moreover, the PCTs had failed to systematically monitor the care provided and to ensure that new performers were familiar with local NHS structures and services.

B.  Relevant domestic and international law and practice

1.  Relevant German law in connection with the criminal proceedings instituted against U.




  Pursuant to Article 222 of the German Criminal Code (Strafgesetzbuch) a person causing the death of another person through negligence shall be liable to imprisonment of not more than five years or a fine. Article 12 stipulates that unlawful acts punishable by a minimum sentence of less than one year’s imprisonment or by a fine shall be qualified as misdemeanours.




  Articles 5 to 7 of the Criminal Code deal with the jurisdiction of Germany for offences committed abroad. The relevant part of Article 7 stipulates that German criminal law shall apply to offences committed abroad if the act constitutes a criminal offence at the place where it was committed and if the offender was a German national at the time he committed the offence.




  In accordance with Article 152 of the German Code of Criminal Procedure (Strafprozessordnung) the public prosecution authorities shall, as a rule, be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications that an offence was committed. Article 160 stipulates that as soon as the public prosecution authorities obtain knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether a bill of indictment is to be issued.




  The rules concerning a conviction of an offender by penal order are to be found in Articles 407 to 412 of the Code of Criminal Procedure. Article 407, as far as relevant, provides that in proceedings before the criminal court judge a sentence for an offence that qualifies as a misdemeanour may be imposed by a written penal order without a main hearing upon written application by the public prosecution office. The public prosecution authorities shall file such application, if they do not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. It shall constitute the formal bill of indictment. Only certain sentences may be imposed for an offence by penal order, such as, inter alia, a fine or - where the accused is represented by counsel - imprisonment not exceeding one year, provided its execution is suspended on probation. Article 408 § 3 stipulates that the judge shall comply with the public prosecutor’s application if he has no reservations about issuing the penal order. He shall set down a date for the main hearing if he has reservations about deciding the case on the basis of a written procedure, if he wishes to deviate from the public prosecutor’s legal assessment in the application to issue the penal order, or if he wishes to impose a legal consequence other than the one applied for by the public prosecutor and the latter disagrees. In accordance with Article 409 of the Code of Criminal Procedure the penal order shall contain information as regards, inter alia, personal data of the defendant and of any other persons involved, the offence the defendant is charged with, the time and place of its commission, the evidence on which the statement of facts and legal assessment are based as well as the legal consequences imposed. It should further advise on the possibility of filing an objection against the penal order and that the latter shall become effective and executable if no such objection is lodged within the time-limit of two weeks following its service in accordance with Article 410 of the Code of Criminal Procedure. Where no objection is lodged the penal order shall be equivalent to a final judgment.




  Pursuant to Article 201 of the Code of Criminal Procedure the presiding judge shall communicate the bill of indictment to the persons entitled to join the prosecution as joint plaintiffs (Nebenklagebefugte) if they so request. Article 395 provides that a person whose children, parents, siblings, spouse or civil partner were killed through an unlawful act may join the public prosecutor as joint plaintiffs to the prosecution (Nebenkläger). Pursuant to Article 396 § 1 a declaration to join in penal order proceedings shall only take effect when the judge decides to schedule a date for the main hearing. Article 400 provides that joint plaintiffs to the prosecution may not contest a judgment with the objective of another legal consequence of the offence being imposed.

2.  Relevant German and international law in connection with the extradition proceedings instituted against U.




  The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002584/JHA) provides in its Article 1 that Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 4 specifies that the judicial authority of a Member State may refuse to execute a European arrest warrant against a person where the latter is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based. Pursuant to Article 3 the executing judicial authorities of a Member State shall refuse to execute a European arrest warrant if it has come to their knowledge that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.




