COLAK AND OTHERS v. GERMANY

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 77144/01 and 35493/05
by Ayse COLAK and Others
against Germany

The European Court of Human Rights (Fifth Section), sitting on
11 December 2007[1] as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,

and Mrs C. Westerdiek, Section Registrar,

Having regard to the above applications lodged on 14 May 2001 and
14 March 2005, respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Ayse Colak, Mr Aris Tsakiridis and Ms Anastasia Tsakiridis were born in 1968, 1986 and 1988 respectively and live in Wiesbaden, Germany. They are Turkish nationals.

They are represented before the Court by Mr H.J. Poth, a lawyer practising in Bruchköbel.

The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The Turkish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), did not indicate that they wished to exercise that right.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant and her late life companion were the parents of the second and third applicant.

In December 1992 the first applicant's companion found out that he suffered from lymph gland cancer and AIDS. He informed the first applicant about the cancer but concealed his AIDS infection.

On 21 January 1993 he informed their family physician about his diseases but forbade him to disclose to anybody that he had developed AIDS. When the first applicant consulted the physician on 29 January 1993 he did not mention to her that her companion was suffering from AIDS.
On 22 December 1994 the first applicant's companion died. During a further consultation in March 1995 the physician informed the first applicant that her companion had died from AIDS.

In April 1995 a blood test established that the first applicant is
HIV-positive. The second and third applicant are HIV-negative.

Since 1995 the first applicant follows anti-retroviral treatment. She is not suffering from full-blown AIDS.

1. The civil proceedings

After a blood test established in April 1995 that the first applicant was HIV-positive, she sued her physician for damages before the Wiesbaden Regional Court (Landgericht). She submitted that the physician had failed to inform her about her companion's suffering from AIDS and had thus prevented her from protecting herself against an infection.

On 28 April 1998 the court-appointed expert J., having examined the case file and a number of laboratory results, submitted his expert opinion. The expert considered that it was probable that the applicant was infected before 29 January 1993. He conceded, however, that his assessment was a rough estimate based on general statistical data. The expert further considered that it was not general medical standard in the beginning of 1993 to treat early HIV-infections with anti-retroviral drugs. During the oral hearing before the Regional Court the expert expressed the view that an infection before January 1993 was very likely.

On 24 February 1999 the Wiesbaden Regional Court, which was in possession of the physician's medical records on the first applicant and on her late partner, rejected the first applicant's action. That court considered that the physician had not been obliged to disclose her companion's infection to the applicant. Having regard to his duty of confidence towards the applicant's companion, he would only have been under such an obligation if this could be regarded as the only possibility to prevent the applicant's infection. This had not been the case, as the physician had insistently advised the applicant's companion to take the necessary steps to prevent an infection and could reasonably believe that the latter would follow his advice. Under these circumstances, the Regional Court did not find it necessary to determine whether there was a causal connection between the applicant's infection with HIV and the physician's alleged failure to inform her about her companion's infection.

On 5 October 1999 the Frankfurt Court of Appeal rejected the first applicant's appeal. Contrary to the Regional Court's opinion, the Court of Appeal considered that the physician had misconceived his duty of care owed towards the first applicant in his position as family physician and overestimated his duty of confidence owed towards her companion. By not informing the applicant about the fatal threat to her health, he had committed an error in treatment. The court considered, however, that the physician had not disregarded medical standards in a blindfold way, but had only overestimated his duty of confidence while balancing the different interests. It followed that his behaviour could not be qualified as a gross error in treatment which, according to the established case-law of the Federal Court of Justice, would have entailed a reversal of the burden of proof as to the causality of the error in treatment and the first applicant's HIV-infection (see Relevant domestic law and practice, below). Referring to the written opinion submitted by the court-appointed expert J. in the first instance proceedings, the Court of Appeal considered that the applicant had not been able to proof that her infection had occurred after January 1993, when the physician himself was informed of her companion's infection. According to the expert's opinion, it was more likely that she had already been infected with HIV before January 1993. The Court of Appeal further considered that there was no doubt about the expert's high competence.
The expert opinion was well-reasoned and took into account relevant scientific publications. Under these circumstances, the Court of Appeal did not find it necessary to hear further expert opinion, as requested by the applicant.

