CASE OF MARIĆ v. CROATIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1966 and lives in Žrnovica. 6. On 7 August 2003 the applicant’s wife, in the ninth month of pregnancy, gave birth to a stillborn child at Split Clinical Hospital (Klinički bolnički centar Split), a publicly owned health institution. 7. After the birth the applicant and his wife did not want to take their child’s remains, so the hospital assumed the responsibility for the body. 8. An autopsy carried out in the hospital on 18 August 2003 showed that the child had died as a result of gestational complications. 9. On 13 October 2003 the hospital disposed of the child’s body together with other clinical waste (human tissue and amputated body parts). The clinical waste was taken by the hospital’s contractor, company L., to the Zagreb cemetery for cremation. 10. Soon afterwards the applicant and his wife started to enquire about their child’s burial, but were unable to obtain any specific information. 11. On 2 June 2004 the applicant and his wife brought a civil action against the hospital in the Split Municipal Court (Općinski sud u Splitu), seeking damages for distress caused by the manner in which it had disposed of their child’s body. They argued that they had given their consent to an autopsy and burial of their child, but the hospital had failed to show that they had performed the burial and to inform them where it had taken place. 12. The hospital raised the defence that they had acted in accordance with section II of the Ministry of Health’s Instructions on the Disposal of Clinical Waste, allowing them to dispose of the child’s body together with other clinical waste. 13. At a hearing on 24 November 2004 the court heard evidence from pathologist Š.A., who carried out the autopsy of the child’s body. He explained that in situations in which parents did not want to assume responsibility for the body of their stillborn child, the hospital was required by law to treat the body as clinical waste and to dispose of the remains by cremation or burial. He further explained that before concluding the contract with company L. in 2002, the hospital had buried bodies of stillborn babies in a communal grave. Company L. had then suggested cremating the bodies rather than burying them, because the communal grave had been full. The applicant’s child’s remains had therefore been packed together with other clinical waste and taken to the Zagreb cemetery for cremation. The applicant’s wife disputed Š.A.’s version of events, arguing that Š.A. had first told her that her baby had been buried. Š.A. replied that he had initially thought that to be the case, not finding out until later what had actually happened. 14. Another hearing was held on 1 February 2005, at which a nurse from the hospital, M.K., gave oral evidence. She testified that after the child’s body had been taken to the pathology department, she had spoken to the applicant who had told her that he wanted the hospital to bury his child. She had seen the applicant on another occasion, and he had told her that he did not want to assume responsibility for the funeral. When the applicant had again approached her to ask where the burial had taken place, she had told him that his child had been buried in the communal grave, although she had not been sure, but in any event she had considered cremation in the communal grave to be a form of burial. The witness also expressed her regret that the applicant might have been under the impression that the child would be buried in an individual grave. The applicant disputed M.K.’s version of events, asserting that he had asked for all the documents and invoices concerning the burial to be forwarded to him. Nurse M.K. admitted that that was true, but that no such documents existed, which she had told the applicant already. 15. At the same hearing two other witnesses, Z.S. and V.T., technicians in the hospital’s pathology department, gave evidence. Z.S. testified that the hospital had abandoned its practice of burials in 2002 and had started cremations. The same procedure had been applied in the case of the applicant’s stillborn child, whose remains had been taken together with other clinical waste and cremated. V.T. confirmed that he had personally placed the remains of nine children in a box, which had been taken away by company L., but he did not know what had happened to them later. 16. At a hearing on 23 March 2005 the director of company L. testified that the remains of the applicant’s child had not been buried at the cemetery, but had been disposed of with other clinical waste and cremated. He explained that there was a communal grave in which bodies could be buried, if parents so requested and were granted the necessary authorisation. Otherwise the bodies were cremated. The practice was to place the bodies in one large wooden box together with other clinical waste and to take them to the Zagreb cemetery for cremation. 