CASE OF SARISHVILI-BOLKVADZE v. GEORGIA

FIFTH SECTION

CASE OF SARISHVILI-BOLKVADZE v. GEORGIA

(Application no. 58240/08)

JUDGMENT

STRASBOURG

19 July 2018

FINAL

19/10/2018

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

In the case of Sarishvili-Bolkvadze v. Georgia,

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

Angelika Nußberger, President,
Erik Møse,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 26 June 2018,

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

PROCEDURE

1. The case originated in an application (no. 58240/08) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Ms Gulnara Sarishvili-Bolkvadze (“the applicant”), on 14 February 2008.

2. The applicant was represented by Mr E. Paksadze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.

3. The applicant alleged that the respondent Government had failed to protect her son’s life from medical negligence and that the redress obtained at domestic level had been inadequate.

4. On 4 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1950 and lives in Batumi.

A. Death of the applicant’s son

6. On 16 February 2004 the applicant’s son, G.B., fell off a crane while fixing electric cables. He was admitted to the intensive care unit of Batumi Hospital No. 1 (“the hospital”). His injuries included a fractured skull and brain damage.

7. On 28 February 2004 doctors observed that G.B. had gastrointestinal bleeding and he was given the relevant treatment. On 5 March 2004 he was transferred to a general medical ward as there had been an improvement in his condition.

8. On 6 March 2004 G.B.’s state of health deteriorated and he was transferred back to the intensive care unit because of a bleeding duodenal ulcer. Urgent surgery was performed on 10 March 2004 to stop the bleeding, but he died on 14 March 2004.

9. It appears from the criminal case files that the applicant refused to allow an autopsy of G.B.’s body.

B. Criminal proceedings

10. On 17 February 2004 the hospital informed the Batumi police that G.B. had been admitted with traumatic injuries. An investigator visited the hospital but was unable to question him in view of his state of health.

11. On 24 March 2004 the investigator returned to the hospital to enquire about the incident of 16 February 2004 (see paragraph 6 above) and was informed that the applicant’s son had died. An investigation was launched into G.B.’s death and the applicant was questioned the following day.

12. On 2 April 2004 the investigator ordered an examination by a panel of experts of the Forensic Bureau under the Ministry of Labour, Health and Social Affairs (“the forensic bureau”) of the Ajarian Autonomous Republic (“AAR”) in order to determine the exact cause of G.B.’s death. The examination was carried out between 6 April and 18 June 2004. The report that followed (“report no. 9-k” or “the first report”) stated as follows:

“1. As ... no autopsy was performed upon [G.B.’s] death, the exact cause of his death is unknown to the ... panel [even though] the [related] medical records indicate abdominal bleeding ...

4. We consider that a medical error was committed with respect to G.B.’s treatment in terms of the timing of the surgery, which was caused by an incorrect assessment of the clinical, endoscopy and laboratory data.”

13. On 23 June 2004 a criminal medical negligence case was opened against the relevant doctors of the hospital, in which the applicant was granted victim status.

14. The experts of the forensic bureau who had participated in the panel examination (see paragraph 12 above) were questioned as part of the investigation. The majority confirmed the earlier findings, stating that the therapeutic treatment had been adequate, but an assessment of the delay in surgery was the exclusive competence of a surgeon on the panel. The latter reiterated the findings of the report that the surgery had been delayed in view of several previously registered relapses of bleeding. He added however that this might not have made any difference to the fatal outcome.

15. The head of the expert panel further stated that a conclusive finding on the exact cause of death could not be reached without a forensic examination of the body.

16. On 7 July 2004, relying on the findings of the expert panel, a prosecutor applied to the first-instance court for permission to exhume G.B.’s body in order to determine the exact cause of his death. The request was granted on 8 July 2004.

17. On 14 July 2004 the applicant refused to allow the exhumation despite being warned of its importance for the case.

18. On 2 August 2004 the case was closed as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and G.B.’s death without an exhumation of his body.

19. On 4 August 2004, relying on the findings of the panel of experts in report no. 9-k (see paragraph 12 above) the Batumi city prosecutor wrote to the Minister of Labour, Health and Social Affairs of the AAR. He noted that despite the closure of the investigation, the family’s resistance to allow an exhumation of the body to determine the precise cause of death, and the inability to establish criminal responsibility on the part of the doctors in question, the conclusion of the panel of experts that a medical error had been committed in the course of G.B.’s treatment called for “the implementation of adequate measures to prevent similar violations.”

