Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22836/93

by N. and subsequently I.L.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 March 1993 by

N. and subsequently I.L. against Sweden and registered on

28 October 1993 under file No. 22836/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The application was initially brought by N., a Swedish citizen,

born in 1942 and residing at Bandhagen. After N.'s death on 25 May 1994

her mother I., a Swedish citizen, born in 1926 and resident at Ã…rsta,

stated to the Commission that she wished to take over the application.

The facts of the case, as submitted by N. and maintained by I.,

may be summarised as follows.

Particular circumstances of the case

On 15 June 1987 E., N.'s father and I.'s husband, then 79 years

old, sought emergency care in the surgery ward of the Southern Hospital

(Södersjukhuset) in Stockholm and was examined, inter alia, by

physician B., who prescribed a laxative. On 2 August 1987 E. was

admitted for care in the hospital, his legs having become paralysed.

He was also found to be suffering from a bacterial infection of the

spine. On 15 September 1987 E. was transferred to Ã…rsta Hospital, where

he died on 3 October 1987. On his arrival at this hospital he was

suffering from, among other things, a large pressure wound on his back.

In May 1988 N. lodged a complaint with the Disciplinary Board of

Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd) against

a physician, Dr. B., three further physicians, the nursing staff on

duty at the Southern Hospital between 2 August and 15 September 1987

as well as against the ambulance staff on duty on 31 July and

2 August 1987.

On 12 November 1990 N. requested that the physician in charge of

E.'s care at Ã…rsta Hospital, Dr. S., be heard by the Disciplinary Board

in regard to, inter alia, the discrepancies between the diagnosis

concerning E. which had been made at the Southern Hospital and the

findings from the autopsy carried out at Ã…rsta Hospital after E.'s

death. N. submitted, inter alia, that E. had been incorrectly diagnosed

at the Southern Hospital, that his inadequate treatment there had

caused his pressure wound and that the wound had not been treated

properly. N. also demanded that B. should be heard by the Board.

In February 1991 N. was allegedly informed by officials of the

Disciplinary Board that because of a time-bar Dr. S. could no longer

be heard in the investigation.

On 18 April 1991 the Disciplinary Board rejected N.'s complaint

after having studied E.'s patient records and having heard five

physicians and one ambulance driver. The Board did not find it

necessary to hear Dr. S. and/or Dr. B.

N. appealed to the Administrative Court of Appeal (kammarrätten)

of Stockholm, essentially alleging that the Disciplinary Board's

investigation of her complaint had been too summary and slow. She also

considered that the Disciplinary Board should have granted her requests

of 12 November 1990.

On 7 October 1991 the Administrative Court of Appeal found it

unnecessary to obtain further evidence in the case and rejected N.'s

appeal.

N. requested leave to appeal to the Supreme Administrative Court

(Regeringsrätten), again arguing that Dr. S. and Dr. B. should have

been heard.

On 16 October 1992 the Supreme Administrative Court refused leave

to appeal.

Relevant domestic law

An official who has, either deliberately or by negligence, failed

to fulfil his or her professional duties in a way which cannot be

considered insignificant, may be punished by a disciplinary sanction

in the form of a remark or a warning (section 12 of the 1980 Act on the

Supervision of Health and Medical Care Staff and Others; lag 1980:11

om tillsyn över hälso- och sjukvårdspersonalen m.fl.). Proceedings

before the Disciplinary Board of Health Care may be instituted by the

National Board of Health and Social Welfare (socialstyrelsen), the

patient or a close relative of the patient (sections 19 and 24).

If an official can reasonably be suspected of having committed

an offence for which imprisonment is prescribed, the incident shall be

reported to the police either by the National Board of Health and

Social Welfare or the Disciplinary Board for the purpose of possible

criminal charges being brought (section 13, subsection 2 and section

38, subsection 3). Insofar as such charges have been brought against

an official, the Disciplinary Board is barred from instituting or

pursuing disciplinary proceedings (section 13, subsection 1).

A disciplinary sanction may not be imposed on an official, if,

inter alia, he or she has not been notified of the complaint before the

Disciplinary Board within two years from the incident at issue

(section 14).

The proceedings before the Disciplinary Board are normally in

writing. The Board may, however, hold an oral hearing, if this can be

expected to facilitate the investigation of a complaint (section 28).

