CASE OF KUDRA v. CROATIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
4. The applicants were born in 1956, 1965, 1986 and 1988 respectively and live in Nuštar. 5. On 17 October 1993, Ivan Kudra, the then eight-year old son of the first and second applicants and the brother of the third and fourth applicants, sustained a serious head injury while playing near a construction site in Vinkovci, Croatia. After the incident he was taken to the Vinkovci Medical Centre (Medicinski centar Vinkovci) where cranial surgery was performed without the consent of the parents. 6. On the same day a doctor on duty at the Vinkovci Medical Centre informed the Vukovarsko-Srijemska Police (Policijska uprava Vukovarsko-srijemska; hereinafter: the “police”) about the incident. The police interviewed the doctor and the second applicant concerning the circumstances of the incident and drafted an official note of their findings. 7. The police also interviewed P.M., a friend of Ivan Kudra, who was an eyewitness to the event. He described how they had been playing near a construction site in their neighbourhood when Ivan Kudra had fallen on some metal netting and a piece of metal had pierced his head. 8. Ivan Kudra’s health deteriorated on 18 October 1993 when he fell into a coma. He was then transferred to the Osijek Clinical Hospital Centre (Klinički bolnički centar Osijek) for further treatment. 9. On 19 October 1993 the police took photographs of the construction site and interviewed L.S., an employee of the construction company, Akord s.p.o. (“company A”), in charge of the construction site at issue. 10. Ivan Kudra died in the Osijek Clinical Hospital Centre on 21 October 1993. 11. On 24 May 1994 the applicants brought a civil action before the Vinkovci Municipal Court (Općinski sud u Vinkovcima) against company A., the Housing and Communal Activities Fund (Fond za financiranje stambeno-komunalnih djelatnosti) and the Vinkovci Medical Centre, claiming damages for the death of their relative. 12. They claimed that A., as the construction company, and the Housing and Communal Activities Fund, as the investor, were liable for not having secured the construction site despite being aware that people with children lived nearby. They also held the Vinkovci Medical Centre responsible for medical negligence in the treatment of Ivan’s injuries. 13. A hearing scheduled for 3 August 1994 was adjourned because the parties informed the trial court that they could not attend the hearing. 14. At the hearing held on 11 October 1994 the defendants denied any responsibility for the death of Ivan Kudra. At the same hearing the applicants asked the trial court to commission a medical report concerning the circumstances of Ivan’s treatment. On 9 January 1995 they further substantiated their request and asked that the medical report be commissioned from the Medical Faculty of the University of Zagreb (Medicinski fakultet Sveučilišta u Zagrebu). 15. On 11 January 1995 the Vinkovci Municipal Court ordered the hospital and the police to submit all the relevant documents and reports concerning the death of Ivan Kudra. Documents were submitted on 20 January 1995 and 7 February 1995 respectively. 16. On 20 February 1995 the Vinkovci Municipal Court found that the police had failed to submit all the relevant documents and requested them again to submit all their documents and reports. The police complied with the Vinkovci Municipal Court’s order on 6 March 1995 and submitted the requested documents. 17. On 10 January 1996 the Vinkovci Municipal Court asked the Osijek Clinical Hospital Centre to submit the documents concerning the medical treatment of Ivan Kudra. The Osijek Clinical Hospital Centre complied with the order and submitted the documents on 16 January 1996. 18. On 7 January 1997 the Vinkovci Municipal Court commissioned a medical report from the Medical Faculty of the University of Zagreb concerning the circumstances of the medical treatment of Ivan Kudra. 19. On 8 April 1998 the applicants urged the Vinkovci Municipal Court to continue with the proceedings, which had been pending for four years. They also pointed out that if the medical experts had been unable to submit their report within a reasonable time, the trial court should have commissioned a new report by other experts. 20. The Medical Faculty of the University of Zagreb informed the Vinkovci Municipal Court on 23 March 1999 that they had been unable to provide the medical report because they had not had all the relevant documents and reports concerning the medical treatment of Ivan Kudra. 21. At a hearing on 13 May 1999 a representative of the Housing and Communal Activities Fund informed the trial court that that Fund had ceased to exist and that its successor was the Vinkovci Municipality (Grad Vinkovci). A representative of the Vinkovci Medical Centre also informed the trial court that it had now become the Vinkovci Health Centre (Dom zdravlja Vinkovci) and the Vinkovci General Hospital (Opća bolnica Vinkovci). 22. On 3 July 1999 the applicants amended their civil action by naming the Vinkovci Municipality, the Vinkovci Health Centre and the Vinkovci General Hospital as the defendants. 23. Another hearing was held on 22 September 1999, at which the trial court ordered that a further medical documentation shall be requested from the Osijek Clinical Hospital Centre. On 7 October 1999 the Osijek Clinical Hospital Centre complied with that request. 