CASE OF RÕIGAS v. ESTONIA

SECOND SECTION

CASE OF RÕIGAS v. ESTONIA

(Application no. 49045/13)

JUDGMENT

STRASBOURG

12 September 2017

FINAL

29/01/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Rõigas v. Estonia,

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

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
Madis Ernits, ad hoc judge,
and Hasan Bakirci, Deputy Section Registrar,

Having deliberated in private on 11 July 2017,

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

PROCEDURE

1. The case originated in an application (no. 49045/13) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Ms Anneli Rõigas. She was represented before the Court by Mr R. Kuulme, a lawyer practising in Tallinn.

2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. Julia Laffranque, the judge elected in respect of Estonia, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 2 May 2017 the President of the Chamber decided to appoint Madis Ernits to sit as an ad hoc judge from the list of four persons whom the Republic of Estonia had designated as eligible to serve as such a judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a)).

4. The applicant complained, invoking Articles 2, 3 and 8 of the Convention, of the lack of effective investigation into her son’s medical treatment without his or her consent, inhuman treatment and torture while in hospital, and about the circumstances of his death.

5. On 2 December 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1963 and lives in Tallinn.

A. The circumstances of the death of the applicant’s son

7. In 2006 the applicant’s son O., who was born in 1983, was diagnosed with malignant melanoma. He was operated on in 2006, and underwent regular check-ups. In April 2009 a metastasis was removed from his brain, and he received radiation therapy.

8. In September 2009 O.’s state of health deteriorated. He was vomiting and felt weak and dizzy.

9. On 19 September 2009 the applicant called an ambulance and O. was taken to the North Estonia Medical Centre (“the NEMC”) (Põhja-Eesti Regionaalhaigla) for examination. A computerised tomography (CT) scan was performed on him. According to the applicant, O. was told that the scan had not revealed any problems with his health. He was prescribed an anti-vomiting drug and discharged from the hospital the same evening.

10. On 24 September 2009 the applicant again called an ambulance for O., who had been complaining of feeling generally unwell, of a numbness of one side of his face, a rash around his nose and dizziness. O. was admitted to the NEMC. A CT scan and magnetic resonance imaging (MRI) of O.’s brain were performed the same day and the following day, respectively. An additional CT scan of O.’s neck, lungs, abdomen and pelvic area was performed on 29 September 2009. The MRI scan and the CT scan of 29 September 2009, taken together, indicated a leptomeningeal pathological process involving the cranial nerves, a probable meningeal metastatic process and probable multiple metastases in the liver and other organs of the abdominal cavity. He was given hormonal and infusion therapy, but his health deteriorated rapidly. He developed breathing and walking problems and a speech impediment, and his eyesight worsened. On 28 September 2009 a hospital medical council decided to proceed with palliative care. It found that because of the spread of the tumour, oncological treatment would not be effective. The applicant pointed out that the medical council’s decision had not been signed by O.

11. For one week starting from 5 October 2009, O. was physically restrained to a bed with magnetically locking restraints on both arms, apparently in order to prevent him from hurting himself, given his disturbed state of mind.

12. On 6 October 2009 O. was transferred to an intensive care unit because he was suffering from progressive respiratory failure and a disturbed state of mind. He was also diagnosed with pneumonia and, in the light of that finding, was given additional antibacterial treatment. According to the medical record (nurse’s notes), on 6 October 2009 O. was intubated because he was having breathing difficulties. On the same day the medical council found that a surgical cure would not be possible and decided to continue with palliative treatment supporting the vital functions. The applicant again pointed out that the medical council’s decision was not signed by O.

13. On 9 October 2009 a tracheotomy was performed on O.

14. On 12 October 2009 O. stopped breathing and mechanical ventilation was applied. On 13 October 2009 characteristics corresponding to brain death were ascertained. According to information in a report drawn up by the Estonian Forensic Science Institute based on an analysis of O.’s medical records, an electroencephalogram performed the same day revealed serious diffuse brain damage and only minimal electrical activity. O.’s active treatment and feeding were discontinued, but the infusion therapy was continued. The applicant disagreed with this finding and rather considered that O. had fallen into a coma following an overdose of medicine. She maintained that O.’s pulse had reacted to her speech the following day, 14 October 2009, which had indicated that O. had not been brain-dead. According to the applicant, the protocol for verifying brain death was never fully and properly carried out. The administration of food and medicines was not resumed, despite the applicant’s requests. The applicant alleged that during the night of 14 October 2009, O.’s blanket had been removed and he had been left with only a sheet near an open window, which had caused his body temperature to drop to 35 degrees Celsius.

15. On 15 October 2009 O.’s heart stopped and the mechanical ventilation was terminated.

B. Events and proceedings following the death of the applicant’s son

16. On 15 October 2009 the applicant called the police on the general emergency number, complained about O.’s treatment and asked that an expert examination be commissioned. Her phone call was registered as an information notice (infoteade) and not as the reporting of a crime. The applicant was advised to contact the Expert Committee on the Quality of Health Care Services (Tervishoiuteenuse kvaliteedi ekspertkomisjon; hereinafter “the Expert Committee”).

17. On 16 October 2009 an autopsy was performed at the NEMC. The medical death certificate (arstlik surmateatis) indicated cerebral oedema as the immediate cause of death, and melanoma with multiple metastases as the medical condition that had brought about the immediate cause of death. According to the autopsy report (lahangu protokoll), O. died of malignant melanoma with multiple metastases in the brain, which also caused cerebral haemorrhage and oedema as complications.

18. On 2 November 2009 the applicant complained to the Health Board (Terviseamet) of O.’s inhuman treatment and about the circumstances of his death.

19. On 8 March 2010 the Health Board informed the applicant that the case had been transmitted to the Expert Committee. The Expert Committee examined O.’s medical records, obtained written explanations from several members of the medical staff who had treated O., and ordered two expert opinions, one to be prepared by one of its members and the other by another doctor, both professors emeriti. The Expert Committee also heard the applicant. In its decision given on 25 March 2010, it found no medical malpractice in O.’s treatment. According to the report of the Expert Committee’s meeting of 25 March 2010 at which the applicant was also present, the Expert Committee gave oral answers to the applicant’s questions regarding the possible radiation of O. during his previous treatment; the decision not to offer chemotherapy to O.; and the alleged late detection of pneumonia. In addition, the Expert Committee’s decision contained written answers to the applicant, stating that O. had not suffered from a stroke; that the deterioration in his health had not been caused by the administration of specific medication or the withdrawal thereof, but rather by the metastatic developments in his brain; and that based on the medical records, O. had not been starved, nor had his mechanical ventilation been stopped before his death. The applicant was also notified of the possibility to request an alternative medical expert opinion and was informed that tissue samples gathered while the patient was alive as well as after his death, would be maintained for thirty years at the NEMC pathology centre and were available on demand. The applicant considered that the Expert Committee had not been impartial, that it had lacked a quorum at its meeting of 25 March 2010 and that the decision it had adopted contained false statements. An action lodged by the applicant to have the Expert Committee’s report declared unlawful and claiming damages for it was dismissed by a final judgment of the Supreme Court on 2 December 2015.

