CASE OF BILBIJA AND BLAŽEVIĆ v. CROATIA

1. The case originated in an application (no. 62870/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Ms Lenka Bilbija and Ms Sanja Blažević (“the applicants”), on 21 June 2013.
2. The applicants were represented by Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicants alleged, in particular, the lack of an effective procedure before the domestic authorities concerning the death of their mother allegedly caused by medical negligence, contrary to Articles 2, 8 and 13 of the Convention.
4. On 4 December 2013 the above complaints were communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1958 and 1961 respectively and live in Zagreb.
6. On 13 February 2001 the applicants ’ mother died after being admitted for respiratory problems to the Jordanovac Clinical Hospital Centre ( Klinički bolnički centar Jordanovac; hereinafter: the “Hospital”), a public health care institution.
7. An autopsy performed on the next day by the General Medical Pathology and Anatomical Pathology Department of the Zagreb University Medical Faculty ( Zavod za opću patologiju i patološku anatomiju Medicinskog fakulteta Sveučilišta u Zagrebu ) indicated that the cause of death was a respiratory insufficiency leading to cardiac complications.
8. The applicants were informed of the results of the autopsy and the measures which had been taken in the treatment of their mother were explained to them.
B. The administrative disciplinary proceedings
9. According to the applicants, based on a mutual agreement, it was decided that the first applicant would pursue legal remedies concerning the death of their mother.
10. In July 2001 the first applicant met two health inspectors at the Ministry of Health ( Ministarstvo zdravstva; hereinafter: the “Ministry”) to whom she complained of their inability to obtain their mother ’ s medical records and about the circumstances in which she had died. The inspectors, however, took no further action concerning these complaints.
11. On 1 October 2002 the first applicant complained to the Croatian Medical Chamber ( Hrvatska liječnička komora; hereinafter: the “CMC”) that her mother had died in unclear circumstances which had severely affected her family. She also expressed her dissatisfaction with the functioning of the medical system and complained in particular of her own medical treatment.
12. Upon receiving the first applicant ’ s complaint, the Professional Supervisory Commission of the Croatian Medical Chamber ( Povjerentsvo za stručni nadzor Hrvatskw liječničke komore; hereinafter: the “Commission ”) invited the first applicant to specify in respect of which doctor and medical institution she made her complaints.
13. By a letter of 28 February 2003 the Commission informed the first applicant that it considered her complaints to be withdrawn as she had failed to specify them as requested.
14. On 17 March 2003 the first applicant replied to the letter of the Commission maintaining that there must have been some misunderstanding with the correspondence she had received from them. She indicated that her complaint concerned the Hospital, its director doctor, LJ.P., and the head of the intensive care unit doctor, B.S. The first applicant in particular submitted that her family had never received any relevant documents concerning their relative ’ s death. A copy of this reply was sent to the Ministry.
15. After receiving the first applicant ’ s complaint, the Ministry requested the Hospital to provide a report concerning her mother ’ s death.
16. On 16 April 2003 the Hospital submitted a report to the Ministry concerning the medical treatment of the applicants ’ mother and the circumstances of her death.
17. On 30 April 2003 the Ministry forwarded all available documents to the Commission and requested a report on the actions taken with regard to the first applicant ’ s complaint.
18. By a letter of 2 May 2003 the Commission informed the first applicant that it had not found any malpractice in the medical treatment of her mother.
19. The first applicant objected to these findings on 6 June 2003. She stressed that her family had never received any concrete document indicating the cause of death of their relative and that the letter which she had received from the Commission lacked the relevant reasoning.
20. On 15 July 2003 the first applicant submitted further observations on her objection and on 20 November 2003 she urged the CMC to adopt a decision on the matter.
21. On 21 October 2003 the CMC Executive Board ( Izvršni odbor Hrvatske liječničke komore ), as a second-instance body of the CMC, dismissed the first applicant ’ s objection as ill-founded, upholding the decision of the Commission. It also informed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court ( Upravni sud Republike Hrvatske ).
22. After receiving the decision of the CMC Executive Board, the first applicant requested the CMC for an explanation concerning the procedure before it. On 4 December 2003 she received a reply from the CMC indicating that she had been accordingly informed that she could lodge an administrative action in the Administrative Court and that there was no need for the CMC to communicate further with her concerning the matter.
23. On 24 November 2003 the first applicant lodged an administrative action in the Administrative Court challenging the decision of the CMC Executive Board. She argued that the bodies of the CMC had not replied to her submissions and had failed to properly assess the circumstances of her mother ’ s death.
24. On 24 April 2006 the first applicant urged the Administrative Court to examine her case. She received a reply from the Administrative Court on 11 May 2006 indicating that due to a backlog at that court her case had still not been examined.
25. The applicant then complained to the Ministry of Justice ( Ministarstvo pravosuđa Republike Hrvatske ) about the manner in which her case was processed by the Administrative Court and on 4 October 2006 the Ministry of Justice requested the Administrative Court for a report on the matter. The Administrative Court replied on 14 November 2006, reiterating its previous explanation as to the reason why the case had not been examined.