The Court of Appeal further considered that the medical treatment such as it was available in 1993 would not have improved the first applicant's physical condition.

On 4 April 2000 the Federal Court of Justice rejected the first applicant's appeal on points of law for lack of prospect of success.

On 14 November 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the constitutional complaint lodged by the first, second and third applicant.

2. The criminal proceedings

Parallel to the civil proceedings, the first applicant attempted to institute criminal proceedings against her physician.

On 24 May 2000 the Wiesbaden Public Prosecutor discontinued the criminal proceedings. Relying on the expert opinion prepared by expert J. in the civil proceedings, the Public Prosecutor considered that the causal connection between the first applicant's HIV-infection and the physician's error in treatment could not be established.

Upon the first applicant's appeal, the Wiesbaden Public Prosecutor
re-opened the proceedings and ordered the expert B. to prepare a fresh expert opinion. In his opinion of 23 August 2002 the expert B. disagreed to a certain extent with the expert J.'s conclusions. He contested, in particular, that an infection before January 1993 was “very likely”. He asserted however that an infection before 1993 could not be excluded beyond reasonable doubt. Furthermore, the expert underlined that another origin of infection than the first applicant's companion was likewise conceivable. Therefore, provided that it was relevant to the proceedings if the first applicant had been infected by her companion, further research would be necessary in this respect.

On 22 April 2003 the Wiesbaden Public Prosecutor discontinued the criminal proceedings. Referring to the expert B.'s opinion, the Public Prosecutor considered that it could not be excluded beyond reasonable doubt that the first applicant had been infected before January 1993.

On 1 August 2003 the General Public Prosecutor at the Frankfurt Court of Appeal rejected the first applicant's appeal. The General Public Prosecutor considered that the physician had violated his professional duties by failing to inform the first applicant about her companion's infection. He observed, however, that both experts drew the conclusion that it could not be excluded beyond reasonable doubt that the first applicant had been infected before January 1993. Under these circumstances, the principle of “in dubio pro reo” had to be applied in the physician's favour.

On 23 May 2003 the applicant, who was represented by counsel throughout the proceedings, lodged a request with the Frankfurt Court of Appeal (Oberlandesgericht) for a judicial decision (Klageerzwingungsverfahren). She alleged that the physician had failed in his duties to inform her about her companion's infection and that her own infection could have been avoided if she had been duly informed.
She further gave an account of the proceedings before the Public Prosecutor, in which she referred to the case files of the civil proceedings and to her own previous submissions.

On 11 November 2003 the Frankfurt Court of Appeal declared the first applicant's request inadmissible. The Court of Appeal considered that the applicant's request did not comply with the formal requirements of section 172 § 3 of the Code of Criminal Procedure (see Relevant domestic law, below), as she had failed to submit all relevant information. Referring to a commentary on the Code of Criminal Procedure, the Court of Appeal stated that the description of the facts which justified the preferment of criminal charges had to be self-contained and understandable on its own. It was not allowed to refer to the case files, to earlier submissions or to other documents. The Court of Appeal observed that the applicant's request did not comply with these demands. The request contained only an incomplete and fragmentary account of the facts, which was not understandable on its own. It lacked the necessary facts about the circumstances of the applicant's companion's treatment, in particular the relevant dates, and about the way the physician learned about the HIV-infection. It followed that the court was not in a position to assess the merits of her request without consulting the case file.

On 7 September 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant's constitutional complaint. This decision was served on the applicant on
17 September 2004.

