DOS SANTOS FRANÇA AND CALDAS DOS SANTOS FRANCA v. PORTUGAL

FOURTH SECTION

DECISION

Application no. 51185/20
Leonel DOS SANTOS FRANÇA and
Pedro Nuno CALDAS DOS SANTOS FRANCA
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 25 November 2025 as a Chamber composed of:

 Lado Chanturia, President,
 Jolien Schukking,
 Faris Vehabović,
 Lorraine Schembri Orland,
 Ana Maria Guerra Martins,
 Anne Louise Bormann,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

 the above application lodged on 10 November 2020,

the decision to give notice of the complaint concerning the procedural limb of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) to the Portuguese Government (“the Government”) and to declare the remainder of the application inadmissible;

the parties’ observations;

the decision to uphold the Government’s objection to the examination of the application by a Committee;

Having deliberated, decides as follows:

introduction

1.  The case concerns a complaint under Article 2 of the Convention in relation to proceedings concerning allegations of medical malpractice.

THE FACTS

2.  The applicants, Mr Leonel dos Santos França and Mr Pedro Nuno Caldas dos Santos França, are Portuguese nationals, who were born in 1937 and 1973 respectively and live in Lisbon. They were represented before the Court by Mr J.J. Ferreira Alves, a lawyer practising in Matosinhos.

3.  The Government were represented by their Agents, Mr Ricardo Bragança de Matos, and Mr Manuel Magriço Aires, Public Prosecutors.

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

5.  The applicants’ spouse and mother, respectively, D, was 74 years old.

6.  She suffered from obesity and had additional health problems, namely diabetes, hypertension, heart failure, chronic obstructive pulmonary disease, chronic kidney disease, hypothyroidism and chronic anaemia. She took medication for her blood pressure, cholesterol and diabetes and regularly took oxygen in relation to her asthma. She was clinically monitored at the Olivais health centre in Lisbon, where she went every three months. In 2013 she was hospitalised three times for heart related reasons and later suffered a stroke sometime between December 2013 and January 2014 and started taking medication for such condition.

7.  On 26 February 2014 D was admitted to the emergency department of the São José Hospital (hereinafter “the SJH”) in Lisbon suffering from diarrhoea, which she had tried to auto-medicate since 22 February 2014. She was examined by the doctors on duty and underwent extensive tests that day and the following, including a colonoscopy, which revealed that she was suffering from leucocytosis in the small intestine, anaemia, kidney failure and coagulation alterations as well as pseudomembranous colitis (a bacterium which could, inter alia, cause perforation of the intestines and consequent bleeding) and was put on antibiotic therapy.

8.  Given the need for her to remain hospitalised and her contagious condition, on 28 February 2014, she was transferred to the Infectious Diseases Department of Curry Cabral Hospital (hereinafter “the CCH”) where she continued to be treated with antibiotics, together with her usual medication (such as diuretics for her heart failure and insulin for her diabetes).

9.  On 5 March 2014, because D had kidney disease and metabolic acidosis, nephrology support was requested. Upon observation, the doctor “found that the patient was very swollen, with polypnea (rapid breathing), bronchospasm (...) and abdominal pain”. In view of this the dose of diuretics was increased and they were administered intravenously, ensuring that the medication was absorbed.

10.  On 7 March 2014 D showed signs of a digestive haemorrhage which led to new therapy and her being fitted with a nasogastric tube, authorised by her, to understand whether she was bleeding from the upper part of the intestinal tract. The situation persisting the following day the therapy was reviewed and a gastroenterology doctor at the SJH was contacted, who considered that “as the patient was stable, there was no need to carry out an endoscopic study as an emergency, and it was suggested to prepare the patient” for the endoscopic study the following day (9 March). D began preparation for colonoscopy, which she never underwent.

11.  On 9 March 2014 she was assessed once again and support from the emergency department at the SJH was asked for. The latter reported that, in view of the clinical condition “the patient had no indication for colonoscopy in that context” referring to her last endoscopic examination result, carried out on 27 February 2014 (see paragraph 7 above), which had revealed extensive colitis and a distended colon, with an indication for intensive therapy”. Another antibiotic was added to the therapy already in place. That same day tests showed that her anaemia worsened, thus she had a blood transfusion at around noon. The tests were repeated, and, despite the transfusion, the anaemia worsened again so she had another blood transfusion that night.

12.  On 10 March 2014 D’s condition deteriorated significantly with relevant tests showing the worsening of lung and kidney function and signs of infection, as well as haematochezia and acute anaemia, requiring six units of red blood cells. She was transferred to the Intensive Care Unit. Despite treatment bleeding continued, she developed worsening chronic kidney failure necessitating haemodialysis and intubation due to respiratory failure. An echocardiogram showed worsening heart failure, and a thoracic angiography was performed with her son’s consent. Active gastrointestinal bleeding with hemodynamic instability was confirmed. She underwent an urgent, lifesaving, upper digestive endoscopy which showed multiple ulcerative lesions in the stomach and duodenum, one of them with a bleeding vessel in the bulb. Adrenaline was injected endoscopically in the area of the clot to control the bleeding, leading to the stabilisation of her condition.