26. On 14 February 2007, upon another complaint by the first applicant, the Ministry of Justice requested the Administrative Court for a report concerning the progress of the case.
27. On 2 March 2007 the Office of the President of the Republic of Croatia ( Ured Predsjednika Republike Hrvatske ), based on the first applicant ’ s complaint, urged the Administrative Court to speed up the proceedings in her case.
28. On 5 October 2007 the Administrative Court declared the first applicant ’ s administrative action inadmissible on the ground that the decision of the CMC Executive Board was not an administrative decision concerning any of her rights or obligations or legal interests.
29. On 8 January 2008 the first applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining of the ineffectiveness of the proceedings before the lower bodies and her family ’ s inability to obtain any concrete information about the circumstances of their relative ’ s death.
30. On 27 February 2010 the first applicant urged the Constitutional Court to examine her case. Meanwhile she supplemented her constitutional complaint with further arguments and complaints, complaining in particular about the inordinate length of the proceedings in her case.
31. On 19 August 2010, the first applicant also asked the Constitutional Court to allow her to inspect the case file.
32. In the meantime, the first applicant complained to various domestic authorities, including the Office of the President of the Republic of Croatia, the Office of the Prime Minister of Croatia ( Ured Predsjednika Vlade Republike Hrvatske ) and a Deputy in the Parliament about the ineffectiveness of the domestic authorities ’ response to her complaints concerning her mother ’ s death.
33. On 26 November 20 12 the Ministry, replying to a question of the Deputy, stressed that it had never taken any action within its competence concerning the applicants ’ case, although it had taken note of the proceedings before the competent bodies of the CMC and informed the first applicant of its findings with regard to the decisions of the CMC.
34. On 17 December 2013 the Constitutional Court dismissed the applicant ’ s constitutional complaint of 8 January 2008 as ill-founded (see paragraph 29 above), upholding the decision of the Administrative Court. It also declared the applicant ’ s additional complaints inadmissible as being lodged out of time and for non-exhaustion of the length of proceedings remedies. The decision of the Constitutional Court was served on the first applicant on 14 January 2014.
35. On 6 February 2004 the first applicant lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) alleging medical negligence by unknown Hospital staff. In particular, the first applicant submitted that upon the admission of her mother to the Hospital she had been given a drug to which she was allergic, which had caused an allergic reaction and further medical complications leading up to her death.
36. After lodging the criminal complaint, the first applicant inquired several times with the Zagreb Municipal State Attorney ’ s Office about the progress of the investigation.
37. On 13 September 2006 the first applicant submitted a written request to the Zagreb Municipal State Attorney ’ s Office urging it to examine her criminal complaint.
38. As she received no reply from the Zagreb Municipal State Attorney ’ s Office, the first applicant complained to the Ministry of Justice about the inactivity in processing her complaint.
39. Based on the first applicant ’ s complaint, on 4 October 2006 the Ministry of Justice requested a report from the State Attorney ’ s Office of the Republic of Croatia ( Državno odvjetništvo Republike Hrvatske ) concerning the case.
40. Since it received no reply, on 14 February 2007 the Ministry of Justice again urged the State Attorney ’ s Office of the Republic of Croatia to produce a report concerning the proceedings at issue.
41. On 1 March 2007 the State Attorney ’ s Office of the Republic of Croatia informed the Ministry of Justice and the first applicant that the Zagreb Municipal State Attorney ’ s Office had requested an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to commission an expert report concerning the circumstances of the applicants ’ mother ’ s death. It also stressed that this fact should be known to the first applicant as she had been duly informed about the status of the proceedings when she had made an inquiry in the Zagreb Municipal State Attorney ’ s Office.
42. After receiving this information, the first applicant made several inquiries in the Zagreb County Court concerning the status of the case. On 11 January 2008 she was informed by that court that the Zagreb Municipal State Attorney ’ s Office had never requested any investigative actions concerning her criminal complaint.
43. Meanwhile, on 21 December 2007 the Zagreb Municipal State Attorney ’ s Office found that the first applicant ’ s case file had been lost and ordered that it should be reconstructed.
44. The Zagreb Municipal State Attorney ’ s Office also ordered the police to conduct an investigation into the circumstances of the first applicant ’ s complaint. In addition, it requested the Zagreb University Medical Faculty to provide the autopsy report, and it commissioned an expert report concerning the circumstances of the applicants ’ mother ’ s death.
45. On 2 January 2008 the police produced a report on the interviews with the applicants ’ mother ’ s general practitioner and doctor B.S. The latter denied any medical malpractice and administration of the drug to which the applicants ’ mother was allergic. His statement was confirmed by the Hospital director, doctor LJ.P. The police also obtained the relevant medical records concerning the medical treatment and death of the applicants ’ mother.
46. On 8 January 2008 an expert, doctor J. Š ., produced a report indicating that the cause of death of the applicants ’ mother was a respiratory insufficiency leading to cardiac complications. The report did not indicate any medical malpractice on the part of the Hospital doctors.