B. Relevant domestic law and practice

1. Provisions of the Civil Code

Section 823 of the Civil Code provides inter alia:

“A person who, wilfully or negligently, unlawfully injures another person's life, body, health (...) is bound to compensate him for any damage arising there from.”

Section 847 as in force at the material time provides inter alia:

“In the case of injury to the body or health (...) the injured party may also demand fair compensation in money for moral prejudice.”

A patient requesting damages from a physician under section 823 of the Civil Code generally carries the burden of proof for the requisite causal connection between the physician's negligence and the damage to his health. According to the established German case law, in case of gross error in treatment the burden of proof is reversed to the physician. A gross error in treatment is generally assumed if the physician clearly breaches
well-established medical rules.

2. Provisions of the Criminal Code

Section 229 of the Criminal Code provides:

“Whoever negligently causes bodily injury to another person shall be punished with imprisonment for not more than three years or a fine.”

Section 203 provides inter alia:

“Whoever, without authorisation, discloses the secret of another, in particular, a secret which belongs to the realm of personal privacy (...) which was confided to, or otherwise made known to him in his capacity as a physician (...) shall be punished with imprisonment for not more than a year or with a fine.”

Section 34 provides as follows:

“Whoever, faced with an imminent danger to life, limb, freedom, honour, property, or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with. This shall apply, however, only to the extent that the act is a proportionate means to avert the danger.”

3. Rules of Criminal Procedure

If the Public Prosecutor refuses to prefer criminal charges against an alleged offender, the aggrieved party may, pursuant to section 172 of the Code of Criminal Procedure, lodge a request for a court decision. Section 172 § 3 stipulates that the request must indicate the facts which justify the preferment of criminal charges as well as the means of evidence.

COMPLAINTS

1. The first applicant complained under Article 2 of the Convention about the discontinuance of the criminal proceedings against the physician. She further complained that the civil courts had not properly taken into account her right to life in charging her with the burden of proof for the causal link between the physician's error in treatment and her
HIV-infection.

2. The first applicant further complained under Article 6 § 1 of the Convention that the civil courts had misconstrued the meaning of “gross error in treatment”. In her submissions, she had been denied a fair trial because the courts had relied on a contradictory expert opinion and had failed to make further inquiries.

3. She also complained under Article 6 § 1 of the Convention about the alleged unfairness of the criminal proceedings.

4. The second and third applicant complained under Article 8 of the Convention that the civil courts had violated their right to respect for family life.

THE LAW

I. COMPLAINTS RELATING TO THE CRIMINAL PROCEEDINGS

The first applicant complained that the discontinuance of the criminal proceedings against the physician violated her right to life. She further complained about the alleged unfairness of the criminal proceedings. In her submissions in reply to the Government's, she further alleged that the domestic courts had violated her right to an effective remedy.

She invoked Articles 2 § 1, 6 § 1 and 13 of the Convention which, insofar as relevant, read as follows:

Article 2 § 1

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

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13

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

1. The Government's submissions

The Government alleged that the first applicant had failed to lodge her complaint relating to the criminal proceedings within six months following the Federal Constitutional Court's decision dated 7 September 2004, thus failing to comply with the time-limit provided for in Article 35 § 1 of the Convention.

They further considered that the first applicant failed to exhaust domestic remedies pursuant to Article 35 § 1 of the Convention. According to the Government, the first applicant did not file her request for a court decision at the Frankfurt Court of Appeal in accordance with the formal requirements stipulated in section 172 § 3 of the Code of Criminal Procedure. According to that provision, the request had to indicate the facts that were intended to substantiate the criminal charges. This meant that the facts had to be self-contained and understandable on their own, and substantively and formally justify the preferment of criminal charges.

The Government finally alleged that the first applicant failed to lodge her constitutional complaint in accordance with the formal requirements laid down in the Rules of Procedure of the Federal Constitutional Court.