13.  The following day at noon she had a “new episode of haematochezia with hemodynamic repercussions, controlled with fluid therapy and noradrenaline.” She had another transfusion and an endoscopy was ordered, which was not carried out immediately because the equipment was unavailable. Her deteriorating condition was due to “acute digestive bleeding and consequent acute anaemia, in a patient already suffering from organic cardiac and renal dysfunction due to chronic disease at the time of admission, ischemic cardiomyopathy and chronic renal failure.”

14.  On the same day, 11 March 2014, at 15:00, she had another episode of haematochezia and despite a new transfusion, she continued to bleed “continuously with refractory shock” and died at 15:35.

15.  The death certificate issued by the hospital indicated hypovolemic shock (severe blood loss), duodenal ulcer, and pseudomembranous colitis as causes for the death.

16.  An autopsy was not considered necessary to establish her cause of death. Sections 15 and 18 of Law no. 45/2004 of 19 August 2004, on forensic medical matters, provide that when a death occurs in a medical institution, an autopsy is to be performed only if the death is violent or unexplained; the autopsy in such cases can be dispensed with if it can safely be concluded from the clinical data and other evidence that there is no suspicion of a crime (see paragraph 41 below).

17.  D’s body was handed over to her family on the same day and she was buried on 13 March 2014.

18.  On 21 March 2014 the applicants requested the public prosecutor of the Department for Investigation and Criminal Action of Lisbon (“DIAP”) to order the exhumation of D’s body and an autopsy because they suspected that she had been a victim of medical malpractice. They considered that she had died of reasons unrelated to her admission and that there had been various incongruencies between what they had been told and the medical reports relating to the cause of D’s death.

19.  The public prosecutor at the Lisbon Criminal Court instituted investigation proceedings the same day and classified the inquiry as priority. To assess whether an exhumation and autopsy were necessary, she ordered the CCH to urgently provide the medical records for the period of D’s hospitalisation from 28 February to 11 March 2014. The request was reiterated on 7 April 2014 and extended to the SJH. The clinical documentation sent by the CCH was attached to the investigation file on 21 April 2014.

20.  On 23 April 2014 and 4 June 2014, the second applicant and a doctor who had treated D at the CCH were questioned. The second applicant was of the view that D had contracted the infection either from medication or from an earlier hospitalisation, and that the medication given to combat the bacterium had been given for too long thus causing kidney failure. He also noted that when the doctor informed him that his mother had died, he mentioned that he had operated on her earlier that day at 3.00 a.m. because she was losing blood from a stomach ulcer, noting that he had sutured the vein and that she had been stable thereafter until she died because the vein had burst. He added that he could not understand how they had reached the diagnosis relating to the stomach ulcer since he had not authorised any exam to do so.

The doctor testified as to D’s condition and the relevant steps taken as of her admission at CCH noting, inter alia, that the patient already had a complicated medical history, and that the endoscopy had been carried out as an emergency. Thus, given the risk to D’s life, they could not have awaited the family’s consent. The exam had revealed multiple ulcerative lesions in the stomach and duodenum (associated with her comorbidities which they had tried to prevent by means of medication as of her admission), one of which had a bleeding vessel at the level of the bulb, which had to be controlled. D had not undergone surgery, rather the bleeding was controlled by administering a drug endoscopically. Another doctor, who had seen her later, suggested to carry out another endoscopy the following day and did not refer her for surgery. Some hours later there had been an episode of a sudden blood loss which they tried to control by medication, however, the patient died of hypovolemic shock. He clarified that there had been no time to take her to the operating theatre. There was no doubt as to the cause of death. He considered that the patient had been properly medicated, and no excessive medication had been administered. He concluded by stating that the procedures carried out had been in accordance with good medical practice and in good time.

21.  On 13 May 2014 the second applicant complained about the delay in taking a decision to exhume the body which was decomposing.

22.  On 18 June 2014 the public prosecutor requested an expert medical report from the National Forensic Medical Institute (Instituto Nacional de Medicina Legal e Ciências Forenses, I.P. – “the INML”) under the terms of Article 159 of the Code of Criminal Procedure (“the CCP”) (see paragraph 40 below), in the form of a technical-scientific consultation, with the aim of obtaining answers to a series of questions regarding the evolution of D’s clinical condition, the adequacy of the therapy that was applied to her and the examinations and procedures to which she had been subjected and, in addition, explicitly asked what had been the cause of death and whether the doctors failed to observe any of the clinical procedures that would be required by good medical practice.

23.  By September 2014, the clinical data concerning D received from the SJH had also been added to the investigation file and the first applicant as well as nine other people had been questioned.

24.  The prosecutor repeatedly solicited the INML for their medical report but was informed that they had a backlog.

25.  On 17 and 25 November 2014 the applicants were admitted as auxiliary prosecutors (assistentes) in the case (see paragraph 37 below).

26.  On 5 June 2015, following the prosecutor’s request, the report of the Inspectorate General for Health-Care Activities (“the IGAS”) (see paragraph 34 below) was added to the investigation file.

27.  On 11 May 2017 the INML sent the commissioned expert medical report to the Public Prosecutor’s Office in which it stated that D’s clinical diagnosis had been correct and that the treatment she had received had been appropriate. Furthermore, it found that D’s pathological history had impaired her treatment, and her serious co-morbidities worsened the prognosis of both pseudomembranous colitis and digestive haemorrhage. There was nothing in the file to suggest that the doctors had failed to follow proper clinical procedure. It also concluded that the cause of death was the one that had been recorded on her death certificate (see paragraph 15 above).