24. At a hearing on 25 January 2001 the trial court asked the parties to submit the further documents to which they had referred in their submissions. 25. On 24 May 2001 the representative of company A. informed the Vinkovci Municipal Court that on 23 April 2001 insolvency proceedings had been opened in respect of that company in the Osijek Commercial Court (Trovački sud u Osijeku). 26. At a hearing on 7 June 2001 the trial court informed the parties about the change in the legal status of company A. 27. On 13 June 2001 the Vinkovci Municipal Court ordered that the proceedings be stayed until the insolvency administrator of company A. had decided whether to participate in the proceedings. The insolvency administrator informed the Vinkovci Municipal Court on 23 July 2001 that it would participate in the proceedings. 28. On 20 August 2001 the Vinkovci Municipal Court referred the case to the Osijek Commercial Court on the grounds that the insolvency proceedings had been opened in respect of company A. 29. On 10 September 2001 the applicants lodged an appeal with the Vukovar County Court (Županijski sud u Vukovaru) against the decision of the Vinkovci Municipal Court, arguing that the Vinkovci Municipal Court had been competent in the matter. 30. On 23 November 2001 the Vukovar County Court dismissed the applicants’ appeal as ill-founded. 31. On 14 February 2002 a hearing was held before the Osijek Commercial Court at which the parties made preliminary oral submissions. 32. On 29 April 2002 the Osijek Commercial Court commissioned a new medical report from the Croatian Medical Expert Reports Association of the Croatian Health Board (Hrvatsko društvo za medicinska vještačenja Hrvatskog liječničkog zbora) concerning the medical treatment of Ivan Kudra. 33. On 14 June 2002 a medical expert of the Croatian Association for Medical Expertise, Ž.G., submitted his report to the Osijek Commercial Court. He found that there had been flaws in the Vinkovci Medical Centre’s treatment of Ivan Kudra, which had eventually resulted in Ivan’s death. The relevant part of the report reads: “If treated properly, with the available medical equipment, the injury [sustained by Ivan Kudra] could have been treated with minimum, even barely noticeable, consequences. The decision to carry out an exploration of the skull under full endotracheal anaesthetic without a neurological preparation (CT), and without the appropriate instruments and a qualified brain surgeon, on a patient who was conscious, had no neurological deficit and whose life was not in imminent danger, was absolutely wrong, all the more so since it was done without the consent of his parents.” 34. On 12 July 2002 the Vinkovci General Hospital lodged an objection against the medical report, arguing that it was substantially flawed. The Vinkovci Municipal Court forwarded the objection to the Croatian Medical Expert Reports Association for reply. 35. On 15 November 2002 the expert witness, Ž.G., submitted an additional report to the Osijek Commercial Court, reiterating all his previous findings. 36. At a hearing on 5 December 2002 the trial court ordered the applicants to specify their civil action given the fact that insolvency proceedings had been opened in respect of company A. The applicants complied with this order and submitted their specified civil action on 10 December 2002. 37. A hearing scheduled for 9 January 2003 was adjourned because the defendants failed to appear. 38. On 22 January 2003 the Osijek Commercial Court, acting in the insolvency proceedings concerning company A., terminated the proceedings and ordered that company A. be deleted from the register of companies. 39. At a hearing on 4 February 2003 the applicants were again requested to specify their civil action and to provide evidence as to the legal connection between the defendants against which they had initially lodged their civil action and the defendants indicated in their specified civil action of 10 December 2002. 40. On 12 February 2003 the applicants submitted an amended civil action to the Osijek Commercial Court. 41. At a hearing on 27 February 2003 the parties made further oral submissions and the hearing was adjourned. 42. On 8 May 2003 the Osijek Commercial Court terminated the proceedings against company A. on the ground that it had ceased to exist. The court also found that it had no competence in the matter and ordered that the proceedings against the Vinkovci Municipality, Vinkovci Health Centre and Vinkovci General Hospital be referred to the Vinkovci Municipal Court. 43. On 17 June 2003 a hearing was held before the Vinkovci Municipal Court at which the parties made further oral submissions. 44. On 7 July 2003 the Vinkovci General Hospital asked the Vinkovci Municipal Court to commission a further medical report from another expert witness, arguing that the previous medical report had numerous flaws. 45. At a hearing on 4 September 2003 the applicants’ representative asked the trial court to allow her additional time to submit her reply to the objections raised by the defendants. Her request was granted and she submitted her observations on 15 September 2003. 