2. The applicant's submissions

The first applicant contested these submissions. She considered that both the General Public Prosecutor and the Frankfurt Court of Appeal had misconstrued her original request for a court decision. She further alleged that her request, which had an overall length of six pages, contained all relevant information justifying the preferment of criminal charges. According to the applicant, the Frankfurt Court of Appeal imposed excessive procedural demands on her in order to rid itself from her request.

She finally alleged that she had lodged her constitutional complaint in accordance with all formal requirements.

3. The Court's assessment

The Court notes, at the outset, that the Federal Constitutional Court's final decision of 7 September 2004 was served on the applicant's counsel on 17 September 2004. The applicant lodged her application with the Court by telefax of 14 March 2005. It follows that this application complied with the six-month time-limit laid down in Article 35 § 1 of the Convention.

As to the question of exhaustion of domestic remedies, the Court reiterates that 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, among other authorities, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999‑VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities,
Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Elçi and others v. Turkey, nos. 23145/93 and 25091/94, § 604, 13 November 2003; Uhl v. Germany (dec.), no. 64387/01, 6 May 2004).

Turning to the circumstances of the present case, the Court notes that the Frankfurt Court of Appeal rejected the applicant's request for a court decision on the ground that the applicant had failed to submit all relevant information to that court. The Court further observes that section 172 § 3 of the Code of Criminal Procedure stipulates that the request had to indicate the facts justifying the preferment of criminal charges. According to the legal commentary quoted by the Court of Appeal in the impugned decision, these facts had to be contained in the request itself, no referral to the case files or previous submissions being permitted.

Having examined the material submitted by the applicant, the Court does not consider that the applicant's request for a court decision contained all relevant information, as it did not give a full account of the applicant's companion's medical treatment and, in particular, of how and when the physician learned about the latter's infection. The Court does not consider that the Frankfurt Court of Appeal imposed excessive formal demands on the applicant, who was represented by counsel throughout the proceedings. In this respect, the Court observes that the formal demands imposed by the Court of Appeal were in line with those reported in the legal commentary cited in the impugned decision and were thus foreseeable for the applicant's counsel.

In these circumstances, the Federal Constitutional Court did not admit the applicant's constitutional complaint for an examination of its merits.

It follows that the applicant failed to exhaust domestic remedies with regard to the criminal proceedings and that this part of the application has to be declared inadmissible under Article 35 § 1 of the Convention.

II. THE FIRST APPLICANT'S COMPLAINTS RELATING TO THE CIVIL COMPENSATION PROCEEDINGS

1. Complaint under Article 2 § 1 of the Convention

The first applicant complained that the domestic courts' refusal to award her compensation for the damages she suffered had violated her right to life. She invoked Article 2 § 1 of the Convention, which provides as relevant:

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

Alternatively, the applicant relied on Article 8 of the Convention, which 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.”

a) The applicant's submissions

The first applicant considered that the facts of the present case fell within the ambit of Article 2 § 1 of the Convention, as the attack which had been carried out by her late companion against her health amounted to attempted murder. She further pointed out that she would most probably die of the disease.

As regards the merits of her complaint, the applicant maintained that the Government had failed to issue clear guidelines to the medical profession on how to react in a case in which a patient refused to disclose his infection to his relatives. The existing legal provisions were inadequate to resolve the resulting conflict of interests. The applicant further considered that the Frankfurt Court of Appeal, in its judgment of 5 October 1999, had failed to construe the legal term “gross error in treatment” in the spirit of Article 2 § 1 of the Convention. She further alleged that the physician's failure to disclose her companion's infection had prevented her from searching earlier treatment, thus further aggravating the violation of her Convention right. The applicant further considered that the physician, by failing to inform her about her partner's infection in January 1993, made it impossible for her to prove that she had not been infected before that date. According to the applicant, these facts were bound to lead to a reversal of the burden of proof in her favour.

b) The Government's submissions

The Government considered, at the outset, that the applicant's complaint did not fall within the scope of Article 2 § 1 of the Convention, as the infection with HIV did not constitute an immediate threat to the applicant's life.