28.  By order of 8 September 2017 the public prosecutor discontinued the proceedings. Relying on the evidence available, she found that the doctors had taken all necessary precautions, that the standard of treatment had been adequate and that there was nothing to suggest that they had omitted to carry out any necessary clinical procedures. In her view, there was not “sufficient evidence that any of the health professionals who provided care to D had violated any objective duty of care imposed on them by the exercise of their functions”. In the absence of any evidence of a crime having been committed and given that the suspicions raised by the applicants had not been proven she decided to close the investigation.

29.  The applicants and their lawyers were notified of the order on 28 September 2017.

30.  On 24 November 2017 and 5 April 2018 the second and first applicant, respectively, requested the opening of adversarial investigation proceedings (instrução) for manslaughter in accordance with Article 286 of the CCP (for details of this stage of criminal proceedings, see Correia de Matos v. Portugal [GC], no. 56402/12, § 39, 4 April 2018) requesting that an autopsy be carried out and arguing that there had been an incorrect assessment of the evidence.

31.  On 17 April 2018 the Lisbon Criminal Investigation Court dismissed their request, noting that it was excessively vague and that they had failed to indicate any facts which might constitute an offence or to name the alleged perpetrators (Article 287 (3) of the CCP, see paragraph 40 below).

32.  By a judgment of 27 February 2020, served on the applicants’ legal aid lawyers the following day, the Lisbon Court of Appeal upheld the Lisbon Criminal Investigation Court’s decision that the request had not met the relevant procedural requirements. The applicants claim that they were not made aware of the judgment at the time, which corresponded to the outbreak of the Covid pandemic. In the following months they repeatedly requested the appointment of another legal aid lawyer. Multiple such lawyers had been appointed by the bar association each of whom automatically received a copy of the judgment, prior to being excused from their mandate by the bar association, without forwarding it to the applicants. According to the applicants, the judgment was forwarded to them only by the last legal aid lawyer who sent it to them by email on 16 June 2020 (after he had been notified of it on 29 May 2020) and informed them that no further appeal was possible.

33.  In parallel to the criminal investigation, on 7 October 2014, the second applicant had requested the IGAS to open an investigation into D’s death, reiterating the wish for an exhumation and autopsy to be carried out.

34.  An expert medical opinion was commissioned, and Dr A (specialising in internal medicine) was appointed to assess the correctness or otherwise of the procedures/attitudes of the professionals involved in the hospital care of D. Dr A was requested to reply to nineteen specific questions, one of which concerned a global critical assessment of the clinical situation whereby she replied that all therapeutic approaches had been justified, observing however that, considering in particular the unpredictable haemorrhage scenario and the irreversibility of the hypovolemic shock, “an autopsy could have been performed in order to better understand the chain of events that had led to D’s death”.

35.  After hearing all the involved parties, including nurses and doctors, and having collected all the medical documentation, and examined the expert medical opinion by Dr A, on 25 May 2015 the IGAS issued a report in which it dismissed the applicants’ request and concluded that the medical staff who had treated D had complied with all the relevant medical procedures, that no action deserved censure and that the investigation should be closed. In its conclusions, the report also suggested to the C.A. of the CHLC [board of directors of the Central Lisbon Hospital Centre] to consider issuing guidelines regarding the request for autopsies to better clarify clinical situations that are justified.

36.  The investigation was closed on 2 June 2015.

RELEVANT LEGAL FRAMEWORK

37.  Under the terms of articles 68 § 1 (a) and 69 of the CPP, in all criminal proceedings, the victim of a criminal offence may request to intervene as an assistente in order to participate actively in the proceedings as an auxiliary of the public prosecutor. Under the control of the Public Prosecutor’s Office, assistentes may, in particular, produce or request evidence during the investigation or inquiry, present their own requisitions (acusação) and lodge appeals against decisions concerning them, even if the Public Prosecutor’s Office has not done so (article 69 § 2 of the CPP).

38.  Article 71 of the CPP enshrines the principle of adhesion (princípio da adesão), by virtue of which any claim for compensation for a criminal offence must be made within the framework of criminal proceedings. However, article 72 § 1 provides for the possibility of making the claim before the civil courts, particularly if the Public Prosecutor’s Office has closed the criminal case or if criminal proceedings can only be initiated following a criminal complaint. If the request for compensation is submitted as part of the criminal proceedings, it must be presented within the time-limit set for the presentation of the prosecutor’s submissions or together with the request for the opening of adversarial investigation proceedings introduced by the assistente (auxiliary prosecutors) following an order by the Public Prosecutor’s Office to discontinue the case (article 77 § 1 of the CPP and judgment of April 26, 2017 by the Coimbra Court of Appeal no. 44/10.4 TASBG-A.C2).

39.  The relevant provisions concerning civil claims read as follows:

Article 68

Assistente

“1 – Besides those to whom special laws confer this right, the following persons and entities are entitled to become assistente in criminal proceedings:

(...)

c) In the event that the victim dies without withdrawing the complaint, the surviving spouse who is not legally separated or the person, of the other or same sex, who lived with the victim under conditions similar to those of the spouses, the descendants and adoptees, ascendants and adoptees, or, failing them, siblings and their descendants, unless any of these persons participated in the crime;

(...)

