FURDIK v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Milan Furdík, is a Slovakian national who was born in 1941 and lives in Banská Bystrica. He was represented before the Court by Ms M. Čulenová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 July 2005 the applicant’s daughter, Ms Vanda Furdíková, who was then 27 years old, died as a result of injuries which she sustained while climbing the Široká veža peak in the High Tatras. The peak’s summit is at 2,461 metres above sea level. Ms Furdíková and her partner started the climb in excellent weather conditions at 9 a.m. on 30 July 2005. Both climbers were sufficiently experienced for the climb. At 12.14 p.m. Ms Furdíková fell when a block of rock came loose. She remained hanging on the rope with her head pointing downwards some 25 metres below her co-climber. Some 120 metres below her two other climbers, Mr. and Mrs. J., were preparing to start the same climb and witnessed the accident. At 12.16 p.m. and at 12.18 p.m. Mrs J. attempted to contact the Air Rescue Service and the Mountain Rescue Service using a mobile phone. Both lines were busy. After another attempt she reached the Mountain Rescue Service at 12.19 p.m. She was told that a helicopter would be sent immediately and that it would arrive at the place of the accident in 20-25 minutes. The accident had also been reported to the operations centre of the Mountain Rescue Service in Poprad by a tourist passing near the foot of the mountain. The records indicate that the operations centre received the first emergency call about the accident at 12.15 p.m. Between 12.15 and 12.25 p.m. the co-climber fixed the ropes with a view to preventing Ms Furdíková from any further falls and descended by rope to the latter. Ms Furdíková was badly injured, but she remained conscious and communicated with her partner until 4 p.m. At 12.23 p.m. Mr. and Mrs. J. decided to climb up to Ms Furdíková and her partner. At 12.30 p.m. the duty officer of the Mountain Rescue Service informed Mr J. by phone that the helicopter would arrive in some 20 minutes as it was on a different rescue mission in Smrekovica at that time. At 1 p.m. the doctor of the Air Rescue Service called Mr J. to tell him that the rescue team was on its way. The three climbers supported Ms Furdíková, hydrated her and communicated with her. At 1.17 p.m. the rescue service helicopter landed in Poprad to fill the fuel tank and to prepare the equipment needed for the rescue of Ms Furdíková. At 1.40 p.m. the helicopter took off from Poprad. On its flight to the mountain it landed in Starý Smokovec at 1.45 p.m., to board one member of the Mountain Rescue Service. It reached the place of the accident at 2 p.m. At 2.02 p.m. the pilot informed the land operator that strong turbulence was preventing Ms Furdíková from being rescued directly from the helicopter in flight. A reinforcement of the rescue team and special equipment were required in order to reach the injured person. The helicopter returned to Poprad. Between 2.25 and 2.45 p.m. a member of the Mountain Rescue Service with the necessary equipment joined the rescue team and the fuel tank was refilled. At 3.30 p.m. another two members of the Mountain Rescue Service boarded the helicopter in Starý Smokovec. At 3.45 p.m. the rescue team was dropped on the summit of the mountain. The helicopter flew off to attend to another accident. Several minutes later the three climbers who had stayed with the injured person spotted the members of the rescue team some 15 metres above them. The Government submitted that the team reached Ms Furdíková at 3.47 p.m. According to the climbers involved, the rescue team reached the injured at approximately 4 p.m. By that time Ms Furdíková had lost consciousness. The Government submitted that Ms Furdíková had by that time already reached the stage of clinical death. The members of the rescue team and the climbers fixed Ms Furdíková to a transport stretcher. She died at 4.10 p.m. Her body was lowered to the foot of the mountain by ropes at 4.45 p.m. A forensic doctor concluded, on 4 August 2005, that her death had been caused by the shock resulting from the injuries and by bleeding, and by a third degree embolism. The report indicated that Ms Furdíková had dislocated her right thigh bone, that the soft tissues of her right arm and thigh had been massively contused and that she had suffered from an intracranial haemorrhage. The applicant requested the Health Care Supervisory Office (Úrad pre dohľad nad zdravotnou starostlivosťou) to examine whether appropriate medical assistance had been provided to his daughter. On 30 September 2005 the Prešov branch office of that institution replied to the applicant that no shortcomings had been established in the providing of medical assistance to Ms Furdíková. The letter stated that the helicopter team had been trained and equipped in accordance with the relevant law. The doctor, who had entered the climbing area of the mountain despite the fact that he had not been obliged to do so, found that Ms Furdíková had died before she was released from the rope and put on a transport stretcher. Resuscitation had not been possible in the situation. The question as to whether the life of the injured person could have been saved had there been an earlier intervention was purely hypothetical. The letter further stated that nothing indicated that the actions of the Air Rescue Service and the Mountain