MILIĆ v. SERBIA

 
 
THIRD SECTION
DECISION
Application no. 62876/15
Stojanka MILIĆ
against Serbia
 
The European Court of Human Rights (Third Section), sitting on 21 May 2019 as a Chamber composed of:
Vincent A. De Gaetano, President,
Georgios A. Serghides,
Paulo Pinto de Albuquerque,
Helen Keller,
Branko Lubarda,
Alena Poláčková,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 3 December 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Ms Stojanka Milić, is a Serbian national who was born in 1952 and lives in Kragujevac. She was represented before the Court by Ms M. Mijatović, a lawyer practising in Belgrade.
2.  The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić.
A.  The circumstances of the case
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
1.  The treatment and death of the applicant’s son
4.  The applicant’s son, Ivan Milić, who was born on 16 November 1980, was diagnosed with glycogen storage disease type Ib (von Gierke disease) during the first years of his life. The treatment of that disease is primarily based on a strictly controlled diet and medication. Initially, he received treatment in Serbia.
5.  Owing to an abnormal enlargement of his liver and recurrent infections attacking his immune system, between 5 June 2006 and 15 June 2006 the applicant’s son was treated in Italy. He received treatment in Padua, where doctors performed different tests on him, prescribed medical treatment, and placed him on a strict diet. They also recommended that in future his level of haemochrome should be monitored at his place of residence, and suggested that he should return to their hospital in October 2006.
6.  By a decision of the Republic of Serbia Healthcare Insurance Fund’s Commission for referral for treatment abroad (Komisija za upućivanje na lečenje u inostranstvo Republičkog zavoda za zdravstveno osiguranje) of 2 October 2006 the applicant’s son was denied further treatment in Italy. He continued to receive treatment in Serbia.
7.  On 29 January 2010 the applicant’s son was hospitalised at a State-run hospital, Kragujevac Clinical Centre (hereinafter “KCC”), with abdominal pain. He was examined by a gastroenterologist and an endocrinologist, who established that there was a risk of him experiencing hypoglycaemia. The treatment proposed consisted of monitoring his glucose levels and administering oligosaccharide supplements. He was discharged from KCC at his own request after his condition had stabilised.
8.  On 5 April 2011 the applicant’s son was again admitted to KCC, suffering from abdominal pain and nausea. On that occasion, doctors observed that he had an enlarged liver, an abnormally enlarged spleen, and a hypoechoic pancreas. They also noticed that there was an abnormal build-up of fluid in his abdomen, as well as the presence of an anechoic mass in that area. However, no factors indicating that there was a need for surgery were identified.
9.  The applicant’s son was released from KCC on 11 April 2011 upon the recommendation of one of the hospital’s doctors, and was advised to immediately seek hospitalisation at the Military Medical Academy Clinic for Metabolic Diseases (Vojno-medicinska akademija, hereinafter “the VMA”).
10.  On 19 April 2011 the applicant complained to the KCC administration that the doctors at the hospital had not followed the correct procedure and therefore her son could not be admitted to the VMA. The applicant further complained that, notwithstanding an opinion produced by medical doctors concluding that her son had been released in a stable condition, he was, in fact, bloated and exhausted. She claimed that he had not received treatment appropriate to his medical condition, and that the hospital had not respected his strict dietary requirements, which were essential in the treatment of his disease.
11.  On 23 April 2011 the applicant’s son was again hospitalised at KCC, where it was established that he needed an urgent operation which the facility lacked the necessary expertise and equipment to carry out. He was immediately referred to the VMA (this time with the appropriate form), where he was admitted on the same day.
12.  The next day the urgent operation was performed on the applicant’s son, during which three litres of matter that had leaked from an abscess in his stomach and a gastrointestinal perforation were discovered and treated.
13.  A further operation was performed on 5 May 2011.
14.  Four days later, on 9 May 2011, the applicant’s son died.
2.  Proceedings before domestic authorities
15.  The applicant initiated two parallel investigations, criminal and administrative.
16.  On 27 July 2011 the applicant lodged a criminal complaint with the public prosecutor’s office in Kragujevac against the director of KCC’s emergency unit, Dr V.N., and other doctors who had been involved in her son’s treatment, alleging that their irresponsible behaviour had led to a number of errors during that treatment. She further claimed that her son had not been referred to the VMA at the appropriate time and in the official and correct manner. All of this had caused his death. She stated that the doctors were liable under Article 251 of the Criminal Code for the criminal offence of providing inadequate medical treatment.