17. At the same hearing the applicant and his wife Ž.M. gave their oral evidence. Ž.M. stated that she had been in a state of shock after the birth of her stillborn child and had been suffering psychologically ever since. They had therefore requested that nurse M.K. arrange for the child to be buried in the local graveyard. As soon as she was feeling better, Ž.M. had requested information from the hospital about the child’s burial and was told that her child was buried in the local graveyard. However, at the graveyard she was told that no such burial had taken place. For some time afterwards nobody could tell her what had happened to her child’s body, until a meeting was held in November 2003 at the hospital where she learned that the child had been cremated at the Zagreb cemetery. She and her husband had contacted the cemetery, who replied that they did not know anything about the cremation of their child, and that the remains of a stillborn child would not be cremated without the relevant documentation. The applicant testified that nurse M.K. had never advised him exactly what would happen to his child’s body, and that he would have never allowed his child to be cremated in such a manner. He also confirmed that he had learned from the Zagreb cemetery that the body of a stillborn child would not be cremated without the relevant procedural documentation. 18. On 6 April 2005 the Split Municipal Court dismissed the civil action on the grounds that after the applicant and his wife had declined to assume responsibility for the body, the hospital had, in accordance with the law, disposed of the child’s body together with other clinical waste. The relevant part of the judgment reads: “There is no dispute between the parties that on 7 August 2003 [Ž.M.] gave birth to a stillborn child, and that an autopsy of the remains and placenta has been carried out, and that in the pathologist’s office [the applicant] declined nurse M.K.’s suggestion that he assume responsibility for the burial of the stillborn child. The defendant therefore, in accordance with the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000) in conjunction with section 58 of the Protection from Infectious Diseases Act (Official Gazette nos. 60/1992, 26/1993 and 29/1994), considered the placenta and foetus to be clinical waste within the meaning of section 20 of the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002), which provides that foetuses are clinical waste in cases where the mother was up to twenty-two weeks (five-and-a-half months) pregnant, although there is no dispute in the case at issue that [Ž.M.] gave birth to a stillborn child after nine months of pregnancy, who was not however reported as living, unlike in cases where the child was born alive and then died. ... It therefore follows that the defendant, in disposing of the plaintiffs’ stillborn child (in a situation in which they had refused to assume responsibility for the burial and did not have a family grave), acted in compliance with the above-mentioned regulations and the contract with company L. The defendant therefore is under no obligation to pay compensation.” 19. The applicant and his wife appealed to the Split County Court (Županijski sud u Splitu) on 13 May 2005. They argued that the relevant facts had not been properly established, and that it remained unclear where and how the body of their child had been buried. They also pointed out that the regulations to which the first-instance court had referred did not stipulate that the body of a stillborn child could be treated as clinical waste. 20. On 24 May 2007 the Split County Court dismissed the appeal and upheld the first-instance judgment. It considered, however, that the first-instance court had erred in finding that the child’s body had been disposed of in accordance with the law, but that given that no provision of the law obliged the hospital to inform parents where their stillborn child was buried, the applicant and his wife could not claim any damages in that regard. The Split County Court in particular held: “It should be noted at the outset that this court does not accept the findings of the first-instance court, which found the defendant’s exoneration from liability under the provisions of the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000; hereinafter ‘the Instructions’) and the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002; hereinafter ‘the by-law’). These regulations do not concern the question as to the manner in which hospitals should deal with the bodies of stillborn children. They concern, inter alia, the manner in which clinical waste should be disposed of, including foetuses in cases where the mother was up to twenty-two weeks pregnant (section 20(3) of the by-law), which is not the case in the present case, in which [Ž.M.] gave birth to a stillborn child after nine months of pregnancy. Although the existing legislation has not regulated the issue of the legal status of a stillborn child coherently, this court finds that the aforementioned Instructions and by-law are not applicable. This is because there are specific provisions which clearly differentiate between a foetus and a stillborn child. Unlike a foetus: - a stillborn child must be registered in the register of births (sections 9 and 12 of the State Registers Act – Official Gazette no. 96/1993) - a stillborn child, just like any other deceased person, may only be buried or cremated after examination by a coroner (sections 2 and 8 of the by-law on the examination and establishment of the time and cause of death – Official Gazette