3 - Assistentes may intervene at any time during the proceedings, accepting the proceedings as they stand, provided they ask the judge to do so:

a) Up to five days before the start of the hearing before the investigating judge [debate instrutório] or the trial hearing;

(...)

4 - The judge, after giving the Public Prosecution Service and the defendant the opportunity to comment on the request, shall decide by order, which shall be notified to them immediately.

(...)”

Article 69

Procedural status and powers of the assistentes

“1 - The role of the assistentes is that of collaborating with the Public Prosecution Service, to whose activity they subordinate their intervention in proceedings, unless otherwise provided for by law.

2 - It is especially incumbent on the assistentes to:

a) Intervene in the investigation and in the pre-trial judicial phase by providing evidence and by requesting that steps deemed necessary be taken and that they be given information on any court decisions related to such activities;

(...)”

Article 71

“The claim for civil compensation based on the commission of a criminal offence is lodged in the respective criminal proceedings and may only be lodged separately, before the civil court, in the cases provided for by law.”

Article 72

“1 - The claim for civil compensation may be filed separately before the civil court when:

a) The criminal proceedings have not led to the indictment within eight months of the crime being reported, or have not been ongoing during this period of time;

b) The criminal proceedings have been provisionally suspended, discontinued or the proceedings have been extinguished before the trial;

c) The proceedings depend on the filing of a criminal complaint or a private accusation;

d) There are no damages at the time of the indictment, these are not known or are not known in their entirety;

e) The criminal judgment has not ruled on the claim for civil compensation, in accordance with article 82 § 3;

f) It has been brought against the defendant and other persons with purely civil liability, (...)

g) The value of the claim allows for the civil intervention of a panel court, while the criminal proceedings must proceed before a single judge court;

h) The criminal proceedings are conducted in summary or very summary form;

i) The injured party has not been informed of the possibility of filing a civil claim in the criminal proceedings or notified to do so, in accordance with articles 75 § 1, and 77 § 2.

2 - In the event that the proceedings depend on a criminal complaint or private prosecution, the prior filing of the claim before the civil court by the persons with the right to file a criminal complaint or private prosecution shall be deemed to be a waiver of this right.”

Article 73

(Persons with purely civil liability)

“1 - The claim for civil compensation may be filed against persons with purely civil liability and they may voluntarily intervene in the criminal proceedings.

(...)”

Article 74

(Legitimacy and procedural powers)

“1 - The claim for civil compensation is filed by the injured party, understood as the person who suffered damages caused by the crime, even if he or she has not intervened in the proceedings as assistente or cannot request to do so.

2 - The procedural intervention of the injured party is limited to the support and proof of the claim for civil compensation, and he or she is entitled, correspondingly, to the rights that the law grants to assistentes.

3 - Defendants and intervening parties have the same procedural position as the defendant with regard to the support and proof of the civil issues judged in the proceedings, each defence being independent.”

Article 75

(Duty of information)

“1 - As soon as, during the course of the investigation, they become aware of the existence of potential injured parties, the judicial authorities and criminal police bodies must inform them of the possibility of filing a claim for civil compensation in criminal proceedings and of the formalities to be observed.

2 - Anyone who has been informed that they may file a claim for civil compensation under the terms of the previous paragraph, or, if they have not been informed, considers themselves to have been harmed, may express in the proceedings, until the end of the investigation, their intention to do so.”

Article 76

(Representation)

“1 - The injured party may be represented by a lawyer, and representation is mandatory whenever, due to the value of the claim, had the civil claim been filed separately, it would be mandatory to hire a lawyer, in accordance with the law of civil procedure.

2 - The defendants and the intervening parties must be represented by a lawyer.

3 - The Public Prosecutor’s Office is responsible for filing the claim for civil compensation on behalf of the State and other persons and interests whose representation is assigned to it by law.”

Article 77

(Formulation of the claim)

“1 - When presented by the Public Prosecutor’s Office or the assistente, the claim is made in the indictment or, in an articulated request, within the period in which this must be formulated.

2 - The injured party who has expressed the intention of filing a claim for civil compensation, under the terms of article 75, paragraph 2, is notified of the indictment order, or, failing that, of the order of committal (decision to remit the case for trial), if applicable, so that, if he wishes, he may file the claim, in an articulated request, within a period of 20 days.

3 - If he has not expressed the intention of filing a claim for compensation or if he has not been notified under the terms of the previous paragraph, the injured party may file the claim up to 20 days after the defendant is notified of the indictment order or, failing that, the order of committal.

4 - When, due to the value of the claim, had the civil claim been filed separately, it would not be mandatory to appoint a lawyer, the injured party, within the time limits established in the previous paragraphs, may request that civil compensation be awarded to him. The request is not subject to special formalities and may consist of a declaration in a report, indicating the damage suffered and the evidence.

5 - Except in the cases provided for in the previous paragraph, the claim for civil compensation shall be accompanied by duplicates for the defendants and for the registry.”

40.  In so far as relevant the other articles of the CCP pertinent to the present case read as follows:

Expert evidence

Article 151

When it occurs

“Expert evidence takes place when the perception or assessment of the facts requires special technical, scientific or artistic knowledge.”

Article 157

Expert report

“1 – Once their assessment is completed, the experts shall draw up a report, in which they shall mention and describe their answers and duly substantiated conclusions. Experts may be asked for clarification by the judicial authority, the defendant, the assistentes, civil parties and technical advisors.

