AS TO THE ADMISSIBILITY OF
Application No. 22836/93
by N. and subsequently I.L.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 March 1993 by
N. and subsequently I.L. against Sweden and registered on
28 October 1993 under file No. 22836/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The application was initially brought by N., a Swedish citizen,
born in 1942 and residing at Bandhagen. After N.'s death on 25 May 1994
her mother I., a Swedish citizen, born in 1926 and resident at Årsta,
stated to the Commission that she wished to take over the application.
The facts of the case, as submitted by N. and maintained by I.,
may be summarised as follows.
Particular circumstances of the case
On 15 June 1987 E., N.'s father and I.'s husband, then 79 years
old, sought emergency care in the surgery ward of the Southern Hospital
(Södersjukhuset) in Stockholm and was examined, inter alia, by
physician B., who prescribed a laxative. On 2 August 1987 E. was
admitted for care in the hospital, his legs having become paralysed.
He was also found to be suffering from a bacterial infection of the
spine. On 15 September 1987 E. was transferred to Årsta Hospital, where
he died on 3 October 1987. On his arrival at this hospital he was
suffering from, among other things, a large pressure wound on his back.
In May 1988 N. lodged a complaint with the Disciplinary Board of
Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd) against
a physician, Dr. B., three further physicians, the nursing staff on
duty at the Southern Hospital between 2 August and 15 September 1987
as well as against the ambulance staff on duty on 31 July and
2 August 1987.
On 12 November 1990 N. requested that the physician in charge of
E.'s care at Årsta Hospital, Dr. S., be heard by the Disciplinary Board
in regard to, inter alia, the discrepancies between the diagnosis
concerning E. which had been made at the Southern Hospital and the
findings from the autopsy carried out at Årsta Hospital after E.'s
death. N. submitted, inter alia, that E. had been incorrectly diagnosed
at the Southern Hospital, that his inadequate treatment there had
caused his pressure wound and that the wound had not been treated
properly. N. also demanded that B. should be heard by the Board.
In February 1991 N. was allegedly informed by officials of the
Disciplinary Board that because of a time-bar Dr. S. could no longer
be heard in the investigation.
On 18 April 1991 the Disciplinary Board rejected N.'s complaint
after having studied E.'s patient records and having heard five
physicians and one ambulance driver. The Board did not find it
necessary to hear Dr. S. and/or Dr. B.
N. appealed to the Administrative Court of Appeal (kammarrätten)
of Stockholm, essentially alleging that the Disciplinary Board's
investigation of her complaint had been too summary and slow. She also
considered that the Disciplinary Board should have granted her requests
of 12 November 1990.
On 7 October 1991 the Administrative Court of Appeal found it
unnecessary to obtain further evidence in the case and rejected N.'s
appeal.
N. requested leave to appeal to the Supreme Administrative Court
(Regeringsrätten), again arguing that Dr. S. and Dr. B. should have
been heard.
On 16 October 1992 the Supreme Administrative Court refused leave
to appeal.
Relevant domestic law
An official who has, either deliberately or by negligence, failed
to fulfil his or her professional duties in a way which cannot be
considered insignificant, may be punished by a disciplinary sanction
in the form of a remark or a warning (section 12 of the 1980 Act on the
Supervision of Health and Medical Care Staff and Others; lag 1980:11
om tillsyn över hälso- och sjukvårdspersonalen m.fl.). Proceedings
before the Disciplinary Board of Health Care may be instituted by the
National Board of Health and Social Welfare (socialstyrelsen), the
patient or a close relative of the patient (sections 19 and 24).
If an official can reasonably be suspected of having committed
an offence for which imprisonment is prescribed, the incident shall be
reported to the police either by the National Board of Health and
Social Welfare or the Disciplinary Board for the purpose of possible
criminal charges being brought (section 13, subsection 2 and section
38, subsection 3). Insofar as such charges have been brought against
an official, the Disciplinary Board is barred from instituting or
pursuing disciplinary proceedings (section 13, subsection 1).
A disciplinary sanction may not be imposed on an official, if,
inter alia, he or she has not been notified of the complaint before the
Disciplinary Board within two years from the incident at issue
(section 14).
The proceedings before the Disciplinary Board are normally in
writing. The Board may, however, hold an oral hearing, if this can be
expected to facilitate the investigation of a complaint (section 28).
