CASE OF GARRIDO HERRERO v. SPAIN

 

 

THIRD SECTION

CASE OF GARRIDO HERRERO v. SPAIN

(Application no. 61019/19)

 

 

 

JUDGMENT
 

Art 2 (procedural) • Ineffective investigation into cause of applicant’s child’s death following alleged failure in ventilator sustaining life after road traffic accident • Criminal investigation excessively long and too narrow in scope • Failure to obtain necessary expert evidence

 

STRASBOURG

11 October 2022

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Garrido Herrero v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

 Georges Ravarani, President,

 Georgios A. Serghides,

 María Elósegui,

 Anja Seibert-Fohr,

 Peeter Roosma,

 Frédéric Krenc,

 Mikhail Lobov, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 61019/19) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms María Isabel Garrido Herrero (“the applicant”), on 12 November 2019;

the decision to give notice to the Spanish Government (“the Government”) of the complaints concerning Articles 2 and 6 of the Convention;

the parties’ observations;

Having deliberated in private on 13 September 2022,

Delivers the following judgment, which was adopted on that date:

THE FACTS

1.  The applicant was born in 1960 and lives in Orihuela. She was represented by Mr J. García Espinar, a lawyer practising in Madrid.

2.  The Government were represented by Mr A. Brezmes Martínez de Villarreal and Mr L. Vacas Chalfoun, Agents of the Kingdom of Spain to the European Court of Human Rights.

3.  The facts of the case may be summarised as follows.

4.  The applicant’s daughter was born on 29 July 2005. She was involved in a traffic accident in March 2010. She was initially admitted to the La Arrixaca de Murcia Hospital for three months, and was later transferred to the Guttmann Institute of Badalona. On 15 March 2011 she was discharged from the hospital and transferred to her home. As a result of the accident, the child was left in need of assisted ventilation (she was permanently connected to a ventilator to sustain life). After being discharged from hospital, she was assisted by the applicant, who was herself a doctor. The company that distributed and maintained the ventilator which was provided to the child (hereinafter, “the distributor” or “the company”), was also responsible for sending technicians to the applicant’s home, in order to service the ventilator and supply the necessary disposable medical equipment.

5.  On 4 March 2012 the child fell into a coma following an alleged fault in her ventilator, which ultimately led to her death the following year (see paragraph 14 below). This resulted in the child having to be hospitalised again.

6.  On 4 May 2012, following a diagnosis of the child’s brain death, the applicant requested a voluntary discharge from hospital and took the child home under her care.

7.  On 19 July 2012, the manufacturer sent a notice (“Urgent Field Safety Notice”) where it informed the distributor that a malfunction could occur in the operation of that particular model of ventilators. That potential malfunction was related to the possible failure of a component called condenser C53. The possible malfunction of this component could result, according to the notice, in ventilator failure due to the ventilator’s inability to automatically switch from AC power to internal battery operation when the ventilator is disconnected from the electrical network or when there is a power failure during use. In that case, an audible alarm would sound for a minimum of 10 seconds. The ventilator would restart by connecting it to the mains or external battery. The manufacturer and the distributor had agreed in principle to replace all affected components of all the ventilators. Their technical repair solution implied a concrete plan for the delivery of the necessary spare parts which would be developed by the manufacturer, as the legally responsible company for the equipment, and the distributor would replace the affected components as a matter of urgency as soon as the new spare parts were received from the manufacturer. In addition, they committed to use stock equipment of the same model of the ventilator and without this problem in order to speed up the replacement as much as possible. According to the manufacturer, no failures had occurred so far for that reason but the company had nevertheless decided to take that preventive action to avoid any future failures due to this degradation of the condenser.

8.  On 31 August 2012 the applicant lodged a criminal complaint for bodily harm caused by serious negligence against the distributor, against the manufacturer of the ventilator, and against their respective insurance companies. She considered that they were both responsible for the child’s condition because (i) the ventilator had not been appropriate for a child, since one of the pieces attached to it (called “the T-piece” or “the tubular piece”) was not suitable for paediatric purposes and did not adequately fit the ventilator, which had resulted in its disconnection, causing severe damage to her daughter; (ii) the alarm system was not connected and the alarm signal did not light up when the machine failed; and (iii) according to the applicant, the distributor had admitted that the manufacturer had previously informed the distributor that a failure in the ventilator could occur.

9.  The judicial pre-trial proceedings commenced on 20 September 2012 before Investigating Court no. 5 of San Javier. On 21 October 2012, the court provisionally discontinued (sobreseimiento provisional) those proceedings without taking any investigative steps, since in the judge’s view the commission of an offence had not been duly established, without prejudice to the applicant’s ability to institute civil proceedings.

10.  The applicant lodged an appeal (recurso de reforma) against the provisional discontinuance of proceedings, which was dismissed on 3 April 2013 by the investigating court, which reaffirmed that an alleged fault in the ventilator was not necessarily constitutive of serious negligence and that, given the criminal jurisdiction’s nature of ultima ratio, the complaint would be better dealt with in civil proceedings.

11.  The applicant lodged another appeal (recurso de apelación) and requested permission to present evidence before the Court of Appeal (Audiencia Provincial). On 22 November 2013 the Audiencia Provincial ordered the reopening of the proceedings and witness testimony from the technician who had installed the ventilator. It held that:

“if what is being claimed is that, when the ventilator was installed to the child, it incorporated a non-paediatric T-piece – that is to say, a T-piece of larger dimensions than those of the tube’s diameter – which made it easier for it to be detached causing the disconnection of the ventilator, and without any alarm going on, then what should be determined is whether this installation was what really caused the accident, and whether the installation constituted a negligence, taking into account that a mere mechanical failure would not constitute any offence but merely give raise to civil liability. Only a conscious act of carrying out an installation in poor conditions due to carelessness, negligence or lack of skill, without duly considering the potential harmful result, could be the grounds to find the existence of a criminal negligence. It is therefore advisable, before confirming the decision to dismiss the case, to hear the statement from the distributor’s technician so that he can explain why allegedly a T-piece of a larger diameter was installed, and whether this installation entailed the risk that finally occurred. As a consequence, the decision to dismiss the case should be reversed.”

12.  None of the evidence or the judicial decisions thereafter referred to the manufacturing company; they focused exclusively on the distributor and its personnel.

13.  The public prosecutor had challenged both of the applicant’s appeals, supporting the investigating court’s decision to provisionally discontinue the proceedings.

14.  The applicant’s daughter died on 2 November 2013 as a result of her injuries.

15.  On 20 January 2014, almost one year and five months after the applicant had lodged the criminal complaint, the investigating court required the distributor to provide the name and location of the technician who had carried out the installation of the ventilator. The distributor responded that they had not carried out the installation, that the equipment had been supplied to the Guttmann Institute of Badalona, and that the installation must have been carried out by hospital staff.

16.  The applicant testified as a witness on 25 April 2014. She stated that the ventilator had not been adequately serviced or adjusted since it had been installed, and that she had been supplied with equipment for her daughter that had expired. She also submitted certain documents, among which was a medical inspection report from 15 March 2011.