20. In the meantime, on 22 March 2010 the applicant lodged an offence report with a prosecutor’s office. Criminal proceedings under Article 123 of the Penal Code (placing or leaving another person in a situation which is life-threatening or likely to cause serious damage to the person’s health) were initiated on 1 April 2010.

21. In the course of the criminal investigation, several individuals (doctors, nurses, the applicant, and O.’s friends who had visited him in the hospital) were interviewed. Requests for documentary evidence (the Expert Committee’s opinion, O.’s medical file as well as the autopsy report) were submitted and documents were received; a forensic medical examination was ordered from the Estonian Forensic Science Institute. The prosecutor posed ten questions to the forensic medical experts addressing, inter alia, O.’s diagnoses; the adequacy of the treatment with respect to his state of health (including the tracheotomy); the restraining of O. to the bed; the administration of medicine on 12 October 2009 and whether this could have caused O.’s breathing to stop; the decision to cease the administration of medicine and food on 13 October 2009; the assertion that O. was brain-dead; and the decision to stop mechanical ventilation.

22. According to the forensic medical report dated 30 August 2012, O. had received treatment appropriate for his condition. The forensic medical experts also concluded that the medicine administered to O. had been appropriate and had not caused his breathing to stop. They considered that the restraining of O. to the bed could have been justified in the instant case. As the characteristics corresponding to brain death had been ascertained, the discontinuation of feeding and the continuation of infusion therapy had been medically justified. The experts also concluded that the mechanical ventilation had been turned off only after his heart had stopped and thus could not have been the cause of his death. The forensic medical assessment found that O.’s death had been caused by malignant melanoma with multiple metastases, with further complications of cerebral haemorrhage and oedema.

23. On 25 October 2012 the criminal proceedings were terminated as the commission of an offence had not been proven based on the evidence gathered. An appeal lodged by the applicant with the Office of the Prosecutor General was dismissed on 10 December 2012. On 28 January 2013 the Tallinn Court of Appeal dismissed a further appeal lodged by the applicant.

24. Following the termination of the criminal proceedings, the Office of the Prosecutor General dismissed complaints lodged by the applicant regarding the refusal to initiate additional criminal proceedings against the chief inspector of the Health Board’s supervisory department, against the experts of the Estonian Forensic Science Institute who had drawn up the forensic medical report during the original criminal proceedings (this refusal was later upheld by the Court of Appeal), against two prosecutors and the judge of the Court of Appeal. The Office of the Prosecutor General also dismissed an application lodged by the applicant to reopen the original criminal proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

1. Penal Code

25. Article 117 of the Penal Code (Karistusseadustik) provides that negligent manslaughter is punishable by up to three years’ imprisonment.

26. Article 119 provides that causing serious damage to health through negligence is punishable by a fine or up to one year’s imprisonment.

27. Article 123 provides that placing or leaving another person in a situation that is life-threatening or likely to cause serious damage to the health of the person is punishable by a fine or up to three years’ imprisonment.

2. Code of Criminal Procedure

28. Article 6 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) establishes the principle of mandatory criminal proceedings. The investigative bodies and the public prosecutor’s office are required to conduct criminal proceedings when facts referring to a criminal offence have become evident.

29. Article 38 of the Code of Criminal Procedure, as it was in force at the relevant time, provided that the victim had the right within the framework of criminal proceedings to lodge a civil claim by latest the end of a trial in the first-instance court.

30. The Code of Criminal Procedure further provides:

Article 193 – Commencement of criminal proceedings

“(1) An investigative body or the public prosecutor’s office shall commence criminal proceedings by carrying out the first investigative activity or other procedural act if there are reasons and grounds for doing so and if the circumstances provided for in Article 199 § 1 of this Code do not exist.”

Article 194 – Reasons and grounds for criminal proceedings

“(1) A reason for the commencement of criminal proceedings may be a report of a criminal offence or some other information indicating that a criminal offence has taken place.

(2) Grounds for instituting criminal proceedings are constituted by the ascertainment of criminal elements in the reason for the criminal proceedings.”

Article 196 – Report of violent death

“(2) If a health-care professional conducting an autopsy suspects that the person died as a result of a criminal offence, he or she shall notify an investigative body or the public prosecutor’s office of such suspicion immediately.”

Article 199 – Circumstances precluding criminal proceedings

“(1) Criminal proceedings shall not be commenced if:

1. there are no grounds for criminal proceedings; ...”

Article 200 – Termination of criminal proceedings following occurrence of circumstances precluding criminal proceedings

“If circumstances as specified in Article 199 of this Code which preclude criminal proceedings become evident in the pre-trial proceedings, the proceedings shall be terminated on the basis of an order of the investigative body with the permission of a prosecutor’s office, or by order of a prosecutor’s office.”

31. Under Article 207, a victim may lodge an appeal with the Office of the Prosecutor General against the termination of criminal proceedings.

32. Under Article 208, if the appeal mentioned in Article 207 is dismissed by order of the Office of the Prosecutor General, the victim of an alleged offence may lodge a complaint with the court of appeal against the dismissal. Such a complaint must be lodged through a lawyer (advokaat).

3. Establishment of the Cause of Death Act

33. Section 5 of the Establishment of the Cause of Death Act (Surma põhjuse tuvastamise seadus) provides that if a person dies at a hospital, the death must be immediately notified to the person’s consultant physician or doctor on call. Furthermore, if there is reason to believe that a person has died as a result of a criminal offence or as a result of “external causes” or a suspicion thereof, an investigative body or the public prosecutor’s office must be immediately notified.

34. Section 7 provides that having received a notice of death, the doctor must immediately perform an external examination of the deceased in order to confirm the death and ascertain the cause thereof. If the cause of death cannot be established as a result of an external examination of the deceased or based on the information concerning his or her latest disease and treatment, the doctor must send the body for a patho-anatomical autopsy.

35. Upon ascertaining the elements of a criminal offence in respect of a death, the investigative body or the public prosecutor’s office must institute criminal proceedings and order a forensic medical examination. In the event of death by other external causes or a suspicion thereof or if the cause of death is not established in another manner provided for by law, the investigative body or public prosecutor’s office must send the body for a forensic autopsy (section 9).

36. Section 14(2) provides that performing a patho-anatomical autopsy is compulsory if, inter alia, the cause of death is unclear but there is no reason to believe that the person died as a result of a criminal offence or due to external causes; there was an unclear diagnosis of a disease when the person was alive; or the person died as a result of diagnostic or treatment methods. In addition, a patho-anatomical autopsy is performed at the written request of persons close to the deceased.