46. On 2 October 2003 another hearing was held at which the trial court heard oral evidence from the first and second applicants. 47. On 27 October 2003 the judge conducting the proceedings inspected the scene of the accident. 48. On 31 October 2003 the applicants urged the Vinkovci Municipal Court to decide on their civil action, arguing that all the relevant facts had been sufficiently established. 49. At a hearing on 27 November 2003 the trial court commissioned another medical report from the Medical Faculty of the University of Zagreb on the grounds that the defendants had a number of objections concerning the report of the Croatian Medical Expert Reports Association. 50. On 30 September 2004 two medical experts of the Medical Faculty of the University of Zagreb, P.M. and D.S., submitted their medical report to the Vinkovci Municipal Court. They found that there had been no flaws in the medical treatment of Ivan Kudra in the Vinkovci Medical Centre and that the further health complications could not be attributed to the doctors. 51. The applicants lodged an objection to the findings of the medical experts on 6 December 2004. They argued that the two medical expert reports, the first drafted by Ž.G. and the second by P.M. and D.S., were contradictory and asked that the experts be confronted to clarify and adjust their findings. 52. At a hearing on 3 February 2005 the Vinkovci Municipal Court dismissed the applicants’ request and terminated the proceedings on the grounds that all the relevant facts had been sufficiently established. 53. On 16 February 2005 the Vinkovci Municipal Court adopted a judgment dismissing the applicants’ civil action. In respect of the applicants’ action against the Vinkovci Municipality, the court noted: “Under section 207 of the Civil Obligations Act the investor and the constructor have joint liability for all damages to a third party in connection with the construction. ... The person who is indicated as the investor in the construction contract has joint liability with the constructor for any damages in connection with the construction ([Supreme Court’s judgment] Vs Rev-86/91 of 16 May 1991, PSP-53/112). In the case at issue, regard being had to the contract of 28 September 1992, section 207 of the Civil Obligations Act is inapplicable in respect of the second defendant – the Fund, now the Vinkovci Municipality – since the second defendant was neither the investor nor the constructor on the construction site at issue. It is undisputed that the second defendant transferred, for a sum of money, the construction to the first-defendant A. and that therefore A. was the constructor and the investor. Moreover, the said contract obliged company A. to ensure that the construction was carried out according to the relevant technical requirements necessary for this type of work. If the construction site was not properly secured (and this court, based on the evidence from the case file, considers that it was not) and if there were flaws in the organisation of the work (security) which had caused the injury of Ivan Kudra, then the sole responsibility would be on A. as the investor and the constructor. However, during the course of these proceedings, insolvency proceedings were opened in respect of the first defendant, company A., and this court had no competence to rule on its liability...” 54. As to the applicants’ action against the Vinkovci Health Centre and the Vinkovci General Hospital, the Vinkovci Municipal Court held that the medical expert report drafted by P.M. and D.S. had revealed that all the measures taken by the doctors were appropriate and that they could not be held responsible for Ivan’s death, and therefore the hospital could not be held responsible either. As to the inconsistencies between this medical report and the one drafted by the expert Ž.G., the court noted: “Since the defendants submitted a number of objections to the report drafted by expert Ž.G. from Zagreb, and since that expert failed to provide a detailed reply to those objections during the proceedings before the Osijek Commercial Court, this court considered that another medical report should be commissioned from the Medical Faculty of the University of Zagreb. The medical experts from that institution, P.M., a specialist in brain-surgery and D.S., a specialist in forensic medicine, drafted an objective medical report, in which they sufficiently substantiated their findings concerning the medical treatment of Ivan Kudra. Therefore this court accepts their report.” 55. On 24 February 2005 the applicants lodged an appeal with the Vukovar County Court (Županijski sud u Vukovaru) against the firstinstance judgment of the Vinkovci Municipal Court, arguing that it had a number of substantive and procedural flaws. They pointed out in particular that the Vinkovci Municipal Court had failed to address all the obvious inconsistencies between the two medical reports and sought an explanation. 56. On 14 February 2006 the applicants lodged a complaint about the length of the proceedings before the Vukovar County Court, arguing that the proceedings had been excessively long. 57. On 23 February 2006 the Vukovar County Court dismissed the applicants’ appeal and upheld the first-instance judgment in respect of the Vinkovci Health Centre and the Vinkovci General Hospital. It quashed the first-instance judgment and ordered a retrial in respect of the Vinkovci Municipality. The County Court found that the first-instance court had to establish whether company A. or the Housing and Communal Activities Fund was the owner of the construction site at the time of the accident. The County Court considered that the first-instance court had sufficiently substantiated its decision in respect of the applicants’ complaint concerning the expert reports. 