20. On 27 September 2004, referring to the findings of the prosecutor and the panel of experts in report no. 9-k concerning the medical error committed in the course of G.B.’s treatment, the director of the hospital dismissed the neurosurgeon who had been in charge of G.B.’s treatment (მკურნალი ექიმი) and reprimanded two intensive care specialists and a surgeon.

21. On various dates the applicant asked for the investigation to be reopened.

22. On 1 August 2006 the prosecutor’s office granted the applicant’s request and reopened the investigation under Article 130 § 2 of the Criminal Code (the offence of abandoning a patient in distress, see paragraph 51 below).

23. Several witnesses were questioned, including the then director and deputy director of the hospital, who had considered the family’s resistance as grounds for not carrying out an autopsy upon G.B.’s death.

24. On 21 September 2006 the investigator obtained a second exhumation order from the court in order to determine the exact cause of G.B.’s death. The applicant once again refused to allow implementation.

25. On 4 January 2008 the prosecutor terminated the case as there was no proof causally linking the medical error with G.B.’s death. It does not appear that the applicant appealed against that decision, despite it being amenable to appeal within fifteen days of service upon the parties.

C. Civil proceedings

26. On an unspecified date the applicant lodged a claim with the Batumi City Court against the hospital, its medical staff and the Ministry of Labour, Health and Social Affairs of the AAR. She argued that her son’s death had been caused by medical negligence, namely incorrect and delayed treatment of his gastroduodenal bleeding.

27. Between 18 and 28 October 2004, at the request of the Batumi City Court, the Quality Control Inspectorate of the Ministry of Labour, Health and Social Affairs (“the inspectorate”) implemented an inspection of the hospital in connection with G.B.’s death, which was carried out by a panel of experts. They reached the following conclusions (“the second report”):

“The institution is carrying out medical practice without a licence in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation.

In relation to patient G.B., non-licensed activity was carried out in the following fields: cardiology and clinical transfusion.

Out of the 29 doctors who took part in patient G.B.’s treatment, the invited specialists ... in endoscopy and ophthalmology do not hold a licence to practise medicine. A neurosurgeon (currently dismissed from the post) and an intensive care specialist are practising medicine independently despite being ... junior doctors. The doctor ... working as a transfusion specialist is a certified paediatrician ...

... [I]t is evident that the surgery, the sole purpose of which was to definitively determine the cause of bleeding and stop it, was carried out too late. It is difficult to determine whether the scope of the surgery was adequate, as it is impossible to determine the exact location of the ulcer (there is no forensic pathology examination report concerning the body and the two endoscopy specialists reached different conclusions concerning the ulcer’s location).

It is also worth mentioning that a pathomorphological analysis of the material obtained during the surgery was not carried out...”

28. An undated study of the relevant medical files, ordered by the inspectorate from a professor of surgery at the Tbilisi State Medical University (“the third report”) noted the difficulty of making categorical claims in the absence of an autopsy of the body. It nevertheless pointed to a lack of adequate supervision by a surgeon, despite the relapses of abdominal bleeding, inadequacies in the choice of treatment, and a lack of appropriate diagnostic measures for the timely detection and possibly even aversion of the otherwise risky surgery. Stressing that it was conventional treatment methods that had been insufficiently explored, the report continued to note that it would be incorrect to make a categorical assertion, such as in the first report, as regards the medical error in relation to the delay in the otherwise high-risk surgery.

29. On an unspecified date two experts of the forensic bureau gave statements to the court and confirmed the findings of the first report that a medical error had been committed in terms of the delay in surgery. They further indicated that the cause of G.B.’s death, according to the medical records, was gastroduodenal bleeding which could have been averted by timely and adequate medical treatment.

30. On 20 January 2006, relying on the expert reports and the medical documentation available in the case files, the Batumi City Court ruled in favour of the applicant. It concluded that the doctors of the hospital had been responsible for a medical error resulting in the patient’s death. It further noted that the participation in the patient’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care. The court took the decision of the hospital director of 27 September 2004 dismissing the neurosurgeon in charge of G.B.’s treatment and reprimanding two intensive care specialists and a surgeon (see paragraph 20 above) as acknowledgment that medical negligence had been committed in the course of G.B.’s treatment.

31. The applicant was awarded 2,756 Georgian laris (GEL, approximately 1,070 Euros (EUR)) in respect of pecuniary damage. Relying on section 10 of the Patient Rights Act (see paragraph 46 below) the court also awarded non-pecuniary damages in the amount of GEL 6,000 (approximately EUR 2,331). As the contract concerning G.B.’s treatment had only been concluded with the hospital, the latter was found to be the only appropriate respondent and was accordingly ordered to pay the corresponding amount. Both the applicant and the hospital appealed, disagreeing with the court’s assessment of the facts and the scope of the award.