37. Section 16 provides that if, in the course of a patho-anatomical autopsy, a suspicion arises that the person died as a result of a criminal offence or due to external causes, the performance of the autopsy must be interrupted and an investigative body of the prosecutor’s office immediately notified thereof.

38. Sections 19 and 20 concern forensic medical examination and forensic autopsy. Forensic medical examination is defined as the establishment of the cause of death by means of a forensic autopsy on the deceased and additional examinations performed by a forensic medical expert. A forensic medical examination for the establishment of the cause of death is performed if elements of a criminal offence become evident or if a suspicion of a criminal offence arises and is based on a ruling by the body conducting the proceedings.

4. Obligations Act

39. Under section 128 of the Obligations Act (Võlaõigusseadus), non-pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person.

40. Section 134(2) provides that where there is an obligation to compensate a person who has been caused bodily injuries or damage to health, a reasonable amount of money must be paid to the aggrieved person as compensation for non-pecuniary damage. Section 134(3) provides that in the event of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person, those close to the deceased or the aggrieved person may also claim compensation for non-pecuniary damage if payment of such compensation is justified by exceptional circumstances.

41. Section 759 provides that a contract for the provision of health-care services is, inter alia, deemed to have been entered into upon commencement of the provision of health-care services or the assumption of an obligation to provide health-care services with the consent of a patient, and also if commencement of the provision of health-care services to a patient lacking the capacity to express his or her will corresponds to his or her actual or presumed intention.

42. Section 762 provides that health-care services must conform at the very least to the general level of medical science at the time the services are provided. The services must be provided with the care which can normally be expected of providers of health-care services. If necessary, a provider of health-care services must refer a patient to a specialist or involve a specialist in the treatment of the patient.

43. Section 766 sets out an obligation for the provider of health-care services to inform the patient and to obtain the patient’s consent for his or her examination and the provision of health-care services.

44. Section 767 concerns the provision of health-care services to patients who are incapable of expressing their will. In such circumstances, the provision of health-care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health-care services promptly would put the life of the patient at risk or cause significant damage to his or her health. The intentions expressed earlier by a patient or his or her presumed intentions must, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient must be informed of his or her state of health, the provision of health-care services and the associated risks, if this is possible in the circumstances.

45. Section 769 sets out the obligation of a provider of health-care services to document the provision of health-care services.

46. The Obligations Act further provides:

Section 770 – Liability of providers of health-care services

“(1) Providers of health-care services ... shall be liable only for breach of their own obligations, particularly for errors in diagnosis and treatment, and for failure to fulfil the obligation to inform patients and obtain their consent.

(2) Providers of health-care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used in the provision of health-care services.

(3) The burden of proof regarding circumstances which are the basis for the liability of the provider of health-care services ... shall lie with the patient, unless the provision of health-care services to the patient has not been documented as required.

(4) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by means of ordinary treatment, the damage is presumed to have resulted from the error. In this case, the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient.”

Section 771 – Limitation period

“The limitation period for a patient to lodge a claim concerning compensation for damage is five years as of the time when the patient becomes aware that a provider of health-care services or a doctor has breached an obligation or caused damage.”

47. The rules on non-contractual (delict-based) liability provide:

Section 1043 – Compensation for unlawfully caused damage

“A person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable for causing the damage or is liable for the damage caused, pursuant to the law.”

Section 1044 – Claims lodged on other bases

“(3) If a person’s death, bodily injury or damage to health has been caused as a result of a breach of a contractual obligation, the tortfeasor shall also be liable for such damage on the basis provided for in this Chapter.”

Section 1045 – Unlawfulness of causing of damage

“(1) The causing of damage is unlawful if, above all, the damage is caused by:

1. the death of the victim;

2. bodily injury to, or damage to the health of, the victim;”

Section 1050 – Culpability as basis for liability

“(1) Unless otherwise provided for by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable for causing the damage.”

5. Civil Code (General Principles) Act

48. Section 153 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus) stipulates that the limitation period for lodging a claim arising from the causing of death, bodily injury or damage to health or from deprivation of liberty is three years as of the time the entitled person became or should have become aware of the damage and of the person liable to compensate for the damage, regardless of the legal basis of the claim.

6. Health Services Organisation Act

49. The Health Services Organisation Act (Tervishoiuteenuste korraldamise seadus) provides:

Section 50-2 – Expert Committee on the Quality of Health-Care Services

“(1) The Expert Committee on the Quality of Health-Care Services ... is an advisory committee the purpose of which is to assess the quality of health-care services provided to patients and to make proposals arising from the assessment to the Health Board, the Estonian Health Insurance Fund and the health care providers.

(2) The Committee is competent to:

1. assess the quality of a health-care service provided to a patient;

2. make proposals to the Health Board for the initiation of supervision proceedings in respect of the activity of a health care provider; ...”

50. Under section 60, the Health Board, a governmental authority operating within the purview of the Ministry of Social Affairs, supervises compliance with the requirements established for health-care providers. Individuals have a right to submit complaints to the Health Board regarding compliance with those requirements.

7. Case-law of the domestic courts

(a) Case-law in criminal matters

51. The Supreme Court (Riigikohus), in its judgment of 22 September 2010 (case no. 3-1-1-60-10), reiterated the principle of mandatory criminal proceedings provided for in Article 6 of the Code of Criminal Procedure. It noted that while the principle in dubio pro reo required that the accused was to be given the benefit of the doubt when a judgment was made, the principle in dubio pro duriore was applicable in respect of the initiation of criminal proceedings and at that stage any suspicion of crime was to be interpreted in favour of the initiation of proceedings. Nevertheless, due to the prevailing attitudes in society, an individual could also be stigmatised merely by having criminal proceedings instituted in respect of him or her. Therefore, it was unacceptable to initiate criminal proceedings in a situation where no suspicion of a crime existed at all or was merely theoretical.

52. The Tallinn Court of Appeal (Tallinna Ringkonnakohus), in its decision of 14 February 2011 (case no. 1-10-15692), examined a complaint against the refusal of the public prosecutor’s office to institute criminal proceedings related to serious damage to health allegedly caused by a medical error. The Court of Appeal ordered the public prosecutor’s office to institute criminal proceedings in order to clarify the circumstances described in the offence report. It noted, inter alia, with reference to a Supreme Court judgment of 29 November 2010 (case no. 3-1-1-79-10), that if non-legal specialist knowledge was required in criminal proceedings, an expert opinion had to be sought. The court noted the decisions of the Expert Committee were not admissible as expert opinions in criminal proceedings.