58. On 10 April 2006 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the Vukovar County Court’s judgment concerning the Vinkovci Health Centre and the Vinkovci General Hospital. They argued that the lower courts’ judgments had been based on contradictory medical reports and that the lower courts had failed to address their complaints concerning those inconsistencies. 59. On 20 June 2006 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded, endorsing the reasoning of the lower courts. It declared the third and fourth applicants’ appeal on points of law inadmissible ratione valoris. 60. On 11 January 2007 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Supreme Court. The applicants contended that their individual rights and the rule of law had been violated by the lengthy and unfair proceedings before the lower courts in which two contradictory medical expert reports concerning the death of their child had not been confronted and clarified, and no explanation for that had been given by the lower courts. 61. On 18 January 2007 a hearing was held before the Vinkovci Municipal Court in the retrial concerning the applicants’ civil action against the Vinkovci Municipality. 62. Another hearing was held on 8 March 2007. The trial court heard evidence from the parties and their oral submissions, and concluded the hearing. 63. On the same day the Vinkovci Municipal Court dismissed the applicants’ civil action against the Vinkovci Municipality on the ground that, pursuant to a contract dated 28 September 1992 between company A. and the Housing and Communal Activities Fund, ownership of the construction site had been formally transferred to company A. on 19 January 1993, before the accident had occurred. The court therefore noted: “Since for the event at issue, in the view of this court, a third person was responsible, company A. Vinkovci, and not the defendant the Vinkovci Municipality, this court dismisses the civil action under section 177 of the Civil Obligations Act as ill-founded.” 64. On 29 March 2007 the applicants lodged an appeal with the Vukovar County Court, arguing that there had been a number of procedural and substantive flaws in the retrial before the Vinkovci Municipal Court. 65. On 23 July 2007 the Vukovar County Court dismissed the applicants’ appeal as ill-founded and upheld the judgment of the Vinkovci Municipal Court. 66. The applicants lodged an appeal on points of law with the Supreme Court against the judgment of the Vukovar County Court, requesting that the lower courts’ judgments be quashed. 67. On 2 April 2008 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded and declared the third and fourth applicants’ appeal on points of law inadmissible ratione valoris. 68. On 13 May 2008 the Vukovar County Court upheld a lengthofproceedings complaint lodged by the applicants on 14 February 2006. It found the length of the civil proceedings excessive and awarded the first and second applicants jointly 12,600 Croatian kunas (HRK) in damages. 69. On 11 June 2008 the Vinkovci Municipal Court issued a separate decision in respect of the costs of the proceedings, ordering the applicants to pay HRK 14,134.96 to the Vinkovci Health Centre. 70. On 19 June 2008 the applicants lodged an appeal with the Vukovar County Court against the Vinkovci Municipal Court’s decision. 71. On 26 June 2008 the applicants lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s judgment of 2 April 2008. The applicants argued, inter alia, that the lower courts had minimised any responsibility of those involved in the death of their child. In their view, that had violated their human rights and breached the relevant domestic law. 72. On 12 January 2010 the Constitutional Court dismissed the first and second applicants’ constitutional complaint of 26 June 2008 as ill-founded and declared the third and fourth applicants’ complaint inadmissible as it had been lodged out of time. They had had no right to lodge an appeal on points of law and thus the time for lodging a constitutional complaint had started to run from the date of the Vukovar County Court decision. 73. On 28 October 2010 the Vukovar County Court dismissed the applicants’ appeal against the decision of the Vinkovci Municipal Court concerning the costs of the proceedings, holding that all the relevant facts regarding the costs had been correctly established. 74. On 27 January 2010 the Constitutional Court dismissed the first and second applicants’ constitutional complaint of 11 January 2007 as illfounded and declared the third and fourth applicants’ complaint inadmissible as it had been lodged out of time. The court reiterated its previous arguments. 75. On 3 December 2010 the applicants lodged a constitutional complaint with the Constitutional Court against the Vukovar County Court’s decision of 28 October 2010 dismissing their appeal concerning the costs of the proceedings. 