32. On 9 February 2007 the Kutaisi Court of Appeal upheld the lower court’s reasoning. It noted as follows:

“Based on an analysis of the evidence before it, the appellate court concludes that in the course of Mr G.B.’s treatment in [the hospital] the medical negligence of the medical staff (insufficient attention towards the patient, misdiagnosis) caused harm to a person’s health and eventually caused the patient’s ... death.”

33. The appellate court continued to note that:

“In addition to establishing that harm was caused to a person’s health as a result of the medical negligence of the [hospital] staff, it can also be established from the case files that [the hospital] was carrying out unlicensed activities in a number of medical fields and at the same time some of the medical staff did not have authorisation to practise medicine independently, in violation of the requirements of the [relevant legislation]...”

34. The Kutaisi Court of Appeal further found the hospital to be the only appropriate respondent to pay the damages in respect of the medical negligence of the doctors. As regards who should be held responsible for the hospital and its doctors operating without the necessary licences, it was noted that:

“The Ministry of Health of the AAR cannot be held responsible in the present case ... for [the hospital] operating in certain medical fields without the requisite licences considering that, in accordance with section 54 of the Health Care Act, the issuance of such licences is [the exclusive competence] of the Ministry of Health of Georgia.

Accordingly, the claim for ... pecuniary and non-pecuniary damages with respect to the Ministry of Health of the AAR is groundless.”

35. The appellate court upheld the lower court’s award of non‑pecuniary damages and increased the amount of pecuniary damages to GEL 6,953 (approximately EUR 2,701).

36. Both parties appealed, disagreeing with the court’s assessment of the facts and the scope of the award.

37. On 14 May 2008 the Supreme Court adopted a decision without holding an oral hearing. Referring to the evidence available in the case files, the court found that despite the fact that the exact cause of death could not be determined without an exhumation of the body, the case files confirmed that gastroduodenal bleeding was the cause of death and that a medical error had been committed in terms of the surgery and an incorrect assessment of the various data.

38. The Supreme Court further upheld the lower courts’ findings that the hospital had been carrying out unlicensed medical activities and noted as follows:

“It is confirmed ... that [the hospital] was carrying out unlicensed medical activities in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. Unlicensed medical activities performed in respect of Mr G.B. were in the following fields: cardiology and clinical transfusion. Of the medical staff invited to treat ... Mr G.B. ... the endoscopy specialist and ... an ophthalmologist did not have a certificate [authorising them] to practise medicine. [Those] appointed as junior doctors ... the neurosurgeon (currently dismissed) and ... the intensive care specialist were practising medicine independently. The doctor ... certified as a paediatrician was working as a transfusion specialist. The Court of Cassation upholds the views of the appellate court that this gave rise to a violation of ... the Health Care Act and ... the Medical Practice Act.”

39. The Supreme Court noted that the Ministry of Health of Georgia was the entity responsible for issuing licences to medical institutions and that the applicable legislation did now allow medical institutions and individual doctors to practise medicine without requisite licences (see paragraphs 44‑45 below). It did not elaborate on whether responsibility could be attributed to the respondent Ministry of Health of the AAR.

40. The award of pecuniary damages in the amount of GEL 6,953 (approximately EUR 2,701) was upheld.

41. As regards the question of non-pecuniary damages, the Supreme Court found that domestic law did not entitle the applicant to receive an award for non-pecuniary damage for the death of her son. In particular, it observed as follows:

“Under Article 1007 of the Civil Code, harm caused to a person’s health during his or her treatment at a medical institution (a result of surgery or misdiagnosis etc.) shall be compensated on a general basis. In accordance with Article 413 of the Civil Code, monetary compensation for non-pecuniary damage may be requested only in the cases expressly provided for by law, in the form of reasonable and fair compensation. The Civil Code does not define moral (non-pecuniary) damage... Under Article 413 of the Civil Code, not all types of moral harm (mental suffering) shall be compensated, even if there is no doubt as to its existence, only those for which compensation is expressly provided for by law... Accordingly, in accordance with the practice of the Supreme Court of Georgia, non-pecuniary damage resulting from the infringement of the right to life of a person’s husband, child or other relative shall not be compensated as it is not expressly provided for by law...”