17.  On 4 August 2014 the investigating court required the distributor to identify and locate the technician who had signed the inspection report for the ventilator dated on 15 March 2011. The distributor identified the technician, informed the court that she was on maternity leave and provided details of another technician who had been involved in the inspection. This second technician testified as a witness on 27 February 2015, over six months after the court’s initial order. The technician stated that the company had never supplied any equipment that had expired, but the applicant had made extra requests for supplies, which were always delivered to her, and it was possible that some of those supplies had expired at her home. The technician also explained that the T-piece could not have been an adult one because it would have failed to fit the paediatric ventilator from the beginning, and the equipment supplied was adequate. She was unaware that the ventilator had really failed.

18.  In light of that statement, on 27 March 2015 the applicant requested that the investigating court order the submission of more evidence. On 8 April 2015 the investigating court ordered the distributor to provide the inspection report for the ventilator, and the receipts for the delivery of certain pieces of the ventilator (the T-piece and the bellows). Also following a request from the applicant, the investigating court summoned the manager of a transport and distribution company which had been under contract with the distributor, and who had been in charge of collecting some of the expired supplies, to testify as a witness.

19.  The distributor submitted various documents on 12 June 2015, as a result of two orders of the investigating court. On 21 July 2015 the applicant argued that those documents were not the ones that she had asked to be examined. She contended that the company had not supplied her with the necessary equipment to assist her daughter at home and had not carried out proper inspections of the ventilator. She also accused the distributor of forging documents. The company denied any tampering of the documentation and affirmed that it had provided the investigating court with all the documents that the court had ordered to be provided. Moreover, the distributor requested that the proceedings be provisionally discontinued. The investigating court replied that it first needed to hear the witness that had been requested by the applicant.

20.  On 13 November 2015 the manager of the transport and distribution company which was under contract with the distributor (see paragraph 18 above) testified, and explained that his company supplied disposable equipment to patients who had home assistance provided by the distributor, including oxygen supplies for ventilators. He explained that they had supplied extra equipment to the applicant following her requests, and that in one of the deliveries, he had also collected some equipment from her that had expired. However, he did not know when the equipment had been supplied, and responded that he was only responsible for distribution and transport, not the inspection of the equipment that had been supplied by the distributor.

21.  Three days later, the applicant requested that the investigating court summon the managing director of the distributor between 2011 and 2012, and the director of the same company in the province of Alicante in 2013. The investigating court replied that it first needed to decide the application for provisional discontinuance that had previously been made by the distributor. The public prosecutor submitted that the prosecution did not oppose the discontinuance of the proceedings requested by the company, in the light of the lack of evidence of any criminal offence.

22.  The applicant made the same request on 20 November 2015, insisting on the relevance of the testimony in question.

23.  On 13 April 2016 the investigating court agreed to provisionally discontinue the case for the second time on the grounds that, from the content of the proceedings, it could not be reasonably inferred that the entity being investigated had committed any criminal offence. The investigating court held that “in the face of contradictory versions of events, [and] lacking any evidence to believe one over the other, both positions have the same probative value for the adjudicator, and in the absence of other objective indications that prove the commission of the crime by the entity being investigated, a crime cannot be proved because neither the perpetration of the acts investigated, nor the alleged perpetrators of the same, appears to be sufficiently established”.

24.  The applicant lodged an appeal against the decision, which was again challenged by the public prosecutor.

25.  On 26 July 2016 the Audiencia Provincial again quashed the provisional discontinuance order “since the minimum enquiries necessary to obtain full knowledge of the exact manner in which the facts occurred have not been carried out, and therefore it is appropriate to continue the investigations”. It further considered that the principle of minimum intervention of the criminal law was of no application in the present case, given that “there are facts revealing the existence of a fault in the installation, which caused the minor’s injuries”.

26.  The proceedings were reopened, and on 9 September 2016 the investigating court asked the distributor to provide identifying information for the three technicians who had allegedly been involved in the case according to the documents provided, one of whom was the one who had previously been on maternity leave and who, according to the applicant, had installed the ventilator. The company submitted the three names.

27.  On 30 September 2016 the applicant requested the summoning of twelve health workers from the La Arrixaca de Murcia Hospital, four doctors from the General Hospital of Santa Lucía of Cartagena, two officials from child protection services, another doctor, and the primary care manager of the Murcia Health Service. She also requested that the La Arrixaca de Murcia Hospital and the Emergency Coordination Centre of Murcia submit all the documentation they had concerning her daughter. The investigating court responded that the decision whether to grant the applicant’s request would be handed down after the three witness statements already ordered had been considered.

28.  On 18 January 2017, over four years after the criminal complaint had been lodged, the three employees of the distributor testified. They provided similar statements, according to which none of them had carried out the installation of the ventilator, which had been installed at the Guttmann Institute of Badalona. The first witness declared that she had only entered the applicant’s home on 15 March 2011, after which she had never been inside the house, and had never conducted any inspection of the ventilator. They all agreed that it was not possible for the paediatric ventilator to have been supplied with an adult T-piece because adult T-pieces did not fit paediatric ventilators at all, and the air would have leaked out, activating the alarm system. The three witnesses explained that the ventilator had to be inspected every three months, but they had not been allowed by the applicant to enter her house and inspect the ventilator, and the applicant, herself a doctor, had carried out the appropriate measurements and parameter checks. They also stated that the applicant had made requests for extra equipment and it had always been supplied to her. The first witness explained that she had downloaded the ventilator’s alarm record after the applicant had reported the failure in the ventilator, and at the time of the alleged incident, there was no record of any fault in the ventilator.

29.  Following the above statements, the investigating court ordered the distributor to specify the hospital in which the ventilator had been installed. On 31 January 2017 the company informed the court that the ventilator had originally been delivered to the paediatric intensive care unit of the La Arrixaca de Murcia Hospital but had later been transferred to the Guttmann Institute in Barcelona, as was the child. They did not provide any supporting documents.

30.  In the light of the above response, on 7 February 2017 the investigating court ordered the distributor to clarify who had carried out the installation. They replied the following day that the ventilator had initially been delivered to two doctors at the La Arrixaca de Murcia Hospital, but they were aware that the ventilator had actually been installed by the staff of the Guttmann Institute, and they did not know which doctors were responsible for the installation.

31.  On 6 February 2017 the applicant requested permission to testify again. She did not receive an answer from the court.

32.  On 15 August 2017 the applicant submitted that the explanations provided by the distributor were untrue, as were the statements by the technicians, and the ventilator had actually been installed by one of the distributor’s technicians at her home. She requested the summoning of another seven health workers from the La Arrixaca de Murcia Hospital (including the doctors to whom the ventilator had been delivered by the company), of a nurse from the Los Alcazares local health clinic, of the manager of the Murcia Health Service, of the manager of the distributor in the Cartagena local office, and of the general manager of the same company. She also requested documents from the Los Alcazares local health clinic and the La Arrixaca de Murcia Hospital, and the receipt for the delivery of the paediatric tubing, the new ventilator model, the T-piece and the alarm box.

33.  On 8 September 2017 the investigating court provisionally discontinued the case for the third time. It stated that the six-month time-limit for investigations provided for in Article 324 of the Code of Criminal Procedure (see paragraph 42 below) had expired on 2 November 2016, and that it could not extend the maximum time-limit for the investigation period without a request from the public prosecutor, which had not been made. No further investigative steps could therefore be taken. The court clarified that it was also not possible for the investigative steps requested by the applicant on 15 August 2017 to be taken because the investigation period had expired before that date. It further explained that, in accordance with the applicable procedural provisions, after the expiry of the investigation time-limit it only had two options: the discontinuance of the case, or a decision that the case would proceed to the trial stage. The latter option was not possible since a trial could not be held without a previous statement, given at the investigation stage, from the person who was to be charged as a defendant. Since it had not been established that the distributor personnel had carried out the installation, nobody had given a statement in the capacity of being an investigated person. As a result, the discontinuance of the case was the only option.