47. On 25 January 2008 the Zagreb Municipal State Attorney ’ s Office rejected the first applicant ’ s criminal complaint on the ground that there was no reasonable suspicion that a criminal offence had been committed in the medical treatment of the applicants ’ mother. The first applicant was instructed that she could take over the prosecution as a subsidiary prosecutor.
48. On 13 February 2008 the first applicant asked the Zagreb Municipal State Attorney ’ s Office to provide her with a copy of the entire domestic case file.
49. On 21 February 2008, after she had received the relevant documents from the Zagreb Municipal State Attorney ’ s Office, the first applicant instituted criminal proceedings in the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) against doctor B.S. on charges of medical negligence.
50. In the meantime, the first applicant complained to various domestic authorities about the ineffectiveness of proceedings before the Zagreb Municipal State Attorney ’ s Office and on 11 April 2008 she received a reply from the State Attorney ’ s Office of the Republic of Croatia expressing its regrets for the protracted length of the proceedings dealing with her criminal complaint.
51. On 7 August 2008 the Zagreb Municipal Criminal Court requested the Zagreb Municipal State Attorney ’ s Office to forward the relevant documents concerning the first applicant ’ s case.
52. The documents were provided on 16 October 2008.
53. On 16 March 2009 the Zagreb Municipal Criminal Court invited the first applicant to amend her request to prosecute ( optužni prijedlog ) as required under the relevant domestic law concerning the factual and legal basis of the charges against doctor B.S.
54. On 30 March 2009 the first applicant submitted an indictment ( optužnica ) against doctor B.S. on charges of medical negligence.
55. As there was no progress in the proceedings, on 13 November 2009 the applicant urged the Zagreb Municipal Criminal Court to examine her case.
56. On 22 December 2009 the Zagreb Municipal Criminal Court commissioned an expert report concerning the medical treatment and death of the applicants ’ mother. It requested an investigating judge of the Zagreb County Court to coordinate that procedural action.
57. An expert report of 11 March 2010, drafted by doctors D.M. and I. Š ., indicated that there had been no irregularity in the medical treatment of the applicants ’ mother. It further found that the drug, to which the applicant ’ s mother was allergic, had neither been used nor indicated for use during her treatment on 13 February 2001. The experts also excluded the possibility that the applicants ’ mother had died as a result of an allergic reaction.
58. The first applicant received the expert report on 27 August 2010.
59. On 22 September 2010 the first applicant challenged the findings of the expert report, arguing that it had failed to examine all aspects of the medical treatment and death of her mother. The first applicant thus requested that the experts be ordered to re-examine and accordingly supplement their findings.
60. On 4 April 2011 a three-judge panel of the Zagreb Municipal Criminal Court returned the indictment to the first applicant, ordering her to institute an investigation before an investigating judge of the Zagreb County Court.
61. The first applicant complied with that order and on 25 April 2011 requested that an investigation be opened before an investigating judge of the Zagreb County Court.
62. On 14 October 2011 an investigating judge of the Zagreb County Court questioned doctor B.S., who denied any medical malpractice maintaining that the drug to which the applicants ’ mother was allergic had neither been used nor indicated in her treatment.
63. On 12 December 2011 the investigating judge expressed his disagreement with the first applicant ’ s request for opening of an investigation and forwarded the case file to a three-judge panel of the Zagreb County Court.
64. On 16 February 2012 a three-judge panel of the Zagreb County Court dismissed the first applicant ’ s request for an investigation on the ground of lack of evidence of medical malpractice. The first applicant challenged this decision by lodging an appeal before the Supreme Court ( Vrhovni sud Republike Hrvatske ).
65. Meanwhile, the first applicant complained to the Supreme Court about the length of the criminal proceedings and on 18 September 2012 the Supreme Court found a violation of her right to a trial within a reasonable time and awarded her 2,500 Croatian kunas (HRK) in non-pecuniary damage (approximately EUR 340).
66. On 28 November 2012 the Supreme Court dismissed the first applicant ’ s appeal and upheld the decision of the Zagreb County Court of 16 February 2012 (see paragraph 64 above). The decision of the Supreme Court was served on the first applicant on 24 December 2012.
67. The first applicant then lodged a constitutional complaint with the Constitutional Court, complaining of the ineffectiveness of the proceedings before the lower courts and their failure to elucidate the circumstances of her mother ’ s death.
68. On 28 February 2013 the Constitutional Court declared the constitutional complaint inadmissible on the ground that the decisions of the lower courts did not concern any of her rights or obligations or any criminal charge against her. The decision of the Constitutional Court was served on the first applicant on 12 March 2013.
69. On 28 March 2013 the first applicant lodged a request for the reopening of the proceedings before the Zagreb County Court, alleging procedural flaws in the processing of her case.
70. The Zagreb County Court rejected the request as unfounded on 29 October 2013 and this was upheld by the Supreme Court on 20 March 2014.