A complaint lodged with the Disciplinary Board shall be

communicated to the respective official(s) against whom it has been

introduced. The official(s) shall be ordered by the Board to respond

to the complaint. No communication to the official(s) concerned is

needed, if it is evident that the complaint cannot be successful or if

a notification is otherwise considered unnecessary (section 29,

subsection 1).

An official who has been notified of a complaint against him or

her shall respond to it in writing, unless the Disciplinary Board

decides that his or her views shall be presented at an oral hearing

(section 30, subsection 1).

According to the 1972 Tort Liability Act (skadeståndslag

1972:207), the State, a municipality or a similar public organ is

liable for personal or pecuniary damages caused by fault or negligence

of a public official when carrying out an activity for which the State

or the municipality is responsible (chapter 3, section 2). Such actions

for damages are examined by ordinary civil courts.

According to the Code of Judicial Procedure (rättegångsbalken),

a complainant has an independent standing in criminal proceedings. He

or she may therefore pursue a private prosecution, if the Public

Prosecutor has decided not to bring charges in spite of the

complainant's request for such action in a matter falling under public

prosecution (chapter 20, section 8, subsection 1). A private claim

against an accused in consequence of a suspected offence may be joined

with the criminal charges brought either by the Public Prosecutor or

the complainant (chapter 22, section 1).

COMPLAINTS

1. Article 2 para. 1 of the Convention has allegedly been violated,

since the medical treatment of E. in the Southern Hospital led to his

death.

2. Article 6 para. 1 has allegedly been violated, since N.'s

complaint to the Disciplinary Board was dealt with too summarily. In

particular, the Board did not hear Dr. S. and Dr. B. and was therefore

unable properly to assess the adequacy of E.'s treatment.

3. Article 13 has allegedly also been violated.

THE LAW

1. According to N., and subsequently I., Article 2 para. 1

(Art. 2-1) of the Convention has been violated, since the medical

treatment of E. in the Southern Hospital led to his death. Under

Article 6 para. 1 (Art. 6-1) it is also submitted that the authorities

dealt with N.'s complaint too summarily. In particular, the

Disciplinary Board heard neither Dr. S. nor Dr. B. and was therefore

unable properly to assess the adequacy of E.'s treatment.

(a) The Commission recalls that under Article 25 (Art. 25) of the

Convention it may receive petitions from "individuals claiming to be

the victim of a violation by one of the Contracting Parties of the

rights set forth in [the] Convention ...". It observes that N., who

originally lodged the application, died on 25 May 1994 following which

her mother and the deceased E.'s wife I. stated to the Commission that

she wished to pursue the case in her own name.

The Commission recalls that an heir of a deceased applicant may

not claim any general right to have the examination of a complaint

brought by the deceased continued. The essential point is whether the

particular nature of the complaint allows it to be, in the

circumstances of the case, considered as transferable (cf., e.g.,

No. 10828/84, Dec. 6.10.88, D.R. 57 p. 5).

The Commission observes that the complaint now at issue relates

to the treatment of E. It considers that, as the deceased E.'s spouse,

I. may reasonably claim to be a "victim" within the meaning of

Article 25 para. 1 (Art. 25-1) in regard to the present complaint.

(b) The Commission next recalls that under Article 26 (Art. 26) of

the Convention it may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law. Article 26 (Art. 26) nevertheless only

requires the exhaustion of such remedies relating to the breaches of

Convention as are effective and sufficient. There is no need to try

other remedies which are available, but probably ineffective (cf. No

9248/81, Dec. 10.10.83, D.R. 34 pp. 78, 85). An applicant cannot be

criticised for not having had recourse to legal remedies which would

have been directed essentially to the same end as a remedy already

tried and which would in any case not have offered better chances of

success (see, e.g., Eur. Court H.R., A. v. France judgment of 23

November 1993, Series A no. 277-B, p. 48, para. 32; Lopez Ostra v.

Spain judgment of 9 December 1994, Series A no. 303-C, para. 38).

The Commission observes that under Swedish law a relative of a

deceased person may complain to the Disciplinary Board of Health and

Medical Care for the purpose of obtaining an assessment of the adequacy

of the care afforded to the patient. This Board may impose disciplinary

sanctions on medical and nursing staff. In certain cases it must report

the incident to the police for the purpose of possible criminal charges

being brought. In the present case the Disciplinary Board found no

reason to criticise E.'s treatment. In these circumstances the

Commission finds that N.'s complaint to the Disciplinary Board was an

effective and sufficient remedy within the meaning of Article 26

(Art. 26) of the Convention.