42. The Supreme Court disagreed with the lower court’s interpretation that the right to claim non-pecuniary damages under section 10(a) of the Patient Rights Act also applied to the death of a relative, and noted that that right was strictly personal. The Supreme Court therefore rejected the applicant’s claim for non-pecuniary damages, noting that:

“It is undisputed that a parent is subjected to moral pain as a result of the death of a young child, but it shall not be compensated considering that it is not expressly provided for by the law in force.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Health Care Act (1997)

43. The Health Care Act, as it stood at the material time, addressed matters related to autopsies in the following manner:

Section 153

“An autopsy shall be carried out by an appropriately certified doctor in a licensed medical institution. An autopsy shall be performed if a suspicion exists that the death was caused by a particularly dangerous infection. In all other cases, an autopsy is performed taking into account religious or other motives, as well as the deceased’s wishes expressed during his or her life, or with the consent of [his or her] relative or legal representative.”

44. The requirement on licensing in the medical sector was formulated as follows:

Section 4

“The following are the principles of State policy in the field of health care: ...

k. State responsibility for licensing medical staff, health-care institutions and medical educational institutions.”

Section 15

“The Ministry of Labour, Health and Social Affairs is responsible for implementing State policy in the field of health care.”

Section 16

“The following are the State mechanisms for health-care management:

a) Certification of medical staff and licensing of medical institutions;

b) Quality control of medical aid;

c) Sanitary supervision and regulation of hygiene standards ...;

d) Quality control of medication, pharmacy regulation and pharmaceutical production.”

Section 28

“Only those who have completed their relevant medical education and obtained, in accordance with Georgian law, a State certificate to practise medicine independently in a relevant specialisation may practise medicine independently.”

45. According to sections 54 to 56 of the Act, the Ministry of Labour, Health and Social Affairs was responsible for issuing the appropriate licences to the medical institutions, specifying the fields in which they were authorised to offer medical treatment. The Ministry was also responsible for approving a list of the relevant medical professionals and could revoke an institution’s licence in the event of non-compliance with its terms.

B. Patient Rights Act (2000)

46. The Patient Rights Act (2000), as it stood at the material time, provided as follows:

Section 10

“A patient or their legal representative may apply to a court and request:

a) Compensation for pecuniary and non-pecuniary damage caused by:

a.a) a violation of a patient’s rights;

a.b) medical error;

a.c) other deficiencies in the functioning of the medical institution;

a.d) incorrect supervision and regulation by the State.

b) Suspension or revocation of the medical staff’s licence to practise medicine;

c) Amendment of the State’s medical and sanitary standards.”

C. Regulations regarding the licensing and supervision of medical establishments

47. According to Sections 3, 6, and 9 of the Medical and Pharmaceutical Licences Act (2003), the Ministry of Labour, Health and Social Affairs was responsible for issuing medical licences as well as overseeing compliance with the conditions laid down therein.

48. At the material time, the Inspectorate for Controlling Medical Assistance, Pharmaceutical Activities, and Legal Circulation of Drugs under the Ministry of Labour, Health and Social Affairs (Order no. 32/n of the Minister of Health approving the Statute of the Inspectorate, 5 February 2002) was the body responsible, among others, for overseeing the quality of medical assistance rendered by medical institutions – irrespective of their public or private nature or organizational subordination – and verifying their compliance with the relevant licences issued by the Ministry of Health. It was within the Inspectorate’s competency to institute administrative proceedings and issue fines against doctors or medical establishments carrying out activities without requisite licences or certificates (Article 44(2) of the Code of Administrative Offences, and Order no. 152/n, of the Minister of Health approving the standard form of an administrative offence report, 22 May 2002).

D. Civil Code (1997)

49. The Civil Code (1997), as it stood at the material time, stipulated with respect to non-pecuniary damages as follows:

Article 413: Compensation for non-pecuniary damage

“1. Monetary compensation for non-pecuniary damage may be requested only in the cases expressly provided for by law, in the form of reasonable and fair compensation.

2. In cases of bodily harm or damage caused to a person’s health the victim may also request compensation for non-pecuniary damage.”

Article 992: Concept [of tort]

“A person who unlawfully, [whether] intentionally or negligently causes damage to another person shall compensate the damage to the injured party.”

Article 1007: Compensation for harm caused by medical institutions

“Harm caused to a person’s health during treatment at a medical institution (a result of surgery or misdiagnosis, etc.) shall be compensated on a general basis. The tortfeasor shall be released from liability if he or she proves that he or she was not at fault.”