34.  The investigating court further stated:

“From the result of the proceedings held, it is not possible to speak of an action on the part of the distributor in which it was conscious of carrying out an installation inadequately owing to carelessness, negligence or lack of skill, without taking into account the harmful result that should have been considered at the time of the installation, and this was the case because, as has been said, there is no evidence that it was the company that carried out the installation, so that its conduct cannot be classified as criminal negligence, which means that it should be considered that the situation falls within the circumstances contemplated in Article 641 [of the Code of Criminal Procedure], because the investigative activity carried out within the legally established time-limits does not allow the company to be held allegedly responsible for the offences charged.”

35.  The applicant lodged an appeal, claiming that one of the witnesses (the technician who signed the inspection report of 15 March 2011) had lied and had in fact installed her daughter’s ventilator. The public prosecutor challenged the appeal, which was dismissed by the investigating court on 31 January 2018. The investigating court found that there was no indication that the technician had lied in her witness statement, or that she had carried out the installation of the ventilator. It considered that none of the evidence requested by the applicant (namely, many statements from witnesses) would have been relevant to clarify whether the installation of the ventilator, which seemed to have been carried out at the Guttmann Institute of Badalona, was what had caused it to subsequently fail.

36.  On 3 July 2018, the Audiencia Provincial dismissed the applicant’s appeal against the investigating court’s above decision, confirming the provisional discontinuance of the case. In particular, it observed that no extension had been requested by the public prosecutor, and that, on the basis of the investigations carried out, there was evidence against neither the technicians who had testified, nor against any other specific person, that would allow a decision to be made other than the provisional discontinuance of proceedings.

37.  Regarding the merits of the case, the Audiencia Provincial noted that the proceedings were based on the premise that one of the technicians had (inadequately) installed the ventilator, but that the evidence led to the conclusion that this had not been the case. The Audiencia Provincial stated:

“Contrary to what is stated in the order appealed against, the expiry of the time-limits provided for in Article 324 of the Code of Criminal Procedure would not prevent, in and of itself, the taking of a statement, in the capacity of an investigated person, of another person other than a person who already has that status, or even if there is no other investigated person in the proceedings, as has been decided by case-law... However, the reasoning of the decision under appeal must be confirmed, on the basis of which there is no evidence against [the distributor’s technician accused of installing the ventilator], nor against any other specific person, that would allow a decision other than the provisional discontinuance of proceedings, nor – we add – to agree to hear them as a person under investigation even after the six-month term under Article 324 of the Code of Criminal Procedure, for which no extension has been requested by the public prosecutor or the private prosecution, and which has elapsed.”

38.  The Audiencia Provincial reiterated that the applicant herself had initially testified that the ventilator had been installed in the hospital, after which her daughter was transferred home. The court stated that the inspection report showed that the technician had merely checked the ventilator’s alarm system and the need for supplies to continue the treatment at home. In any event, this happened over a year before the fault that led to the injuries and ultimately the death of the child. It also held:

“It would have to be determined by an expert whether the subsequent failure was caused by a deficient initial installation, by the absence of subsequent servicing, by the use of out-of-date components or by any other cause, which would require new investigative measures which are prohibited by Article 324 of the Code of Criminal Procedure, and it would be just as untimely to carry out any of the measures that have been refused or any other measures aimed at finding out who might be responsible”.

39.  To the investigating court, if any other person potentially liable for an offence had been identified within the investigation stage time-limit, that person’s testimony could have been heard even outside that time-limit. However, since no offence was proved, and the admission of any additional evidence would be outside the maximum time-limit for the investigation stage, this resulted in the proceedings having to be discontinued even if the court had not identified who had carried out the installation of the ventilator, or the cause of the applicant’s daughter’s death.

40.  The applicant lodged an amparo appeal with the Constitutional Court on 3 August 2018, which was declared inadmissible owing to its lack of constitutional relevance. The public prosecutor appealed against the Constitutional Court’s decision, arguing that the applicant had justified the special constitutional relevance of the case by means of extensive reasoning, in connection with the fundamental rights’ violations alleged. In the public prosecutor’s view, that appeal presented an opportunity for the Constitutional Court to rule on the preclusive nature of the (then new) time‑limits of the investigation stage in criminal proceedings, in force since 6 December 2015 (see paragraphs 42 and 44 below). That appeal was dismissed by a decision of the Constitutional Court sitting in a three-judge formation on 22 May 2019, with one dissenting opinion. The majority considered that the appeal did not provide an opportunity to assess the new legislation (which could arguably have given it constitutional relevance) but merely concerned an assessment of the sufficiency of the evidence gathered during the investigation stage to continue or provisionally discontinue the proceedings, which was not for the Constitutional Court to reassess. As a result, that court confirmed that the appeal lacked constitutional relevance.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

41.  The relevant provisions of the Spanish Constitution state as follows:

Article 15

“Everyone has the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment. The death penalty is hereby abolished, except as provided by military criminal law in times of war.”

Article 24

“Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended.”

 

42.  The relevant parts of the Code of Criminal Procedure, as in force at the relevant time, state as follows:

Article 101

“Criminal actions are public. All Spanish citizens may exercise them in accordance with the provisions of the law.”

Article 105 § 1

“Officials of the public prosecutor’s office shall be obliged to bring, in accordance with the provisions of the law, all the criminal actions that they consider appropriate, whether or not there is a private prosecutor in the case, except those that the Criminal Code reserves exclusively for private prosecution.”

Article 106

“Criminal actions for a crime or minor offence that give rise to proceedings of the court’s own motion shall not be extinguished by a waiver by the offended party.”

Article 324

“1.  The investigation stage shall take place during a maximum period of six months from the order to commence pre-trial proceedings or preliminary investigations. Nevertheless, prior to expiry of this time-limit, the investigating judge, at the request of the public prosecutor’s office and after hearing the parties, may declare the investigation stage to be complex for the purposes provided for in the following paragraph where, owing to circumstances arising during the investigation, this cannot be completed within the time-limit stipulated, or where any of the circumstances provided for in the following paragraph of this Article arise.

2.  If the investigation is declared to be complex, the time-limit for the duration of the enquiry will be eighteen months, which may be extended by the investigating judge for the same period, or a shorter one, at the request of the public prosecutor’s office and after hearing the parties. The request for extension must be submitted in writing, at least three days prior to the expiry of the maximum time-limit.

There can be no appeal against the order dismissing the request for an extension, without prejudice to the request being repeated at the appropriate moment in the proceedings.

The investigation will be considered to be complex where:

(a)  it concerns criminal groups or organisations;

(b)  it has numerous punishable acts as its subject;

(c)  it involves a large number of parties being investigated or victims;

(d)  it requires the examination of expert opinions or other forms of cooperation requested by the judicial body involving the examination of extensive documentation or complicated analyses;

(e)  it involves proceedings abroad;

(f)  it requires the review of the management of public or private legal persons; or

(g)  a crime of terrorism is concerned.

...