Rescue Service had not been duly coordinated. According to the Mountain Rescue Service, it had been more efficient to have recourse to Air Rescue Service in the case of the applicant’s daughter. In a letter of 19 September 2005 the Minister of the Interior informed the Health Care Supervisory Office that he had discovered no shortcomings in the action of the Mountain Rescue Service which fell under the authority of his Ministry. On 3 October 2005 the sister of Ms Furdíková challenged the conclusions of the Prešov branch office. On 7 November 2005, in its protocol, an expert commission under the authority of the President of the Health Care Supervisory Office found an infringement of the relevant health care legislation by the Air Rescue Service. The commission held that the operator of the Air Rescue Service had proceeded erroneously when sending a helicopter based in Poprad to intervene at the very extreme point of its operation area in Smrekovica while a different helicopter based in Sliač had been available for the same territory. The commission qualified the operator’s misjudgment as a “human factor” failure. It had resulted in a delay of 53 minutes during which the helicopter based in Poprad had not been available for operations in the High Tatras. On 14 November 2005 the Health Care Supervisory Office informed the Ministry of Health of the commission’s findings. The Ministry was requested to bring administrative proceedings against the Air Rescue Service and to impose a fine for the latter’s failure to comply with its duties. The Ministry of Health discontinued the proceedings, on 28 June 2006, holding that the Air Rescue Service had not contravened any of the duties imposed by law. Between 17 and 25 August 2005 the Supervision Office of the Ministry of the Interior examined the way in which the operators of the Mountain Rescue Service had organised the rescue of the applicant’s daughter. The report indicates that the operators had correctly decided to organise the rescue in co-ordination with the Air Rescue Service. To that effect they had contacted the latter at 12.22 p.m., immediately after the incident had been reported. In particular, access to the place of the incident had been difficult. The rescue team would have needed three and a half hours to reach it on foot. In addition, the operators had correctly presumed that the assistance of the Air Rescue Service was required with a view to ensuring the rapid transportation of the injured person to hospital. The members of the Mountain Rescue Service had been prepared to intervene in co-operation with the Air Rescue Service within ten minutes after the receipt of the information about the incident. The Supervision Office found no shortcomings in the way in which the Mountain Rescue Service had acted. On 30 July 2005 criminal proceedings were brought within the Poprad District Police Directorate in the context of the accident as a result of which the applicant’s daughter had died. The investigator questioned thirteen witnesses. He considered a forensic report and questioned a forensic expert. Records of communications and reports on the rescue action were submitted by the Air Rescue Service and the Mountain Rescue Service. The investigator also considered other documentary evidence including reports of the Slovak Hydrometeorological Institute and the Slovak Aviation Office. On the basis of the evidence obtained the police investigator concluded, on 30 January 2006, that the death of the applicant’s daughter was the result of the injuries which she had suffered during the climb. Criminal liability of a third person in that context was not established. The criminal proceedings were therefore discontinued. The applicant filed a complaint. He argued, inter alia, that the investigator had disregarded the above protocol of the expert commission of the Health Care Supervisory Office. On 20 February 2006 a prosecutor of the District Prosecutor’s Office in Poprad, after having obtained additional documentary evidence, dismissed the applicant’s complaint. The decision stated that the rescue helicopter had been intervening at a different place within its operation area at the time when the emergency call about the incident of the applicant’s daughter had reached the operations centre. It had started attending to the incident in the High Tatras immediately after it had ended the previous rescue action. The expert commission’s conclusion that a different helicopter could have been used for the intervention in Smrekovica did not provide a sufficient basis for prosecuting any person for injury to health. The prosecutor found no shortcomings in the way in which the rescue action had been carried out. Reference was made to a report indicating that the doctor had attended to the victim directly in the exposed climbing area despite the fact that he had not been obliged to do so and that the scope of the climber’s injuries were such that only immediate intervention at a specialised health care centre could have saved her life. On 15 June 2006 a prosecutor of the Regional Prosecutor’s Office in Prešov upheld the above conclusion that no criminal offence had been committed. The letter admitted, however, that the rescue of the applicant’s daughter had not been organised in an optimal manner. In particular, the decision to send the helicopter based in Poprad to a remote place, albeit within its operation area, had not been