CASE OF BILBIJA AND BLAŽEVIĆ v. CROATIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicants were born in 1958 and 1961 respectively and live in Zagreb. 6. On 13 February 2001 the applicants’ mother died after being admitted for respiratory problems to the Jordanovac Clinical Hospital Centre (Klinički bolnički centar Jordanovac; hereinafter: the “Hospital”), a public health care institution. 7. An autopsy performed on the next day by the General Medical Pathology and Anatomical Pathology Department of the Zagreb University Medical Faculty (Zavod za opću patologiju i patološku anatomiju Medicinskog fakulteta Sveučilišta u Zagrebu) indicated that the cause of death was a respiratory insufficiency leading to cardiac complications. 8. The applicants were informed of the results of the autopsy and the measures which had been taken in the treatment of their mother were explained to them. 9. According to the applicants, based on a mutual agreement, it was decided that the first applicant would pursue legal remedies concerning the death of their mother. 10. In July 2001 the first applicant met two health inspectors at the Ministry of Health (Ministarstvo zdravstva; hereinafter: the “Ministry”) to whom she complained of their inability to obtain their mother’s medical records and about the circumstances in which she had died. The inspectors, however, took no further action concerning these complaints. 11. On 1 October 2002 the first applicant complained to the Croatian Medical Chamber (Hrvatska liječnička komora; hereinafter: the “CMC”) that her mother had died in unclear circumstances which had severely affected her family. She also expressed her dissatisfaction with the functioning of the medical system and complained in particular of her own medical treatment. 12. Upon receiving the first applicant’s complaint, the Professional Supervisory Commission of the Croatian Medical Chamber (Povjerentsvo za stručni nadzor Hrvatskw liječničke komore; hereinafter: the “Commission”) invited the first applicant to specify in respect of which doctor and medical institution she made her complaints. 13. By a letter of 28 February 2003 the Commission informed the first applicant that it considered her complaints to be withdrawn as she had failed to specify them as requested. 14. On 17 March 2003 the first applicant replied to the letter of the Commission maintaining that there must have been some misunderstanding with the correspondence she had received from them. She indicated that her complaint concerned the Hospital, its director doctor, LJ.P., and the head of the intensive care unit doctor, B.S. The first applicant in particular submitted that her family had never received any relevant documents concerning their relative’s death. A copy of this reply was sent to the Ministry. 15. After receiving the first applicant’s complaint, the Ministry requested the Hospital to provide a report concerning her mother’s death. 16. On 16 April 2003 the Hospital submitted a report to the Ministry concerning the medical treatment of the applicants’ mother and the circumstances of her death. 17. On 30 April 2003 the Ministry forwarded all available documents to the Commission and requested a report on the actions taken with regard to the first applicant’s complaint. 18. By a letter of 2 May 2003 the Commission informed the first applicant that it had not found any malpractice in the medical treatment of her mother. 19. The first applicant objected to these findings on 6 June 2003. She stressed that her family had never received any concrete document indicating the cause of death of their relative and that the letter which she had received from the Commission lacked the relevant reasoning. 20. On 15 July 2003 the first applicant submitted further observations on her objection and on 20 November 2003 she urged the CMC to adopt a decision on the matter. 21. On 21 October 2003 the CMC Executive Board (Izvršni odbor Hrvatske liječničke komore), as a second-instance body of the CMC, dismissed the first applicant’s objection as ill-founded, upholding the decision of the Commission. It also informed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court (Upravni sud Republike Hrvatske). 22. After receiving the decision of the CMC Executive Board, the first applicant requested the CMC for an explanation concerning the procedure before it. On 4 December 2003 she received a reply from the CMC indicating that she had been accordingly informed that she could lodge an administrative action in the Administrative Court and that there was no need for the CMC to communicate further with her concerning the matter. 23. On 24 November 2003 the first applicant lodged an administrative action in the Administrative Court challenging the decision of the CMC Executive Board. She argued that the bodies of the CMC had not replied to her submissions and had failed to properly assess the circumstances of her mother’s death. 24. On 24 April 2006 the first applicant urged the Administrative Court to examine her case. She received a reply from the Administrative Court on 11 May 2006 indicating that due to a backlog at that court her case had still not been examined. 25. The applicant then complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) about the manner in which her case was processed by the Administrative Court and on 4 October 2006 the Ministry of Justice requested the Administrative Court for a report on the matter. The Administrative Court replied on 14 November 2006, reiterating its previous explanation as to the reason why the case had not been examined. 