E. Code of Civil Procedure (1997)

50. Article 423 § 1 (g) of the Code of Civil Procedure provides for a right to request the re-opening of civil proceedings based on newly discovered circumstances if “there exists a final judgment (decision) of the European Court of Human Rights finding a violation of the the Convention for the Protection of Human Rights and Fundamental Freedoms and/or its Protocols in relation to that case, and the violation found [by the European Court] originates from the judgment to be reviewed.”

F. Criminal Code (1999)

51. Article 130 of the Criminal Code, as it stood at the material time, was formulated as follows:

Article 130: Abandoning a patient in distress

“1. Failure of a medical worker to provide urgent medical aid to a patient in a life-threatening situation without a valid reason ... shall be punishable by a fine or corrective labour for up to fifteen months, with or without deprivation of the right to hold a position or carry out a particular activity for up to three years.

2. The same act, if resulting in serious damage to health or the death of the patient ... shall be punishable by imprisonment for a term of three to five years, and deprivation of the right to hold a position or carry out a particular activity for up to three years.”

G. Code of Criminal Procedure (1998)

52. Article 30 § 1 of the Code of Criminal Procedure in force at the material time provided that a person who had suffered pecuniary, physical, or moral harm directly as the result of a crime could request compensation during the criminal proceedings and lodge a civil action for damages to that end. Article 33 § 2 provided that if a person who had suffered harm as a result of a crime died, the right to lodge a civil action for damages was transferred to his or her heirs.

H. Practice of the Supreme Court

53. In addition to the findings in the applicant’s case that the domestic law did not afford a surviving next-of-kin the right to claim non-pecuniary damages in respect of deaths resulting from medical negligence (see paragraphs 41-42 above), the Supreme Court also clarified that Article 413 § 2 of the Civil Code (see paragraph 49 above) only referred to the damage inflicted upon the health of a victim and did not extend to claims for non-pecuniary damages by his or her relatives in the event of his or her death (see Case no. ას-593-568-2016, Civil Chamber, § 21, 14 July 2017).

54. As regards the general scope of an award in the context of criminal proceedings, the Supreme Court found that the Code of Criminal Procedure (see paragraph 52 above) did not provide for monetary compensation for non-pecuniary damage in respect of a surviving next-of-kin of a victim who died as a result of a crime (see Case no. 2კ-851აპ.-10, Criminal Chamber, 28 February 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

55. The applicant complained that the Government had not fulfilled their positive obligation to protect her son’s life from medical negligence on the part of the doctors, and had failed to adequately respond to her son’s death. She relied on Article 2 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”

56. The Government contested that argument.

A. Admissibility

57. The Government submitted that the applicant had lost her victim status under Article 34 of the Convention in view of the positive outcome of the domestic civil proceedings against the hospital. As regards the Supreme Court’s refusal to award non-pecuniary damages, they further argued, without referring to the relevant domestic case-law, that the domestic law had entitled the applicant to claim non-pecuniary damages if a criminal element had been established by the investigation (see paragraph 52 above). Noting the applicant’s objections to the implementation of the exhumation orders and the subsequent inability of the investigation to establish that a crime had been committed, the Government argued that that fault could only be attributable to the applicant.

58. The applicant did not respond to the Government’s submission.

59. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of the status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999‑VI, and Mindrova v. Ukraine (dec.), no. 32454/06, § 21, 31 January 2017).

60. Furthermore, the Court has already had occasion to indicate in the context of different Convention Articles that an applicant’s “victim” status may also depend on the level of compensation awarded at domestic level, where appropriate, or at least on the possibility of seeking and obtaining compensation for the damage sustained, having regard to the facts about which he or she complains before the Court (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 262, ECHR 2012 (extracts)).

61. Turning to the circumstances of the present case, the Court observes that the applicant’s inability, under the applicable domestic law, to seek and obtain compensation for non-pecuniary damages with respect to her son’s death is closely connected to the merits of her complaint under the procedural limb of Article 2 of the Convention. The Court therefore considers that the adequacy of civil redress, a criterion relevant to the consideration of the Government’s objection, should be examined under the substantive provision of the Convention relied on by the applicant.

62. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

63. The applicant submitted that the Government had failed to respect their positive obligations under Article 2 of the Convention to protect her son’s life, and to provide adequate redress through the domestic proceedings.

64. The Government submitted that the domestic law, as it stood at the material time, contained various regulations concerning the licensing of hospitals and the medical standards therein, without elaborating on the mechanisms for their enforcement, if any. Acknowledging that the pertinent regulations appeared to have been breached, they submitted that appropriate redress had been provided through the civil proceedings.