76. On 20 April 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible ratione materiae, on the grounds that the decision on the costs of the proceedings had not represented an individual act against which a constitutional complaint could be lodged. 77. On 6 March 2012 the Vukovar County Court found that it had omitted to include the third and fourth applicants’ length-of-proceedings complaint in its decision of 13 May 2008. Therefore, finding the length of the civil proceedings excessive, it awarded the third and fourth applicants jointly HRK 12,600 in damages. 78. On an unspecified date in 2012 the applicants lodged an appeal with the Supreme Court against the above-mentioned decision, arguing that the amount awarded was insufficient, and on 4 June 2012 the Supreme Court dismissed their appeal as ill-founded. 79. 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) in Article 21, under Head III – Protection of Human Rights and Fundamental Freedoms, Part 2 – Personal and Political Rights and Freedoms, provides: “Every human being has the right to life. ...” 80. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State body, a body of local and regional selfgovernment, or a legal person with public authority concerning his or her rights and obligations, or about a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right)... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given.” 81. The relevant parts of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, 38/1993) provide: “(1) Anyone who, in the design, supervision or construction of a building or in the execution of construction work, by acting contrary to regulations or generally recognised professional standards, endangers people’s lives or property of considerable value shall be punished by a fine or by imprisonment for a period of between three months and five years. (2) If the offence referred to in paragraphs 1 and 2 of this Article was one of negligence, the perteptrator shall be punished by imprisonment for a period of up to three years.” “ ... (2) A person responsible for a mine, factory, workshop, or another place where work is carried out who does not install safety equipment, or does not maintain it in working condition, or fails to make it available for use if needed, or fails to act in accordance with the regulations on safety measures at work, thereby endangering the life and limb of people or property of considerable value, shall be punished by imprisonment for a period of between three months and five years. (3) Anyone who commits the criminal offence referred to in paragraphs ... and 2 of this Article by negligence shall be punished by imprisonment for a period not exceeding three years. ... ” “ ... (2) If the death of one or more persons has been caused as a result of the criminal offence referred to in Article ... 148, paragraph 1, and Article 149, paragraphs 1 and 2, of this Code, the perpetrator shall be punished by imprisonment for a period of at least three years. ...” “(1) A doctor who, in rendering medical services, applies an obviously inadequate remedy or method of treatment, or fails to apply relevant hygienic measures, or in general acts carelessly, thus causing the deterioration of an illness or the impairment of a person’s health, shall be punished by imprisonment for a period of up to three years. ... (3) If the offence refered to in paragraphs 1 and 2 of this Article was one of negligence, the perpetrator shall be punished by a fine or by imprisonment for a period of up to one year.” “ ... (2) If the death of one or more persons has been caused as a result of the criminal offence referred to in ... Article 166, paragraphs 1 and 2 ... of this Code, , the perpetrator shall be punished by imprisonment for a period of at least three years ... ” 82. 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 be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution, the qualified prosecutor shall be the State Attorney and in respect of criminal offences subject to private prosecution, 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. ... “ 83. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991 and 3/1994) provided: “(1) For any physical pain or mental suffering concerning the ... death of a close person ... the court shall, if appropriate under the circumstances of a given case, and particular if the intensity of the pain or fear and their duration so require, award nonpecuniary damages ...” “(1) In the event of the death of a person entitled to damages, the court can award appropriate non-pecuniary damages to the members of his or her immediate family (spouse, child, or parent). (2) The same damages can also be awarded to the person’s brothers and sisters if sufficient family ties existed between them. ...” 84. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008) provided: “(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next level of jurisdiction. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding on a request under sub-section (1) of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held. (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending shall decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged. (3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against a Supreme Court decision, but a constitutional complaint may be lodged.”