53. The Supreme Court judgment of 29 November 2010 concerned the conviction of a doctor for causing serious damage to health through negligence (case no. 3-1-1-79-10, followed by the Tallinn Court of Appeal’s judgment of 27 June 2013 in the same case (no. 1-12-5377) in which pecuniary and non-pecuniary damages were awarded). In its judgment the Supreme Court pointed out that often a medical treatment error, namely treatment which was substandard in comparison with the general level of medical science, arose from a failure to comply with the medical treatment guidelines. This, in turn, constituted a failure to provide the care normally expected within the meaning of section 762 of the Obligations Act and criminal negligence within the meaning of Article 119 of the Penal Code.

54. The Supreme Court, in its decision of 11 April 2011 (case no. 3-1-1-97-10), confirmed the generally recognised concept that, for example, in the case of manslaughter or murder, the next-of-kin of the deceased person was to be considered a victim.

55. The Tallinn Court of Appeal, in its judgment of 19 October 2011 (case no. 1-09-21700) in a case concerning manslaughter, agreed with the lower court that had awarded the victim’s next-of-kin non-pecuniary damages. The Court of Appeal found that unlawfully causing the death of the plaintiff’s very close next-of-kin (the plaintiff’s son) should be considered an exceptional circumstance within the meaning of section 134(3) of the Obligations Act.

56. Further cases provide examples concerning the provision of medical services in the wider sense, such as the conviction, under Article 123 of the Penal Code, of an employee of an emergency call centre for leaving a person in a life-threatening situation (Tartu County Court’s (Tartu Maakohus) judgment of 16 September 2009, case no. 1-09-9063; subsequent to the criminal proceedings, the spouse of the deceased also initiated administrative court proceedings and was awarded pecuniary and non-pecuniary damages). The Tallinn Court of Appeal, by a judgment of 18 May 2007 (case no. 1-06-4949), acquitted an ambulance worker who had been charged with negligent manslaughter under Article 117 of the Penal Code for not taking an intoxicated person with signs of trauma and problems of consciousness to the hospital but instead handing the person over to the police.

57. As regards the connection between criminal and civil proceedings in alleged medical malpractice cases, the Tartu Court of Appeal (Tartu Ringkonnakohus), in its decision of 24 April 2007 (case no. 1-07-4017), upheld the decision of Office of the Prosecutor General that the failure of a doctor to comply with his duty to inform the patient about the medical treatment or to keep a documentary record of the treatment could be unlawful under civil law, but could not entail criminal liability. The Court of Appeal stressed that the breach of a duty under the Obligations Act entailed liability under civil law, but that that type of liability fell outside the scope of criminal proceedings.

(b) Case-law in civil matters

58. As regards civil liability, the Supreme Court, in its judgment of 8 April 2011 (no. 3-2-1-171-10), held that a victim may claim compensation for damage caused first and foremost by a breach of the health-care services contract. In addition, in the case of causing damage to a person’s health as a result of a breach of contractual obligations, the health-care provider may also be liable under the provisions concerning compensation for unlawfully caused damage (non-contractual liability; section 1044 et seq. of the Obligations Act). In such a case, victims may submit their claims alternatively and the legal basis of the claim has to be determined by a court, regardless of the arguments of the parties.

59. The Tallinn Court of Appeal, in its judgment of 22 September 2008 (case no. 2-05-2059), reiterated that in the event of an error in diagnosis or treatment resulting in damage to the patient’s health, which could probably have been avoided by ordinary treatment, it is presumed that the damage occurred as a result of the error. The absence of a causal link must be proven by the defendant. In that case the plaintiff was awarded compensation for non-pecuniary damage. The court also noted that an opinion of the Expert Committee constituted documentary evidence in the civil court proceedings.

60. Non-pecuniary damages have been awarded in several medical negligence cases. These include cases in which the duty to notify the plaintiffs and obtain their consent had been breached (Tartu Court of Appeal’s judgments of 2 December 2013 (case no. 2-10-61884) and 9 October 2013 (case no. 2-06-9959).

61. In a judgment of 15 February 2014 (case no. 2-14-13101), the Viru County Court (Viru Maakohus) dealt with liability related to the provision of health-care services. The court relied on, inter alia, the opinion of the Expert Committee. It noted that breach of the duty to notify the patient or to obtain the patient’s consent did not serve as sufficient grounds for awarding damages if the patient had not sustained damage to health as a result thereof.

62. The Supreme Court, in its judgment of 9 April 2008 (case no. 3-2-1-19-08), noted that a victim of bodily injury or health damage who had not died as a result of it until a later date also acquired the right to claim monetary compensation for non-pecuniary damage under section 130(2) of the Obligations Act. Under the conditions provided for in section 166(1) of that Act, such claims could be transferred or bequeathed, that is the successors of the deceased person could also lodge such a claim. In that case, the plaintiff had not acted as a successor in claiming compensation for the possible non-pecuniary damage caused to her spouse. The Supreme Court further noted that under section 134(3) of the Obligations Act, the next-of-kin of a person who had died or sustained a serious injury or damage to health could also claim compensation for non-pecuniary damage if payment of such compensation was justified by exceptional circumstances. Analysing the notion of “exceptional circumstances”, the Supreme Court found that they did not comprise the causing of death or serious damage to health as such, and noted that grief inevitably accompanied the death of a close person. Rather, a compensation claim on the part of the victim’s next-of-kin was justified in cases where the next-of-kin had been in physical proximity to the victim at the time the damage was caused, or had been a direct witness to an accident or its consequences, as well as where he or she had suffered subsequent distress caused by seeing the injuries or suffering of the victim.

63. In a judgment of 14 February 2012 (case no. 2-06-17756), the Tallinn Court of Appeal dealt with a claim for compensation against a hospital which had allegedly caused the death of the plaintiff’s mother. The court considered, inter alia, that an opinion of the Expert Committee was admissible as documentary evidence. Relying on the said opinion, the expert assessment ordered by the first-instance court and other evidence, the court found that there was no causal link between the provision of the health-care service and the death of the plaintiff’s mother. As regards the damage, the Court of Appeal noted that under section 134(3) of the Obligations Act, the next-of-kin of the deceased also had an independent right of claim, but held that the plaintiff had to substantiate and prove the existence of “exceptional circumstances” within the meaning of section 134(3).

64. In a case decided by the Supreme Court on 15 November 2013 (case no. 3-2-1-131-13), the courts established an error in treatment by a hospital that had caused the death of the plaintiffs’ new-born child, and ordered the defendant to pay 7,000 euros (EUR) to the mother and EUR 3,000 to the father in respect of non-pecuniary damage.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

65. Relying on the procedural aspect of Article 2 and on Article 3 of the Convention, the applicant complained of lack of effective investigation into her son’s maltreatment and subsequent death in a hospital as a result of alleged medical negligence.

Being the master of characterisation to be given in law to the facts of the case, the Court is not bound by the characterisation given by the applicant or a Government (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). The Court considers that the applicant’s complaints should be examined from the standpoint of Article 2 of the Convention in as much as they are related to the death of the applicant’s son in the hospital.