17.  On 29 September 2011 the public prosecutor’s office in Kragujevac ordered the Health Inspectorate to undertake a review of the quality of the medical services provided by KCC to the applicant’s son.
18.  On 29 September 2011 the applicant complained to the Health Inspectorate in Kragujevac of the inadequate medical treatment provided to her son.
19.  On 30 September 2011 the applicant also complained to the Patients’ Ombudsman (Savetnik za zaštitu prava pacijenata) and to the Ministry of Health. From the documents available to the Court, it would appear that she never received an answer from those institutions.
20.  On 30 November 2011 the Health Inspectorate undertook an extraordinary review of KCC, and requested that KCC conduct an internal review concerning the treatment of the applicant’s son and submit a report on that review within seven days.
21.  On 24 April 2012, the public prosecutor’s office in Kragujevac informed the Health Inspectorate in Kragujevac that KCC had not yet submitted the report which had been requested, and urged the Health Inspectorate to submit the report as soon as possible.
22.  On 22 June 2012 the public prosecutor’s office in Kragujevac once again urged the Health Inspectorate in Kragujevac to submit the report on the internal review concerning the treatment of the applicant’s son.
23.  On the same day the public prosecutor’s office in Kragujevac sent to the police a request to question Dr V.N. about the applicant’s son’s treatment in hospital. After the prosecutor’s office in Kragujevac urged the police to proceed on their request, the police sent, on 14 August 2012, the official record with the Dr V.N.’s statement on the case.
24.  On 4 July 2012 KCC sent a report on the internal review. The content of the report was predominantly based on statements made by Dr V.N. The public prosecutor’s office in Kragujevac was informed about this report on 30 August 2012.
25.  On 30 August 2012 the Health Inspectorate in Kragujevac proposed that another review be undertaken, this time by a commission established by the Ministry of Health of the Republic of Serbia (“the Commission”).
26.  During 2013 the public prosecutor’s office in Kragujevac urged the Ministry of Health of the Republic of Serbia to submit the Commission’s report on the review.
27.  The Commission submitted its first report on 27 September 2013, largely repeating verbatim the findings of the report on the internal review. It did, however, establish that one of the measures that the hospital could have performed during diagnostic procedures had been missed (namely computerised tomography of the abdomen to clarify ultrasound findings). However, the Commission held that this had not affected the quality of the medical care provided to the applicant’s son.
28.  On 11 December 2013 the Commission submitted an amended report; the amendments were largely aimed at correcting formal errors contained in the first report. Besides that, the amended report also included additional medical documentation which had been made available to the Commission only after the submission of its initial report.
29.  On 20 February 2014 the public prosecutor’s office in Kragujevac rejected the applicant’s criminal complaint, on the basis of the Commission’s report and the submitted report on the internal review.
30.  On 10 March 2014 the applicant submitted to the Higher Public Prosecutor an objection against the decision of the public prosecutor. The objection was rejected on 19 March 2014.
31.  On 20 May 2014 the applicant lodged a constitutional appeal, complaining that the investigation into her son’s death had taken too long and that she was denied the right to an effective remedy. She based her complaint on Articles 32 and 36 of the Constitution, provisions corresponding to Articles 6 and 13 of the Convention. The applicant, in particular, complained about the fact that the public prosecutor took a long time to decide on her criminal complaint before rejecting it and, further, that the domestic law did not provide for a judicial review of this rejection, leaving instead the entire matter to the public prosecution service alone.
32.  On 1 June 2015 the Constitutional Court dismissed the applicant’s constitutional appeal as incompatible ratione materiae with the Constitution. The Constitutional Court based its decision on a provision of Article 170 of the Constitution, according to which a constitutional appeal can only be lodged against an individual act or action, by which had been decided upon the applicant’s rights or obligations. The Constitutional Court reiterated its own jurisprudence in the matter arguing that the criminal complaint itself is only an initial act, upon which the competent prosecutor establishes, after verifying the allegations, whether there is ground for instituting criminal proceedings against a reported person or not and that the mere submission of criminal complaint does not give one the right to the initiation of criminal investigation. The Constitutional Court concluded that the rejection of the applicant’s criminal complaint, as well as the decision following the applicant’s objection, did not constitute an act or action within the meaning of Article 170 of the Constitution.