65. As concerns the criminal investigation launched into the matter, the Government stated that it had not yielded any tangible results owing to the applicant’s repeated refusal to allow an exhumation of the body, a crucial procedure for determining the exact cause of her son’s death, as confirmed by various expert opinions on the matter.

2. The Court’s assessment

66. The applicant’s complaint relating to the State’s obligations under Article 2 of the Convention has two limbs: substantive and procedural. The Court will address them in turn.

(a) The substantive aspect

(i) General principles

67. The general principles relating to the States’ positive substantive obligations under Article 2 of the Convention in the context of health care and medical negligence were recently summarised by the Court in the case of Lopes de Sousa Fernandes v. Portugal [GC] (no. 56080/13, §§ 185-196, 19 December 2017, with further references). In the context of alleged medical negligence, the States’ substantive positive obligations relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives (see Lopes de Sousa Fernandes, cited above, §§ 186 and 189). In the very exceptional circumstances described below the responsibility of the State under the substantive limb of Article 2 of the Convention may also be engaged in respect of the acts and omissions of health-care providers.

68. The first type of exceptional circumstances concerns a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment. It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment (see Lopes de Sousa Fernandes, cited above, § 191). The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger (see Lopes de Sousa Fernandes, cited above, § 192).

69. In order for a case to fall in these exceptional categories, four cumulative criteria must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given. Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly. Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above (see Lopes de Sousa Fernandes, cited above, §§ 194-196).

(ii) Application of these principles to the present case

70. Turning to the circumstances of the present case, the Court observes that no question of knowingly putting an individual patient’s life in danger by denial of access to life-saving emergency treatment arose either at domestic level or before the Court. Therefore the present case does not fall within the first exceptional category to directly engage State responsibility for the acts and omissions of health-care providers.

71. As to the second category of exceptional circumstances, the Court will assess whether the four cumulative criteria (see paragraph 69 above) are satisfied. Even considering the serious deficiencies identified by the experts in respect of the hospital (see paragraph 28 above), the Court notes that it has not been established, in accordance with the first criterion, that the actions of the health-care providers went beyond a mere error or medical negligence in that they, in breach of their professional obligations, denied the patient emergency medical treatment despite being fully aware that the person’s life was at risk if that treatment was not given. In particular, the expert opinions as well as the court findings on the matter speak of medical negligence and errors (see paragraphs 28, 29, and 32 above) rather than the deprivation of emergency care as such. While some of the 29 doctors participating in G.B.’s treatment lacked adequate qualifications, the case files demonstrate that the emergency surgery was performed by a surgeon whose qualifications were never questioned. As to the question of whether the surgery itself was timely, the opinion of the majority of experts supports a conclusion that the possible delay was a result of a mere medical error, while one of the experts even warned against making a categorical suggestion that the emergency surgery was belated (see paragraph 28 above). Therefore the present situation is different from cases where patients were deprived of emergency medical treatment (contrast, Asiye Genç v. Turkey, no. 24109/07, § 82, 27 January 2015).

72. The requirement that the four criteria be met cumulatively (see paragraph 69 above) in order to engage the State’s responsibility for the negligence of health-care providers implies that the Court need not continue with its assessment if even one is not met. Therefore, in view of the findings concerning the first criterion (see paragraph 71 above), the Court concludes that the present case does not fall in the second exceptional category.

73. Against this background, the Court will assess whether the State has complied with its regulatory duties under Article 2 of the Convention (see paragraph 67 above). In particular, States are expected to make adequate provision for securing high professional standards among health professionals and the protection of the lives of patients in the context of their substantive positive obligations under Article 2 of the Convention (see, among other authorities, Lopes de Sousa Fernandes, cited above, § 187; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; and Bilbija and Blažević v. Croatia, no. 62870/13, § 100, 12 January 2016).

74. The States’ obligation to regulate health-care services includes the duty to ensure the effective functioning of that regulatory framework. The Court has found such regulatory duties to encompass necessary measures to ensure implementation, including supervision and enforcement (see Lopes de Sousa Fernandes, cited above, § 189). Notably, the fact that the hospital and several doctors involved in the treatment of the applicant’s son had been operating without the requisite licences is not in dispute between the parties. Furthermore, the findings of the experts and domestic courts in this regard were unambiguous: the hospital had indeed been carrying out unlicensed medical activities in several fields – cardiology and clinical transfusion in relation to the applicant, and several doctors involved in the applicant’s son’s treatment had lacked either the necessary licences or qualifications, in violation of domestic law (see paragraphs 27, 30, 33, and 38 above).