4.  Exceptionally, prior to the expiry of the time-limits provided for in the previous paragraphs or, as appropriate, the extension that may have been agreed, if requested by the public prosecutor’s office or any of the parties to the proceedings, if reasons arise that justify this measure, the investigating judge, having heard the other parties, may set a new maximum time-limit for the investigation to be finalised.

...

6.  The judge shall conclude the investigation stage on finding that its purpose has been fulfilled. Once the maximum time-limit, or its extensions, have expired, the investigating judge shall terminate the pre-trial proceedings ...

7.  The investigative measures agreed prior to the expiry of the time-limit shall be valid, without prejudice to their admission after the expiry of the time-limit.

8.  The mere lapse of the maximum time-limit provided for in this Article shall never give rise to the proceedings being dismissed if the circumstances provided for in Articles 637 or 641 have not been met.”

43.  Articles 637 and 641 of the Code of Criminal Procedure establish the circumstances in which a case can be discontinued, including when it emerges from the case file that a crime has been committed but there are insufficient grounds to accuse a specific person or persons of its commission.

44.  The wording of Article 324 of the Code of Criminal Procedure was amended by Law no. 41/2015 of 5 October to the wording in the above paragraph. The amendment entered into force on 6 December 2015. This provision has subsequently been amended by Law no. 2/2020 of 27 July 2020, extending the usual period to conduct pre-trial criminal investigations to twelve months.

45.  The Spanish Criminal Code (Organic Law no. 10/1995 of 23 November 1995) provides that any person who causes the death of another by serious negligence will be convicted of manslaughter (Article 142 § 1) and that when manslaughter is committed owing to professional negligence, the sentence will also impose a ban on the exercise of the relevant profession (Article 142 § 3).

46.  Other relevant articles of the Criminal Code (as in force at the material time) concerning civil liability within criminal proceedings, read:

Article 109

“1.  The execution of an act described by the Law as a crime or an offence obliges to repair, in the terms foreseen in the Laws, the damage and prejudices caused by it.

2.  The injured party may, in any case, choose to claim civil liability before the Civil Jurisdiction.”

Article 110

“The liability established in the foregoing article includes:

1.  Restitution.

2.  Reparation of the damage.

3.  Compensation for material and moral damage.”

Article 115

“When declaring the existence of civil liability, the Judges and Tribunals shall reasonably establish in their decisions the basis on which they base the amount of damages and compensation ...”

Article 116

“1.  Any person criminally responsible for a crime or offence is also civilly responsible if the act gives rise to damage ...”

47.  There is relevant case-law from the Spanish Constitutional Court on the interpretation of the right to access to a court. By way of example, judgment no. 87/2020 of 20 July 2020 (the third legal ground):

“A)  The right to effective judicial protection of access to a court, in its aspect of the right of access to a court through the exercise of criminal actions, has been conceived in the doctrine of this court as a ius ut procedatur, whose constitutional examination operates from the perspective of Article 24 § 1 of the Spanish Constitution (SC), and the guarantees of Article 24 § 2 SC are also applicable ...

It has the following characteristics:

a)  The exercise of criminal actions does not give an unconditional right to the opening and full conduct of criminal proceedings; nor does it impose on judicial bodies the obligation to carry out an investigation beyond what is necessary, or to unduly prolong the investigation or proceedings (judgments of CC [the Constitutional Court] 176/2006 of 5 June 2006; 34/2008 of 25 February 2008, and 26/2018 of 25 February 2018).

b)  The complainant or claimant has, as the holder of the ius ut procedatur, the right to initiate criminal proceedings, to have them conducted in accordance with the rules of fair process and to obtain a reasonable and lawful response (judgments of CC 120/2000 of 10 May 2000, and 12/2006 of 16 January 2006), but it does not include the material right to obtain a conviction and to have a judgment imposed, since ius puniendi is exclusively public in nature and belongs to the State ...

c)  The effective judicial protection of the complainant or claimant is satisfied by a court decision ordering the early dismissal of the criminal proceedings, without the opening of the trial stage, when that decision is based on a reasoned and reasonable concurrence with the grounds legally provided for granting the discontinuance, final or provisional (under Articles 637 and 641 of the Code of Criminal Procedure and, if applicable, Article 779 § 1.1 of the Code of Criminal Procedure). On the other hand, there will be an infringement of this right if the court decision not to proceed with the criminal investigation affects, at any of those procedural stages, evidence requested by the appellant (provided that the appellant is a party to the court proceedings), affecting his or her right to the use of evidence; or also when, once that evidence has been sufficiently examined, the determination of what has happened on the basis of that evidence, or the legal classification of the facts established, is affected (judgment of CC 26/2018 of 5 March 2018).

d)  The effectiveness of the right to judicial protection in those cases will correspond to the adequacy of the investigation stage. It will depend, therefore, not only on whether the decision to discontinue is justified and contains sufficient legal grounds, but also on whether the investigation of the complaint has been sufficient and effective, since the protection initially requested consists of an investigation into what happened.

e)  A sufficient and effective investigation can only be assessed by evaluating the specific circumstances of the complaint and of what was reported, as well as the seriousness of what was reported and its previous lack of transparency (judgments of the CC 34/2008, and 26/2018), so that there will be a violation of the right to effective judicial protection if an investigation is not opened, or is discontinued, when there are reasonable suspicions of the possible commission of a crime and such suspicions are revealed as being susceptible to being resolved through the investigation. This requirement does not imply the opening of the investigation in any case, just as it does not prevent its early discontinuance. Nor is there a right to the unlimited use of evidence in such a way that it requires the carrying out of as many investigative measures as possible or imaginable, proposed by the parties or carried out of the court’s own motion, particularly if it becomes evident that the deployment of further measures is unnecessary. Such an obligation would lead to unnecessary orders, to the detriment of the general interest in a rational and effective management of the resources for the administration of justice ...

B)  However, the need to adapt the interpretation of the rules relating to fundamental rights and freedoms recognised by the Constitution (Article 10 § 2) to the international human rights treaties and agreements ratified by Spain, especially the European Convention on Human Rights (ECHR), should lead us to take special account of the case-law of the European Court of Human Rights. In particular, with regard to the requirement addressed to judicial bodies requiring them to exercise the utmost diligence in the investigation, prosecution and, where appropriate, repression of allegedly criminal acts committed against vulnerable victims in cases of gender-based violence or violence that takes place within the family or emotional environment.

The European Court of Human Rights has emphasised the duty of States Parties to strengthen their action in the areas of prevention, protection and punishment of conduct which, within their respective jurisdictions, may involve a violation of the rights to life and the prohibition of torture and inhuman and degrading treatment (Articles 2 and 3 ECHR) in the area of private and family life (Article 8 ECHR), so as to eliminate any passivity, omission, ineffectiveness or negligence on the part of the State in prevention and protection work, but also the lack of due diligence in investigation work where this proves necessary. Obviously, the duty of effective protection can only arise if in the specific case there was effective knowledge of the facts or the possibility of knowing them on the part of the authorities and their agents, who adopted measures aimed at reducing or minimising that risk, always with full respect for the rights and procedural guarantees of the person under investigation (judgments of the European Court of Human Rights, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 VIII, and Opuz v. Turkey, no. 33401/02, § 129, ECHR 2009).”