B.  Relevant domestic law
1.  The Criminal Code (Krivični zakonik), published in the Official Gazette of the Republic of Serbia nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012, 104/2013 and 108/2014
33.  The relevant provisions of the Criminal Code read as follows:
Article 251 (Medical Malpractice)
“(1) A doctor who, in providing medical services, employs evidently inadequate means or an evidently unsuitable [method of] treatment, or who fails to observe appropriate standards of hygiene, or who demonstrably proceeds in an unconscientious fashion and thereby causes a deterioration in a person’s health, shall be punished by imprisonment for three months to three years.
(2) The penalty specified in paragraph 1 of this Article shall be imposed on other medical staff who, in providing medical assistance or care or performing another medical activity, proceed in an obviously unconscientious manner, thereby causing a deterioration in a person’s medical condition.
(3) If the offences specified in paragraphs 1 and 2 of this Article are committed through negligence, the offender shall be punished by a fine or imprisonment for up to one year.”
Article 259 (Grave Offences against Health)
“(4) If the offences specified in paragraph 3 of Article 251 result in a person’s death, the offender shall be punished by imprisonment for one to eight years.”
2.  The Health Protection Act (Zakon o zdravstvenoj zaštiti), published in the Official Gazette of the Republic of Serbia nos. 107/2005, 72/2009, 88/2010, 99/2010, 57/2011, 119/2012 and 45/2013
34.  The Health Protection Act prescribes the procedures and appropriate bodies for monitoring the quality of health services provided under Articles 204 to 212. It provides for the internal review measures to be implemented within a health institution that provides care to a patient, and provides for an external review to be performed by medical professionals from the pre-approved list drawn up by the Ministry of Health. It also lists the specific measures which can be imposed or recommended in the event of malpractice. These measures include recommending the revocation of the licence of the medical professional responsible.
3.  The Law on the rights of patients (Zakon o pravima pacijenata), published in the Official Gazette of the Republic of Serbia no. 45/2003
35.  The relevant provisions of the Law on the rights of patients read as follows:
Article 31 (The right to compensation)
“(1) A patient who, due to the professional fault of a healthcare worker or healthcare associate, suffers damage to his body in the exercise of health care, or a deterioration of his health condition is caused by a professional error, is entitled to compensation for damages according to the general rules on liability for damage.
(2) The right to compensation cannot be excluded or restricted in advance.”
4.  The Law on obligations (Zakon o obligacionim dnosima), published in the Official Gazette of the SFRY nos. 29/78, 39/85, 45/89 and 57/89 and the Official Gazette of FRY no. 31/93)
36.  The relevant provisions of the Law on obligations read as follows:
Article 172 (Liability of a legal person for damage caused by its body)
(1) A legal person shall be liable for damage caused by its body to a third person in performing or in connection to performing its functions.
(3) Unless otherwise specified by the law for specific cases, a legal person shall be entitled to compensation from a person being at fault for injury or loss inflicted deliberate or by gross negligence.
(3) That right shall expire six months after the payment of damages.
5.  The Constitutional Court Act (Zakon o Ustavnom sudu), published in the Official Gazette of the Republic of Serbia nos. 109/07, 99/2011, 18/13-decision of the Constitutional Court, 40/15 and 103/15
37.  Article 85 provides that a constitutional appeal must include: a legal person’s name and the details of its headquarters; an individual’s name and surname, citizen identification number and place of permanent or temporary residence; the name and surname of the plaintiff’s representative; the number and date of the decision against which the appeal is being filed; and the name of the authority that issued that decision. It also provides that the human or minority right and freedom guaranteed by the Constitution that has allegedly been violated have to be specified, as well as the compensation claimed in respect of pecuniary and/or non-pecuniary damage. In accordance with Article 85, appellants have to substantiate their constitutional appeals with any and all evidence relevant to the determination of their case, provide a copy of the impugned decision, and record that all other effective remedies have already been exhausted.
COMPLAINT
38.  The applicant, relying on Article 2 of the Convention, complained of the lack of an effective and thorough investigation into her son’s death, allegedly caused by medical negligence, as well as the overall length of the investigation.
THE LAW
39.  The applicant complained that the authorities had failed to conduct an effective and thorough investigation into her son’s death, allegedly caused by medical negligence. She relied on Article 2 of the Convention, which reads as follows:
“1.  Everyone’s right to life shall be protected by law ...”