(c) The Commission has next examined whether there is any appearance

of a violation of Article 2 para. 1 (Art. 2-1) in this case. In so far

as this provision is relevant it reads as follows:

"Everyone's right to life shall be protected by law. ..."

The Commission recalls that this sentence imposes an obligation

on Contracting States not only to refrain from taking life

"intentionally" but also to take appropriate steps to safeguard life

(No. 7154/75, Dec. 12.7.78, D.R. 14 p. 31). For the purpose of

examining the present case, the Commission will assume that the

treatment of E. incurred State responsibility.

On the basis of an overall assessment of N.'s complaint to the

Disciplinary Board, the evidence actually obtained by that Board as

well as the present application, the Commission finds no indication

that E.'s death was caused by a failure to provide him with proper

care. Accordingly, there is no appearance of a violation of Article 2

(Art. 2) of the Convention on account of his allegedly inadequate

treatment.

The Commission recalls, however, that in a previous case

regarding death in a hospital it has held that the State's positive

obligation to protect life implies regulatory measures for hospitals

and an efficient judicial system permitting the cause of death in a

hospital and the possible liability of the doctors or the hospital to

be established. If there is no indication that the authorities

arbitrarily assessed the evidence before them, the Commission must rely

on the facts established by those authorities (No. 20948/92,

Dec. 22.5.95, D.R. 81-A p. 35; see also No. 16593/90, Dec. 12.9.91,

unpublished).

In the present case the Commission notes that one of the

physicians against whom N. had lodged her complaint, Dr. B., was in no

way heard by the Disciplinary Board or the Administrative Court of

Appeal, these bodies having found such a hearing to be unnecessary. The

same is true as regards the failure to hear Dr. S. The Commission

observes, however, that the Disciplinary Board heard five other

physicians and also acquainted itself with E.'s patient records. In the

particular circumstances of this case it therefore finds no appearance

of a violation of Article 2 (Art. 2) in so far as the complaint under

this provision may be considered to pertain to the allegedly improper

manner in which the disciplinary proceedings were conducted.

It follows that the above aspects of the complaint under

Article 2 (Art. 2) must be rejected as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

(d) The Commission has next examined the complaint under Article 2

in conjunction with Article 13 (Art. 2+13) of the Convention which

reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls that, according to the European Court of

Human Rights, an applicant, who is found to have no "arguable claim"

that another Convention provision has been violated, is not entitled

to a remedy under Article 13 (Art. 13) (see, e.g., Eur. Court H.R.,

Powell and Rayner judgment of 21 February 1990, Series A no. 172, pp.

14-15, paras. 31-33 and p. 20, para. 46). The concept of an arguable

claim nevertheless falls to be determined having regard to the

particular facts of the case and the nature of the legal issues raised

(cf. Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21

June 1988, Series A no. 139, p. 11, para. 27; No. 12474/86, Dec.

11.10.88, D.R. 58 p. 94).

On the basis of an overall assessment of the complaint under

Article 2 (Art. 2) the Commission concludes that N. had no "arguable

claim" of a breach of that provision which would have entitled her to

a remedy under Article 13 (Art. 13). It need not therefore determine

whether she had at her disposal an "effective remedy" within the

meaning of that provision.

It follows that this aspect of the complaint must also be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The allegedly too summary nature of the disciplinary proceedings

is also addressed under Article 6 para. 1 (Art. 6-1) of the Convention

which reads, in so far as it appears to be relevant, as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. ...

The Commission need not determine whether I. may reasonably claim

to be a "victim" within the meaning of Article 25 para. 1 (Art. 25-1)

also with regard to the present complaint, since the complaint is in

any case inadmissible for the following reason.

The Commission first notes that N. chose to institute

disciplinary proceedings against E.'s doctors instead of privately

prosecuting them or claiming damages in civil proceedings. The

disciplinary proceedings resorted to did not, however, determine any

"civil right" of N. Accordingly, Article 6 para. 1 (Art. 6-1) does not

apply in the instant case.

It follows that this complaint must be rejected as being

incompatible ratione materiae with the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

3. Recalling its conclusion in 1 (d), the Commission finds no

further issue under Article 13 (Art. 13) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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N. and subsequently I.L. v. SWEDEN

N. and subsequently I.L. v. SWEDEN

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