Communicated on 10 May 2019
FIFTH SECTION
Application no. 7463/17
Rita ŠTEINA
against Latvia
lodged on 19 January 2017
STATEMENT OF FACTS
1. The applicant, Ms Rita Šteina, is a Latvian national, who was born in 1984 and lives in Ādaži. She was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. V.O.’s placement in a psychiatric hospital and his death
3. The applicant’s father, V.O., was a person suffering from paranoid schizophrenia. As from 8 January 1998 he was a patient in a State-owned, closed psychiatric hospital in Aknīste (“Aknīste Hospital” or “Hospital”). He was admitted on the basis of an agreement concluded between him and Aknīste Hospital.
4. On 26 January 2013, during the daytime, in a smoking area of Aknīste Hospital another patient, J.K., assaulted V.O. He pushed V.O. to the ground and kicked him multiple times. V.O. sustained bodily injuries.
5. On the same day, at around 7 or 8 p.m., V.O. complained about pain to the staff of Aknīste Hospital. Two nurses examined him, but found no signs of any trauma and gave him painkillers.
6. On the same day, at around 11 p.m., the staff discovered that V.O.’s ribcage and face had swollen abnormally. An on-duty doctor, a psychiatrist, was consulted by telephone about V.O. being swollen. The psychiatrist instructed to inject antihistamine, which was done.
7. As V.O.’s condition did not improve, the staff contacted the on-duty doctor again by telephone and, afterwards, called an ambulance. V.O. was taken to Jēkabpils Regional Hospital.
8. On 27 January 2003, at 1.38 a.m., V.O. was admitted to Jēkabpils Regional Hospital. His general condition was described as serious. An on‑duty surgeon examined him and established the following clinical diagnosis: broken ribs, subcutaneous emphysema, pneumothorax, and schizophrenia.
9. On 1 February 2013 V.O. died. The final clinical diagnosis read: broken ribs, pneumothorax, trauma-associated pneumonia, and schizophrenia.
2. First set of criminal proceedings
10. On 27 January 2013 the applicant and her mother informed the local police; criminal proceedings were instituted concerning V.O.’s death. Evidence was gathered, numerous witnesses were questioned (including V.O., J.K., the staff of Aknīste Hospital and other residents, and the applicant and her mother). Several forensic medical examinations were ordered and carried out. The report of 1 March 2013 established that the cause of V.O.’s death had been trauma to his chest, broken ribs, serious injuries to his ribs’ pleura with complications of pneumothorax and pneumonia. The report of 15 January 2014 established that it was unlikely that such injuries could have been sustained by falling on a metal bucket. It was possible that he had been kicked; however, it was impossible to determine the number of kicks he could have received.
11. On 26 February 2013 the spouse of V.O. ‑ the applicant’s mother ‑ was recognised to be a victim in connection with these criminal proceedings. There is no information if she claimed monetary compensation within these proceedings. The applicant did not provide any further information in this regard, but it appears from the case material that on 12 April 2013 the applicant’s mother received 1,138 euros (EUR) from the State on the grounds of a specific law, which provided that the State would grant compensation for a death of a family member as a result of a criminal offence (see paragraph 34 below).
12. On 8 May 2014 the Jēkabpils District Court (Jēkabpils rajona tiesa) found J.K. guilty of inflicting serious bodily injuries, which had caused V.O.’s death. J.K. was relieved of criminal liability due to his mental incapacity and was prescribed compulsory medical treatment.
13. The applicant’s mother lodged an appeal against this judgment. She requested that an additional forensic examination be carried out in order to determine whether the failure by the staff of Aknīste Hospital to provide timely medical care had caused V.O.’s death. Also, it had to be determined whether Aknīste Hospital and its staff were liable for V.O.’s death.
14. On 16 September 2014 the Zemgale Regional Court (Zemgales apgabaltiesa) held a hearing. During that hearing the applicant’s mother withdrew her appeal complaint because the second set of criminal proceedings had been instituted in the meantime (see paragraph 25 below). Thus, the Zemgale Regional Court terminated the proceedings.
15. The ruling of the Jēkabpils District Court took effect on 17 September 2014.
16. On 18 June 2015 the Jēkabpils District Court, upon an application by Daugavpils Psychiatric Hospital, where J.K. had been undergoing his compulsory medical treatment, ended that treatment as J.K. was no longer dangerous. This decision was amenable to appeal on points of law. No appeal was brought. That decision took effect on 10 July 2015 and J.K. was brought back to Aknīste Hospital.