Alternatively, the Government submitted that the Federal Republic of Germany had fulfilled and continued to fulfil its positive obligations under Article 2 § 1 of the Convention to protect the life and health of their subjects by taking adequate and reasonable measures to protect all persons within its jurisdiction from infection with HIV. In the area of public health law the Government focused on informing the general public about the risks and prevention of HIV-infection. Furthermore, the Federal Health Office issued recommendations to the medical profession. The legal framework provided adequate instruments for weighing up the conflicting interests in each individual case. They further pointed out that the costs incurred by the necessary treatment of HIV were covered by the Public Health Insurance.

Furthermore, section 823 of the Civil Code obliged the treating physician to pay compensation if his patient was infected with HIV through medical malpractice.

While accepting that the applicant's complaint fell within the ambit of Article 8 of the Convention, the Government submitted that they had fulfilled their positive obligations under that provision.

c) The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Complaint under Article 6 of the Convention

The first applicant further complained that she had been denied a fair trial before the domestic civil courts. She invoked Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

a) The applicant's submissions

According to the applicant, the civil courts had misconstrued the concept of “gross error in treatment” and had based their decisions on an inconsistent expert opinion. The court-appointed expert J. had based his opinion on general statistical data, which did not allow an assessment of her individual case. Furthermore, his statements were contradictory. In this respect, the applicant pointed out that the expert, in his written opinion, considered that an infection before 29 January 1993 was probable, whereas he stated during the hearing before the Regional Court that such an earlier infection had been “very likely”. The first applicant further complained that the domestic courts had failed to hear further expert opinion. She further alleged that the opinion submitted by the expert J. was outdated and was disproved by the expert opinion submitted by the expert B. in the course of the criminal proceedings. The applicant finally considered that the Frankfurt Court of Appeal relied on the expert J.'s opinion when assessing whether the physician's behaviour constituted a gross error in treatment, while it would have been up to the court to answer this legal question.

b) The Government's submissions

The Government maintained that the domestic courts interpreted the notion of “gross error in treatment” in an acceptable way. They furthermore correctly applied the relevant law regarding the taking and assessment of evidence and did not act arbitrarily. According to the Government, the opinion submitted by the court-appointed expert J. was scientifically
well-founded and conclusive. As pointed out by the Frankfurt Court of Appeal in its judgment of 5 October 1999, there was no sufficient reason to hear further expert opinion.

c) The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

III. THE SECOND AND THIRD APPLICANT'S COMPLAINT

The second and third applicant complained that the German courts had failed to consider their specific situation when denying a “gross error in treatment”, in particular the fact that the prospective death of their mother would deprive them of their only surviving parent and bread-winner.
They invoked Article 8 of the Convention, which 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.”

The Government maintained that the third and second applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention, as they had not been parties in the proceedings before the civil courts concerning the first applicant's action for damages, but only complained to the Federal Constitutional Court. It follows that the domestic courts had been denied the possibility to examine the first and second applicants' complaint.

The applicants contested this argument. They considered that the domestic authorities' denial of compensation indirectly and factually violated their rights under Article 8 of the Convention.

The Court observes that the second and third applicant had not been parties to the proceedings before the lower domestic courts. Under these circumstances, the domestic courts have been deprived of the opportunity to examine the alleged violation of the applicants' Convention rights.
It follows that the second and third applicant cannot be regarded as having exhausted domestic remedies and that their complaint is to be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares admissible, without prejudging the merits, the first applicant's complaints relating to the civil compensation proceedings;

Declares inadmissible the remainder of the application.

Claudia WesterdiekPeer Lorenzen              Registrar              President

[1] On 6 February 2008, under Rule 81 of the Rules of Court, the date on which the Chamber sat, namely on 11 December 2007, was added to the first sentence.

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