  Pursuant to section 1 of the German Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen (IRG)) its provisions shall govern the relations between Germany and foreign States regarding legal assistance in criminal matters. It further specifies that provisions of international treaties shall take precedence over the provisions of the Act to the extent that they have become directly applicable in the domestic legal order. Pursuant to section 80 (1) of the Act the extradition of a German citizen to a Member State of the European Union for the purpose of prosecution shall not be admissible unless measures are in place to ensure that the requesting Member State after a final conviction to a sentence of imprisonment or other sanction will offer to return the person sought, if he so wishes, to Germany for the purpose of enforcement and unless the offence has a substantial link to the requesting Member State. The competent Higher Regional Court in Germany, acting upon application of the relevant public prosecutor, decides on the admissibility of an extradition request (see section 29 of the Act). In accordance with section 83 b (1) of the Act, extradition may be refused if criminal proceedings are pending against the person sought in Germany for the same offence as the one on which the extradition request is based. Furthermore, section 9 stipulates that extradition shall not be granted in the event the offence at issue is also subject to German jurisdiction and a domestic court or other domestic authority has rendered a final decision against the prosecuted person in this respect.

3.  Relevant domestic law and practice in the United Kingdom

(a)  English law relating to gross negligence manslaughter




  Involuntary manslaughter is a crime under common law. The four stage test in cases of gross negligence was set out in R. v. Adomako (1994) 3 All ER 79 by the House of Lords. It involves (a) the existence of a duty of care to the deceased; (b) breach of that duty of care which (c) causes (or significantly contributes) to the death of the victim; and (d) the breach should be characterised as gross negligence justifying a conviction.

(b)  Proceedings for injury and death caused by negligence




  Claims arising from a death caused by negligence may be brought under the Fatal Accidents Act 1976 (“the 1976 Act”) or the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). The 1934 Act enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of death together with funeral expenses. The 1976 Act enables those who were financially dependent on the deceased to recover damages for the loss of support.

(c)  Human Rights Act 1998 (“HRA”)




  Section 3 of the HRA provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 renders the relevant public authority liable under section 7 of the HRA and a judge has the power to award damages under section 8 of the HRA.

(d)  Coroners and Inquests




  Section 8(1) of the Coroners Act 1988 (the “1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that a person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown. Rule 36 of the Coroners Rules 1984 requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 36(2) specifically provides that neither the Coroner nor the jury shall express any opinions on any other matters. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person. On 11 March 2004 the House of Lords decided (R. (Middleton) ν. West Somerset Coroner [2004] 2 AC 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of Inquests to date was incompatible with the procedural requirements of Article 2 of the Convention. Using the interpretation mechanism of section 3 of the HRA, the House of Lords extended the Inquest regime so that “how” (section 11(5)(b)(ii) of the 1988 Act and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning “by what means and in what circumstances” the deceased came by his death. Lord Bingham clarified that, however the jury’s extended factual conclusions were to be conveyed, Rule 42 was not to be infringed so that there could be no finding of criminal or civil liability. While acts or omissions could be recorded, expressions suggestive of civil liability, in particular neglect, carelessness and related expressions were to be avoided.




  According to Rule 43 the Coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the Inquest is being held may announce at the Inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.

COMPLAINTS




  The applicants, relying on the Member State’s general duty under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in its Section I, complained about a violation of Article 2 under its substantive aspect as far as the United Kingdom is concerned and under its procedural limb as regards both the United Kingdom and Germany. In each case they alternatively invoked a breach of Articles 8, 13 and 14 of the Convention.




  Relying on Article 2 the applicants complained that the British authorities failed to implement appropriate measures to safeguard life within the country’s jurisdiction. This right included a duty for the State to put in place effective criminal law provisions to deter offences against the person. They further alleged that both Germany and the United Kingdom had failed to secure accountability for the grossly negligent killing of U. in respect of their father’s death, an offence that was so serious that an adequate and sufficient criminal remedy was required. The British authorities had not taken the necessary steps in securing that the German authorities would refrain from prosecuting U. and, consequently, criminal investigations followed by an adversarial criminal court procedure could not be instituted against him in the United Kingdom. The German authorities for their part had concealed their intention to prosecute U. in Germany from the British authorities and the applicants in order to enable his conviction in Germany, thus allowing for a milder sentence than U. would have expected in the United Kingdom and preventing his extradition. Given the gravity of the offence at issue, the summary written penal order proceedings and the inadequate sentence imposed by the Witten District Court were not sufficient to discharge the procedural guarantees inherent in Article 2. Furthermore, the German authorities had failed to inform the deceased’s next of kin of the domestic proceedings and had thus deprived them of any possibility to be involved and participate in the latter.