26. On 14 February 2007, upon another complaint by the first applicant, the Ministry of Justice requested the Administrative Court for a report concerning the progress of the case. 27. On 2 March 2007 the Office of the President of the Republic of Croatia (Ured Predsjednika Republike Hrvatske), based on the first applicant’s complaint, urged the Administrative Court to speed up the proceedings in her case. 28. On 5 October 2007 the Administrative Court declared the first applicant’s administrative action inadmissible on the ground that the decision of the CMC Executive Board was not an administrative decision concerning any of her rights or obligations or legal interests. 29. On 8 January 2008 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of the ineffectiveness of the proceedings before the lower bodies and her family’s inability to obtain any concrete information about the circumstances of their relative’s death. 30. On 27 February 2010 the first applicant urged the Constitutional Court to examine her case. Meanwhile she supplemented her constitutional complaint with further arguments and complaints, complaining in particular about the inordinate length of the proceedings in her case. 31. On 19 August 2010, the first applicant also asked the Constitutional Court to allow her to inspect the case file. 32. In the meantime, the first applicant complained to various domestic authorities, including the Office of the President of the Republic of Croatia, the Office of the Prime Minister of Croatia (Ured Predsjednika Vlade Republike Hrvatske) and a Deputy in the Parliament about the ineffectiveness of the domestic authorities’ response to her complaints concerning her mother’s death. 33. On 26 November 2012 the Ministry, replying to a question of the Deputy, stressed that it had never taken any action within its competence concerning the applicants’ case, although it had taken note of the proceedings before the competent bodies of the CMC and informed the first applicant of its findings with regard to the decisions of the CMC. 34. On 17 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint of 8 January 2008 as ill-founded (see paragraph 29 above), upholding the decision of the Administrative Court. It also declared the applicant’s additional complaints inadmissible as being lodged out of time and for non-exhaustion of the length of proceedings remedies. The decision of the Constitutional Court was served on the first applicant on 14 January 2014. 35. On 6 February 2004 the first applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) alleging medical negligence by unknown Hospital staff. In particular, the first applicant submitted that upon the admission of her mother to the Hospital she had been given a drug to which she was allergic, which had caused an allergic reaction and further medical complications leading up to her death. 36. After lodging the criminal complaint, the first applicant inquired several times with the Zagreb Municipal State Attorney’s Office about the progress of the investigation. 37. On 13 September 2006 the first applicant submitted a written request to the Zagreb Municipal State Attorney’s Office urging it to examine her criminal complaint. 38. As she received no reply from the Zagreb Municipal State Attorney’s Office, the first applicant complained to the Ministry of Justice about the inactivity in processing her complaint. 39. Based on the first applicant’s complaint, on 4 October 2006 the Ministry of Justice requested a report from the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) concerning the case. 40. Since it received no reply, on 14 February 2007 the Ministry of Justice again urged the State Attorney’s Office of the Republic of Croatia to produce a report concerning the proceedings at issue. 41. On 1 March 2007 the State Attorney’s Office of the Republic of Croatia informed the Ministry of Justice and the first applicant that the Zagreb Municipal State Attorney’s Office had requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to commission an expert report concerning the circumstances of the applicants’ mother’s death. It also stressed that this fact should be known to the first applicant as she had been duly informed about the status of the proceedings when she had made an inquiry in the Zagreb Municipal State Attorney’s Office. 42. After receiving this information, the first applicant made several inquiries in the Zagreb County Court concerning the status of the case. On 11 January 2008 she was informed by that court that the Zagreb Municipal State Attorney’s Office had never requested any investigative actions concerning her criminal complaint. 43. Meanwhile, on 21 December 2007 the Zagreb Municipal State Attorney’s Office found that the first applicant’s case file had been lost and ordered that it should be reconstructed. 44. The Zagreb Municipal State Attorney’s Office also ordered the police to conduct an investigation into the circumstances of the first applicant’s complaint. In addition, it requested the Zagreb University Medical Faculty to provide the autopsy report, and it commissioned an expert report concerning the circumstances of the applicants’ mother’s death. 45. On 2 January 2008 the police produced a report on the interviews with the applicants’ mother’s general practitioner and doctor B.S. The latter denied any medical malpractice and administration of the drug to which the applicants’ mother was allergic. His statement was confirmed by the Hospital director, doctor LJ.P. The police also obtained the relevant medical records concerning the medical treatment and death of the applicants’ mother. 46. On 8 January 2008 an expert, doctor J.Š., produced a report indicating that the cause of death of the applicants’ mother was a respiratory insufficiency leading to cardiac complications. The report did not indicate any medical malpractice on the part of the Hospital doctors. 