71. The first applicants also lodged a criminal complaint against the medical experts D.M. and I.Š. on 27 August 2013 alleging that they had provided false evidence. On 7 October 2013 she received a reply from the Zagreb Municipal State Attorney ’ s Office indicating that it considered her criminal complaint unfounded in any respect.
II. RELEVANT DOMESTIC LAW AND PRACTICE
72. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:
“Every human being has the right to life.
73. The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ...
2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”
74. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1 997, 27/1998, 50/2000 and 129/2000) provide:
“(1) A physician or a dentist who, in rendering medical services, does not apply measures for the protection of patients in accordance with professional standards, or applies an obviously inadequate remedy or method of treatment, or in general acts carelessly, thus causing the deterioration of an illness or the impairment of a person ’ s health, shall be punished by a fine or by imprisonment not exceeding two years.
(3) A physician ... who commits an offence under paragraphs 1 and 2 of this Article by negligence shall be punished by a fine or by imprisonment not exceeding one year.”
(3) If, by the criminal offence referred to in ... Article 240 paragraph 3 of this Code, serious bodily injury to a person is caused, or his or her health is severely impaired, or an existing illness considerably deteriorates, the perpetrator shall be punished by imprisonment of between six months and five years.
(4) If death of one or more persons is caused by a criminal offence referred to in paragraph 3 of this Article, the perpetrator shall be punished by imprisonment of between one and eight years .”
75. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided:
“(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.”
76. Articles 47 to 61 regulated the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. A private prosecutor ( privatni tužitelj ) was an injured party who brought a private prosecution in respect of criminal offences for which such a prosecution was expressly allowed by the Criminal Code (these were offences of a lesser degree). An injured party acting as a subsidiary prosecutor ( oštećeni kao tužitelj ) was a person taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, had decided not to prosecute (Article 55). When acting as a subsidiary prosecutor, the victim had all rights in the proceedings which the State Attorney ’ Office would have had as public prosecuting authority, save for those vested in the State Attorney ’ s Office as a state body.
Pursuant to Article 58, the State Attorney ’ s Office was authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial.
77. Further relevant provisions concerning the processing of cases provide:
“(1) ... indictments [and] requests to prosecute ... shall be submitted in writing unless otherwise provided by law.
(2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them.
(3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible.”
“(2) If the investigating judge does not agree with the State Attorney ’ s request for the opening of an investigation, he or she shall ask a panel of judges from the county court (Article 20 § 2) to issue a decision. The parties and the injured party may lodge an appeal against that decision which shall not have suspensive effect. If only the injured party lodged an appeal and that appeal is allowed, it shall be considered that by lodging the appeal the injured party took over the proceedings.”
“(1) After the investigation, or if the investigation under this Code is not mandatory (Article 191), the proceedings before the competent court shall be conducted only on the basis of an indictment [made by] the State Attorney or the subsidiary prosecutor.”
“In proceedings before the municipal court for offences punishable by a fine or a term of up to five years ’ imprisonment, the provisions of Articles 431 to 445 of this Code shall apply, and if something is not provided under those provisions, the other provisions of this Code shall apply.”
“(1) Proceedings shall be instituted by a request to prosecute made by the State Attorney or the subsidiary prosecutor ...”
“(1) The request to prosecute ... shall contain all the information contained in Article 268 § 1 (1) to (5) of this Code, a proposal to find the accused guilty under the law, as well as a proposal for a sentence to be applied.”
“(1) On receipt of the request to prosecute ... the judge (the president of the panel or the single judge) shall first examine whether the court is competent, whether further investigative measures need to be taken, and whether there are reasons to reject the request to prosecute ...”
78. The relevant provision of the Health Care Act ( Zakon o zdravstvenoj zaštiti, Official Gazette nos. 75/1993, 11/1994, 55/1996, 1/1997, 95/2000 and 129/2000) :
A citizen has the right to seek, directly or in writing, the protection of his or her rights concerning the quality, content and type of health-care services provided, from the director of the health institution ...
The director ... must act without delay following a complaint and notify the person concerned in writing within three days of the measures he has taken.
If the citizen is not satisfied with the measures that were taken, he or she may seek protection of his or her rights before the competent Chamber, the Minister of Health or competent court.”
79. The relevant provision of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides:
“An organ under this Act shall be any State organ and when it is, within its public authority, deciding about administrative matters.”
“(1) An administrative dispute may be initiated only against an administrative act.
(2) An administrative act, within the meaning of this Act, is an act whereby a body referred to in section 5 of this Act, in the exercise of public authority decides on a right or obligation of an individual or an organisation in some administrative matter.”
80. The Government referred to several decisions of the Constitutional Court by which it declared inadmissible constitutional complaints lodged by victims against the domestic courts ’ decisions refusing to open criminal proceedings or further investigative measures on the ground that such decisions did not raise any question of the appellants ’ rights and obligations. In particular, the Government pointed out that this practice was available in a document published on the Internet site of the Constitutional Court in June 2004 providing examples and practical instructions for appellants on how to fill in constitutional complaints.