  With reference to the deceased’s right to physical and moral integrity guaranteed under Article 8 of the Convention, the applicants invoked that at the time of the events at issue a competent and regular supervisory control of out-of-hours locum services provided by the NHS had not existed in the United Kingdom. Under these circumstances it was even more evident that an effective criminal remedy for victims of severe interferences with their right to physical and moral integrity as a consequence of medical malpractice was required. In addition, the applicants contended that the loss of their father had infringed their right to respect for family life under Article 8.




  Under Article 13 of the Convention the applicants complained that both Member States had failed to provide for an adequate and sufficient criminal remedy with respect to the aforementioned violations. The criminal proceedings conducted in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence and in any event U.’s resulting conviction by the District Court had become final and could no longer be challenged. Criminal proceedings in the United Kingdom were blocked due to the German authorities’ refusal to extradite U. The Coroner’s Inquest as well as the civil claims for damages brought before the English courts did not constitute an effective remedy for the violation of Article 2 of the Convention in the instant case.




  Lastly, the applicants alleged that they had been discriminated against by both Member States by reason of their national origin in breach of Article 14 of the Convention.

THE LAW

A.  The applicants’ complaints in respect of Germany




  The applicants complained under Article 2 of the Convention, read in conjunction with the State’s general duty under its Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, that Germany did not provide for an adequate or effective official investigation into their father’s death. They relied in this respect on the procedural obligations inherent in Article 2 § 1 which provides in its first sentence:

“1.  Everyone’s right to life shall be protected by law. ...”




  The applicants further complained that U.’s conviction by the Witten District Court could no longer be challenged since it had become final. They relied on Article 13 in this respect, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”




  The Court finds that the entirety of the applicants’ complaints relate in substance to an alleged failure by the German authorities to discharge their procedural obligations under Article 2 § 1 of the Convention and therefore fall to be examined under that provision with no separate issue arising under its Article 13.




  The applicants maintained that given the gravity of the offence committed by U., the summary written penal order proceedings conducted against him in Germany and the allegedly inadequate sentence imposed by the Witten District Court were not sufficient to discharge the procedural guarantees enshrined in Article 2. The criminal proceedings in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. Moreover, the German authorities had failed to inform the deceased’s next of kin of the domestic proceedings and had thus deprived them of any possibility to get involved and participate in the latter. The applicants contended in this connection that the German authorities had concealed their intention to prosecute and convict U. in Germany with a view to preventing his extradition to the United Kingdom where he would have expected a heavier sentence for having caused their father’s death through negligence.




  The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaints. It is therefore necessary to give notice of this part of the application to the German Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B.  The applicants’ complaints in respect of the United Kingdom




  Relying on the substantive aspect of Article 2 read in conjunction with Article 1 of the Convention the applicants complained that the British authorities failed to implement appropriate measures to protect the life of their father. They further invoked a breach of their deceased’s father right to physical and moral integrity since at the time of the events at issue a competent and regular supervisory control of out-of-hours locum services provided by the NHS had not existed in the United Kingdom. Moreover, the loss of their father had infringed their right to respect for family life. The applicants relied in this respect on Article 8 of the Convention which provides as far as relevant:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence. ...”




  The Court finds that these complaints, in their entirety, refer to a violation of the United Kingdom’s obligation to implement appropriate measures with a view to safeguarding life within the country’s jurisdiction and therefore fall to be examined under Article 2 § 1 of the Convention.