47. On 25 January 2008 the Zagreb Municipal State Attorney’s Office rejected the first applicant’s criminal complaint on the ground that there was no reasonable suspicion that a criminal offence had been committed in the medical treatment of the applicants’ mother. The first applicant was instructed that she could take over the prosecution as a subsidiary prosecutor. 48. On 13 February 2008 the first applicant asked the Zagreb Municipal State Attorney’s Office to provide her with a copy of the entire domestic case file. 49. On 21 February 2008, after she had received the relevant documents from the Zagreb Municipal State Attorney’s Office, the first applicant instituted criminal proceedings in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) against doctor B.S. on charges of medical negligence. 50. In the meantime, the first applicant complained to various domestic authorities about the ineffectiveness of proceedings before the Zagreb Municipal State Attorney’s Office and on 11 April 2008 she received a reply from the State Attorney’s Office of the Republic of Croatia expressing its regrets for the protracted length of the proceedings dealing with her criminal complaint. 51. On 7 August 2008 the Zagreb Municipal Criminal Court requested the Zagreb Municipal State Attorney’s Office to forward the relevant documents concerning the first applicant’s case. 52. The documents were provided on 16 October 2008. 53. On 16 March 2009 the Zagreb Municipal Criminal Court invited the first applicant to amend her request to prosecute (optužni prijedlog) as required under the relevant domestic law concerning the factual and legal basis of the charges against doctor B.S. 54. On 30 March 2009 the first applicant submitted an indictment (optužnica) against doctor B.S. on charges of medical negligence. 55. As there was no progress in the proceedings, on 13 November 2009 the applicant urged the Zagreb Municipal Criminal Court to examine her case. 56. On 22 December 2009 the Zagreb Municipal Criminal Court commissioned an expert report concerning the medical treatment and death of the applicants’ mother. It requested an investigating judge of the Zagreb County Court to coordinate that procedural action. 57. An expert report of 11 March 2010, drafted by doctors D.M. and I.Š., indicated that there had been no irregularity in the medical treatment of the applicants’ mother. It further found that the drug, to which the applicant’s mother was allergic, had neither been used nor indicated for use during her treatment on 13 February 2001. The experts also excluded the possibility that the applicants’ mother had died as a result of an allergic reaction. 58. The first applicant received the expert report on 27 August 2010. 59. On 22 September 2010 the first applicant challenged the findings of the expert report, arguing that it had failed to examine all aspects of the medical treatment and death of her mother. The first applicant thus requested that the experts be ordered to re-examine and accordingly supplement their findings. 60. On 4 April 2011 a three-judge panel of the Zagreb Municipal Criminal Court returned the indictment to the first applicant, ordering her to institute an investigation before an investigating judge of the Zagreb County Court. 61. The first applicant complied with that order and on 25 April 2011 requested that an investigation be opened before an investigating judge of the Zagreb County Court. 62. On 14 October 2011 an investigating judge of the Zagreb County Court questioned doctor B.S., who denied any medical malpractice maintaining that the drug to which the applicants’ mother was allergic had neither been used nor indicated in her treatment. 63. On 12 December 2011 the investigating judge expressed his disagreement with the first applicant’s request for opening of an investigation and forwarded the case file to a three-judge panel of the Zagreb County Court. 64. On 16 February 2012 a three-judge panel of the Zagreb County Court dismissed the first applicant’s request for an investigation on the ground of lack of evidence of medical malpractice. The first applicant challenged this decision by lodging an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske). 65. Meanwhile, the first applicant complained to the Supreme Court about the length of the criminal proceedings and on 18 September 2012 the Supreme Court found a violation of her right to a trial within a reasonable time and awarded her 2,500 Croatian kunas (HRK) in non-pecuniary damage (approximately EUR 340). 66. On 28 November 2012 the Supreme Court dismissed the first applicant’s appeal and upheld the decision of the Zagreb County Court of 16 February 2012 (see paragraph 64 above). The decision of the Supreme Court was served on the first applicant on 24 December 2012. 67. The first applicant then lodged a constitutional complaint with the Constitutional Court, complaining of the ineffectiveness of the proceedings before the lower courts and their failure to elucidate the circumstances of her mother’s death. 68. On 28 February 2013 the Constitutional Court declared the constitutional complaint inadmissible on the ground that the decisions of the lower courts did not concern any of her rights or obligations or any criminal charge against her. The decision of the Constitutional Court was served on the first applicant on 12 March 2013. 69. On 28 March 2013 the first applicant lodged a request for the reopening of the proceedings before the Zagreb County Court, alleging procedural flaws in the processing of her case. 70. The Zagreb County Court rejected the request as unfounded on 29 October 2013 and this was upheld by the Supreme Court on 20 March 2014. 71. The first applicants also lodged a criminal complaint against the medical experts D.M. and I.Š. on 27 August 2013 alleging that they had provided false evidence. On 7 October 2013 she received a reply from the Zagreb Municipal State Attorney’s Office indicating that it considered her criminal complaint unfounded in any respect.