81. On 14 May 2001 in case no. U-III-791/1997 the Constitutional Court accepted an injured party ’ s constitutional complaint concerning a violation of the right to life. The relevant part of the decision reads:
“Under the [Code of Criminal Procedure], in a situation where the State Attorney is the prosecutor, the injured party has only very limited rights in the proceedings. However, as soon as the State Attorney is no longer a party (if he drops the charges) the injured party can act as a subsidiary prosecutor in the proceedings. In other words, when the State Attorney does not appear [as a prosecutor] in the proceedings, the [injured] party is (or can be) the subsidiary prosecutor. This should be, mutatis mutandis, applied in respect of a constitutional complaint. Since the State Attorney cannot lodge a constitutional complaint ... the injured party can represent himself. In this case [the injured party] can lodge a constitutional complaint.”
82. In its decision of 13 February 2004 in case no. U-IIIA-232/2003 the Constitutional Court declared a subsidiary prosecutor ’ s constitutional complaint concerning the length of criminal proceedings inadmissible on the ground that the proceedings at issue had not concerned his civil rights or obligations or any criminal charge against him. The relevant part of the decision reads:
“It is clear from the constitutional complaint that the criminal proceedings ... did not concern the applicant ’ s civil rights or obligations or any criminal charge against him. In the criminal proceedings the applicant was not the defendant and he failed to lodge a civil claim, which he had notably pursued in separate civil proceedings.
Therefore ... the applicant does not have the necessary locus standi before the Constitutional Court ...”
83. The Constitutional Court followed the same approach in its decision of 23 December 2004 in case no. U-III-2729/2004 in which it declared a subsidiary prosecutor ’ s constitutional complaint concerning the outcome of criminal proceedings inadmissible on the same basis as noted above.
84. In its decision of 22 October 2008 in case no. U-IIIVs-3511/2006, the Constitutional Court accepted a constitutional complaint concerning the length of criminal proceedings lodged by a subsidiary prosecutor who had not had lodged a civil claim in those criminal proceedings. The relevant part of the decision reads:
“The approach taken by the lower courts, by which the applicant did not have the right to lodge a length-of-proceedings complaint because she, as a subsidiary prosecutor in criminal proceedings, ... had failed to lodge a civil claim ... reflects the approach previously taken by this court.
... [T]he Constitutional Court considers that that approach should be revisited on the grounds of the public interest and the protection of victims ’ rights.
Therefore, the Constitutional Court considers that the question of whether a subsidiary prosecutor in criminal proceedings has a right to have the competent court decide within a reasonable time [whether] the defendant be found guilty and punished according to law, cannot be considered only from the perspective of the civil claim which the injured party may have against the defendant. Such a restrictive approach would deprive the subsidiary prosecutor [of the ability] to exercise his right to bring a subsidiary prosecution and it would run contrary to the principle that rights should be effective ...”
85. Recently, on 13 November 2014, in the case no. U-III-6559/2010, the Constitutional Court accepted a constitutional complaint concerning the lack of an effective investigation under Article 3 of the Convention in connection with the appellant ’ s alleged ill-treatment in suspicious circumstances.
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
86. The applicants complained of a lack of an effective procedure before the domestic authorities concerning the death of their mother allegedly caused by medical negligence. They relied on Article 2 of the Convention, which, in so far as relevant, provides:
“1. Everyone ’ s right to life shall be protected by law. ... ”
1. Compliance with the six-month time-limit
87. The Government argued that in the case at issue there was no reason for lodging a constitutional complaint with the Constitutional Court since it had been a well-established practice of that court to declare inadmissible constitutional complaints lodged by subsidiary prosecutors against decisions refusing to open criminal proceedings or further investigative measures. The Government therefore considered that the six-month time-limit had started running after the adoption of the decision of the Supreme Court on 28 November 2012. According to the Government, this accordingly meant that the application had been introduced before the Court out of the relevant six-month time-limit.
88. The applicants pointed out that they had lodged their application with the Court on 21 June 2013 whereas the decision of the Supreme Court had been served on the first applicant on 24 December 2012 and the decision of the Constitutional Court on 12 March 2013. Accordingly, in both cases their application to the Court had been lodged within the relevant six-month time-limit.
89. The Court reiterates that where an applicant is entitled to be served automatically with a copy of the final domestic decision, the six-month period starts running from the date of service of the copy of the decision (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997 ‑ V). In the case at issue, the first applicant was served with the decision of the Supreme Court on 24 December 2012 (see paragraph 66 above) and with the decision of the Constitutional Court on 12 March 2013 (see paragraph 68 above). It follows, given that the application was introduced with the Court on 21 June 2013, that the applicants, in any case, complied with the requisite six-month time-limit. This makes it unnecessary for the Court to deal further with the Government ’ s arguments. It accordingly rejects the Government ’ s objection.