nos. 121/1999, 133/1999 and 112/2000). There is therefore no doubt for this court that a stillborn child, unlike a foetus, can be buried (or cremated) in the same manner as any other deceased person under the relevant provisions of the Cemeteries Act (Official Gazette no. 18/1998), which provides that a deceased person shall be buried in his [or her] local cemetery or another graveyard chosen by the deceased or his or her next-of-kin (section 12). However, neither the above-mentioned provisions, any other provisions regulating the conduct of the defendant towards its patients (Health Care Act – Official Gazette nos. 121/2003, 48/2005 and 85/2006), nor any other provisions of the law, oblige the defendant, as a healthcare institution, to bury a body not taken away by the next-of-kin at a location which is known to them. The defendant is therefore not liable for damages because the grounds for liability, within the meaning of section 154 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 91/1996, 112/1999 and 88/2011) in conjunction with section 1163 of the Obligations Act (Official Gazette no. 35/2005), have not been established. The plaintiffs’ reliance on liability for breach of a contractual duty is not applicable because the relevant provisions of the Obligations Act do not provide for such damages.” 21. The applicant and his wife also lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 28 September 2007, arguing that they found it incomprehensible that the hospital could not be held to account despite failing to act in compliance with the relevant domestic law when disposing of the body of their stillborn child. 22. On 12 November 2008 the Supreme Court dismissed the appeal on points of law, endorsing the reasoning of the Split County Court. It added: “It should also be noted that the mental anguish the parents are suffering because they do not know where their child’s grave is and thus are unable to visit it, is not a form of non-pecuniary damage within the meaning of sections 200 and 201 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) ... only mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or personality rights or the death and serious disability of a close relative warrant the award of non-pecuniary damages. Any other mental anguish arising from other situations is not a legal basis for the award of damages.” 23. The applicant and his wife then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his previous arguments. He argued that the remains of his stillborn child had been disposed of improperly and that he was unable to obtain information about where the child was buried. 24. On 1 February 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded, holding the following: “In their constitutional complaint, the appellants were unable to show that the competent courts had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainants’ constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ... “ 25. This decision was served on the applicant on 27 February 2012. 26. On 9 June 2005 the applicant lodged a criminal complaint with the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) against the employees of the hospital and company L., alleging that the burial of his stillborn child had not been documented or conducted properly. 27. The Split Municipal State Attorney’s Office questioned the pathologist (see paragraph 13 above), who explained that foetuses and the bodies of stillborn children were disposed of together with other clinical waste, as had happened with the body of the applicant’s stillborn child. There was no need for parents to give any special written consent, because it was not required by law. 28. On 10 February 2006 the Split Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that the body of his stillborn child had been disposed of in accordance with the relevant law and procedures. 29. The applicant took over the prosecution as a subsidiary prosecutor and on 29 January 2007 lodged an indictment in the Split Municipal Court against V.T., M.K. and Z.S. (see paragraphs 14 and 15 above) on charges of negligent performance of duties. 30. On 24 October 2008 the Split Municipal Court rejected the indictment on the grounds that the hospital’s employees had acted in accordance with the relevant legislation, namely the Ministry of Health’s Instructions on the Disposal of Clinical Waste, the Protection from Infectious Diseases Act, and the by-law on the measures of preventing and combating hospital infections. 31. The applicant appealed to the Split County Court, but on 3 March 2009 it was dismissed as groundless. 32. In September 2009 the applicant brought his case to the attention of media, which prompted the State Attorney’s Office to re-examine his complaints. 33. In a report dated 8 September 2009, the Split Municipal State Attorney’s Office informed the Split County State Attorney’s Office (Županijsko državni odvjetništvo u Zagrebu) of the course of the applicant’s case. It referred to the civil proceedings in which the applicant’s damages claim against the hospital had been dismissed, and reiterated that the body of the stillborn child had been disposed of in accordance with the procedure required by law and thus did not constitute a criminal offence.