A complaint lodged with the Disciplinary Board shall be
communicated to the respective official(s) against whom it has been
introduced. The official(s) shall be ordered by the Board to respond
to the complaint. No communication to the official(s) concerned is
needed, if it is evident that the complaint cannot be successful or if
a notification is otherwise considered unnecessary (section 29,
subsection 1).
An official who has been notified of a complaint against him or
her shall respond to it in writing, unless the Disciplinary Board
decides that his or her views shall be presented at an oral hearing
(section 30, subsection 1).
According to the 1972 Tort Liability Act (skadeståndslag
1972:207), the State, a municipality or a similar public organ is
liable for personal or pecuniary damages caused by fault or negligence
of a public official when carrying out an activity for which the State
or the municipality is responsible (chapter 3, section 2). Such actions
for damages are examined by ordinary civil courts.
According to the Code of Judicial Procedure (rättegångsbalken),
a complainant has an independent standing in criminal proceedings. He
or she may therefore pursue a private prosecution, if the Public
Prosecutor has decided not to bring charges in spite of the
complainant's request for such action in a matter falling under public
prosecution (chapter 20, section 8, subsection 1). A private claim
against an accused in consequence of a suspected offence may be joined
with the criminal charges brought either by the Public Prosecutor or
the complainant (chapter 22, section 1).
COMPLAINTS
1. Article 2 para. 1 of the Convention has allegedly been violated,
since the medical treatment of E. in the Southern Hospital led to his
death.
2. Article 6 para. 1 has allegedly been violated, since N.'s
complaint to the Disciplinary Board was dealt with too summarily. In
particular, the Board did not hear Dr. S. and Dr. B. and was therefore
unable properly to assess the adequacy of E.'s treatment.
3. Article 13 has allegedly also been violated.
THE LAW
1. According to N., and subsequently I., Article 2 para. 1
(Art. 2-1) of the Convention has been violated, since the medical
treatment of E. in the Southern Hospital led to his death. Under
Article 6 para. 1 (Art. 6-1) it is also submitted that the authorities
dealt with N.'s complaint too summarily. In particular, the
Disciplinary Board heard neither Dr. S. nor Dr. B. and was therefore
unable properly to assess the adequacy of E.'s treatment.
(a) The Commission recalls that under Article 25 (Art. 25) of the
Convention it may receive petitions from "individuals claiming to be
the victim of a violation by one of the Contracting Parties of the
rights set forth in [the] Convention ...". It observes that N., who
originally lodged the application, died on 25 May 1994 following which
her mother and the deceased E.'s wife I. stated to the Commission that
she wished to pursue the case in her own name.
The Commission recalls that an heir of a deceased applicant may
not claim any general right to have the examination of a complaint
brought by the deceased continued. The essential point is whether the
particular nature of the complaint allows it to be, in the
circumstances of the case, considered as transferable (cf., e.g.,
No. 10828/84, Dec. 6.10.88, D.R. 57 p. 5).
The Commission observes that the complaint now at issue relates
to the treatment of E. It considers that, as the deceased E.'s spouse,
I. may reasonably claim to be a "victim" within the meaning of
Article 25 para. 1 (Art. 25-1) in regard to the present complaint.
(b) The Commission next recalls that under Article 26 (Art. 26) of
the Convention it may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law. Article 26 (Art. 26) nevertheless only
requires the exhaustion of such remedies relating to the breaches of
Convention as are effective and sufficient. There is no need to try
other remedies which are available, but probably ineffective (cf. No
9248/81, Dec. 10.10.83, D.R. 34 pp. 78, 85). An applicant cannot be
criticised for not having had recourse to legal remedies which would
have been directed essentially to the same end as a remedy already
tried and which would in any case not have offered better chances of
success (see, e.g., Eur. Court H.R., A. v. France judgment of 23
November 1993, Series A no. 277-B, p. 48, para. 32; Lopez Ostra v.
Spain judgment of 9 December 1994, Series A no. 303-C, para. 38).
The Commission observes that under Swedish law a relative of a
deceased person may complain to the Disciplinary Board of Health and
Medical Care for the purpose of obtaining an assessment of the adequacy
of the care afforded to the patient. This Board may impose disciplinary
sanctions on medical and nursing staff. In certain cases it must report
the incident to the police for the purpose of possible criminal charges
being brought. In the present case the Disciplinary Board found no
reason to criticise E.'s treatment. In these circumstances the
Commission finds that N.'s complaint to the Disciplinary Board was an
effective and sufficient remedy within the meaning of Article 26
(Art. 26) of the Convention.
