SECOND SECTION
DECISION
Application no. 11726/09
Leonid NICOLSCHI and Anna NICOLSCHI
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Chamber composed of:
Işıl Karakaş, President,
Julia Laffranque,
Nebojša Vučinić,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 9 February 2009,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Leonid Nicolschi and Mrs Anna Nicolschi, are Moldovan nationals from Glodeni. In August 2015 Mrs Anna Nicolschi died.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The present case concerns the circumstances surrounding the death of the applicants’ twenty-nine-year-old son, Ruslan Nicolschi, on 5 June 2006.
5. At the end of May 2006 the applicants’ son, who had previous criminal convictions, became a suspect in a criminal case concerning theft from a shop. He was required to report to the police, but refused to do so.
6. The applicants’ son was convicted of the administrative offence of failing to appear before the police when required to do so, and sentenced to three days of administrative detention. He was placed in detention on 1 June 2006. According to the medical documents in the case file, on 2 June 2006 the applicants’ son felt dizzy and had a headache. A doctor who saw him prescribed medication for his condition. On 4 June 2006, which was the last day of his detention, he started behaving in a strange manner; he started hallucinating and was talking incoherently. He was seen by a doctor and then taken by ambulance to a psychiatric hospital at approximately 2.35 p.m., after his detention had officially ended. The doctor noted in the applicants’ son’s file that he was suffering from delirium tremens.
7. According to the medical documents from the psychiatric hospital, the applicants’ son was suffering from chronic hepatitis, HIV, miliary tuberculosis of the liver and spleen, and chronic alcoholism. He was also in remission with regard to opium addiction. His behaviour was described as being specific to that of a mentally disturbed person. He was aggressive with the doctors; he would spit and curse and would not allow anyone to touch him. On 5 June 2006 at approximately 4.30 p.m. the applicants’ son started shivering. He became more violent and his state of delirium intensified. He was given sedatives, as a result of which he calmed down. However, at 5.05 p.m. he became pale and stopped reacting to external stimuli, and his breathing became shallow. A doctor specialising in critical care was called immediately, and the applicants’ son received heart massage and intensive care. However, the attempts to resuscitate him failed, and at 5.25 p.m. he was declared dead.
8. On 6 June 2006 an autopsy was performed on the body of the applicants’ son. The doctors found that his body bore no signs of violence and that his death had been as a result of Wernicke Encephalopathy, a condition caused by the abuse of alcohol. Having examined the applicants’ son’s medical history, the doctors found that in December 2005 he had been hospitalised with similar symptoms. The doctors also concluded that the onset of the disease was extremely rapid and that, as a result of the serious diseases from which the applicants’ son was suffering, a number of organs had failed and caused his death. With respect to the bruises allegedly seen by the applicants on their son’s back, the doctors concluded that they were not bruises but post mortem hypostasis. The doctors also concluded that it would have been necessary to provide the applicant’s son with urgent intensive detoxification; however, they were unable to conclude that such a procedure would have saved his life in the circumstances of the case.
9. On an unspecified date the Glodeni prosecutor’s office initiated a criminal investigation into the circumstances of the death of the applicants’ son. During the investigation the first applicant stated that he had spoken with his son on 4 June 2006 on the way from the police station to the hospital, and his son had told him that he had been ill-treated by the police. In particular, he had told him that the police had given him electric shocks, and that he had been beaten and had received blows to his head and heart. The first applicant also stated that he had seen injuries on his son’s dead body.
10. The applicants’ son’s girlfriend told the investigators that she had met the first applicant on 4 June 2006 and he had told her that his son had been taken to hospital because he felt ill. The first applicant had not told her about the alleged beating.
11. The investigators also questioned all of the applicants’ son’s co-detainees. Out of fourteen co-detainees, one stated that he had seen a police officer hit the applicants’ son on his back with a baton two or three times during one evening when he had started to shout that he wanted to go home. After that, the victim had gone to sleep. However, this statement was not confirmed by the other co-detainees or the findings of the doctors from the psychiatric hospital or those who had performed the autopsy. The investigators also questioned the doctor from the ambulance, who had examined the applicant’s son on 4 June 2006 before taking him to hospital. He stated that no visible traces of violence had been seen on the applicant’s son’s body, and he had made no complaints of ill-treatment while being transported.