THE LAW

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

48.  The applicant complained that the domestic courts had failed to sufficiently investigate the causes of her daughter’s death following injuries caused by an alleged fault in her ventilator, which amounted to a violation of the procedural limb of her right to life as provided for in Article 2 § 1 of the Convention, which reads as follows:

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

Admissibility

49.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

MeritsThe parties’ submissions

(a)   The applicant

50.  The applicant submitted that manslaughter is a public offence under Spanish criminal law, which does not require the victim’s representatives to carry out a prosecution, since the public prosecutor has the duty to do so, and which the courts have to investigate in any event (see paragraph 27 above). She complained that the investigating court did not carry out a sufficient investigation in order to clarify whether there had been a gross negligence that had ultimately led to her daughter’s death.

51.  She pointed out that the investigating court had dismissed the proceedings immediately after her criminal complaint, without carrying out any investigative steps. The Audiencia Provincial had ordered the reopening of the proceedings in order to find out who had installed of the ventilator, but the investigation still could not identify the technician and this resulted in the proceedings being dismissed for the second time. The Audiencia Provincial ordered the reopening for the second time, on the grounds that the essential investigations had not been carried out in order to establish who had been responsible for the installation of the ventilator, whether it met the morphological requirements to be adequate for a child, whether the “T-piece” was paediatric, or whether there was any safety system in place in order to avoid a potential accident caused by a failure in the equipment. The Audiencia Provincial admitted in this decision (see paragraph 25 above) that, although there was no evidence that the T-piece installed was not paediatric, and there was therefore a possibility that the malfunctioning had been caused by a mechanical failure which could be analysed from a purely civil liability perspective, in this case it was persuaded that “there was revealing data of the existence of a failure in the installation of this equipment” and as a result, a criminal investigation was pertinent.

52.  The applicant insisted that she had requested numerous investigative steps in order to ascertain the cause of her daughter’s injuries and death and the persons responsible for it, and most of them had been rejected or unanswered by the investigating court. On other occasions, the investigating court had not verified that the distributor had correctly submitted the evidence that it had been ordered to submit. For instance, the distributor had not complied with the investigating court’s order to provide evidence of the inspection report for the ventilator that had failed, and reports about the delivery of the T-piece and the bellows (see paragraphs 14-18 above). The applicant complained that no expert report was presented in order to analyse the actual failure of the ventilator.

53.  The applicant had also requested on various occasions (see paragraphs 18 and 20 above) the witness statements of two managing directors of the distributor, but the statements had never been accepted by the investigating court. Similarly, she had requested the testimony of many workers from the La Arrixaca de Murcia Hospital (including doctors from the paediatrics department and the specialised healthcare personnel responsible for the child’s respiratory assistance) to provide information about the delivery, installation, use and maintenance of the ventilator, in the hospital and at home; that request had not even been answered by the investigating court.

54.  In her view, the fact that the only witnesses that had been heard by the investigating court were the technician who had been present at her home and two others who had been in charge of supplying equipment, pointed at a flawed investigation, as those people were directly implicated in the severe injuries caused to her child and therefore their testimony could not be considered reliable.

55.  Moreover, the distributor had submitted (see paragraph 29 above) that the ventilator had been delivered to the La Arrixaca de Murcia Hospital and later installed by doctors from the Guttmann Institute. Later, the company had specified the names of the doctors from the paediatrics department of the La Arrixaca de Murcia Hospital to whom the ventilator had been delivered (see paragraph 29).

56.  The applicant had requested the witness statements of the doctors who had received the ventilator at the La Arrixaca de Murcia Hospital, the doctor in the paediatrics department and the nurse who had taken care of the child, and other company’s managers, as well as the delivery reports for the equipment, none of which requests had been accepted by the investigating court. Instead, the investigating court had ordered the discontinuance of the case for the third time (see paragraph 33 above), stating that it had not been proved that any employee from the company had carried out the installation of the ventilator, and that no other responsible person had been identified within the time-limits for the investigation stage.

57.  The applicant argued that, had those pieces of evidence been presented to the investigating court, the outcome of the investigation would have been completely different even within the six-month time-limit.

58.  Notwithstanding the above, the applicant contended that under Article 324 § 8 (see paragraph 27) of the Code of Criminal Procedure, the mere expiry of the maximum period could not lead to the discontinuance of the proceedings. In her view, the investigating court should have called more people to testify in order to clarify the circumstances of her daughter’s death, despite the expiry of the time‑limit. In any event, the public prosecutor was the only party allowed to request that the court set a new maximum time‑limit.

59.  For the applicant, the investigating court had not carried out an effective and sufficient investigation to establish all the relevant facts and identify all persons responsible for the death of her daughter, in breach of the procedural aspect of Article 2 of the Convention.

60.  Finally, she pointed at the fact that the public prosecutor in charge of the case before the Constitutional Court did consider that the amparo appeal raised a relevant issue, and that there was a dissenting opinion from one of the three judges of the Constitutional Court, who had also voted for the admissibility of the applicant’s appeal.

(b)   The Government

61.  The Government submitted that it was the applicant herself who had established the scope of the investigation proceedings: the criminal investigations were directed essentially at the distributor, a private company which had provided the supplies for the machine. Being a doctor herself, she had reported very specific facts, which pointed at the supply of equipment that had expired and at the improper installation of a non-paediatric tubular piece in the ventilator which had led to a misalignment and ultimately to the disconnection of the machine that had caused her daughter to suffer a cardiorespiratory arrest. The Government insisted that those, and no others, were the facts under investigation.

62.  The Government contested the applicant’s allegations that the investigating court had not carried out a sufficient investigation of the facts. It pointed out the number of investigative steps that were taken after the Audiencia Provincial ordered the reopening of the investigation by means of a decision (auto) of 22 November 2013 (see paragraphs 11, 14, 17, 18, 19 and 20 above):

“1.  The investigating court had required the distributor to identify the technician responsible for the installation (the company had replied in writing that none of its technicians had carried out any installation).

2.  The applicant had appeared in court as a witness.

3.  The investigating court had issued a new order for information in respect of the distributor.

4.  Another technician had appeared in court as a witness.

5.  At the request of the applicant, the court had required a large number of documents from the distributor (inspection and delivery reports) which had resulted in the submission of more than a hundred documents.

6.  At the request of the applicant, the manager of another company (who was in charge of collecting expired supplies from her home) had appeared in court as a witness.”

63.  After the Audiencia Provincial had reviewed the above investigative steps and again ordered the continuation of the investigation proceedings by means of a decision (auto) of 26 July 2016 (see paragraphs 26 and 27 above), the investigating court also carried out the following actions:

“1.  The court had considered the witness statements of three technicians working for the distributor.

2.  The court had made a new order for information from the distributor.”

64.  The Government denied the applicant’s contention that none of her requests for the examination of evidence had been taken into account, and replied that the investigating court had given precise reasons not to examine some of them, on the grounds that they were unnecessary or irrelevant to clarify the facts under investigation, as had been made clear by the investigating court itself (see paragraph 35 above). They emphasised that the investigating court had also ordered the examination of a considerable amount of evidence, of its own motion and following orders from the Audiencia Provincial (see paragraphs 14-20, 25 and 26-29 above).

65.  The applicant’s allegation that the witnesses were lying was, for the Government, an unsubstantiated and serious one. The witnesses’ statements, in line with the documentary evidence, showed that the installation of the ventilator had not been carried out by any employee of the distributor, and that in any event the alleged failure of the ventilator could not have been caused by an unsuitable T-piece because if that were the case, the ventilator would not have worked from the beginning.