correct. It was also questionable whether the helicopter should not have deposited the rescue climbers on the summit of the mountain immediately instead of attempting to rescue the injured person directly from the air. With reference to the statement of a forensic expert the prosecutor held that those considerations could not affect the position in the case. In particular, the saving of the life of the injured person would only have been possible in the case of immediate medical intervention which had not been possible for objective reasons. On 13 November 2006 the General Prosecutor’s Office, with reference to the above conclusions, dismissed the applicant’s claim that appropriate medical assistance had not been provided to his daughter in a timely manner. The letter stated that there was no justification for the criminal proceedings to be resumed. At the request of the sister of Ms Furdíková, the Security Commission of the Czech Mountaineering Association carried out an analysis of the accident and of the subsequent events. The report dated 7 October 2005 states, inter alia, that the decision of the three climbers present not to attempt to lower Ms Furdíková to the foot of the mountain by ropes had been correct given that they had been informed that a professional rescue team would arrive shortly. However, that information had turned out to be false. The speediness of the rescue in such cases was of primordial importance. Timely medical intervention could probably have saved the life of the injured climber. There were obvious mistakes as regards the professional rescue system. The most important one seemed to be the late arrival of the helicopter for which no satisfactory explanation existed at the time when the report was drafted. The report further contains recommendations on action to be taken by mountaineers in cases of similar accidents. In July 1998 the Council of the European Society for Emergency Medicine adopted a Manifesto for Emergency Medicine in Europe. It provides, inter alia, that emergency medical care of a high standard should be available to every person in need in all situations and at all times. This requires a dedicated system which provides appropriate care for all acutely ill or injured persons. In a speech given at the Congress of Emergency and Disaster Medicine held in Germany in 1998, Professor Dr. B. Domres, President of the German Association of Disaster Medicine, stated, inter alia, that one of the essential elements of the rescue chain was the statutory definition of delays in first-aid intervention while taking into account the territorial and geographical situation of the country concerned. While it was not realistic to require that an emergency team should reach a person whose life was in danger within 10-15 minutes in all European states, that period should be set as a standard in densely populated and highly developed countries. The applicant submits that, as from the moment when an accident is reported, a physician attached to an emergency service is required to start life-saving intervention within 10 to 12 minutes in various Länder in Germany, within 15 minutes in the Czech Republic and within 8 minutes in the United Kingdom. Pursuant to Article 15 § 1, everyone has the right to life. Article 40 guarantees to everyone the right to protection of health. Article 127 enacted with effect from 1 January 2002 provides: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, I. ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00, decision of 16 November 2000; II. ÚS 19/2001, decision of 22 March 2001; or IV. ÚS 11/04, decision of 22 January 2004). Act 576/2004 governs health care and health services. Pursuant to section 4(3), health care is provided correctly where, without delay, medical intervention occurs which is necessary for the correct identification of a disease and for ensuring timely and efficient treatment with a view to healing or improving the state of a person with due regard to the current state of medical science. Act 578/2004 Coll. governs, inter alia, persons providing health services. Under section 11(1), the Ministry of Health gives permission for the operation of an aerial ambulance as an emergency health service. Section 79(1)(b) obliges persons providing health services to give to any person indispensable medical assistance without any unjustified delay. Act 579/2004 Coll. governs the emergency health service, that is urgent assistance to persons whose life or health is at immediate threat (section 1). The emergency health service comprises operation centres and providers of emergency health services. The latter run emergency ambulances on the basis of an authorisation issued by the Ministry of Health and form part of the integrated rescue system of Slovakia (section 2). Operation centres are established by the Ministry of Health, and they direct and co-ordinate the emergency service in a manner which makes it possible to maintain its fluid and permanent character. They are entitled to order the provider of a health service to intervene (section 3). Persons providing health services in an emergency are obliged, inter alia, to establish a response centre in the district concerned so that an ambulance can leave within one minute from the receipt of an order by the operations centre or co-ordination centre involved. The time-limit within which an aerial ambulance is to leave for an emergency intervention