Last Updated on May 17, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Dumpe v. Latvia (dec.) – 71506/13
Decision 16.10.2018 [Section V]
Article 35
Article 35-1
Exhaustion of domestic remedies
Obligation to pursue civil law remedy in case of alleged medical negligence: inadmissible
Facts – The applicant complained that her son, who had been diagnosed with Down’s syndrome and epilepsy and who had been placed in a social care institution, had died because he had not been provided with adequate medical assistance.
Law – Article 35 § 1 (exhaustion of domectic remedies): Article 2 had not necessarily called for a criminal law remedy on the facts of the applicant’s case. Nonetheless, the criminal-law remedy had been made available and she had pursued it. The domestic authorities had instituted criminal proceedings and had carried out a criminal investigation into the possibility that the son’s death had been caused by negligent performance of professional obligations on the part of the healthcare professionals. While that investigation had identified various violations in the medical care, no causal connection between those violations and his death could be established. Accordingly, the criminal proceedings had been terminated.
The applicant had not proceeded with the civil-law remedy following the termination of the criminal proceedings and had argued that it would not have provided a substantially different result. The question for the Court was whether it had been incumbent on her to pursue the civil-law remedy in order to dispose of the obligation to exhaust domestic remedies. That required establishing, firstly, whether the civil-law remedy had been effective in theory and in practice and, secondly, whether it would have pursued essentially the same objective as the criminal-law remedy.
(a) Whether the civil-law remedy was effective – The decision to terminate the criminal proceedings had excluded only criminal liability and had not excluded potential civil contractual or non-contractual liability of the care home, its staff or healthcare professionals.
The Health Inspectorate had examined the quality of medical care provided to the applicant’s son and had found serious violations. There was further evidence including a report by the Ministry of Welfare establishing a number of shortcomings in connection with the failure to provide adequate basic care in the home and evidence from disciplinary proceedings against the head of the care home and two other staff members. It had not been argued that this evidence could not have been used in civil proceedings to substantiate the applicant’s claim about allegedly inadequate basic care and medical assistance.
The applicant had had reasonable prospects of success in claiming compensation for allegedly inadequate basic care and medical assistance in the care home in civil proceedings. In such proceedings the circumstances surrounding her son’s death could have been examined in the light of arguments which she considered relevant and any civil liability of those involved could have been established. The Government had, accordingly, met the burden incumbent on them to prove the effectiveness of the remedy in theory and practice.
(b) Whether the civil-law remedy pursued the same objective as the criminal law remedy – The criminal investigation had been inherently limited to determining the individual criminal responsibility of the potential perpetrators. While the criminal proceedings had been instrumental in clarifying the circumstances of the applicant’s son’s death and in dispelling any doubts about any potential criminal conduct, the criminal-law remedy was of limited effectiveness when the person’s death had been caused by a multitude of factors and the possibility of a collective liability fell to be examined. The applicant believed that the authorities should have enquired into how her son’s state of health could have deteriorated to such an extent and whether it had not been a lack of proper care that had led to his death. That type of enquiry would have gone beyond the scope of the criminal-law remedy.
The Court could not 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.
The applicant had been under an obligation to have recourse to the civil-law remedy, the possibility of which still appeared to be open to her.
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See also Lopes de Sousa Fernandes v. Portugal [GC], 56080/13, 19 December 2017, Information Note 213; and Jasinskis v. Latvia, 45744/08, 21 December 2010, Information Note 136)
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