2. Exhaustion of domestic remedies and compliance with the six-month time-limit by the second applicant
90. The Government argued that the second applicant had not used any of the remedies provided in the domestic system concerning the death of her mother. In particular, there had been no reason for her to wait for the outcome of the proceedings instituted by the first applicant as she had not formally authorised her to act as her representative. In these circumstances, the Government considered that the second applicant should have lodged an application with the Court from the moment when she had realised or should have realised that the domestic proceedings had been ineffective. However, she had not explained why she had complained to the Court for the first time after twelve years of her mother ’ s death.
91. The applicants submitted, citing the cases of Kudra v. Croatia (no. 13904/07, 18 December 2012 ) and Y.F. v. Turkey ( no. 24209/94, ECHR 2003 ‑ IX ), that the Court ’ s case-law was clear that the circumstances of a case involving close relatives pursuing the remedies at the domestic level concerning a violation of a Convention right could not be separately examined. They stressed that all possible effects of the procedure instituted by the first applicant had equal bearing on the position of the second applicant. Moreover, it was clear from the circumstances of the case that the first applicant had acted on behalf of her family, namely the second applicant and their now late father, M.B. One of the reasons for that was that the first applicant had also pursued some personal complaints concerning the domestic health care system. In addition, both applicants had been equally affected by the death of their mother and both had sought to obtain the relevant documents and to provide evidence to the authorities capable of elucidating the circumstances of their mother ’ s death.
92. The Court notes at the outset that no issue arises with regard to the question whether, in connection with the alleged inability of the legal system to secure accountability for death of the applicants ’ mother, the second applicant can claim to be a victim, within the meaning of Article 34 of the Convention.
93. As regards the Government ’ s contention concerning the exhaustion of domestic remedies by the second applicant and her compliance with the six-month time-limit, the Court notes that it is true that the second applicant herself did not formally pursue remedies in the administrative and criminal courts. However, her sister – the first applicant – instituted and duly pursued these remedies complaining about the grievances of her family related to their relative ’ s death (see paragraphs 9-11, 29 and 67 above). She thereby acted on behalf of her family and attempted to elucidate the circumstances of the case with the same consequential effects for the second applicant ’ s Convention rights (see, mutatis mutandis, M.S. v. Croatia, no. 36337/10, § 68, 25 April 2013).
94. The Court therefore considers that in this way the domestic authorities were afforded the opportunity to remedy the violation alleged. It further considers that there is no reason to believe that the domestic proceedings would have taken any different course had the second applicant formally joined them herself (see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, § 46, 28 October 2010; and M.S., cited above, § 69). In these circumstances, and in view of its findings concerning the applicants ’ compliance with the six-month time-limit (see paragraph 89 above), the Court finds that the Government ’ s objection must be rejected.
95. The Court notes that the applicants ’ complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
96. The applicants pointed out that the proceedings concerning the circumstances of their mother ’ s death had been unnecessarily protracted and ineffective. Specifically, their mother had died in February 2001 and they had lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office in February 2004, whereas their request for an investigation was finally dismissed by the Supreme Court in December 2012, almost twelve years after their mother ’ s death and nine years after they had first complained to the criminal justice authorities. The applicants in particular pointed out that the Zagreb Municipal State Attorney ’ s Office had remained passive for four years without taking any measure to examine their allegations. Similarly, there had been a number of delays in the processing of their case before the administrative authorities. The applicants stressed that a first decision by the CMC concerning their complaints had been adopted more than two years after the first applicant had first complained to the Ministry. The applicants further contended that the suspicious circumstances leading up to the death of their mother had never been adequately elucidated and that they had been constantly denied access to the relevant documents. Moreover, they had been unable to participate effectively in the process of obtaining evidence from the expert witnesses and the expert reports commissioned during the proceedings had been flawed, contradictory and had lacked the requisite impartiality.
97. The Government argued that the applicants ’ complaints concerning the medical treatment and death of their mother had been promptly and effectively examined by the competent domestic authorities. In particular, the Ministry and the CMC had promptly reacted to the allegations of medical malpractice and had taken all relevant measures within their competence to elucidate the circumstances of the case. However, their assessment of the case had not disclosed any irregularities in the medical treatment of the applicants ’ mother. Furthermore, the Government stressed that two expert reports commissioned during the criminal proceedings had conclusively excluded medical negligence in the treatment of the applicants ’ mother. It followed that the circumstances of the applicants ’ mother ’ s death had been adequately and promptly elucidated and that no responsibility of the doctors for her death had been established.
98. The Court reiterates that Article 2 of the Convention, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002 ‑ I; and Kudra, cited above, § 100).
99. Those principles apply in the public-health sphere too. The States are required to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients ’ lives. They also require an effective independent judicial system to be set up 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 made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; Calvelli and Ciglio, cited above, § 49; and Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII).
100. Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, the Court cannot accept that matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations, under Article 2 of the Convention, to protect life (see Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006).