(...)”

Article 159

Medico-legal and forensic examinations

“1 - Medico-legal and forensic examinations that fall within the scope of the National Institute of Forensic Medicine shall be carried out by its delegations and medico-legal offices.

(...)”

Article 163

Value of expert evidence

“1 - The technical, scientific or artistic judgment inherent in expert evidence is presumed to be outside the judge’s discretion.

2 - Whenever the judge’s conviction diverges from the judgment contained in the expert’s opinion, the judge must state the reasons for the divergence.”

Article 262

Purpose and scope of the investigation phase [inquérito]

“1 – The investigation phase [inquérito] comprises a set of legal steps aiming at the investigation into the commission of a criminal offence, at identifying its perpetrator(s) and detecting his/their responsibility and at finding and collecting evidence for the purpose of deciding whether or not to prosecute.

2 – Without prejudice to the exceptions covered by this Code, the report on a criminal offence always leads to an investigation.”

Article 263

Direction of the investigation

“1 – The investigation phase is directed by the Public Prosecution Service, assisted by criminal police bodies.

(...)”

Article 267

Acts performed by the Public Prosecution Service

“The Public Prosecution Service performs procedural acts and provides the evidence necessary to achieve the aims set out in Article 262, paragraph 1, under the terms and restrictions provided for by the following articles.”

Article 277

Order for closure

“1 - The Public Prosecution Service shall, by order, discontinue the investigation as soon as it has gathered sufficient evidence that no criminal offence has been committed, that the suspect did not commit it in any way or that the procedure is legally inadmissible.

2 - The investigation shall also be discontinued if it is not possible for the Public Prosecution Service to obtain sufficient evidence of a criminal offence or of the identity of the perpetrators.

3 - The order for closure shall be communicated to the defendant, to the assistente, to the complainant who is entitled to become assistente and to anyone who has expressed the intention to file a civil claim under the terms of article 75, as well as to their officially appointed counsel or lawyer.

4 - The communications referred to in the previous paragraph shall be made:

a) By notification by personal contact or registered post to the assistente and the defendant, unless they have indicated a specific place for notification by simple post, in accordance with Article 145(5) and (6), Article 196(2) and (3)(c), and have not in the meantime indicated another place, by means of a request delivered or sent by registered post to the registry office where the proceedings are taking place at the time;

b) By public notice, if the defendant does not have an officially appointed counsel or a lawyer and it is not possible to serve him by personal contact, registered or simple post, under the terms set out in the previous paragraph;

c) By simple postal notification to the complainant who is entitled to become assistente and who has expressed the intention to file a civil claim;

d) By simple postal notification whenever the investigation is not against a specific person.

(...)”

Article 286

Purpose and scope of the adversarial investigation phase [instrução]

“1 - The adversarial investigation phase is to obtain judicial confirmation of the decision to indict or to discontinue the investigation [conducted by the Public Prosecution Service] in order to refer or not the case to trial.

(...)”

Article 287

Application for the opening of the pre-trial judicial phase

“1 - The opening of the adversarial investigation phase may be requested within 20 days of notification of the indictment or the discontinuation of the case:

(...)

b) By the assistente, if the procedure does not depend on a private prosecution, in relation to facts for which the Public Prosecution Service did not indict.”

41.  Sections 15 and 18 of Law no. 45/2004 of 19 August 2004, which approved the Legal Framework for Medico-Legal and Forensic Expertise, read as follows:

Section 15

Deaths in health institutions

“1 - In situations of violent death or suspected violent death, as well as in situations of death for which the cause is unknown, and when the death occurs in public services and entities integrated in the National Health Service or in private hospitals and clinical services, the director or clinical director must:

a) communicate the fact as soon as possible to the competent judicial authority, accompanied by the duly completed clinical information bulletin available on the Death Certificate Information System, as well as any other information relevant to ascertaining the cause and circumstances of death;

b) ensure that the body remains in an appropriate place and that any traces that need to be examined are preserved.

(...)”

Section 18

Forensic autopsy

“1 - A forensic autopsy takes place in situations of violent death or death from an unknown cause, unless there is sufficient clinical information that, together with the other elements, allows to safely conclude that there is no suspicion of a criminal offence, in which case an autopsy may be dispensed with.

2 - The exemption referred to in the previous paragraph shall never occur in situations of violent death attributable to an accident at work or a traffic accident resulting in immediate death, as well as in situations of death in police custody or associated with police or military intervention, or in cases where there is a suspicion of torture or cruel, inhuman or degrading treatment.

(...)

5 - It is up to the judicial authority to authorize the removal of bodies with a view to carrying out a medicolegal autopsy, as well as to ensure their proper preservation in cases where they are not removed to medicolegal and forensic delegations or offices.”

COMPLAINTS

42.  The applicants complained under Articles 2 and 13 of the Convention that the proceedings which had been brought in response to their allegations of medical malpractice in respect of D’s treatment had been ineffective.

THE LAW

43.  The applicants relied on Articles 2 and 13 of the Convention, the first one of which reads as follows:

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

44.  The Court being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018) deems that the complaint falls to be considered solely under the procedural limb of Article 2 of the Convention.

45.  The Government submitted that the national system as a whole complied with Article 2 of the Convention in dealing with the issue of alleged medical negligence, fulfilling the State’s procedural obligation to protect the right to life, the complaint was thus manifestly ill-founded.