Article 2, in so far as relevant to the present case, reads as follows:

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

A. Admissibility

1. The parties’ submissions

(a) The Government

66. The Government raised a preliminary objection of non-exhaustion of domestic remedies and submitted that the complaint under Article 2 should be declared inadmissible.

67. The Government noted that although the applicant had reported a criminal offence and contested the termination of the criminal proceedings, this could not be considered sufficient within the meaning of Article 35 of the Convention. The criminal investigation had not established elements of a criminal offence, so the criminal proceedings had been terminated without bringing charges against anyone. In instances where elements of criminal offence were not established, the criminal-law remedy could not be seen as effective. The applicant could therefore not choose to pursue it in place of a civil remedy in order to meet the requirement of exhaustion of domestic remedies.

68. The Government further drew attention to the fact that the termination of criminal proceedings for absence of elements of a criminal offence did not affect the effectiveness of civil-law remedies. However, the applicant had not pursued any civil-law remedies to complain about O.’s medical treatment and subsequent death.

69. Although the applicant had recourse to the Expert Committee on the Quality of Health Care Services, this could not be considered as making use of a legal remedy. The Government noted that the Expert Committee was an advisory body the purpose of which was to assess the quality of health-care services provided to patients. It did not give opinions on issues of law, nor did it resolve claims for damages. The opinions of the Expert Committee were not binding; nor could they be contested. Those opinions could be used as evidence in civil court proceedings, but not in criminal court proceedings, where a separate forensic medical assessment had to be ordered. According to the Government, regardless of the Expert Committee’s opinion, a person could lodge an action with the court and request a new expert opinion.

(b) The applicant

70. Referring to the principle of mandatory criminal proceedings provided for in Article 6 of the Code of Criminal Procedure, the applicant submitted that the sole effective legal remedy to have the cause of death investigated was the submission of an offence report and the consequent criminal proceedings to determine whether a crime had been committed. As the ruling of the Tallinn Court of Appeal of 28 January 2013 had been final, the applicant claimed that she had used all the required domestic remedies.

71. The applicant noted that the lodging of a claim for pecuniary or non-pecuniary damage in a civil court was neither an effective nor an appropriate legal remedy to have a person’s death investigated. In any case, the possibility of claiming pecuniary or non-pecuniary damage did not relieve the State from its obligation to establish an effective judicial system for investigating the cause of death in the course of criminal proceedings.

72. Referring to the Court’s judgment in the case of Jasinskis v. Latvia (no. 45744/08, § 50, 21 December 2010), the applicant pointed out that in the event of there being a number of domestic remedies which an individual could pursue, that person was entitled to choose a remedy which addressed his or her essential grievance.

2. The Court’s assessment

73. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-70, 25 March 2014, and Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Vučković and Others, cited above, §§ 71 and 74, and Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

74. In the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999, and Jasinskis, cited above, § 50).

75. The Court has previously noted that in alleged medical negligence cases, the Estonian legal order provided for both civil and criminal remedies. Both of those remedies provide an opportunity to determine the cause of death of patients in the care of the medical profession, address issues of possible medical negligence and make accountable those responsible for wrongful deaths (see A.V. v. Estonia (dec.), no. 3853/14, § 72, 29 March 2016) .

76. In the instant case the applicant made use of the criminal-law remedy provided for by Estonian law. She lodged an offence report with the prosecutor’s office on 22 March 2010 and criminal proceedings were initiated on 1 April 2010. During the following two years and seven months, until the criminal proceedings were terminated on 25 October 2012, several measures were taken within the framework of the criminal investigation: the applicant herself, O.’s friends who had visited him in the hospital, as well as various doctors and nurses who had been involved in his treatment were interviewed; O.’s medical file was examined and a forensic medical assessment was ordered from the Estonian Forensic Science Institute. By an order of 25 October 2012 the prosecutor terminated the criminal proceedings, stating that the criminal investigation had not proven that O.’s death had been caused by the medical staff or that O. had been tortured during his stay at the hospital. No charges were brought against anyone.

77. The Court notes that in the present case the applicant did not attempt to make use of civil-law remedies.

78. As regards the proceedings before the Expert Committee, the Court points out that the committee is an advisory body that does not by itself have authority to provide redress (see paragraph 49 above). The opinions of the Expert Committee can be used as documentary evidence in civil court proceedings (see paragraph 59 above), but cannot, according to domestic court practice, be used in the capacity of expert opinions in criminal court proceedings (see paragraph 52 above). Based on those findings, recourse to the Expert Committee cannot, when taken alone, be considered as use of a remedy sufficient for meeting the requirement of exhaustion of domestic remedies (see A.V., cited above, § 70).

79. Taking note of the Government’s observations, the Court considers that a mere attempt to initiate criminal proceedings by lodging an offence report with the relevant authorities might not be sufficient to consider the domestic remedies to be exhausted. This might be so where, based on the particular facts of a case, it is clear that no elements of a criminal offence exist, no criminal proceedings are ever instituted and this is promptly made known to the person lodging the report.

80. In the instant case, however, criminal proceedings were instituted and continued for a period of two years and seven months, during which several procedural steps were taken to elucidate the facts of the case and establish the possible liability of the medical-care provider and the personnel involved. The decision to terminate the criminal proceedings became final three months later, after appeals to the Office of the Prosecutor General and the Tallinn Court of Appeal had been unsuccessful.

81. Having regard to the manner in which the criminal proceedings were conducted – they cannot be considered to have been merely formalistic or superficial – the Court considers that the applicant could reasonably have expected them to address her grievances. The Court notes in this context that under the domestic law it was also open to her to lodge a civil claim within the criminal proceedings (see paragraph 29 above). Assessing the effectiveness of the criminal remedy within the context of the present case, the fact that the applicant did not lodge a separate civil action cannot be held against her when assessing whether domestic remedies have been exhausted (see, Bajić v. Croatia, no. 41108/10, §§ 79 and 81, 13 November 2012, and, a contrario, Karakoca v. Turkey (dec.), no. 461456/11, ECHR, 21 May 2013).

82. In the light of the foregoing the Court finds that the Government’s objection regarding the non-exhaustion of domestic remedies should be dismissed.