A.  The parties’ submissions
1.  The Government
40.  The Government maintained under Article 35 § 1 of the Convention that the application should be rejected for non-exhaustion of domestic remedies, because of the applicant’s failure to make proper use of the constitutional appeal procedure, or, alternatively, because of her failure to initiate civil proceedings.
41.  In particular, the Government contended that the applicant’s failure to make proper use of domestic remedies had meant that the Constitutional Court had not been able to express its views on this case. Relying on Vučković and Others v. Serbia (preliminary objection) ([GC], nos. 17153/11 and 29 others, § 82, 25 March 2014), the Government submitted that as the applicant’s complaint under the procedural limb of Article 2 of the Convention had not been raised before the Constitutional Court, either expressly or in substance, the Constitutional Court could not have examined the matter of its own motion because it was “bound” (vezan) by the request formulated in a constitutional appeal. In the Government’s view, since the constitutional appeal had been an effective remedy, it was highly probable that had the applicant used it in a proper manner and raised a complaint, at least in substance, she would have succeeded.
42.  As regards the length of investigation, the Government maintained that it was conducted lawfully and within a reasonable time, given the complexity and the importance of the case.
43.  As regards civil remedies, the Government pointed out that in accordance with Serbian law, a healthcare provider could be found liable in civil proceedings. Compensation for non-pecuniary damage could also be claimed in those proceedings, yet the applicant had failed to make such a claim.
44.  In Government’s view, as the applicant had either failed to make use of any of the above-mentioned remedies or had failed to use them properly, the Court should declare her application inadmissible under Article 35 §§ 1 and 4 of the Convention.
2.  The applicant
45.  The applicant submitted that by not opening a criminal investigation the authorities had violated the State’s positive obligation under Article 2 to investigate the death of her son.
46.  As regards her alleged failure to make proper use of the constitutional remedy, the applicant argued that even if she had failed to raise a complaint under Article 2 of the Convention, she had raised a complaint concerning the effectiveness of the investigation, at least in substance.
47.  The applicant also maintained that her primary interest had been in investigating her son’s death in order to identify the circumstances of it, or at least receive a reasonable explanation for his cause of death. The applicant does not contest the fact that she did not lodge a civil lawsuit but justify it by the difficulty and the high cost of such proceedings, contrary to criminal proceedings in which, had the proceedings been conducted, she would have a more favourable position and more chances to prove her allegations. Therefore, she had seen no use in lodging a complaint with the civil courts.
48.  She submitted that she had exhausted all the domestic remedies that had been available to her.
3.  The Court’s assessment
49. At the outset, the Court reiterates that, unlike in cases concerning the lethal use of force by State agents, where the competent authorities must initiate investigations of their own motion, in cases concerning medical negligence where the death is caused unintentionally, the States’ procedural obligations under Article 2 of the Convention may come into play upon the institution of proceedings by the deceased’s relatives (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 220, 19 December 2017) and proper exhaustion of domestic remedies in that regard.
50.  States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). Whether a domestic procedure constitutes an effective remedy within the meaning of Article 35 § 1, which an applicant must exhaust, depends on a number of factors, notably the applicant’s complaint, the scope of the obligations of the State under that particular Convention provision, the available remedies in the respondent State and the specific circumstances of the case (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 134, ECHR 2017). If there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see O’Keeffe v. Ireland [GC], no. 35810/09, § 109, ECHR 2014 (extracts)). The Court is not required to determine the application of the rule on exhaustion of domestic remedies in the case as, even assuming that the applicant exhausted the domestic remedies available to her, the application is in any event inadmissible for the following reasons.
51.  The Court notes that there is nothing to indicate, and it has not been suggested by the applicant, that the death of her son was caused intentionally.
52.  In contrast, here the applicant argued that her son, who suffered from a serious illness, died because of the doctors’ irresponsible behaviour which led to a number of errors during his treatment and eventually caused his death. Accordingly, the Court considers that the applicant’s complaint pertains to medical negligence in the treatment provided to her son.
53.  Further, the Court observes that the applicant did not argue that the State had failed in its obligation to put in place an effective regulatory framework. Her complaints also do not fall under the very exceptional circumstances in which the responsibility of the State may be engaged under the substantive limb of Article 2 (see, concerning health-care providers, Lopes de Sousa Fernandes, cited above, §§ 190-92). Accordingly, the examination of the circumstances leading to the death of the applicant’s son and the alleged responsibility of the healthcare professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events. These aspects fall to be examined under the procedural obligation of the State (ibid., § 199).