46.  A criminal investigation had been carried out by the Public Prosecutor’s Office and another investigation had been carried out by the IGAS, both of which in a context capable of guaranteeing the independence and impartiality of the assessment that was made.

47.  Both those authorities had taken reasonable steps to secure the evidence concerning the incident. As part of the investigation, the prosecutor obtained clinical documentation concerning D from the hospitals; the internal medicine doctor with the subspecialty of intensive care medicine, working in one of the two hospitals, was questioned as well as the applicants and their relatives. The prosecutor also ordered the INML to carry out a technical‑scientific consultation with a series of questions concerning the evolution of D’s clinical condition (see paragraph 22 above), but nothing was found to indicate that the doctors who had assisted her had failed to observe any of the clinical procedures that would be required by good medical practice (see paragraph 27 above).

48.  The IGAS investigation also took account of all the available clinical documentation, with statements taken from the second applicant and the doctors and nurses who accompanied D, and with a medical opinion drawn up by an expert appointed for the purpose. However, the conclusions of the IGAS also pointed in the same direction (see paragraph 35 above).

49.  In the Government’s view the procedures put in place were capable of leading to a decision on the cause and circumstances of D’s death, and the usefulness of an exhumation and autopsy was questionable given that an autopsy was not necessary to determine the cause of death. At the time of the death there had been no signs nor evidence of medical negligence, an argument only raised later (ten days after the death and one week after the funeral). The cause of death being known, domestic law did not require the carrying out of an autopsy (see paragraph 28 above). Moreover, the delay in bringing up the matter and the nature of the applicants’ suspicions did not militate in favour of a subsequent exhumation. The suggestion by the IGAS concerning future practices could not cast doubt on the decision in the present case which had been based on an assessment of relevant factors.

50.  As to the duration of the proceedings the Government noted that the IGAS investigation had been speedy lasting only a few months. As to the criminal investigation, it had been classified as priority and processed accordingly, and various relevant steps were taken in the same year that the complaint was lodged. The Government justified the delay in the preparation of the report in the light of the circumstances of the present case which did not concern a violent death or unknown causes, but suspicions based on a “subjective vision, devoid of any rigor or objectivity” and thus could not take precedence over other work. Moreover, the complex clinical history of D had required an increased effort in preparing the report.

51.  Relying on the content of the IGAS report (see paragraph 34 above) which in their view concluded that an autopsy had been necessary, the applicants complained that an autopsy would have fully clarified the causes of death, yet it had not been ordered as soon as it was requested. As the body decomposed over time, the request became devoid of interest and the cause of the death was never discovered, nor were those eventually responsible been brought to justice. Thus, the applicants considered that the authorities had failed to respect their obligations under Article 2 of the Convention as there had been no effective investigation.

52.  The applicable general principles concerning the State’s procedural obligation under Article 2 of the Convention in the context of healthcare have been summarised in Lopes de Sousa Fernandes v. Portugal [GC], (no. 56080/13, §§ 214-21, 19 December 2017).

53.  In particular, the Court has interpreted the procedural obligation of Article 2 in the context of healthcare as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible held accountable (see, among other authorities, Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein).

54.  While, in some exceptional situations, where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law (see, for example, Mehmet Taner Şentürk v. Türkiye, no. 51470/15, §§ 104-05, 20 September 2022, and Asiye Genç v. Turkey, no. 24109/07, § 73, 27 January 2015), in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see Cevrioğlu v. Turkey, no. 69546/12, § 54, 4 October 2016).

55.  The choice of means for ensuring that the positive obligations under the Convention are fulfilled is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring that Convention rights are respected, 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 Lopes de Sousa Fernandes, cited above, § 216, with further references).

56.  Unlike in cases concerning the lethal use of force by State agents, where the competent authorities must of their own motion initiate investigations, in cases concerning medical negligence where the death is caused unintentionally, the States’ procedural obligations may come into play upon the institution of proceedings by the deceased’s relatives (ibid., § 220).

57.  The procedural obligation under Article 2 in the context of healthcare requires that the domestic proceedings be effective (ibid., § 226). In order to be “effective”, as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007-II).

58.  The compliance with the procedural requirement of Article 2 is to be assessed on the basis of several essential parameters. These elements are inter-related and each of them, taken separately, does not amount to an end in itself, as is the case in respect of the requirements for a fair trial under Article 6. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 171, 25 June 2019). In the context of investigations into allegations of medical negligence (see, by way of recent examples from the case-law, Kornicka-Ziobro v. Poland, no. 23037/16, § 69, 20 October 2022; Hubert Nowak v. Poland, no. 57916/16, § 90, 16 February 2023; and Harutyun Karapetyan v. Armenia, no. 53081/14, § 72, 29 October 2024) those essential parameters have been stated to include the following:

(a) the investigation must be thorough, which means that the authorities must take all reasonable steps available to them to secure the evidence concerning the incident, always make a serious attempt to find out what happened and not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions;

(b) even where there may be obstacles or difficulties preventing progress in an investigation, a prompt response by the authorities is vital for public safety and in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts. The proceedings must also be completed within a reasonable time;

(c) it is generally necessary that the domestic system set up to determine the cause of death or serious physical injury be independent. This means not only a lack of hierarchical or institutional connection but also a practical independence implying that all persons tasked with conducting an assessment in the proceedings for determining the cause of death or physical injury enjoy formal and de facto independence from those implicated in the events.