101. The Court must examine, therefore, whether or not an issue of State responsibility under Article 2 of the Convention arises in respect of the alleged inability of the legal system to secure accountability for negligent acts in the sphere of health care (see Dodov v. Bulgaria, no. 59548/00, § 83, 17 January 2008 ). In this respect the Court reiterates that in the case of unintentional deprivation of life, an effective procedural response may 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/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Šilih v. Slovenia [GC], no. 71463/01, § 194, 9 April 2009). However, a remedy should exist not only in theory; it must operate effectively in practice, within a time ‑ span allowing the case to be examined without unnecessary delay (see Calvelli and Ciglio, cited above, § 53; Byrzykowski, cited above, § 105; Dodov, cited above, §§ 83 and 95; and Šilih, cited above, § 195).
102. It follows that in order to satisfy its positive obligation under Article 2 of the Convention, the State has a duty to ensure, by all means at its disposal, that the legislative and administrative framework set up to protect patients ’ rights is properly implemented and any breaches of those rights are put right and punished. Therefore, the Court ’ s task is to examine whether there was an adequate procedural response on the part of the State to the infringement of the right to life (see Konczelska v. Poland (dec.), no. 27294/08, § 35, 20 September 2011; and Bajić v. Croatia, no. 41108/10, § 89, 13 November 2012 ), irrespective of the particular procedure carried out (see Kudra, cited above, § 104). In other words, the Court must assess whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have secured legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Byrzykowski, cited above, §§ 104-118; and Dodov, cited above, § 83).
103. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation or a trial in a particular situation, a prompt response by the authorities is vital 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 (see Šilih, cited above, § 195). Accordingly, in a number of cases before the Court concerning the implementation of a domestic regulatory framework for the protection of patients ’ lives, the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see, for example, Dodov, cited above, § 98; Šilih, cited above, §§ 202-211; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 70, 28 July 2009; Bajić, cited above, § 107; and Kudra, cited above, § 120).
(b) Application of these principles to the present case
104. The Court notes that the Government did not contend that the applicants could have effectively pursued their complaints of medical negligence outside the framework of criminal and administrative proceedings. Moreover, it reiterates that it has already found those two procedural avenues in the Croatian system to be able in principle to satisfy the State ’ s procedural obligation under Article 2 of the Convention in cases concerning allegations of medical negligence (see Bajić, cited above, § 81). The Court will therefore confine itself to examining whether the administrative and criminal proceedings concerning the death of the applicants ’ mother satisfied the criteria of effectiveness required by Article 2 of the Convention (compare Starčević v. Croatia, no. 80909/12, § 57, 13 November 2014).
105. The Court observes at the outset that the administrative proceedings before the domestic authorities commenced by the first applicant ’ s official complaint lodged before the CMC on 1 October 2002 (see paragraph 11 above) and were finally determined by the decision of the Constitutional Court of 17 December 2013 (see paragraph 34 above). Thus, in total they lasted for more than eleven years.
106. Similarly, the criminal proceedings were instituted on 6 February 2004 by the first applicant lodging a criminal complaint with the Zagreb Municipal State Attorney ’ s Office (see paragraph 37 above) and finally ended by the decision of the Constitutional Court of 28 February 2013 declining to examine the applicants ’ complaints of ineffectiveness of the proceedings before the lower authorities (see paragraph 68 above). It follows that the proceedings in total lasted some nine years.
107. In this connection the Court reiterates that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual ’ s death, lengthy proceedings such as these are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Kudra, cited above, § 113; see also Šilih, cited above, § 203, and Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012). However, in the present case, the Government have failed to show any plausible reason justifying such lengthy proceedings.
108. In view of the overall length of the proceedings, the Court cannot fail to observe several long periods of unexplained inactivity and lack of coordination on the part of the domestic authorities in both sets of proceedings (compare Kudra, cited above, § 114).
109. As to the administrative proceedings, the Court notes that after finally dismissing the applicants ’ complaints of medical malpractice in October 2003 the CMC instructed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court (see paragraphs 21 - 22 above). The applicants complied with this requirement by lodging an action in the Administrative Court on 24 November 2003 (see paragraph 23 above).
110. This was followed by almost four years of complete inactivity on the part of the Administrative Court, during which period the first applicant made numerous complaints about the protracted length of the proceedings but merely received a reply that nothing could be done to speed up the examination of her case (see paragraphs 24-28 above). It is true that the applicants did not use the length of proceedings remedies in the administrative proceedings although they availed themselves of this opportunity in the criminal proceedings. However, the Court does not find the use of such remedies to be decisive in the assessment of the circumstances of the case. This is because it has constantly held in the assessment of the authorities ’ compliance with the procedural obligation under Article 2 of the Convention that length of proceedings remedies are insufficient as it is not merely the length of the proceedings which is in issue. The main question is rather whether in the circumstances of the case seen as a whole the State could be said to have complied with its procedural obligation under Article 2 of the Convention (see Byrzykowski, cited above, § 90; and Šilih, cited above, § § 169-170 ).