75. In addition to establishing that the applicant’s son had died as a result of medical negligence, the domestic courts also found that the participation in the patient’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care, in violation of domestic law (see paragraphs 30, 33, and 38 above).

76. Against this background, while the Government expressly acknowledged the irregularities referred to above (see paragraphs 64 and 74-75 above), apart from noting the licensing requirement in domestic law (see paragraphs 44-45 above), they did not clarify how the implementation of the pertinent regulatory provisions were ensured in practice, if at all. As it appears from the relevant domestic rules and regulations as they stood at the material time, there existed a framework for supervising compliance with the relevant licensing requirements (see paragraphs 47-48 above). However, the licences of the hospital in certain areas as well as the licences and certifications of some of its doctors treating the applicant’s son were, at least at the material time, in sharp contrast with the various requirements geared at protecting the patients’ lives (see paragraphs 27, 30, 33, and 38 above).

77. In the light of the foregoing, the Court finds, on the facts of the present case, that there has been a violation of the State’s substantive positive obligation under Article 2 of the Convention to provide an effectively functioning regulatory framework that would ensure compliance with the applicable regulations geared at the protection of the patients’ lives.

(b) The procedural aspect

78. The general principles relating to the States’ procedural obligations under Article 2 of the Convention in the context of health-care and medical negligence are summarised in the case of Lopes de Sousa Fernandes (cited above, §§ 214-221, with further references).

79. 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 Rõigas v. Estonia, no. 49045/13, § 105, 12 September 2017).

80. The procedural limb of the applicant’s complaint under Article 2 of the Convention has two aspects: the effectiveness of a criminal-law remedy in view of the investigative authorities’ termination of the criminal investigation, and the applicant’s inability to claim and obtain non‑pecuniary damages in civil proceedings.

(i) Criminal-law remedy

81. The Court notes at the outset that the investigator’s second decision to terminate the criminal proceedings was amenable to appeal. The applicant does not appear to have appealed it (see paragraph 25 above). However, in the absence of the Government’s objection in that regard, the Court is not in a position to rule, of its own motion, on whether this complaint is inadmissible for non‑exhaustion of domestic remedies (see International Bank for Commerce and Development AD and Others v. Bulgaria, no. 7031/05, § 131, 2 June 2016, with further references, and Alimov v. Turkey, no. 14344/13, § 57, 6 September 2016).

82. The applicant did not allege that the death of her son had been caused intentionally. Nor do the facts of the case suggest otherwise. Therefore, Article 2 of the Convention did not necessarily require a criminal-law remedy (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII). In so far as such a remedy was provided and the applicant availed herself of it, the Court observes that she appears to be challenging the termination of criminal investigations against the doctors involved in her son’s treatment. In other words, the applicant complained about the outcome of the criminal investigation.

83. However, the procedural obligation under Article 2 of the Convention is not an obligation of result but of means only. Thus, 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, among other authorities, Lopes de Sousa Fernandes, cited above, § 221, with further references).

84. Furthermore, Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence. 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 (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, ECHR 2016, with further references).

85. The Court observes in this connection that two criminal investigations were opened into G.B.’s death and subsequently closed due to the prosecuting authorities’ inability to attribute criminal responsibility to the medical staff. The pertinent decisions were not taken hastily or arbitrarily but were duly reasoned. They were based, among others, on the findings of the relevant forensic experts that it was impossible to establish a causal link between the medical negligence and the death without carrying out an autopsy, or an exhumation in the case of a deceased person who had been buried (see paragraphs 12, 15, and 28 above).

86. The applicant did not dispute her refusal to allow the implementation of two judicial exhumation orders obtained by the prosecution as part of the two investigations (see paragraphs 17 and 24 above). Her counter-argument that the authorities had been obliged to perform an autopsy irrespective of the family’s wishes immediately after the patient’s death is not supported by the domestic law as it stood at the material time (see paragraph 43 above).

87. Admittedly, medical negligence was established as part of the separate civil proceedings. Normally such a divergence may be explained by the different substantive conditions of liability in civil and criminal law (see Molga v. Poland (dec.), no. 78388/12, § 88, 17 January 2017).

88. Finally, the Court takes note of the fact that despite the termination of the first investigation, the prosecutor demonstrated special diligence and wrote to the Ministry of Labour, Health and Social Affairs of the AAR, stating that a medical error had been committed in the course of G.B.’s treatment that called for “the implementation of adequate measures to prevent similar violations” (see paragraph 19 above).

89. Accordingly, the Court does not consider that the termination of the criminal proceedings in respect of medical negligence fell foul of the procedural requirements of Article 2 of the Convention.