  The applicants also complained that the investigations into their father’s death had not been adequate or effective as required by the procedural obligations imposed by Article 2 of the Convention. The British authorities had not taken the necessary steps to ensure that the applicant could be tried and convicted in criminal proceedings conducted in the United Kingdom. Relying on Article 13 of the Convention, the applicants argued that the Coroner’s Inquest as well as the civil claims for damages brought before the English courts had not constituted an effective remedy for the violation of Article 2 of the Convention in the instant case.

1.  The complaint concerning the positive obligation to protect life




  The Court recalls at the outset that the applicants have brought claims in negligence against U., TCN as well as Cambridgeshire PCT with the High Court under section 6 of the Human Rights Act 1998 in connection with their father’s killing alleging a breach of the latter’s rights under Articles 2 and 8 of the Convention. These claims have been settled with respect to all three defendants by consent orders of December 2009, January and August 2010 respectively on payment of GBP 25,000 by U., GBP 5,000 by TCN and GBP 10,000 by Cambridgeshire PCT, plus legal costs in each case. According to the terms of the consent orders, upon payment of the sums awarded, the defendants have been discharged from all further liability to the claimants arising out of the subject matter of the claims.




  The Court reiterates in this connection that in respect of a complaint of a substantive violation of Article 2 of the Convention, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy. Where a relative accepts a sum of compensation in settlement of civil claims and renounces further use of local remedies therefore, he or she will generally no longer be able to claim to be a victim in respect of those matters (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; Hay v. the United Kingdom (dec.), no. 41894/98, 17 October 2000; and Bailey v. the United Kingdom (dec.), no. 39953/07, 5 September 2007).




  In so far as the applicants’ complaint appears to indicate that civil proceedings were per se an ineffective way of challenging the deficiencies in the British health system which the applicant maintained constituted a violation of Article 2 of the Convention, the Court would note that civil proceedings are a standard method of challenging negligent conduct and practices of official bodies (see Caraher, cited above). Within the scope of the proceedings brought before the High Court, the applicants did not only call into question the authorities’ responsibility for U.’s actions in his capacity as a servant or agent for TCN and Cambridgeshire PCT but also argued that the NHS authorities themselves had failed to observe the precautions required by the relevant provisions of domestic law. There is nothing to suggest that the applicants in the present case could not have pursued their claims for negligence and obtained the domestic courts’ findings as to the alleged inadequacies and failings of the British authorities and their causal link with their father’s death. They chose, however, to settle those proceedings without obtaining such a determination. It is not for the Court, in those circumstances, to undertake the role of a first instance tribunal of fact and law (see Hay, cited above).




  The Court further notes that there is no indication that the Government have attempted to avoid compliance with their obligations under the Convention by means of the mere payment of money. The circumstances of Mr Gray’s death and the underlying deficiencies in the British health system have been the subject of a report addressed by the Coroner to the Secretary of Health which led to investigations at parliamentary level as well as to an independent review by the Care Quality Commission. The findings of these inquiries as regards the facts of the case as well as the related shortcomings of the British health system have been disclosed in reports that were made available to the public and subject to public and political debate. The Court finally notes that there is no suggestion on the part of the applicants that the amount of compensation awarded by the English courts was inadequate.




  Accordingly, the Court finds that, in bringing civil proceedings for damages in respect of the death of their father, the applicants have used the domestic remedies available and that, in settling those claims for a sum of compensation and in renouncing further use of these remedies, they may no longer claim to be a victim of a violation of the substantive guarantees of Articles 2 of the Convention within the meaning of Article 34 of the Convention.




  It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2.  The complaint regarding the procedural obligation to carry out effective investigations




  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, Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I, and Powell, cited above).




  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 v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII). 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 v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII).