12. On 31 January 2008 the Glodeni prosecutor’s office decided to discontinue the criminal investigation into the circumstances of the applicants’ son’s death on the grounds that he had died of natural causes. On the strength of the forensic reports and the witness statements, the prosecutor’s office ruled out the possibility of any physical force having been applied to him. The prosecutor’s office also examined whether the applicants’ son had received appropriate medical care in the Bălţi psychiatric hospital. It concluded that, although it would have been more appropriate for him to be taken to intensive care, in view of his condition and the speed with which his health deteriorated, that would not have guaranteed his survival. In any event, it did not consider that issue as a matter of criminal liability.
13. The applicants and their lawyer were officially informed about the above decision on 18 February 2008.
14. On 1 August 2008 the applicants appealed and argued, inter alia, that their son had been in good health and had never suffered from the diseases mentioned in the decision of the prosecutor’s office. Moreover, they contended that they had seen signs of ill-treatment on his dead body.
15. On 5 August 2008 a more senior prosecutor from the Glodeni prosecutor’s office dismissed the applicants’ appeal as ill-founded. The applicants appealed to an investigating judge, who dismissed their appeal on 27 November 2008.
COMPLAINT
16. The applicants complain under Article 2 of the Convention that the State was responsible for their son’s death and that the domestic authorities did not effectively investigate the circumstances thereof. They also complain that their son did not receive adequate medical treatment able to save his life.
THE LAW
17. The Court notes that Anna Nicolschi died in August 2015 and no request has been submitted to pursue the examination of the case on her behalf. In these circumstances, the Court concludes that, within the meaning of Article 37 § 1 (c) of the Convention, it is no longer justified to continue the examination of the application, insofar as it was brought by Anna Nicolschi. Furthermore, the Court finds no reasons of a general nature, as defined in Article 37 § 1 in fine, which would require the examination of this part of the application by virtue of that Article. It therefore decides to strike the application out of its list of cases, insofar as it was brought by Anna Nicolschi.
18. As to the rest of the application, the Court notes that the Government raised two admissibility objections. Namely, they contended that the applicant had not observed the six-month rule when lodging his application with the Court, and that he had not exhausted domestic remedies. Since the case is, in any event, inadmissible for the reasons set out below, the Court does not consider it necessary to rule on these objections.
19. The Court notes that the evidence in the case before it does not support the applicant’s allegation that his son died as a result of ill-treatment received at the hands of the police. Indeed, all medical reports indicate that the applicant’s son’s body bore no traces of violence. The bruises allegedly seen by the applicant on his son’s body were, according to the medical documents, post mortem hypostasis. Moreover, almost all the witnesses who were the applicant’s son’s cellmates stated that they had not seen the applicant’s son being ill-treated. Only one witness stated that he had seen the applicant’s son being hit several times on his back with a baton. However, the investigators did not give weight to this witness’s statements, because no traces of a beating were found on the applicant’s son’s back.
20. The results of the autopsy indicated that the applicant’s son had died of natural causes, and the applicant did not submit any evidence to the contrary.
21. The investigators also examined whether the doctors from the psychiatric hospital were at fault for not providing the applicant’s son with appropriate medical care. They reached the conclusion that it would have been preferable for him to have been taken to intensive care. However, in view of his condition and the speed with which his health deteriorated, that would not have guaranteed his survival. The investigators concluded that the conduct of the doctors in the instant case did not disclose any elements of criminal liability.
22. The Court reiterates that, in cases raising issues under Article 2 of the Convention in the context of alleged medical malpractice, it has held that, where the infringement of the right to life or personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I; Vo v. France [GC], no. 53924/00, §§ 90, ECHR 2004‑VIII; and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006).
23. In the present case, the Court notes that the applicant’s son was no longer in custody at the time of his death. It also notes that it was open to the applicant to initiate civil proceedings in respect of the conduct of the doctors from the Balti psychiatric hospital and that the applicant did not do so. In these circumstances, it cannot be concluded that the State did not discharge its positive obligations in respect of this aspect.
24. In the light of the above, the Court considers that there is nothing in the case materials to substantiate the applicant’s allegations that the State was responsible for his son’s death and that the investigation conducted by the State authorities was not effective. Moreover, as stated above, the applicant’s complaint to the effect that his son was not provided with appropriate medical care is similarly unsubstantiated. Therefore, the application is manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases, insofar as it was brought by Anna Nicolschi;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 20 October 2016.
Hasan BakırcıIşıl Karakaş
Deputy RegistrarPresident
Full & Egal Universal Law Academy