66.  Moreover, the Government claimed that the investigative steps taken had revealed that the allegations initially made by the applicant were unsubstantiated, that there was no evidence of the commission of any offence, and nobody appeared to be a suspect who could be held criminally liable. Given that the applicant had not offered any substantive reason for why there was a manifest error in the assessment of the evidence by the investigating court or the Audiencia Provincial, the courts’ findings rejecting the existence of any offence with regard to the applicant’s daughter’s death must prevail over the applicant’s unsubstantiated version of events.

67.  The Government stressed that the proceedings had not been discontinued merely owing to the expiry of the maximum time-limit, but on the basis of the fact that all the evidence presented had been sufficient to establish the absence of any indication of any responsibility of the distributor or its employees. Had there been any suspicion against another person, it would have been possible for the investigating court to hear that person, even after the expiry of the six-month time-limit. But in the case at hand, the only legally admissible option was to discontinue the case.

68.  Lastly, the Government argued that Article 2 of the Convention, in its procedural aspect, requires carrying out an adequate investigation to establish the circumstances of the alleged threat to life, but not necessarily a prosecution or conviction.

The Court’s assessment

(a)   General principles

69.  The Court has held that under the procedural limb of Article 2 of the Convention, an investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 166, ECHR 2011, and the cases cited therein).

70.  It therefore follows that Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, 30 March 2016). Rather, the Court’s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (ibid., § 257, and see Öneryıldız v. Turkey [GC], no. 48939/99, § 95, ECHR 2004‑XII).

71.  More specifically, the Court has interpreted the procedural obligation of Article 2 in the context of healthcare as requiring States to set up an effective and 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, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017, and Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein).

72.  The Court has accepted that where 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 and independent judicial system does not necessarily require the provision of a criminal-law remedy (see Lopes de Sousa Fernandes, cited above, § 215, and case-law cited therein). The choice of means for ensuring the positive obligations under Article 2 of the Convention is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring that Convention rights are respected (criminal, civil, administrative or disciplinary proceedings, for example), and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Šilih v. Slovenia, cited above, § 216, with further references, and Aftanache v. Romania, no. 999/19, § 61, 26 May 2020). But whatever the means chosen, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (ibid., § 216). As stated in paragraph 69 above, this is an obligation of means, not of results.

73.  Likewise, the procedural obligation under Article 2 of the Convention in the context of healthcare requires, inter alia, that the proceedings be completed within a reasonable time (see Lopes de Sousa Fernandes, § 218, and Šilih, § 196, both cited above).

74.  Lastly, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Lopes de Sousa Fernandes, cited above, § 221). But there is an obligation to conduct an adequate investigation into the circumstances of the death.

(b)   Application of the principles to the present case

75.  The Court has to determine whether, in the concrete circumstances of the present case (where the applicant made use of only the criminal proceedings), given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see Lopes de Sousa Fernandes, cited above, § 225).

76.  In the present case, the applicant complained of an alleged negligence from the technicians of the distributor company hired by the public hospital. According to her, the company could have anticipated the malfunction of the ventilator, and it should have changed the equipment (see paragraph 7 above).

77.  It was not possible for the applicant to initiate any kind of disciplinary proceedings against technicians from the company or doctors of the hospitals because it is only for the respective employers to do so.

78.  The applicant did not have the possibility of lodging contentious‑administrative proceedings against the hospital either (see Reyes Jimenez v. Spain, no. 57020/18, 8 March 2022), given that her daughter was not under direct care of the hospital.

79.  In relation to possible civil claims, in the Spanish legal system, in order to obtain civil compensation for the liability derived from a criminal offence, the person responsible for the offence has to be found guilty by a criminal court. Where appropriate, civil liability is awarded by the criminal judge by default. However, the alleged victim of the offence or other parties entitled to civil compensation can also choose to bring a separate civil action once the criminal proceedings lead to the conviction of the perpetrator of the offence, by expressly opting for such a course of action during the criminal proceedings (see Gracia Gonzalez v. Spain, no. 65107/16, § 54, 6 October 2020).

80.  The Court notes that the Government did not contend that the applicant could have effectively pursued her complaint outside the framework of criminal proceedings. It will therefore confine itself to examining whether the criminal proceedings satisfied the criteria of effectiveness required by Article 2 of the Convention (see Bilbija and Blažević v. Croatia, no. 62870/13, § 104, 12 January 2016). Such proceedings, if effective, should by themselves have been capable of satisfying the procedural obligation of Article 2 (see Šilih, cited above, § 202). But, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, for example, Lopes de Sousa Fernandes, cited above, § 216; Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006; and Spyra and Kranczkowski v. Poland, no. 19764/07, § 88, 25 September 2012).

81.  The Audiencia Provincial itself held, when it ordered the first reopening of the proceedings in 2013 (see paragraph 11 above), that the main issue at stake was whether there had been a mechanical failure (which would merely give raise to civil liability) or a negligent installation (which could potentially amount to a criminal act). And in order to clarify this issue, it was crucial to determine what exactly was the cause of the child’s death.

82.  The Court observes that no expert was called, either by the applicant or by the public prosecutor (or by the investigating court of its own motion) to give evidence in the proceedings in order to clarify the exact cause of the child’s coma and later death. Witnesses relating to the functioning of the ventilator were called to testify, but no doctors were heard. The applicant asked for very specific pieces of evidence.

83.  More specifically, the Audiencia Provincial overturned the investigating judge’s decision to dismiss the proceedings immediately after opening them, without having taken any investigative steps (see paragraph 11 above). The investigating judge then ordered that the distributor company should facilitate the identifying data of the technician who had carried out the installation of the ventilator, so that he/she could be heard. Some witnesses, including the applicant and a technician, were heard. Relevant documents concerning the medical inspection of the ventilator were submitted too. A few months after that, the investigating judge dismissed the proceedings for the second time, without having been able to identify or locate the technician who actually installed the ventilator to the child. The Audiencia Provincial then ordered the reopening of the investigating stage for the second time (see paragraph 25 above). More witnesses, including three technicians from the distributor company, testified, but the person who had installed the ventilator was still not identified, and the cause of the child’s death was not established. For the third time, the investigating court dismissed the case, on the grounds that the time-limit to investigate had elapsed. The Audiencia Provincial accepted the investigating judge’s arguments and confirmed the dismissal, notwithstanding the fact that not even all the evidence the Audiencia Provincial itself had requested had been submitted to the investigating judge.

84.  The crux of the present case was whether the minor’s death had been caused by a failure in the ventilator, and whether that failure had been of a mechanical nature (and in that case, whether it could and should have been anticipated and prevented) or whether it had been caused by an inadequate installation of its components or other issue caused by negligence. It was only after clarifying the above that the potential liability, whether civil or criminal, could have been established. It appears as though the issue could have been answered by ordering an expert’s analysis on the applicant’s daughter’s ventilator and its components. However, the investigating judge failed to order any such technical report, although nothing suggests that it was complex or unavailable (see, mutatis mutandis, Bochkareva v. Russia, no. 49973/10, § 44, 12 October 2021).