83. The Court further considers that the complaint under Article 2 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

84. The applicant complained under Article 2 of the Convention that the police had refused to institute criminal proceedings following her initial complaint of 15 October 2009 and that when proceedings were finally initiated, they had been unreasonably lengthy. All the steps necessary to secure possible evidence in the case had not been taken. No independent autopsy had been performed and the results of the tests performed in the hospital had not been independently verified. The applicant put into question the official explanation for the cause of her son’s death and considered that the medical staff had failed to carry out a sufficiently profound medical examination of her son and to give due consideration to other possible reasons for the deterioration of his health, besides the cancer. For example, they had failed to diagnose pneumonia in due time and to assess whether the deterioration of O.’s condition could have been attributed to a tick-borne disease. Other possible causes of death had also been overlooked by the investigative authorities. The applicant further argued that the experts and authorities had failed to duly consider whether the administration of certain medicines, including sedatives, penicillin and medicines lowering the blood pressure, had been justified and in accordance with clinical safety guidelines. Nor had they considered whether such treatment had in fact had negative effects on O.’s condition, including causing his breathing to stop on 12 October 2013. Not all of the medical staff concerned had been questioned in the course of the investigation, and many of those who had been questioned had lied under oath. In the criminal proceedings the authorities had failed to ascertain whether depriving a person of food and treatment, in spite of objections from his immediate family, could be considered to be manslaughter. The procedure for determining brain death had not been followed and O. had been deprived of any treatment or food on 13 October 2009 without the brain-death procedure even having been commenced as required, let alone having been completed.

85. According to the applicant, the above facts demonstrated that the conclusions reached in the criminal proceedings and the subsequent termination of the proceedings had been based to a large extent on an insufficiently thorough examination of the case as well as on incomplete and falsified information. That illustrated that there was no effective judicial system in Estonia for establishing the cause of death of a person who had died in a hospital.

(b) The Government

86. The Government submitted that Estonia had an independent and effective system consisting of both criminal-law and civil-law remedies for investigating deaths allegedly arising from medical negligence, as required under Article 2 of the Convention.

87. Firstly, concerning criminal-law remedies, the Government pointed out that under the Code of Criminal Procedure a person could submit a report of a criminal offence to an investigative authority. Criminal proceedings would be initiated if there were reasons and grounds for doing so, namely if a criminal offence was suspected. The principle of legality applied, obliging the investigative authorities always to initiate criminal proceedings where there were elements of a criminal offence and to observe the principle of in dubio pro duriore, that is to say, to interpret each suspicion of a criminal offence in favour of initiating criminal proceedings (see paragraphs 30 and 51 above).

88. Secondly, concerning civil-law remedies, the Government explained that under Estonian law the liability of the health-care provider could be contractual (based on a violation of the contract to provide health-care services) or non-contractual (see paragraph 58 above). Moreover, the Government submitted that non-pecuniary damages could also be claimed by the next-of-kin of a deceased person – both as successors of the deceased for damage caused to the deceased, as well as in their own capacity for the damage caused to them. Although in the latter case the existence of exceptional circumstances was required, the Government pointed out that the existence of such circumstances was assessed on a case-by-case basis. Therefore it was impossible to claim with certainty that those circumstances had existed in the present case without the applicant having had recourse to the national courts first.

89. The Government further submitted that in cases concerning the provision of health-care services, non-legal specialist knowledge was required in the criminal proceedings and a separate expert assessment therefore had to be ordered. The Government noted, however, that the Expert Committee’s opinions were not admissible as expert opinions in criminal proceedings and that the refusal to institute criminal proceedings could not be based on the opinion of the Expert Committee (see paragraph 52 above).

90. In the event that criminal proceedings had already been instituted and circumstances which would have precluded criminal proceedings (for example lack of grounds for instituting criminal proceedings) became evident only during the proceedings, the proceedings had to be terminated on the basis of an order from the investigative body with the permission of a prosecutor’s office, or by means of an order from a prosecutor’s office. In such instances, the victim could contest the termination of the criminal proceedings by lodging a complaint firstly with the Office of the Prosecutor General and ultimately with the Court of Appeal. The Supreme Court had affirmed that, for example, in cases of manslaughter or murder, the next-of-kin of the deceased was also considered to be a victim (see paragraphs 30 to

32 and 54 above).

91. The Government further referred to the procedures to be followed under the Establishment of the Cause of Death Act where a patient had died in a hospital. Under that Act, if there was reason to believe that the person had died as a result of a criminal offence or external causes or a suspicion thereof, an investigative body or the prosecutor’s office had to be immediately notified. Furthermore, where the cause of death could not be established as a result of an external examination of the deceased or based on information concerning his or her latest disease and treatment, the doctor had to send the body for a mandatory patho-anatomical autopsy (see paragraphs 33 to 38 above). However, the Government argued that this did not mean that criminal proceedings had to be conducted for each case of death in a hospital.

92. The Government pointed out that Estonia had legislative grounds and the supporting case-law to confirm that providers of health-care services could be held criminally liable and that the victims had been awarded both pecuniary and non-pecuniary damages. The Penal Code provided for criminal liability for negligent manslaughter, for causing serious damage to health through negligence and for placing or leaving another person in a situation that was life-threatening or likely to cause serious damage to the person’s health (see paragraphs 25 to 27 above). The Government admitted that there had not been many cases where health-service providers had been convicted.

93. As to the present case, the Government submitted that the patho-anatomical autopsy of the applicant’s son had been performed in accordance with the law. However, based on its results, as no suspicion had arisen that he had died as a result of a criminal offence, a criminal investigation had not been opened. Criminal proceedings had been instituted later, on 1 April 2010, following an application from the applicant.

94. During the proceedings the applicant and different witnesses (both the medical staff of the hospital as well as O.’s friends) had been interviewed, requests for documentary evidence (the Expert Committee’s opinion, O.’s medical file as well as the autopsy report) had been submitted and a forensic medical assessment had been ordered.

95. The experts on the forensic medical committee had concluded unequivocally that the treatment provided by the NEMC had conformed to the patient’s state of health: the tracheotomy as well as the attaching of O.’s arms to the bed had been necessary and the medication administered had not caused O. to stop breathing independently. In addition, the forensic medical experts concluded that the decision to stop administering medication as well as food, but to continue with the infusion therapy after 13 October 2009 had been justified, and that the patient’s death had not been the result of switching off the mechanical ventilation.

96. On this basis, after assessing all the collected evidence, on 25 October 2012 the North District prosecutor’s office had terminated the criminal proceedings, concluding that there were no grounds for criminal proceedings, that is to say, during the course of the proceedings no elements of a criminal offence had been proven.

97. The decision to terminate the proceedings had been upheld by the Office of the Prosecutor General and by the Court of Appeal. In dismissing the applicant’s complaint, the Prosecutor General had addressed the applicant’s concerns regarding the alleged errors in treatment and had explained that despite the applicant’s disagreement with the outcome of the proceedings, the evidence gathered had not given rise to a suspicion that O. had been given unnecessary treatment or that negligent errors had brought about his premature death. It was also explained that the conclusions of the forensic medical expert committee had been objectively linked to the evidence available, and that there had been no valid grounds to doubt the competence of experts from the Estonian Forensic Science Institute. The Prosecutor General had also explained that not all the witnesses requested by the applicant had been interviewed as they could not have provided additional relevant information. The Court of Appeal had agreed with those findings.