3. Investigation by the Health Inspectorate
17. On the basis a complaint lodged by the applicant’s mother, the Health Inspectorate (Veselības inspekcija) – the institution responsible for monitoring the quality of professional medical care in healthcare establishments – carried out an investigation into the medical care provided to V.O. in Aknīste Hospital and Jēkabpils Regional Hospital. She alleged that the staff of Aknīste Hospital had failed to provide immediate medical assistance after the assault, had failed to react to his calls for help, had not examined him and had failed to ensure the safety of its patients. During the course of the investigation by the Health Inspectorate, the staff and doctors who had provided medical care to V.O. in Aknīste Hospital (a psychiatrist, two nurses, an assistant nurse and a hospital orderly) were questioned and medical documents were examined.
18. On 23 May 2014 the applicant’s mother was advised of the right to acquaint herself with the case material. On 16 June 2014 the applicant’s mother, together with the applicant, arrived at the premises of the Health Inspectorate and exercised that right.
19. In their report of 21 July 2014, which was sent to the applicant’s mother on the same date, the Health Inspectorate found that V.O.’s state of health had deteriorated already before the events of 26 January 2013: his medical records contained notes that on 20 January 2013 he had sleep‑related problems, his behaviour had changed and he had “complicated life for other patients and staff” (paragraph 3 of the report).
20. They also held that the staff of Aknīste Hospital had breached certain medical care regulations: the nurse had not informed the on-duty doctor about the first complaints made by V.O. (paragraph 9.1.) and the on‑duty doctor had not come to see V.O. in person, but had instead given instructions by telephone (paragraph 9.2.).
21. The Health Inspectorate concluded (paragraph 11):
“The circumstances in which patient V.O. sustained injuries [were] linked to complications of [his] main disease 6-7 days prior to the events and inadequate behaviour and actions of other patients, which [could] cause ... conflicts. Such factors as the severity of injuries, the existing manifest changes in the lungs subsequent to pulmonary tuberculosis and the patient’s old age had contributed to the unfavourable outcome of the disease.”
22. The Health Inspectorate refused to institute administrative offence proceedings, as the six-month statutory time-limit for bringing such proceedings against the healthcare professionals had expired. They did, however, inform the State Police about their findings.
23. This report was amenable to appeal before the Head of the Health Inspectorate and the administrative courts. No appeal was brought.
4. Second set of criminal proceedings
24. On 6 May 2014 the State Police, in response to a complaint lodged by the applicant’s mother, informed her that an internal inquiry (resoriskā pārbaude) was being carried out.
25. Subsequently, on 24 July 2014 criminal proceedings were instituted in relation to possible negligence by the Aknīste Hospital staff, which had resulted in V.O.’s death, with reference to section 138(2) of the Criminal Law. Another forensic examination was ordered.
26. In their report of 22 March 2016, a panel of experts established that the staff of Aknīste Hospital (a nurse) had acted in a manner “appropriate” to the situation: she had informed the on-duty doctor, complied with his instructions and called an ambulance. Furthermore, the fact that the on-duty doctor had not visited the patient in person “did not affect the evolution of the injuries, their severity and the unfavourable outcome”. The panel of experts concluded that the shortcomings in the medical care provided to V.O. – including those identified by the Health Inspectorate – were not causally connected to the “unfavourable outcome” and did not cause the death of V.O.
27. On 25 April 2016 the police inspector terminated the criminal proceedings for lack of corpus delicti. She relied on the evidence from the first set of criminal proceedings (witness testimony and the reports of 1 March 2013 and 15 January 2014), the Health Inspectorate’s report of 21 July 2014 and the report of 22 March 2016 by the panel of experts. She concluded that the “unfavourable outcome” occurred regardless of the breaches of medical care regulations by healthcare professionals. These breaches could not be considered to have significantly worsened the [clinical] course of disease or facilitated the “unfavourable outcome”. Also, these breaches were not causally connected with the “unfavourable outcome” and V.O.’s death. Therefore, the actions by the staff of Aknīste Hospital could not be regarded as an improper or negligent carrying out of professional obligations of the healthcare professionals – an offence proscribed under section 138(2) of the Criminal Law.
28. On 25 April 2016 the applicant was informed of the right to acquaint herself with the criminal case material. She was informed that she could lodge a complaint against the decision terminating the criminal proceedings. In her complaint about this decision, the applicant emphasised the following aspects:
(i) elements of the offence proscribed under section 141(2) of the Criminal Law (intentional failure to provide assistance to a person whose life or health is at risk) had not been examined;
(ii) investigative activities had been insufficient to discover the truth; no witness testimony had been taken as the investigator merely referred to testimonies given in connection with the criminal proceedings against J.K., which did not address any issues in relation to medical negligence;
(iii) inconsistencies about the specific time, when V.O. had first complained about his injuries and pain, had not been addressed;
(iv) witness testimony of V.O. and his spouse had not been taken into account; and
(v) the investigation had been protracted.