(c) The Commission has next examined whether there is any appearance
of a violation of Article 2 para. 1 (Art. 2-1) in this case. In so far
as this provision is relevant it reads as follows:
"Everyone's right to life shall be protected by law. ..."
The Commission recalls that this sentence imposes an obligation
on Contracting States not only to refrain from taking life
"intentionally" but also to take appropriate steps to safeguard life
(No. 7154/75, Dec. 12.7.78, D.R. 14 p. 31). For the purpose of
examining the present case, the Commission will assume that the
treatment of E. incurred State responsibility.
On the basis of an overall assessment of N.'s complaint to the
Disciplinary Board, the evidence actually obtained by that Board as
well as the present application, the Commission finds no indication
that E.'s death was caused by a failure to provide him with proper
care. Accordingly, there is no appearance of a violation of Article 2
(Art. 2) of the Convention on account of his allegedly inadequate
treatment.
The Commission recalls, however, that in a previous case
regarding death in a hospital it has held that the State's positive
obligation to protect life implies regulatory measures for hospitals
and an efficient judicial system permitting the cause of death in a
hospital and the possible liability of the doctors or the hospital to
be established. If there is no indication that the authorities
arbitrarily assessed the evidence before them, the Commission must rely
on the facts established by those authorities (No. 20948/92,
Dec. 22.5.95, D.R. 81-A p. 35; see also No. 16593/90, Dec. 12.9.91,
unpublished).
In the present case the Commission notes that one of the
physicians against whom N. had lodged her complaint, Dr. B., was in no
way heard by the Disciplinary Board or the Administrative Court of
Appeal, these bodies having found such a hearing to be unnecessary. The
same is true as regards the failure to hear Dr. S. The Commission
observes, however, that the Disciplinary Board heard five other
physicians and also acquainted itself with E.'s patient records. In the
particular circumstances of this case it therefore finds no appearance
of a violation of Article 2 (Art. 2) in so far as the complaint under
this provision may be considered to pertain to the allegedly improper
manner in which the disciplinary proceedings were conducted.
It follows that the above aspects of the complaint under
Article 2 (Art. 2) must be rejected as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(d) The Commission has next examined the complaint under Article 2
in conjunction with Article 13 (Art. 2+13) of the Convention which
reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
The Commission recalls that, according to the European Court of
Human Rights, an applicant, who is found to have no "arguable claim"
that another Convention provision has been violated, is not entitled
to a remedy under Article 13 (Art. 13) (see, e.g., Eur. Court H.R.,
Powell and Rayner judgment of 21 February 1990, Series A no. 172, pp.
14-15, paras. 31-33 and p. 20, para. 46). The concept of an arguable
claim nevertheless falls to be determined having regard to the
particular facts of the case and the nature of the legal issues raised
(cf. Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21
June 1988, Series A no. 139, p. 11, para. 27; No. 12474/86, Dec.
11.10.88, D.R. 58 p. 94).
On the basis of an overall assessment of the complaint under
Article 2 (Art. 2) the Commission concludes that N. had no "arguable
claim" of a breach of that provision which would have entitled her to
a remedy under Article 13 (Art. 13). It need not therefore determine
whether she had at her disposal an "effective remedy" within the
meaning of that provision.
It follows that this aspect of the complaint must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The allegedly too summary nature of the disciplinary proceedings
is also addressed under Article 6 para. 1 (Art. 6-1) of the Convention
which reads, in so far as it appears to be relevant, as follows:
"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. ...
The Commission need not determine whether I. may reasonably claim
to be a "victim" within the meaning of Article 25 para. 1 (Art. 25-1)
also with regard to the present complaint, since the complaint is in
any case inadmissible for the following reason.
The Commission first notes that N. chose to institute
disciplinary proceedings against E.'s doctors instead of privately
prosecuting them or claiming damages in civil proceedings. The
disciplinary proceedings resorted to did not, however, determine any
"civil right" of N. Accordingly, Article 6 para. 1 (Art. 6-1) does not
apply in the instant case.
It follows that this complaint must be rejected as being
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
3. Recalling its conclusion in 1 (d), the Commission finds no
further issue under Article 13 (Art. 13) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy