Last Updated on May 8, 2019 by LawEuro
THIRD SECTION
DECISION
Application no.74971/10
Sergey Nikolayevich PLOTNIKOV
against Russia
The European Court of Human Rights (Third Section), sitting on 27 November 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
JolienSchukking, judges,
andFatoşAracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Nikolayevich Plotnikov, is a Russian national who lives in Abakan. He is represented before the Court by Mr D. Lantsov, a lawyer practising in Abakan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the father of V., born in 2005, but now deceased.
In the evening of 30 May 2008, after she had returned home from a municipal nursery school, V. felt unwell. She had a headache and fever.
On the next morning V.’s condition deteriorated and she was urgently admitted to a municipal hospital. On the same day V. was diagnosed with meningococcosis. She was transferred to an intensive care unit, where she died shortly afterwards.
In the meantime, the applicant and his wife found out that another boy, who had attended the same group of the nursery school as V., had been admitted to hospital in a critical condition on 26 May 2008, with a diagnosis of an acute respiratory infection, neurotoxicosis. On 29 May 2008 his diagnosis was changed to meningocephalitis. On 3 June 2008 the boy died at the intensive care unit.
On 3 June 2008 the authorities brought criminal proceedings against Ms Sh., the head of the nursery school, for aggravated professional negligence which had resulted in the death of two children. In particular, she was suspected of having acted in breach of her professional duties by failing to alert health professionals and the parents of the children attending the nursery school about the infection, and to take measures to close the nursery school with a view to preventing the infection from spreading.
During the investigation witness statements were collected from the applicant, his wife, parents of other children at the nursery school, including those of the deceased boy, the personnel of the nursery school and the doctors of the hospital to which the deceased children had been admitted, as well as certain representatives of the State agency for epidemiological control, consumer rights and health protection (“the epidemiological authorities”).
The personnel of the nursery school explained that, in the first few days following the boy’s hospitalisation, they had not received any official notice from the epidemiological authorities or the hospital that the boy had had a dangerous infectious disease requiring urgent sanitary measures to be taken at the nursery school, and that as soon as they had received such notice in respect of the applicant’s daughter, they had promptly taken all measures to protect other children and adults working in the nursery school.
The doctors stated that, although bacterial meningocephalitis was not listed in Decree no. 654 concerning the diseases in respect of which the competent authorities must be urgently notified as soon as those diseases were detected, it was on 29 May 2008 (that is, the same date on which they had received the boy’s tests showing that he had meningocephalitis) that they had informed the epidemiological authorities thereof. They had furthermore informed those authorities of V.’s disease as soon as it had been diagnosed.
The representatives of the epidemiological authorities stated that they had, indeed, received a notice about a case of “meningocephalitis” on 29 May 2008; however, no urgent epidemiological measures had followed, as that disease was not listed in Decree no. 654, and the notice from the hospital had not specified the type of virus or bacteria which had caused the illness. They further stated that on 31 May 2008, as soon as the information about V.’s death and her diagnosis had reached them, they had launched all urgent epidemiological measures in respect of the children and the staff of the nursery school.
During the investigation, biological material from the deceased children was sent to a number of institutes and scientific centres for in-depth laboratory examinations. The studies showed that the boy had had septic meningocephalitis, caused by Haemophilus Influenzae, and the applicant’s daughter had had a combined septic meningococcosis.
Four expert examinations were conducted during the investigation. Their results were reflected in reports dated 9 October and 27 November 2008, and two reports dated 27 February 2009. The reports confirmed, in particular, that the boy’s death had been caused by septic meningocephalitis, and that V. had also died of septic meningocephalitis. The reports also stated that the bacteria that had provoked the boy’s disease had, most likely, been the same as the one that had caused V.’s illness (Haemophilus Influenzae); however, it was not possible to establish precisely when the applicant’s daughter had been infected. Moreover, the exact latent period in cases of infection provoked by those bacteria was unclear; and any person, not necessarily the one showing the symptoms of the disease, could be a bearer and transmitter of those bacteria, and thus the source of infection. It was impossible to determine who of the two deceased children had been “patient zero”, given the very short period of time that had elapsed between their two cases. The experts also confirmed that V. had received appropriate medical treatment as soon as she had shown the signs of the illness on 30 May 2008, but the rapid development of the disease and the particularities of her health had made her chances of survival very slim.
On 3 June 2009 the investigator in charge decided to discontinue the criminal proceedings against Ms Sh. as the constituent elements of a crime were not made out in her actions. The relevant decision stated that Ms Sh. had followed the applicable rules and regulations and, in the circumstances, she had clearly been unable to prevent the infectious disease from spreading, and to save the deceased children’s lives. Moreover, even before she had received a formal order from the competent authorities, she had, of her own motion, closed the nursery school as soon as she had been informed of the infection. The decision went on to state that the epidemiological authorities had also followed the applicable rules, and as soon as the applicant’s daughter’s disease had been identified, all necessary measures in respect of the other children in the nursery school had been taken without delay. The decision made it clear that, prior to that moment, neither the authorities nor the management of the nursery school had had any grounds to take any particular health measures.
The applicant challenged the investigator’s decision before the domestic courts. He argued, in particular, that the investigation had been superficial, that it had not established who was responsible for the death of his daughter, and that it had not been proved that Ms Sh. had not acted in breach of her duties. He further alleged that the said decision had referred to inappropriate rules and regulations.
On 2 March 2010 the Abakan Town Court of the Republic of Khakasia (“the Town Court”) dismissed the applicant’s complaint. It considered that the investigation had been thorough and complete and the decision of 3 June 2009 had relied on appropriate rules and regulations of epidemiological and sanitary control as in force at the material time.
On 26 May 2010 the Supreme Court of the Republic of Khakasia upheld the Town Court’s decision on appeal.
B. Relevant domestic law
Decree no. 654 dated 13 December 1989 of the USSR Ministry of Health Care, as in force at the material time, set out the list of infectious and parasitic diseases which required that urgent notification be provided to the epidemiological authorities. The list included meningococcosis.
In accordance with section 9 of Federal Law no. 157-FZ on the immunoprophylaxis of infectious diseases, dated 17 September 1998, as in force at the material time, the national vaccination schedule included ten diseases, such as hepatitis B, diphtheria, pertussis and tuberculosis. Vaccination against Haemophilus Influenzae was not on the schedule at the time of the events.
COMPLAINTS
The applicant complained that the failure by the management of the municipal nursery school to close it immediately after one of the children had been admitted to hospital had led to his daughter’s infection and subsequent death, and that therefore the State had failed to comply with its positive obligation under Article 2 of the Convention to preserve her life. He further complained that the criminal investigation into the incident had been ineffective, and that the decision to close the criminal case in respect of Ms Sh., the head of the nursery school, had been unlawful. The applicant complained that he therefore had had no effective remedies in the above connection. He invoked Articles 2 and 13 of the Convention in respect of those complaints.
THE LAW
The applicant complained under Articles 2 and 13 of the Convention that the State had failed to protect his daughter’s right to life and that the criminal investigation into the circumstances of his daughter’s death had been ineffective.
The Court considers that the applicant’s complaints fall to be examined under Article 2 of the Convention, which, as far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law …”
The Court observes that the applicant’s daughter died as a result of a sudden and serious illness. The applicant did not argue that his daughter had been refused health care which was otherwise generally available in Russia. He complained essentially that Ms Sh., the head of a municipal nursery school, had neglected her professional duties by failing to take urgent measures with a view to alerting the parents of the children attending that school and to closing the nursery school as soon as she found out that one of the children had a dangerous infectious disease. According to the applicant, these omissions had led to his three-year-old daughter’s infection and death, and therefore the State had failed to comply with its positive obligation under Article 2 of the Convention to preserve her life.
The Court reiterates in this connection that the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I, and Wiater v. Poland (dec.), no. 42290/08, § 33, 15 May 2012).
The Court has held that the positive obligation to safeguard life under Article 2 of the Convention must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑XII). In particular, such a positive obligation has been found to arise in a range of different contexts, including, for instance, the health care sector, be it public or private, management of dangerous activities, and ensuring safety on board a ship, on building sites or road safety (see Banel v. Lithuania, no. 14326/11, § 64, 18 June 2013, and the authorities cited therein). The Court has furthermore considered that the State’s duty to safeguard the right to life is also applicable to school authorities, who carry an obligation to protect the health and well-being of pupils, in particular young children who are especially vulnerable and are under their exclusive control (see Molie v. Romania (dec.), no. 13754/02, §§ 29 and 39-41, 1 September 2009, and IlbeyiKemaloğlu and MeriyeKemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012).
However, the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities. Not every risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, amongst other authorities, IlbeyiKemaloğlu and MeriyeKemaloğlu, cited above, § 36).
The State’s positive obligation also requires an effective independent judicial system to be set up so as to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. The Court has consistently held that if the infringement of the right to life is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII). Where negligence has been shown, the obligation 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 (seeIlbeyiKemaloğlu and MeriyeKemaloğlu, cited above, § 38).
The Court observes that the applicant has never brought a civil claim against the nursery school in an attempt to obtain redress in connection with the incident in question. However, it will leave open the question whether any such avenue was available to the applicant and, if so, whether the applicant was required to avail himself of that avenue in order to comply with the requirement of the exhaustion of all domestic remedies under Article 35 § 1 of the Convention, as the present application is in any event inadmissible on the following grounds.
The Court observes that the authorities initiated the investigation into the incident three days after the death of the applicant’s daughter. The investigation lasted one year, during which important investigative measures were taken. In particular, a large number of witnesses were interviewed, including the applicant, who had been granted victim status, his wife, parents of other children in the kindergarten, those of the deceased boy being amongst their number, the personnel of the nursery school and the doctors of the hospital to which the children had been admitted, as well as representatives of the epidemiological authorities. Biological material from the children was collected and sent for in-depth laboratory tests. Four comprehensive medical forensic reports were furthermore obtained, which, inter alia, established the cause of death of both children, and attested that it could be the same bacteria that caused their illnesses, but it was impossible to determine who had infected whom, and at what point in time. On the basis of the evidence obtained, the investigator in charge concluded that Ms Sh. had not neglected her professional duties and that, in the circumstances, she had clearly been unable to prevent infection or to save the children’s lives. The investigator then took a decision to discontinue the criminal proceedings against her in the absence of the constituent elements of any crime in her actions.
The applicant had victim status in those proceedings and was able to avail himself of his procedural rights throughout the investigation. He challenged the investigator’s decision before the domestic courts, which, at two levels of jurisdiction, examined his complaints and found that the investigation had been thorough and accurately established the circumstances of the case, and that the decision to discontinue the proceedings against Ms Sh. had been justified and well-founded.
While expressing dissatisfaction with the investigation, the applicant did not indicate what other measures the authorities could have taken to investigate the matter. In fact, he insisted that there had been professional negligence in Ms Sh.’s actions and disagreed with the termination of the criminal proceedings against her. The Court reiterates in this connection that the procedural obligation under Article 2 of the Convention is not an obligation of result but of means only (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
Overall, no evidence has been submitted to the Court to suggest that the authorities did not display reasonable expedition and diligence in investigating the circumstances of the applicant’s daughter’s death, or that they failed to take any important steps to establish the facts of that incident. It thus cannot conclude that in the present case the domestic system failed to provide an adequate and timely response consonant with the State’s procedural obligation under Article 2 of the Convention.
The Court furthermore finds that there is nothing in its possession which would enable it to depart from the findings of the domestic authorities in so far as they established the circumstances of the present case. Accordingly, it considers that the facts of the present case, while being very tragic, do not disclose any appearance of a breach by the State of its positive obligation under Article 2 of the Convention to “take appropriate steps to safeguard” the applicant’s daughter’s life.
It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2018.
FatoşAracı Alena Poláčková
Deputy Registrar President
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