THIRD SECTION
DECISION
Application no. 25364/15
Georgios ARESTEIDOU and Pantelitsa ARESTI
against Cyprus
The European Court of Human Rights (Third Section), sitting on 14 December 2021 as a Committee composed of:
Anja Seibert-Fohr, President,
Georgios A. Serghides,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 25364/15) against Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 May 2015 by two Cypriot nationals, Mr Georgios Aresteidou and Ms Pantelitsa Aresti, who were born in Acheritou and Famagusta, respectively, and live in Famagusta (“the applicants”), represented by Ms A. Klaedes, a lawyer practising in Nicosia;
the decision to give notice of the application to the Cypriot Government (“the Government”), represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus, Representative of Cyprus to the European Court of Human Rights;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT-MATTER OF THE CASE
1. The case concerns allegations of medical negligence and the remedies available to the applicants in this respect.
2. Following a car accident, the applicants’ son (F.A.) was hospitalised in Cyprus and subsequently in Germany, where he died. On 4 February 2015 F.A.’s wife and daughter - as administrators of his estate - filed a civil action (no. 434/2015) for medical negligence in accordance with the Civil Wrongs Act (Cap. 148), claiming, inter alia, damages for pain and suffering on behalf of the deceased, damages for bereavement, loss of income, plus damages for a violation of Articles 2 and 8 of the Convention. The applicants were not parties to the civil proceedings.
3. The applicants complained under Article 2 of the Convention about the lack of investigation into the circumstances surrounding the death of their son, which was allegedly owed to medical negligence, and that under Cap. 148 they allegedly did not have locus standi to instigate civil proceedings and claim damages for medical negligence as they were neither the administrators of F.A.’s estate nor his dependants.
THE COURT’S ASSESSMENT
4. The applicants did not argue that the State failed to put in place an effective regulatory framework, nor did their complaints fall under the very exceptional circumstances in which the responsibility of the State may be engaged under the substantive limb of Article 2 (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 186-90, 19 December 2017). Their complaints are limited to the State’s procedural obligations concerning the requirement to set up an effective judicial system to establish the cause of death and make accountable those responsible (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, §51, ECHR 2002‑I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII).
5. Section 58 of Cap. 148 provides the right to commence a civil action for an act – such as medical negligence – which has caused death. The said action allows domestic courts to establish the facts, examine the quality of medical care provided to patients and the responsibility of those at fault. Such action may be brought for the benefit of the deceased’s dependants (including parents) and may include, in addition to pecuniary claims, a claim for damages for bereavement. Damages for bereavement may be granted to the deceased’s spouse and children, and in their absence, to the deceased’s parents. Such action was initiated by F.A.’s spouse and child (see paragraph 1 above).
6. In addition, claims for human rights violations - such as claims alleging a violation of the right to life - could be pursued in the civil courts against those responsible, with a view to recovering from them, inter alia, just and reasonable compensation for any damage suffered as a result (see the examples cited in Danilczuk v. Cyprus, no. 21318/12, §§ 23-24, 3 April 2018, and Shacolas v. Cyprus, no. 47119/99, § 82, 4 May 2006).
7. The Government provided domestic case-law indicating that the possibility to obtain non‑pecuniary damages for victims of human rights violations was not limited to certain degree of kinship (i.e. spouse and children, or parents) (the Government rereferred, in particular, to the following relevant domestic decisions Attorney General v. Andriani Palma and others, civil appeal no. 44/2013, 19 November 2015; Attorney General v. Vasos Vasileiou as administrator of the estate of the deceased Christofi B. Pashia, civil appeal no. 381/2010; and Xenofontos and Others v. Attorney General, civil action no. 40/2013, 31 December 2018).
8. If the applicants had doubts concerning their standing in civil action no. 434/15 – which they did not try to resolve by applying to the domestic courts with a relevant request – they could initiate a separate civil action for a violation of their human rights. Mere doubts on the part of the applicants regarding the effectiveness of that remedy cannot not absolve them from the obligation to try it (see Cauchi v. Malta, no. 14013/19, § 48, 25 March 2021, and cases cited therein).
9. The applicants also raised other complaints under various Convention provisions. These complaints concern the same matter and are, in essence, a reformulation of the complaint dealt above under Article 2.
10. In the circumstances described above, the Court concludes that the case must be rejected in its entirety for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 January 2022.
Olga Chernishova Anja Seibert-Fohr
Deputy Registrar President