98. The Government emphasised in their observations that any omissions or clerical errors during O.’s treatment, even if such had been made, that had not been relevant in relation to establishing the elements of any punishable act under the Penal Code (that is, which could not bring about criminal liability) did not have to be investigated in the course of criminal proceedings.

99. As regards the initiation and the length of the criminal proceedings, the Government submitted that there had been no obligation to initiate criminal proceedings following the applicant’s call to the police on 15 October 2009. Based on its content, the call had not been treated as a report of a criminal offence. The Government stressed that there was no obligation to initiate criminal proceedings if elements of a criminal offence did not seem to be present, based on the information received. Criminal proceedings had been initiated on 1 April 2010, that is to say within nine days of the submission of the report of a criminal offence, and had been terminated on 25 October 2012. Although the Government admitted that based on the materials of the criminal case, the activeness of the proceedings had varied at different stages, they considered that pre-trial proceedings lasting two and a half years could not be considered unreasonably long. In that regard, the Government pointed out that the applicant had submitted extensive additional correspondence to the investigators during the proceedings and that the time-consuming forensic committee expert assessment had to be prepared.

2. The Court’s assessment

(a) General principles

100. The Court reiterates that the first sentence of Article 2 of the Convention enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. These principles apply also to the area of public health (see Valeriy Fuklev v. Ukraine, no. 6318/03, §§ 64–65, 16 January 2014; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III).

101. However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and to protect the lives of patients, the Court cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations, under Article 2 of the Convention, to protect life (see Powell, cited above).

102. The positive obligations imposed on the State by Article 2 of the Convention imply that an effective independent judicial system be put in place by which 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 many other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I, and Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, § 81, ECHR 2013).

103. 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 (see Šilih v. Slovenia [GC], no. 71463/01, § 194, 9 April 2009, and 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 (see Šilih, cited above, § 194; Calvelli and Ciglio, cited above, § 51; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII). However, even if the procedural obligation under Article 2 of the Convention does not necessarily require the State to provide for criminal proceedings in medical negligence cases, such proceedings could by themselves have fulfilled the requirements of Article 2 of the Convention (see Šilih, cited above, § 202).

104. The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays (see Šilih, cited above, § 195, and Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006).

(b) Application of the principles to the present case

105. In determining whether the State has fulfilled its positive obligation under Article 2 of the Convention to set up an effective independent judicial system, the Court will examine whether the available legal remedies, taken together, as provided for in law and applied in practice, secured the effective legal means capable of establishing the relevant facts, holding accountable those at fault and providing appropriate redress to the victim (see Bilbija and Blažević v. Croatia, no. 62870/13, § 102, 12 January 2016).

106. The Court firstly notes that with regard to potential medical negligence cases, the respondent State has made available both criminal-law and civil-law remedies that in principle enable claims of medical errors resulting in the death of a patient to be addressed and those responsible to be held accountable.

107. As regards criminal-law remedies, negligent manslaughter, the causing of serious damage to health by negligence, as well as placing or leaving another person in a dangerous situation constitute criminal offences under the Estonian Penal Code (see paragraphs 25 to 27 above). Furthermore, under the Code of Criminal Procedure, an investigative body or the public prosecutor’s office must institute criminal proceedings if they obtain information indicating that a criminal offence may have taken place. Such information may be obtained, for example, through a report made by a victim or the victim’s next-of-kin. Also, health-care professionals are under a duty to report suspicious deaths (see paragraphs 28, 30 and paragraph 51 above). The Establishment of the Cause of Death Act provides for further rules relating to death while in hospital (see paragraphs 33 to 38 above).

108. The Court has also taken note of the domestic courts’ case-law, referred to by the Government, which indicates that criminal proceedings have been conducted against medical practitioners in medical negligence cases and that those responsible have also been convicted (see paragraphs 52 to 53 and paragraph 56 above). The Court also notes the central role of forensic medical examinations and the importance accorded to medical expert opinions in cases dealing with possible medical errors (see paragraph 52).

109. As for civil remedies, the Court has had regard to domestic law and practice according to which medical errors can be established in civil courts, which also can and do award compensation for non-pecuniary damage (see paragraphs 58 to 64 above). The Court also notes that under domestic law, a civil claim against the accused can be brought within the framework of criminal proceedings (see paragraph 29 above). The Court observes that in certain circumstances the deceased persons’ next-of-kin, as heirs, can claim compensation for non-pecuniary damage caused by the death and, in “exceptional circumstances”, can also claim compensation on their own behalf (see paragraphs 40 and 62 above).

110. In the instant case the applicant chose to use the criminal-law remedy. It must thus be assessed whether the criminal proceedings were in accordance with the State’s procedural obligation under Article 2 of the Convention.

111. As regards the initiation of the criminal proceedings, it appears from the material submitted to the Court that the applicant’s initial phone call to the police on 15 October 2009 was not registered as a report of a criminal offence but rather, based on its content, as a complaint about the medical care received and an expression of a wish to obtain an expert assessment. Thus no criminal proceedings were initiated in October 2009. The Court has no convincing reason to reconsider the initial assessment given to the particular situation by the national authorities. Subsequently, criminal proceedings were instituted on 1 April 2010, nine days after the applicant had lodged an offence report.

112. During the criminal proceedings, the applicant, O.’s friends who had visited him at the hospital and members of the medical staff were heard as witnesses; copies of O.’s medical file and the autopsy report were used as evidence and experts from the Estonian Forensic Science Institute were asked to submit an expert assessment. The questions posed by the prosecutor to the forensic medical experts concerned, inter alia, the overall adequacy of the treatment and the cause of O.’s death; the medical justification for the administration of different medicines, including whether they could have caused O.’s breathing to stop; the time at which O.’s brain death was ascertained and the subsequent decision to stop feeding him. The forensic medical assessment concluded that O.’s death had been caused by malignant melanoma with multiple metastases. The forensic experts asserted that O.’s treatment had conformed to his state of health and did not identify any instances of medical negligence or errors of treatment. Based on the material gathered during the proceedings, the criminal investigation was terminated as there was no evidence to suggest that O.’s death could be attributed to the medical staff.

113. The Court notes that the decision to terminate the criminal proceedings does not refer to the Expert Committee’s opinion, which cannot be used as an expert opinion in criminal proceedings and which the applicant has contested as including false data. Moreover, there is no compelling evidence that the forensic medical experts from the Estonian Forensic Science Institute would have been incompetent or partial in their work. Following appeals lodged by the applicant, the Prosecutor General and the Court of Appeal upheld the decision to terminate the proceedings and explained why not all the witnesses referred to by the applicant had been heard.