is to be laid down in a special regulation (section 5). According to the information available, no regulation governing the aforementioned point has been issued. A person authorised to provide medical assistance in the case of an emergency can be fined by the Ministry of Health in the case of failure to meet one of the obligations under the Act (section 6). At the relevant time the details concerning the emergency medical service were set out in the Regulation of the Ministry of Health no. 741/2007, as amended. The Regulation specified the requirements as regards the equipment and staffing of operation centres, emergency medical stations and ambulances of the emergency medical service including the aerial ones. Annex 3 to the Regulation provided that six stations of aerial emergency medical service were to be established, namely in Bratislava, Banská Bystrica, Nitra, Žilina, Poprad and Košice. Act 544/2002 governs the Mountain Rescue Service. It is established under the authority of the Ministry of the Interior from the budget of which it is financed (section 2). Pursuant to section 4(1)(a), the Mountain Rescue Service organises and carries out the rescue of persons, in particular in co-ordination with the Air Rescue Service. It forms a part of and carries out duties within the integrated rescue system in Slovakia (section 4(2)(a)). Under section 17 of Act 581/2004 an Office is established which, among other things, is charged with the supervision, in the context of public administration, of the provision of health care (“the Health Care Supervisory Office”). It carries out its duties impartially and independently of public authorities or other persons (section 18(2)). Under section 18(1)(b), the Health Care Supervisory Office controls whether health care is provided correctly as required by section 4(3) of Act 576/2004. Where the Office has established shortcomings in the provision of health care, it can initiate the imposition of sanctions on the provider by the respective public authority. Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. Pursuant to Article 15, after the death of the injured party the right to the protection of his or her personal integrity passes to his or her spouse and children or, in the case of there being none, to his or her parents. In an action in the Nitra District Court (file no. 10C 142/2002) a mother claimed, among other things, financial compensation for non-pecuniary damage in connection with the death of her daughter. She relied on the previous conviction for manslaughter of a car driver who had run over her daughter. In a judgment of 15 May 2006 the District Court accepted that the plaintiff had suffered damage of a non-pecuniary nature and awarded her 200,000 Slovakian korunas (SKK) by way of compensation. In an action in the Žiar nad Hronom District Court (file no. 7 C 818/96) a mother claimed, among other things, financial compensation for non-pecuniary damage caused to her and her son in connection with the latter’s violent death. She relied on the defendant’s previous conviction for the extremely violent and racist murder of her son. The District Court concluded that the plaintiff and her son had suffered non-pecuniary damage and in a judgment of 9 September 2004 it awarded the plaintiff SKK 100,000 in respect of the non-pecuniary damage which she had suffered and SKK 200,000 in respect of the non-pecuniary damage caused to her son. On 19 January 2005 the Regional Court in Banská Bystrica upheld the first-instance judgment. In the Prešov District Court proceedings file no. 6C 67/2004 the plaintiff claimed compensation for non-pecuniary damage sustained as a result of the fact that her mother had died during childbirth due to the incorrect actions of the physician on duty. On 17 May 2006 the District Court partially granted the claim. It relied on expert opinions concluding that the plaintiff’s mother had not received appropriate health care as required by the law. It ordered the defendant medical institution to pay SKK 400,000 to the plaintiff in compensation for non-pecuniary damage. The judgment became final on 6 November 2006. Act 514/2003 Coll. governs liability for damage caused in the context of the exercise of public authority. Section 2 provides that the Act extends to decision-making and official actions of public authorities related to the rights and interests protected by law and the obligations of natural or legal persons. Public authorities for the purpose of the Act comprise State organs, local self-administration bodies, public-law institutions and also natural or legal persons whom the law has entrusted with the exercise of public authority. Under section 3(1), State liability under the Act comprises, inter alia, incorrect official action. Section 9(1) qualifies as an incorrect official action, inter alia, a public authority’s failure to take an action within the time-limit set, inactivity of a public authority or any other unlawful interference with rights and interests of natural or legal persons protected by law. Pursuant to paragraph 2 of section 9, any person who has suffered damage as a result of incorrect official action is entitled to compensation. Section 17 provides for (i) compensation for pecuniary damage including loss of profit and, (ii) where the finding of a violation of a right does not constitute sufficient satisfaction, also compensation for damage of a nonpecuniary nature.