54.  In medical negligence cases the procedural obligation imposed by Article 2, which concerns the requirement to set up an effective judicial system, will 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 responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. Disciplinary measures may also be envisaged (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII). In such cases, therefore, the Court, having regard to the particular features of a respondent State’s legal system, has required the applicants to exhaust the legal avenues whereby they could have their complaints duly considered. This is because of the rebuttable presumption that any of those procedures, notably civil redress, are in principle apt to satisfy the State’s obligation under Article 2 of the Convention to provide an effective judicial system (see Lopes de Sousa Fernandes, cited above, § 137). Therefore, Article 2 did not necessarily call for a criminal‑law remedy on the facts of the instant case.
55. The applicant was relying on criminal proceedings in order to investigate and establish the responsibility for her son’s death, the reason being that the criminal proceedings would be more affordable for the applicant as the investigation and obtaining of evidence would be for the prosecutor, that is, for the State, as opposed to the civil remedy where the applicant would bear the burden of presenting the court with evidence. The applicant’s argument for not using an available remedy was solely of a financial nature. The Court notes that legal aid would have been available, in principle, in civil proceedings.
56. The Court notes that the domestic courts apply different criteria for establishing liability in criminal and civil proceedings (compare Šilih v. Slovenia [GC], no. 71463/01, § 203, 9 April 2009, and Molga v. Poland (dec.), no. 78388/12, § 88, 17 January 2017).
57. Further, the Court draws attention to the particular purpose and limits of the criminal investigation, namely to establish whether the applicant’s son’s death had been caused by medical malpractice on the part of the healthcare professionals. Accordingly, the criminal investigation was inherently limited to determining the individual criminal responsibility of the potential perpetrators. While the criminal proceedings – coupled with the investigations carried out by other State institutions – were instrumental in clarifying the circumstances of the applicant’s son’s treatment and in dispelling any doubts about any potential criminal conduct, a criminal-law remedy is of limited effectiveness when the person’s death is caused by a multitude of factors and the possibility of joint and several liability falls to be examined. In such cases, a civil-law remedy would be better suited for addressing such circumstances.
58. The Court reiterates that the choice of means for ensuring the positive obligations under Article 2 of the Convention is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfill its positive duty by other means (see Sarishvili-Bolkvadze v. Georgia, no. 58240/08, § 90, 19 July 2018). Furthermore, 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 submitted the case to the careful scrutiny required by Article 2 of the Convention (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, ECHR 2016).
59. In light of the findings concerning the course of the criminal and other investigations, the Court cannot conclude that civil proceedings would have pursued the same objective as the criminal-law remedy. On the contrary, considering the broader range of admissible claims, the potential defendants, and the difference in the substantial conditions of liability, it was the civil-law remedy that would have allowed the domestic authorities to submit the case to the most careful scrutiny and would have permitted the State to put matters right through its own legal system.
60. The domestic legal system offered the applicant the possibility of civil proceedings which would have adequately addressed her arguments and given appropriate responses.
61. As regards the applicant’s second complaint, the excessive length of the investigation, it is to be noted that the investigation in question lasted two years and seven months.
62. In any event, the Court finds that the investigation was rather complex, mainly due to the fact that the applicant’s son was diagnosed and treated for a severe and rare disease. Therefore, the treatment of the applicant’s son appeared to be quite demanding, given the severity of his condition. Hence, the internal review was conducted within two authorities, capable of giving their expert opinion on the specific case, with the participation of the police in the question of the concerned doctor. All those factors undoubtedly contributed to the complexity of the investigation.
63. As to the conduct of the national authorities, the Court notes that the public prosecutor’s office in Kragujevac ordered a review of the quality of the medical services provided by KCC within a short period of time following the applicant’s criminal complaint. It is to be noted that the public prosecutor’s office in Kragujevac was very persistent towards the competent health authorities, in charge of the internal review, with several petitions urging their response.
64. It does not appear that the applicant’s conduct contributed to delays in the proceedings.
65. Making an overall assessment of the length of the proceedings in the above circumstances, the Court finds that the proceedings do not disclose periods of inactivity such as to render them incompatible with Article 2 of the Convention. Nor does the overall length of the proceedings infringe the reasonable-time requirement of that provision.
66. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 13 June 2019.
Stephen PhillipsVincent A. De Gaetano
RegistrarPresident
 
 

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