111. It was only in October 2007 that the applicants received a decision from the Administrative Court declaring the administrative action inadmissible on the ground that the decision of the CMC was not an administrative decision which could be challenged before the Administrative Court (see paragraph 28 above). In the Court ’ s view, it is striking that it took the Administrative Court almost four years to realise that it was not competent to examine an action pending before it for such a lengthy period of time.
112. Moreover, the Court cannot overlook the fact that it took the Constitutional Court almost six years to examine the applicants ’ constitutional complaint (see paragraphs 29 and 34 above). This suggests that the Constitutional Court failed to appreciate the fact that the already inordinate length of the administrative proceedings ran counter to the State ’ s procedural obligation under Article 2 of the Convention and that an effective action was needed in alleviating the breach of the applicants ’ Convention rights.
113. As to the criminal proceedings, the Court notes that following the submission of the first applicant ’ s criminal complaint before the Zagreb Municipal State Attorney ’ s Office in February 2004 no action was taken until December 2007 when it began to investigate the applicants ’ allegations (see paragraphs 35 and 43-44 above). The reason for this appears to be the fact that the Zagreb Municipal State Attorney ’ s Office lost the case file, which therefore needed to be reconstructed (see paragraph 43 above).
114. During this period the first applicant made numerous inquiries about the status of her case but was never given a satisfactory response (see paragraphs 36 - 38 above). It is striking that in March 2007, after several requests by the Ministry of Justice (see paragraphs 39-40 above), the State Attorney ’ s Office provided incorrect information to the Ministry of Justice and the applicants, indicating that the Zagreb Municipal State Attorney ’ s Office had requested investigative actions before an investigative judge of the Zagreb County Court. It went even further, stressing that the first applicant should have been well aware of this fact since it had been presented to her in the course of her inquires at the Zagreb Municipal State Attorney ’ s Office (see paragraph 41 above). However, as the applicants learned from the Zagreb County Court, no such a request for investigative actions had been made (see paragraph 42 above), which appears to be a logical consequence of the fact that the case file had been lost and then reconstructed only in December 2007 (see paragraph 43 above).
115. Furthermore, the Court notes that after the Zagreb Municipal State Attorney ’ s Office rejected the first applicant ’ s criminal complaint she took over the criminal prosecution as a subsidiary prosecutor by lodging a request to prosecute in the Zagreb Municipal Criminal Court on 21 February 2008 (see paragraphs 47 and 49 above) and the proceedings before the competent criminal courts lasted a further four years and nine months (see paragraph 66 above).
116. During this period there were several unexplained periods of inactivity. Thus, for instance, it took several months to execute simple procedural actions such as exchanging the relevant files between the authorities (see paragraphs 52 and 53 above) or forwarding the expert report to the first applicant (see paragraphs 57-58 above). It also took the Zagreb Municipal Criminal Court more than one year to realise that the applicants ’ indictment had not been properly drafted (see paragraph 53 above) and then further eight months to take the first concrete procedural action in the case (see paragraphs 54 and 56 above).
117. The Court further observes that in April 2011, hence after some three years and two months following the lodging of the first applicant ’ s indictment, the Zagreb Municipal Criminal Court found that the case was not ready for trial and ordered further investigation (see paragraph 60 above). This further protracted the proceedings for about one year and seven months (see paragraph 66 above), leading to the overall length of proceedings before the criminal courts of some four years and nine months.
118. In these circumstances the Court finds that the relevant mechanisms of the domestic legal system seen as a whole did not secure in practice an effective and prompt response of the authorities ’ consonant with the State ’ s procedural obligations under Article 2 of the Convention.
119. There has therefore been a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION
120. The applicants complained that the ineffectiveness of the domestic proceedings had adversely affected their private and family life, and that they had had no effective domestic remedy for their complaints. They relied on Articles 8 and 13 of the Convention which, in so far as relevant, read as follows:
“1. Everyone has the right to respect for his private and family life ... ”
“Everyone whose rights and freedoms as set forth in [the] 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.”
121. The Government contested those allegations.
122. The Court considers that these complaints are closely linked to the one concerning Article 2 of the Convention and must also therefore be declared admissible.
123. Having regard to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 2 of the Convention (see paragraphs 118-119 above), the Court considers that it is not necessary also to examine the case under Articles 8 and 13 of the Convention (see Kudra, cited above, § 125).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
124. The applicants complained, invoking Article 3 of the Convention, that they had been humiliated and debased by the ineffectiveness of the domestic proceedings.
125. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
126. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
127. The applicants claimed 40,000 euros (EUR) each in respect of non-pecuniary damage.
128. The Government considered this claim excessive, unfounded and unsubstantiated.
129. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants EUR 15 ,000 jointly, in respect of non-pecuniary damage, plus any tax that may be chargeable to them.
130. The applicants also claimed EUR 1, 000 and HRK 18,500 (approximately EUR 2,400) for the costs and expenses incurred before the domestic authorities and for those incurred before the Court.
131. The Government considered the applicants ’ claim unsubstantiated and unfounded.
132. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,400 covering costs under all heads plus any tax that may be chargeable to them.