(ii) Civil remedy

90. The Court reiterates that 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 Convention rights, 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. However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, among other authorities, Lopes de Sousa Fernandes, cited above, § 216, with further references).

91. Turning to the circumstances of the applicant’s case, the Court notes that the civil proceedings against the hospital resulted in an unequivocal finding that medical negligence had been committed during the treatment of the applicant’s son, and that some of the doctors treating him did not hold appropriate licences to practice medicine, in violation of domestic law. The Court is therefore satisfied that the remedy in question was successful in establishing the relevant facts related to the applicant’s complaints. However, what is at stake in the instant case is whether the remedy in question offered adequate redress for the purposes of the procedural limb of Article 2 of the Convention.

92. The Court has considered in the context of an applicant’s victim status that whether redress is “appropriate” and “sufficient” in order to remedy a breach of a Convention right at national level, generally depends on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see, among other authorities, Kurić and Others, cited above, § 260).

93. In assessing the reasonableness of the quantum of the non-pecuniary awards at domestic level, the Court has reasoned that even compensation which is lower than the amount it would itself award may nevertheless be considered reasonable, provided that the relevant decision of the domestic courts is consistent with the legal tradition and standard of living in the country (see mutatis mutandis, Cocchiarella v. Italy [GC], no. 64886/01, § 97, ECHR 2006‑V, and Mindrova, cited above, § 24). Conversely, it has found that a disproportionately lower award of non-pecuniary damages than the damages that the Court generally awards in comparable cases may be insufficient and manifestly unreasonable (see, mutatis mutandis, Firstov v. Russia, no. 42119/04, §§ 35 and 38, 20 February 2014).

94. While the applicant was awarded pecuniary damages in the amount of GEL 6,953 (approximately EUR 2,701) (see paragraph 40 above), her request for non-pecuniary damages was dismissed. The Supreme Court reasoned that the domestic legal system did not afford a deceased victim’s surviving next-of-kin the ability to claim and receive non-pecuniary damages in cases of death resulting from medical negligence (see paragraphs 41-42 above). Therefore, the present limb of the applicant’s complaint concerns the effectiveness of civil redress on account of her inability to claim and obtain non-pecuniary damages in relation to her son’s death as a result of medical negligence.

95. The Government’s argument that such an award would have been made possible had the criminal proceedings been successful in establishing that a crime had been committed (see paragraphs 52 and 57 above) was not supported by any practical examples. By contrast, the case-law of the Supreme Court on the matter is unequivocal: both civil and criminal law and procedure excluded such a possibility (see paragraphs 53-54 above). Therefore, neither type of proceedings could have resulted in an award of non-pecuniary damages in view of the domestic law and practice at the material time.

96. Accordingly, in contrast to the above-mentioned case-law of the Court (see paragraph 92 above), the present case does not concern the assessment of the quantum of non-pecuniary damages but rather the total, unconditional exclusion of such an award by domestic law, as interpreted and applied in practice. Against this background, the Court has previously noted that in cases involving a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for non-pecuniary damage resulting from the breach should, in principle, be available as part of the range of redress (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 97 and 101, ECHR 2002‑II; Bubbins v. the United Kingdom, no. 50196/99, § 171, ECHR 2005‑II (extracts); Reynolds v. the United Kingdom, no. 2694/08, §§ 65-68, 13 March 2012; and Movsesyan v. Armenia, no. 27524/09, § 73, 16 November 2017).

97. Consequently, in the face of the Supreme Court’s affirmation of the applicant’s “undisputed” psychological distress related to the death of her young son (see paragraph 42 above), the unconditional legislative restriction unjustifiably deprived the applicant of the opportunity to claim an enforceable award of compensation for non-pecuniary damage through the civil remedy available to her.

98. There has accordingly been a violation of the procedural obligation of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

99. 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.”

100. The applicant did not submit a claim for just satisfaction. The Court considers that there are no circumstances justifying it to award her any sum (see Nagmetov v. Russia [GC], no. 35589/08, §§ 74-82, 30 March 2017).

101. The Court notes that in case of a finding of a violation of the Convention, there is a possibility under the relevant domestic law to request a re-opening of the civil proceedings (see paragraph 50 above).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection concerning victim status, and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of the substantive limb of Article 2 of the Convention;

4. Holds that there has been no violation of the procedural limb of Article 2 of the Convention with respect to the criminal remedy;

5. Holds that there has been a violation of the procedural limb of Article 2 of the Convention with respect to the civil remedy.

Done in English, and notified in writing on 19 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

Full & Egal Universal Law Academy