29. On 23 May 2016 a supervising prosecutor upheld the police inspector’s decision. Firstly, he dismissed the applicant’s allegation that the investigation had been protracted. Secondly, he emphasised that the criminal proceedings had been instituted with reference to section 138(2) of the Criminal Law. Although the panel of experts had revealed certain shortcomings in the medical care provided to V.O., these shortcomings had not been causally connected with the “unfavourable outcome” and V.O.’s death. Furthermore, there were no elements of an offence proscribed under section 141(2) of the Criminal Law. The staff of Aknīste Hospital had provided medical care to V.O. within their competence and in accordance with their understanding of the situation. When V.O.’s state of health had deteriorated, an ambulance had been called and he had been taken to Jēkabpils Regional Hospital. Thirdly, he considered that the investigative activities had been sufficient. Both – the Health Inspectorate in its report and the panel of experts in their report – had analysed the actions taken by the staff of Aknīste Hospital. There were no grounds to question the finding that there was no causal connection between the shortcomings in the medical care and V.O.’s death. To conclude, he considered that the decision to terminate the criminal proceedings had been justified. The applicant submitted a further complaint to a superior prosecutor.
30. On 5 July 2016 the superior prosecutor dismissed her complaint. The superior prosecutor saw no elements of the offence proscribed by section 141(2) of the Criminal Law either. The fact that the decision to terminate the criminal proceedings had not included references to witness testimony by V.O. and his spouse did not indicate that their testimony had not been taken into account. The applicant submitted a further complaint to a chief prosecutor. Among other things, she specifically complained that the allegations of any failure to provide timely and adequate medical assistance to V.O. had not been examined. The applicant contested the conclusion that “the staff of Aknīste Hospital had provided medical care to V.O. within their competence and in accordance with their understanding of the situation”.
31. By a final decision of 28 July 2016 the acting chief prosecutor of the relevant region upheld the decision terminating the criminal proceedings. There were no grounds to institute proceedings with reference to section 141 of the Criminal Law. The actions of the staff of Aknīste Hospital had been examined. When V.O. had complained about his pain around 8 p.m., two nurses had examined him and had administered painkillers. After 11.30 p.m., when his condition had deteriorated and his face and ribcage had become abnormally swollen, an ambulance had been called and he had been taken to Jēkabpils Regional Hospital. Furthermore, he dismissed the applicant’s allegations that V.O. had been injured during the daytime as unsubstantiated. In this respect, he noted that V.O. could not precisely indicate at what time he had been injured or that he had requested medical assistance immediately after the altercation or that it had been denied. Thus, the applicant’s reliance on testimonies given by other patients in connection with the first set of criminal proceedings that V.O. had been injured during the daytime was incorrect. V.O. had complained about the pain in chest for the first time only after supper, that is, after 7 p.m. He had been advised to see a nurse. The acting chief prosecutor, on his own motion, reviewed witness testimony from the first set of criminal proceedings of those patients, who had testified before the first-instance court, and found that there was no indication that the staff of Aknīste Hospital had intentionally failed to provide medical assistance to V.O. Furthermore, it was established during the criminal investigation that V.O.’s death had been caused by (i) the seriousness of the injuries sustained, (ii) the changes in his lungs caused by tuberculosis and (iii) his old age. The breaches of medical care regulations, as established by the Health Inspectorate, thus were not of a criminal nature as no causal connection could be established. Lastly, taking into account the complexity of the case and the scope of investigative activities, the applicant’s allegation that the investigation had been unduly protracted was dismissed as unjustified.
B. Relevant domestic law and practice
32. The relevant provisions on compensation, burden and means of proof in civil proceedings, as well as criminal-law provisions have been cited in Dumpe v. Latvia ((dec.), no. 71506/13, §§ 37-42, 16 October 2018). Examples of domestic case-law on compensation have also been cited there (ibid., §§ 43-47).
33. The relevant provisions on medical care and competence of the Health Inspectorate and its predecessor (the MADEKKI) have been summarised in Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63-65, 11 February 2014).
34. The relevant parts of the Law on State Compensation to Victims (Likums par valsts kompensāciju cietušajiem) read as follows:
Section 1 – Purpose of this Law
“The purpose of this Law is to provide a natural person who, in accordance with the procedures laid down in the Criminal Procedure Law, has been recognised a victim (hereinafter - victim) with the right to receive a State compensation for moral injury, physical suffering or financial loss (hereinafter - injury) resulting from an intentional criminal offence.”