59.  This procedural obligation under Article 2 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 Lopes de Sousa Fernandes, cited above, § 221, with further references).

60.  Moreover, the procedural obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see Harutyun Karapetyan, cited above, § 74). 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 subjected the case to the careful scrutiny required by Article 2 of the Convention (see Sarishvili‑Bolkvadze v. Georgia, no. 58240/08, § 84, 19 July 2018).

61.  Lastly, the Court would add that the nature and degree of scrutiny which satisfies the minimum threshold of effectiveness depends on the circumstances of each particular case. Each case must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Harutyun Karapetyan, cited above, § 75, and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI, with further references).

62.  Albeit D had a number of medical conditions (see paragraph 6 above) and entered the hospital already ill (compare and contrast Lopes de Sousa Fernandes, cited above, § 222), given the subsequent complications and series of interventions, the Court is ready to accept that the applicants had some arguable grounds to suspect that D’s death could have been the result of medical negligence. The respondent State’s duty to ensure compliance with the procedural obligations arising under Article 2, in the proceedings instituted regarding D’s death, is therefore engaged in the present case. This obligation came into play upon the institution of proceedings by the applicants (see Lopes de Sousa Fernandes, cited above, § 222, and paragraph 18 above).

63.  The Court notes that, in cases of medical negligence, Portuguese law provides, in addition to the possibility of criminal proceedings, for the option of making an application to the Ministry of Health, namely the Inspectorate General for Health and the Medical Association seeking to establish disciplinary liability on the part of members of the health-care profession. It is also possible to bring proceedings for civil liability either by joining the criminal proceedings as assistentes and eventually introducing a civil claim therein, or by pursuing their civil claim separately before the administrative courts (see paragraphs 37-38 above).

64.  On this basis the Court concludes that the Portuguese legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2 (ibid., § 224). The applicants have not argued otherwise.

65.  In the instant case, the applicants made use of two of the procedures mentioned above (contrast Lopes de Sousa Fernandes, cited above, § 225). In these circumstances the Court will start by examining the proceedings undertaken to determine whether in the concrete circumstances of the case, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see, for example, Kudra v. Croatia, no. 13904/07, § 107, 18 December 2012).

66.  At the outset the Court observes that the applicants did not contest the independence and impartiality of the domestic authorities or the experts who gave evidence in the various proceedings. It therefore remains to be ascertained whether the domestic proceedings were effective in terms of being thorough, prompt and concluded within a reasonable time.

67.  As regards thoroughness, in both those proceedings, the authorities collected and examined D’s medical records and clinical history and gathered evidence from the doctors involved in the chain of events leading up to D’s death and from the applicants themselves (see paragraphs 20 and 35 above). The applicants were given the opportunity to adduce their arguments and to dispute the evidence collected in such a way that they were able to exercise their procedural rights and influence the proceedings (see Lopes de Sousa Fernandes, cited above, § 226, and Kornicka-Ziobro, cited above, § 73). The Court further notes that both the prosecutor in the criminal investigation and IGAS authorities commissioned an expert report (see paragraphs 22 and 34 above) and nothing indicates that those reports had not been thorough, they had been detailed and consistent in so far as they reached the same conclusions and the Court does not find any element in the case file which might allow it to depart from or call into question those expert reports (see, mutatis mutandis, Besen v. Turkey (dec.), no. 48915/09, § 38, 19 June 2012, and E. M. and Others v . Romania (dec.), no. 20192/07, § 50, 3 June 2014).

68.  The applicants complained, in particular, about the failure of the domestic authorities to carry out an autopsy to establish D’s cause of death. However, the Court observes that the cause of D’s death had not raised any doubt which would have required an autopsy under the statutory provisions (see section 18 of the Law no. 45/2004, paragraph 41 above, see mutatis mutandis, Lopes de Sousa Fernandes, cited above, § 227). Indeed, the domestic authorities did not consider D’s death to have been violent or unexplained, two situations which would have required an autopsy to be performed under statutory provisions (see paragraph 16 above). In addition, the Court observes that no request was made in that regard following D’s death on 11 March 2014. It was only on 21 March 2014 that the applicants requested the Lisbon public prosecutor to order the exhumation and autopsy of D’s body (see paragraph 18 above). Furthermore, they referred only to their personal convictions and suspicions to support their request, but did not provide scientific evidence to substantiate it.

69.  The Court acknowledges that the expert commissioned for the IGAS report stated that an autopsy could have been performed in order to better understand the chain of events that had led to D’s death (see paragraph 34 above). Nevertheless, she also found that the medical staff had followed proper clinical procedure during the patient’s treatment, thus giving no reason to consider that there had been any negligence. Moreover, the INML’s expert medical report found that there was nothing to suggest that the doctors had omitted to carry out any necessary clinical procedures and concluded that the cause of death had been hypovolemic shock and complications arising from a duodenal ulcer, as had been recorded on the death certificate (see paragraph 27 above). In view of the evidence collected as a whole, and the lack of any doubt about the cause of death, the Court considers that the absence of an autopsy does not in itself constitute a failure by the domestic authorities to comply with their procedural obligation arising from Article 2 of the Convention, since the authorities reached the conclusion, through detailed reasoning and based on ample evidence, that the cause of D’s death was not unclear or the result of medical malpractice, and there is no objective evidence in the case file to call that reasoning into question.