85.  The Court may not itself assess the facts which have led a national court to adopt one decision rather than another, or question the admissibility and assessment of evidence at the trial. If it were otherwise, it would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The only circumstance in which the Court may, as an exception to this rule, question the findings and conclusions in question is where the latter are flagrantly and manifestly arbitrary, in a manner which flies in the face of justice and common sense and gives rise in itself to a violation of the Convention (De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017). In the present case, the Court observes that the investigating judge only called the witnesses of the company against which the applicant had lodged the criminal complaint, and took the testimony of the applicant herself. The judge did not take into account any expert, technical or any other objective source in order to shed light into the alleged technical problem.

86.  The Court cannot speculate on the reasons why the ventilator apparently failed or why the applicant’s daughter entered into a coma and later died, as this could not be established at the domestic level. The Court is also not called upon to determine whether in the present case the evidence conducted in the criminal proceedings should have been ordered ex-officio by the investigating judge, or to identify what sort of steps the investigating judge should have taken. It recalls however that, where there is a prima facie arguable claim of a chain of events possibly triggered by an allegedly negligent act that may have contributed to the death of a patient, the authorities may be expected to conduct a thorough examination into the matter (see Lopes de Sousa Fernandes, cited above, § 237).

87.  The public prosecution has a statutory obligation to investigate crimes, and also to protect the interests of the child. It is relevant that the public prosecutor did not request any evidence to be brought before the investigating court on its own initiative, or show any effort in clarifying the circumstances of the case. On the contrary, the public prosecutor agreed with the discontinuance of the proceedings on the three occasions in question. Criminal proceedings were instituted solely at the applicant’s request and were mostly driven by her. The Audiencia Provincial found that sufficient grounds existed to reopen the investigation and ordered that a significant volume of evidence be presented before the investigating judge. However, the investigating judge did not go beyond the mere minimum to comply with the Audiencia Provincial’s orders, and it was the applicant who pursued the criminal proceedings and who bore the burden of the investigation, which lasted for a considerable period. The Court notes that the public prosecutor in charge of the case before the Constitutional Court, contrary to the position of the prosecutor at the investigation stage, did request the Constitutional Court to admit the applicant’s amparo appeal and to find a violation of her fundamental rights (see paragraph 40 above).

88.  The proceedings were initiated following the applicant’s complaint, which focused essentially on whether any of the distributor’s employees had been negligent in the installation of her daughter’s ventilator or the supply of equipment for it. Given that corporations cannot be liable for homicide under Spanish criminal law, this necessarily required finding the individuals who had allegedly been negligent. The scope of the investigations was never widened by the public prosecutor or the judicial authorities. As a result, the criminal proceedings were concerned only with the narrow issue set out in the charges that had been brought (namely the identity of the person who had installed the ventilator), and did not seek to investigate what the actual fault in the ventilator was or the alleged negligence which caused the applicant’s daughter’s death as a whole. The only evidence that the applicant could provide was her own testimony. But the domestic courts concluded that her testimony and those of the witnesses were contradictory without having heard any experts.

89.  The fact that not even the cause of the death was established with certainty shows a deficiency in the manner in which the court investigated the case. The Court has already stated that, for the purposes of the procedural obligation of Article 2, the scope of an investigation faced with complex issues arising in a medical context cannot be interpreted as being limited to the time and direct cause of the individual’s death (see Lopes de Sousa Fernandes, cited above, § 237).

90.  The domestic courts, instead of carrying out an overall assessment, approached events in a rather passive way, simply by allowing some of the evidence requested by the applicant in order to find out who had installed the ventilator, without making an effort to establish the cause of the death. The investigating court discontinued the proceedings three times, and during the five years of investigation, there was a significant delay in the examination of the evidence.

91.  It is to be noted that it took two months for the investigating court to examine the first evidence after the reopening of the investigation was ordered by the Audiencia Provincial (see paragraphs 11 and 15 above). This was the first evidence examined in the investigation, over a year after the criminal complaint was lodged (see paragraph 15 above). After the second provisional discontinuance of the proceedings, it took about six weeks for the investigating court to order the examination of evidence again (see paragraphs 25 and 26).

92.  In total, the investigation stage lasted for five years. In the meantime the Code of Criminal Procedure was amended in order to introduce a new six-month time-limit for criminal investigation. During the five-year investigation period, several items of evidence were presented before the investigating court. These mostly consisted of the testimony of the technicians who worked for the distributor, which was the company which had supplied the ventilator to a hospital as well as disposable supplies to the applicant. However, none of that testimony clarified who had actually installed the ventilator, or what the specific causes of its failure were. The relevant evidence required to establish whether there had been medical negligence was never examined before the investigating court. Despite her many requests, not all the evidence requested by the applicant was submitted. Being a victim, she had the right to intervene in the proceedings by means of a private prosecution, but the involuntary homicide of a patient is a offence subject to public prosecution, which required the public prosecutor to take the procedural initiative (see Article 105 § 1 of the Spanish Criminal Code, paragraph 42 above) and the investigating court to clarify the circumstances of the case.

93.  For the Court, the criminal investigation was excessively long, especially in the light of the fact that it ended up being discontinued because the time-limit for ascertaining the cause of the death (and as a result, whether someone could be criminally liable) eventually ran out. For the Court, neither the conduct of the applicant nor the complexity of the case can suffice to explain such length.

94.  In view of the above, the Court considers that the criminal proceedings in the present case cannot be regarded as effective for the purposes of Article 2. Moreover, the respondent State failed in demonstrating that resort to civil proceedings would have led to a more effective investigation of the cause of death; other avenues, such as administrative or disciplinary proceedings, were not available. The Court considers that the domestic system as a whole, when faced with an arguable case of medical negligence resulting in the death of the applicant’s daughter, failed to provide an adequate, effective and timely response consonant with the State’s obligation under Article 2. Accordingly, there has been a violation of the procedural aspect of that provision.

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

95.  The applicant complained that the refusal to examine the evidence requested by her in order to investigate her daughter’s death violated her right to fair proceedings and to equality of arms as provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

96.  The Government did not raise any objections regarding the admissibility of this complaint. However, the Court is called to examine the applicability of the article 6 in the present case.

97.  Article 6 is applicable to everyone charged with a criminal offence as well as to the proceedings concerning one’s civil rights and obligations. As regards the present application, the Court notes that criminal proceedings were initiated by a complaint lodged by the applicant, and were conducted in order to determine whether the applicant’s child’s death had been caused by a serious negligence which could constitute a criminally liable conduct. The proceedings were discontinued at the investigation stage, and no charges were formally brought against anybody. No investigation was directed against the applicant and she was not charged in the proceedings under consideration. The national courts concluded that the investigating stage had to be ended due to the expiry of the applicable time-limits.

98.  The Court recalls that there is no right under Article 6 of the Convention to obtain prosecution and conviction of a third party (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 I). In the above circumstances, in so far as the complaint is related to alleged shortcomings in the criminal proceedings which the applicant initiated and tried to pursue against a person who might have committed a negligent act causing her child’s death, it falls outside the scope of the criminal head of Article 6.

99.  There is no disagreement between the parties that the applicant only initiated and pursued criminal proceedings and that there were no separate civil proceedings pending. The decisions contested concerned the national courts’ decision to discontinue those criminal proceedings without having clarified, at least, the cause of the child’s death and particularly whether it had been caused by a serious negligence. In such circumstances, the Court is unable to conclude that the proceedings in question could be considered decisive or essential for determination of the applicant’s civil rights (see Perez, cited above, § 62, and Gracia Gonzalez, cited above, § 55).