Section 2 – Application of this Law
“...
(2) The request and payment of the State compensation, on the basis of this Law, shall not limit the rights of the victim to request the compensation in accordance with the Criminal Procedure Law and the Civil Procedure Law.
...”
Section 3 - Rights to the State Compensation
“(1) The victim has the right to the State compensation.
(2) The victim has the right to the State compensation also if ... [a perpetrator] in accordance with the Criminal Law shall not be held criminally liable.
(3) If the death of a person has occurred as a result of a criminal offence or the victim has died and has not requested the State compensation or has requested, but has not received the State compensation, the person who has been recognised a victim in the relevant criminal proceedings has the right to receive the State compensation.”
Section 7 – Maximum Amount of the State Compensation
“(1) The maximum amount of the State compensation to be paid to one victim of a criminal offence shall be five minimum monthly wages laid down in the Republic of Latvia. The amount of the State compensation to be paid shall be calculated, taking into account the amount of the minimum monthly working wage determined at the time when the person was recognised a victim.
(2) The compensation shall be paid:
1) if the death of the person has occurred - in the amount of 100% ;
...”
COMPLAINTS
35. The applicant alleged that the State had breached substantive and procedural limbs of Article 2 of the Convention. Her father had been suffering from a serious mental illness for twenty years. He had been placed in a closed psychiatric hospital which had specialised in providing treatment for chronically ill patients. Such institution had to make the necessary arrangements with a view to ensuring the safety of its patients, including from violent acts of other patients.
36. In particular, the applicant alleged that:
(i) the Hospital had failed to take precautionary measures when the state of health of the applicant’s father deteriorated (from 20 January 2013 onwards);
(ii) the Hospital had failed to supervise J.K.’s medical condition; if necessary, such a patient had to be separated from others so that he could not hurt them;
(iii) the Hospital had failed to ensure that the medical staff was immediately informed about a serious and life-threatening assault on a patient such as the applicant’s father; and
(iv) the medical staff had failed to provide any assistance to her father even after they had learned about his injuries and pain; in fact, several witnesses had testified that the applicant’s father had been injured during the day; however, the on-duty doctor had been consulted only around 11.30 p.m.
37. The applicant also complained about both sets of criminal proceedings, as well as the investigation by the Health Inspectorate:
(i) the first set of criminal proceedings was instituted about J.K.’s actions although it was clear that he would not be held criminally liable owing to his mental state;
(ii) the second set of criminal proceedings was instituted belatedly, only upon a complaint by the applicant’s mother, as was the investigation by the Health Inspectorate;
(iii) although the applicant’s mother indicated that there had been prior altercations between patients, the Health Inspectorate and the police did not examine whether the Hospital had complied with its obligation to protect patients’ lives by preventing them from attacking each other;
(iv) the investigation had been too narrow in scope; important issues (e.g. exact time when altercation took place or when V.O. had first complained about his pain) remained unresolved; and
(v) no questions had been raised about the failure to provide help to V.O. and the liability of healthcare professionals in this respect.
QUESTIONS TO THE PARTIES
1. Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34?
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
3. Has there been a violation of Article 2 of the Convention in the present case? In particular:
3.1. In view of his particular vulnerability, has the State complied with its positive obligation to take all the necessary measures to protect the life of the applicant’s father (see Osman v. the United Kingdom, 28 October 1998, §§ 115-16, Reports 1998-VIII; Nencheva and Others v. Bulgaria, no. 48609/06, § 108, 18 June 2013; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 130, ECHR 2014; Bljakaj and Others v. Croatia, no. 74448/12, §§ 107-11, 18 September 2014; and, more recently, Fernandes de Oliveira v. Portugal [GC], no. 78103/14, §§ 108-9 and 113, 29 January 2019)?
3.2. Has the State complied with its positive obligation to put in place a regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives (see Lopes de Sousa v. Portugal [GC], no. 56080/13, §§ 185-96, 19 December 2017, and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, §§ 105-7, 29 January 2019)?
3.3. Having regard to the procedural obligation under Article 2 of the Convention, was there an effective independent judicial system set up in Latvia so as to secure legal means capable of establishing the facts, holding accountable those at fault, and providing appropriate redress (see Byrzykowski v. Poland, no. 11562/05, §§ 104-18, 27 June 2006; Dodov v. Bulgaria, no. 59548/00, § 83, 17 January 2008, and, more recently, Lopes de Sousa v. Portugal [GC], no. 56080/13, §§ 214-21, 19 December 2017).
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