70.  As concerns the length of the proceedings undertaken, the Court observes that the proceedings before the health authorities – which were undertaken in parallel to the criminal proceedings – started on 7 October 2014 and were concluded on 5 June 2015, in less than a year later (see paragraph 36 above). They had therefore provided a prompt response and had been decided within a reasonable time (contrast Lopes de Sousa Fernandes, cited above, § 229).

71.  Turning to the length of the criminal proceedings in which the applicants sought to intervene as assistentes (see paragraph 30 above), the Court notes that those proceedings were also initiated promptly, on 21 March 2014, date of the applicants’ complaint (paragraph 18 above) and by 9 September 2014, most of the evidence consisting in witness statements and medical files had been collected. It is true that on 17 June 2014 the prosecutor had requested the INML to issue an expert medical opinion, and the latter was only issued on 11 May 2017 (see paragraphs 22 and 27 above). However, the Court cannot ignore that the applicants had not substantiated their position with any relevant material or grounded their suspicions on anything other than their opinions, and, importantly, that on 5 June 2015 the IGAS report, concluding that the medical staff had complied with all the relevant medical procedures and that no action deserved censure, had already been added to the file (see paragraph 20 above). In that light, the Government’s explanation that the delay before the INML was due to the fact that the circumstances surrounding the case did not qualify it as priority is reasonable. Moreover, given the IGAS’ timely conclusions, it cannot be said that the delay in submitting the INML report prolonged the ordeal of uncertainty for the applicants (contrast Lopes de Sousa Fernandes, cited above, § 236). Subsequent to the receipt of the INML report on 11 May 2017 the proceedings were discontinued on 8 September 2017 and the applicants were notified of this on 28 September 2017. However, it was only on 24 November 2017 and 5 April 2018, that is nearly one month and more than six months later, respectively, that the second and first applicant, respectively, requested the opening of adversarial investigation proceedings (see paragraph 30 above). That request was dismissed in April 2018 and a further appeal was dismissed on 27 February 2020 (see paragraphs 31-32 above).

72.  The Court reiterates that compliance with the procedural obligation under Article 2 requires a joint assessment of several essential parameters (see paragraph 58 above). Thus, in contrast to a situation where solely the excessive length of the proceedings is examined under Article 6 § 1 of the Convention, it is not merely the reasonableness of the length of the proceedings which is in issue here. The main question is instead whether, in the circumstances of the case viewed as a whole, the State could be said to have complied with its procedural requirements under Article 2 of the Convention (see Bilbija and Blažević v. Croatia, no. 62870/13, § 110, 12 January 2016, with further references, and more recently Kornicka‑Ziobro, cited above, § 81). In the absence of any apparent lack of thoroughness in the authorities’ examination of the circumstances surrounding the death of D, the overall length of the criminal proceedings in the present case, which in any event does not exceed six years, including the investigation stage, as well as two levels of courts, whereby the applicants sought to challenge the prosecutor’s decision (without complying with the relevant formal requirements), does not suffice to find the respondent State liable under its procedural obligation arising from Article 2 of the Convention (contrast, Lopes de Sousa Fernandes, cited above, § 236, where no significant procedural steps were undertaken by the prosecuting authorities for a period of almost five years and seven months out of the total duration of six years, eight months and nineteen days in the criminal proceedings, and where the civil proceedings lasted ten years, and Tülay Yıldız v. Turkey, no. 61772/12, § 70, 1 December 2018, in relation to a duration of more than thirteen years).

73.  Lastly, the Court notes that the applicants could have pursued civil proceedings, already while the criminal proceedings were pending, as no indictment had ensued within eight months of the alleged crime being reported (see Article 72 of the CCP, at paragraphs 38 and 39 above, and for an example in practice Lopes de Sousa Fernandes, cited above, § 69). Such a possibility was also open to them after the criminal investigation had been discontinued (see Article 72 § 1 (b) of the CCP, paragraph 39 above). The applicants have not relied on any provision in domestic legislation or any example of domestic practice to show that in the determination of the civil claims the civil courts would have been bound by the criminal findings (see, mutatis mutandis, Vakrilov v. Bulgaria (dec.), no. 18698/06, § 40, 9 October 2012; see also V.V.G. v. the former Yuigoslav Republic of Macedonia (dec.), no. 55569/08, § 45, 20 January 2015, concerning allegations of medical negligence under Article 3 of the Convention). By this means, the applicants would have been entitled to adversarial proceedings on the merits of their allegations and, if necessary, to compensation for their losses. There are no reasons to consider that had the applicants had a founded claim, these proceedings would have had no prospects of success (see, mutatis mutandis, Ursu v. Romania (dec.). no. 58670/00, 3 May 2005).

74.  In these circumstances, the Court considers that the Portuguese system offered the applicants in this case several mechanisms to establish whether there was any criminal, disciplinary or civil liability on the part of the hospital or of the medical staff involved in the patient’s treatment, and both avenues which they pursued in parallel, complied with the requirements of Article 2 of the Convention.

75.  It follows that the complaint must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 December 2025.

 Simeon Petrovski Lado Chanturia
 Deputy Registrar President