100.  Accordingly, the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

101.  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.”

Damage

102.  The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage, for the “unquestionable pain caused by the fact that a mother sees how justice is incapable of investigating the death of her daughter and finding and judging those responsible for that death”.

103.  The Government replied that no amount should be awarded to the applicant for this purpose. Although they mainly denied any violation of the Convention, they argued that finding of a violation by the Court would constitute in itself sufficient compensation for the non-pecuniary damage which might have been caused to the applicant, in the light of the grounds of her application.

104.  The Court awards the applicant EUR 32,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

Costs and expenses

105.  The applicant also claimed a total of EUR 10,765.33 for the costs and expenses incurred before the domestic courts and the Court. In particular, she claimed the costs of the lawyer and judicial representative (procurador) at the investigation stage before the domestic authorities, as well as the cost of the lawyer’s representative before the Court and the translation of the texts to be submitted to the Court.

106.  The Government opposed the award of such costs and expenses. They contended that it was disproportionate to claim the entirety of the costs of the judicial proceedings as a consequence of an alleged procedural breach. In addition, the Government opposed each of the specific items requested by the applicant because the actual payment of the alleged costs had not been sufficiently proved.

107.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not sufficiently proved the actual payment of the costs attached to the proceedings in order to justify their reimbursement. As a consequence, the Court, regard being had to the documents in its possession and the above criteria, rejects the claim for costs and expenses in the domestic proceedings and for the proceedings before the Court.

FOR THESE REASONS, THE COURT,

Declares, unanimously, the complaint under Article 6 § 1 inadmissible;Declares, unanimously, the remainder of the application admissible;Holds, by six votes to one, that there has been a violation of the procedural limb of Article 2 of the Convention as regards the investigations carried out by the national authorities;Holds, by six votes to one,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 32,000 (thirty-two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Milan Blaško  Georges Ravarani
 Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Ravarani is annexed to this judgment.

G.R.
M.B.
 

PARTLY DISSENTING OPINION OF JUDGE RAVARANI

I was not able, regretfully, to follow my colleagues in finding a violation of the procedural limb of Article 2 in the present case.

I should start by emphasising that I can see merit in the finding that the criminal investigation in the present case lacked efficiency or, more precisely, that the prosecuting and investigating authorities showed some inconsistency while conducting the criminal proceedings. Indeed, the proceedings were started at the initiative of the applicant, then stopped by the prosecutor who found that there was no crime, then twice reopened following an appeal by the applicant and eventually stopped by the prosecutor. Such toing and froing can, at first glance, give an impression of an ineffective investigation failing to establish the truth.

However, at second glance, the attitude of the authorities becomes understandable. It is important, in this context, to have a closer look at what the case is about.

The case is not, despite the mention of the concept on three occasions in the judgment (see paragraphs 74, 92 and 94) a case of medical negligence. No doctor, no nurse, no medical staff were involved and the child was not in the care of a medical structure like a hospital. The case is closer to product liability than to medical negligence. It is a case about a breathing device with a failure of the ventilator, the question being “whether that failure had been of a mechanical nature (and in that case, whether it could and should have been anticipated and prevented) or whether it had been caused by an inadequate installation of its components or other issue caused by negligence” (see paragraph 84 of the judgment), a question which the majority consider to be the “crux of the present case” (ibid.).

To my mind, the real crux of the case is whether there was any criminal case at all and whether there was any need to bring criminal proceedings.

According to the Court’s well-established case-law, in the absence of intent – and in the present case nobody alleged that there was any intention – Article 2 of the Convention does not necessarily require the provision of a criminal-law remedy (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017, and the case-law cited therein).

Of course, in any case where there is a casualty or if there are serious injuries, it is understandable that the victim or his or her relatives would seek to have criminal proceedings instituted, because in such a case the prosecutor has the initiative of conducting the investigation. This saves the victim the time and energy, never mind the cost, of adducing evidence himself or herself. However, it clearly flows from the Court’s case-law that Article 2 of the Convention does not entail the right to have third parties prosecuted – still less convicted – for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, 30 March 2016).

There is another reason why victims of medical negligence often prefer to have criminal proceedings instituted. Many victims want to see the perpetrator punished, stigmatised; they want to see the alleged offender appearing in flesh and blood before the judge. Unfortunately, civil proceedings in tort present a totally different and, at the end of the day, admittedly unsatisfactory picture. The victim will find himself or herself opposite an insurance company which defends the interests of the doctor, who does not even have to be present in the courtroom. The insurance company moreover obviously defends its own interests and will normally quite aggressively challenge any allegation of wrongdoing by its client.

However, whatever the underlying reasons for the preference for criminal proceedings, there must be, in the Spanish as well as in many other legal systems, at least some indication of a prima facie criminal case. The judgment underlines that the “public prosecution has a statutory obligation to investigate crimes” (paragraph 87 of the judgment). This statement however has to be qualified. Article 105 § 1 of the Spanish Code of Criminal Procedure (cited in paragraph 42 of the judgment) states, in this respect, that “[o]fficials of the public prosecutor’s office shall be obliged to bring, in accordance with the provisions of the law, all the criminal actions that they consider appropriate ...”. Beyond the somewhat ambiguous or even contradictory wording of this provision (and I admit my total ignorance of what this precisely means in Spanish law), it seems quite clear that the authorities are not obliged to initiate criminal proceedings at the discretion of the victim, but that they must be convinced themselves that there has been a crime, or at least that a crime could have been committed.

Pursuant to Article 142 § 1 of the Spanish Criminal Code (cited in paragraph 45 of the judgment), “any person who causes the death of another by serious negligence will be convicted of manslaughter”.

Consequently, the prosecutor must consider that there is, prima facie, a case of serious negligence. It is not for the prosecutor, even if urged to do so by a private party, to start a criminal investigation merely to find out whether there could have been serious negligence; he or she must be convinced that there are elements that point to the existence of such serious negligence.

In the present case, this essential element was lacking and the criminal authorities, confronted with a human tragedy, probably gave in – and that’s what they are ultimately being blamed for – and quite reluctantly started a criminal investigation which they tried to terminate three times, considering that there was no criminal liability.

So the bottom line, to my mind, is that there was no criminal case right from the outset and the authorities should not be blamed for not pushing laboriously to try to establish one.

This brings me to my final point. To my mind, generally speaking, in cases of bodily harm without intent and save for obvious gross negligence, especially in the realm of alleged medical negligence, the normal avenue should be the civil one. Do we really want to oblige medical staff to face a stigmatising and stressful criminal trial to defend themselves against any allegation of negligence? Or to have them put in jail for such negligence? One should be very careful about going down that route. Intent and gross negligence surely deserve criminal prosecution; incompetence, recurrent acts of negligence require administrative proceedings leading to the withdrawal of the licence to practise; occasional negligent acts – even dramatic ones leading to the death of a patient or serious injuries – should be dealt with in civil proceedings that are aimed at full monetary compensation for the victim. Criminal law is a serious tool; it should be handled with care.

The Spanish legal system provides for civil proceedings in tort that are independent from the criminal path. Such proceedings would have been, to my mind, the appropriate way of dealing with the facts of the present case which, as explained above, touch on questions of product liability. The authorities should not therefore have been blamed for failing to pursue the criminal proceedings, even though they had initially instituted them.

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