114. As regards the length of the proceedings, the Court considers that although there seem to have been periods of lesser activity during the proceedings, which the Government have also admitted, the total duration of the proceedings – two years and ten months until the final judgment on the termination of the criminal proceedings – cannot be considered excessively long.

115. The Court stresses that medical negligence cases often entail complex medical diagnoses and decisions that might have been taken under pressure or possibly in situations where no course of action would be free from some adverse side effects or would guarantee full recovery. In such instances, the investigative bodies and ultimately the courts, tasked with the responsibility of giving ex post legal qualification to previous medical decisions and courses of treatment, cannot assume the position of first-hand medical experts. This is why the medical expert opinions are very likely to carry a crucial weight in the courts’ assessment of highly complex issues of medical negligence (see Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007). Consequently, given the importance of the medical expert opinions, the procedural aspects of obtaining such opinions are essential. Those aspects concern, inter alia, the competence and independence of the experts, ensuring that the questions posed to the experts cover all the medically relevant aspects of the case, and that the expert opinions themselves are sufficiently reasoned.

116. Taking into account the observations of the applicant and the Government and based on the submitted material, the Court does not find sufficient grounds to conclude that the criminal proceedings in the respondent State would have been inadequate or not sufficiently thorough. The prosecutor’s decision to terminate the criminal proceedings was not taken hastily or arbitrarily, but rather relied on the evidence gathered, including the forensic medical assessment, which addressed questions posed within the framework of the criminal proceedings and matters regarding O.’s treatment and the cause of his death. The Court considers that although the forensic medical opinion might not have addressed all the questions that the applicant herself considered important, the national prosecution authorities should be allowed a certain discretion in deciding which questions are relevant in establishing criminal liability. The fact that the criminal proceedings did not lead to conviction does not in itself necessarily mean that the investigation was ineffective and in breach of the respondent State’s obligations under Article 2 of the Convention (see Istrățoiu v. Romania (dec.), no. 56556/10, § 80, 27 January 2015).

117. In conclusion, taking into account that the respondent State has demonstrated that both the civil-law and criminal-law remedies exist and function in practice, and considering that the criminal-law remedy used by the applicant in the present case cannot be said to have been applied ineffectively, the Court finds no violation of Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

118. The applicant complained under Article 8 of the Convention that various medicines were administered without O.’s consent or the consent of the applicant herself. According to the applicant, the authorities failed to address that issue during the proceedings.

119. Under Article 3, the applicant additionally complained about the medical procedures of intubation and tracheotomy performed on her son and the use of physical restraints to attach O.’s hands to the bed against his will as well as that of the applicant. According to the applicant, the unnecessary suffering caused by those medical acts was never sufficiently addressed during the criminal proceedings.

120. Being the master of characterisation to be given in law to the facts of the case, the Court is not bound by the characterisation given by the applicant or a government (see Guerra and Others, cited above, § 44). The Court considers that the applicant’s complaints raised under Article 3 should be examined from the standpoint of Article 8 in as much as they relate to the alleged involuntary treatment administered to her son.

121. Article 8 of the Convention reads as follows:

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Admissibility

1. The parties’ submissions

122. The Government firstly raised the objection of non-exhaustion of domestic remedies. They argued that the alleged violation consisting of failure to obtain informed consent from a patient was a matter of civil liability under national law and that the applicant had not made use of the civil-law remedies to complain of O.’s involuntary treatment. According to the Government, the remedy of claiming compensation for non-pecuniary damage would have been available to the applicant under national law. The Government submitted that although the applicant had submitted her complaints within criminal proceedings, this could not be considered an effective remedy as no elements of a criminal offence had been found with regard to the acts complained of.

123. The Government further argued that the applicant could not be considered to be a victim with regard to the complaints addressed under Article 8 about the administration of medicines and the performance of various procedures without her consent or that of her son. The Government pointed out that O. had been conscious and capable of expressing his will as regards his treatment, at least until 5 October 2009. Even thereafter the right to represent O. in such matters had never been transferred to the applicant. The Government referred to sections 766 and 767 of the Obligations Act, which provided for the general rule of obtaining a patient’s consent, but also set out a special regulation for instances where a patient was incapable of expressing his or her will. In the latter case, the provision of health-care services was permitted without the consent of the patient if it was in the interests of the patient and corresponded to the intentions expressed by him or her earlier, or to his or her presumed intentions, and if failure to provide health-care services promptly would put the life of the patient at risk or significantly damage his or her health (see paragraphs 43–44 above). The Government submitted that the fact that O. had been admitted to hospital for treatment of his own free will had formed the basis for the subsequent treatment measures, even after he was no longer capable of expressing his will directly.

124. The applicant considered that she had exhausted the effective domestic legal remedies. As to her victim status, she submitted that the Court had recognised the right of the next-of-kin of the deceased to submit an application to the Court where an individual had died in a medical facility and the State had failed to conduct an effective investigation into the death. Hence, her application should be considered admissible.

2. The Court’s assessment

125. The Court notes that the applicant complained under Article 8 that no consent had been obtained from either her son or herself before certain medicines had been administered and medical procedures carried out. In other words, the applicant has firstly submitted a complaint as an indirect victim on behalf of her son and secondly as a direct victim of not having been asked for consent. The Court points out that the applicant did not specify any particular time periods during O.’s stay at the hospital when consent should have been obtained from her son or herself.

126. As regards the standing of direct and indirect victims, the Court’s approach has been summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 96-100, ECHR 2014).

127. In so far as the complaint relates to the lack of consent from the applicant’s deceased son, the Court considers that the complaint is incompatible ratione personae with the provisions of the Convention. The question of consent to medical treatment concerns the core of a person’s right to respect for his private life and belongs to the category of non-transferable rights (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI; Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 100; and, mutatis mutandis, Elberte v. Latvia, no. 61243/08, § 65, ECHR 2015, where the Court considered incompatible ratione personae the applicant’s complaint that her deceased husband had not consented to tissue removal). Thus the applicant cannot rely on that right on behalf of her son in the context of proceedings under Article 8 of the Convention.

128. With regard to the part of the complaint concerning failure to obtain consent from the applicant herself, the Court observes that the Government’s argument that the applicant was not her son’s legal representative has not been contested by the applicant. Against that background, it must be considered that the applicant did not have the authority to act on her son’s behalf, including in the area of medical treatment. In those circumstances, although her son’s time in the hospital must undoubtedly have been emotionally difficult for her, the Court is not satisfied that the applicant’s own rights under Article 8 were directly affected by the fact that she was not asked for consent to her son’s treatment (see A.V., cited above, § 82, with further references).

129. It follows that complaint under Article 8 in its entirety is incompatible ratione personae and must be declared inadmissible, without there being a need to address the question of the exhaustion of domestic remedies.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 2 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 2 of the Convention.

Done in English, and notified in writing on 12 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakirciRobert Spano
Deputy RegistrarPresident

 

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