  The Court observes that in the case at hand the applicants did not in any way suggest that their father’s death was intentional. The Court further notes that the present application does not concern a case where the circumstances surrounding the death were suspicious or unclear. The cause of Mr Gray’s death and U’s involvement in the underlying events were conclusively established in due course after the applicants’ father died in February 2008. Police inquiries were instituted in the United Kingdom promptly after the incident. At the end of February 2008 U. was heard by the General Medical Council in London. A post-mortem was carried out on 25 June 2008. U. also acknowledged responsibility for the medical malpractice in his apology letter to the deceased’s partner and the first applicant in July the same year and made a full confession in the course of the criminal proceedings subsequently instituted against him in Germany.




  The Coroner’s Inquest provided a further opportunity to investigate the factual circumstances leading to the applicant’s death. The Court observes in this context that the applicants have not pointed to any failure by the Coroner to admit relevant, available evidence nor have they challenged any other shortcomings in the Inquest proceedings or the evidentiary conclusions reached by the Inquest. The latter not only returned the verdict that Mr Gray had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of the Coroner’s report to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. On the occasion of the proceedings conducted by the General Medical Council regarding U.’s fitness to practice the circumstances of Mr Gray’s death were further investigated and additional evidence from expert witnesses and the deceased’s next of kin was considered.




  In addition, the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The Court considers that in the circumstances of the present case such action for damages could be regarded as a remedy that was available to the applicants with a view to further substantiating their allegations regarding the extent of U.’s responsibility for their father’s death. By settling the claims against U. the applicants deprived themselves of such additional possibility for shedding light on the circumstances of their father’s death. The Court recalls that it has previously held that where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle not only no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person (see §§ 83 et seq. above) but also with regard to the investigations carried out (see Powell, cited above).




  Even assuming that the applicants can still claim to be a victim of a violation of the procedural guarantees of Article 2 and notwithstanding its finding that the institution of civil proceedings was sufficient to discharge the United Kingdom’s procedural obligations under Article 2 in the instant case, the Court notes that there is nothing to establish that the criminal investigations initiated on the initiative of the British authorities in relation to Mr Gray’s death fell short of the requirements of Article 2 § 1 under its procedural aspect.




  There is no suggestion on the part of the applicants that these proceedings were not conducted in line with the relevant provisions of domestic law nor do they contest that the criminal investigations in the United Kingdom were actually blocked once U.’s extradition from Germany had been halted and that it was thus not imputable to the British authorities that the proceedings could not be pursued. The Court further observes that the applicants’ allegations that the British authorities did not take sufficient positive steps to prevent U.’s conviction in Germany so as to enable his extradition to the United Kingdom have not been further substantiated. It notes in this context that the German authorities were obliged to institute criminal proceedings against U. by operation of domestic law once they had learned of his involvement in the events surrounding Mr Gray’s death and consequently had a basis for their decision not to extradite U. to the United Kingdom in accordance with the relevant domestic and international law. There is nothing to establish that, as indicated by the applicants, the German authorities would have agreed to U.’s extradition if the EAW had been issued earlier by the British authorities.




  The Court further observes that, in reality, the applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It would point out in this respect that the procedural guarantees enshrined in Article 2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State. It reiterates in this context that the procedural obligation under Article 2 is not an obligation of result but of means only (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).




  It follows that this part of the application must also be dismissed as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.




  Having regard to the above considerations the Court further finds that no separate issue arises with respect to the applicants’ related complaint under Article 13 of the Convention.

C.  The remainder of the applicants’ complaints




  The applicants further submitted that they had been discriminated against by both Germany and the United Kingdom by reason of their national origin in breach of Article 14 of the Convention which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”




  The Court notes that even assuming exhaustion of domestic remedies for the purposes of Article 35 § 1 of the Convention in this respect, the applicants have not substantiated their discrimination complaint in any way or provided factual evidence in its support.




  Accordingly, this part of the application must also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the conduct of an effective criminal investigation into their father’s death in Germany;

Declares the remainder of the application inadmissible.

   Claudia Westerdiek                                                             Mark Villiger
            Registrar                                                                         President