FOURTH SECTION

DECISION

Application no . 18698/06 Vitan Nikolov VAKRILOV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 9 October 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Zdravka Kalaydji eva , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 2 May 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vitan Nikolov Vakrilov , is a Bulgarian national who was born in 1948 and lives in Asenovgrad . He was represented before the Court by Ms A. Angelova , a lawyer practising in Asenovgrad .

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova , of the Ministry of Justice.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. In 1995 the applicant ’ s mother suffered a cerebral stroke, after which she remained in a frail state of health and in need of daily assistance.

5. In December 2001 she started feeling pain in her feet and legs, which were also becoming red. In January 2002 she was visited by the family doctor, Dr D., who diagnosed her with thrombophlebitis and prescribed a course of vasodilatory treatment.

6. In February, March and April 2002 the doctor made three more home visits to the applicant ’ s mother.

7. Gradually, the applicant ’ s mother ’ s health deteriorated and she developed gangrene in her legs. On an unspecified date she was examined by a neurologist, and on 19 April 2002 – by a surgeon who diagnosed her with “chronic arterial insufficiency of the lower extremities” and prescribed a course of vasodilatory treatment. On 24 April 2002 the applicant ’ s mother was hospitalised. She was examined by a surgeon who considered that the only possible form of surgery was the amputation of the two legs. However, surgery was not carried out due to the patient ’ s grave state of health and as the doctors could not guarantee that she would survive it. She was brought back home where she died on the next day, 25 April 2002.

8. No autopsy was carried out, upon a request by the relatives. The death certificate indicated as the cause of death “acute cardiovascular and respiratory failure”.

9. Upon a complaint by the applicant dated 20 January 2003, criminal proceedings were initiated against an “unknown perpetrator” for having caused by criminal negligence his mother ’ s death.

10. On 23 April 2004 the applicant filed a new complaint, claiming that Dr D. had falsified the records of several home visits to his mother, allegedly made between January and April 2002. A new criminal investigation was opened upon that complaint.

11. On 14 January 2005, following instructions from the Chief Public Prosecutor ’ s Office, the two sets of proceedings described above were joined.

12. On 1 June 2005 Dr D. was charged with having falsified seven records concerning home visits to the applicant ’ s mother. A graphological expertise commissioned by the prosecution authorities established that none of those records had been signed by the applicant ’ s mother. It appears that three of the records concerned visits which had indeed been made but another person had signed them in place of the patient. The other four records concerned visits which never took place.

13. In the course of the investigation the prosecuting authorities commissioned four expert reports from medical doctors tasked with assessing whether the applicant ’ s mother had received adequate treatment. The experts who prepared the first three reports relied on the disputed home-visit records, accepting that Dr D. had visited the applicant ’ s mother seven times during the latter ’ s illness.

14. The last report was prepared by five experts – four university professors in medicine and a coroner, who were expressly instructed by the prosecution not to take into account the disputed home-visit records described above. The experts noted that without those records the case file contained insufficient information on the progress of the applicant ’ s mother ’ s condition and the treatment administered. Nevertheless, they pointed out that the applicant ’ s mother had been suffering from generalised atherosclerosis, chronic arterial insufficiency of the lower extremities and cardiac dysrythmia and that, given her grave state of health, any course of treatment, including with vasodilators, would have had a limited effect. The experts considered that the doctors who had treated the applicant ’ s mother could have suggested amputation of the legs at an earlier stage, but noted nonetheless that there was no guarantee that such an operation would have saved her life. Their conclusion was that, given the circumstances, the applicant ’ s mother had received adequate treatment.

15. Relying on that expert report and concluding that none of the doctors who had treated the applicant ’ s mother had acted with criminal negligence, on 9 February 2006 the prosecuting authorities discontinued the criminal proceedings in so far as they concerned the offence of causing her death through criminal negligence.

16. Upon an appeal by the applicant, on 7 March 2006 the partial discontinuance of the criminal proceedings was upheld by the Plovdiv Regional Court . In its view, it had been established that the applicant ’ s mother had received adequate treatment. It considered in addition that the prosecution authorities had collected “all necessary and accessible evidence”.

17. The Regional Court noted that the offence which remained to be investigated, namely the alleged falsification of home-visit records by Dr D., was not directly related to the offence in respect of which the proceedings were being terminated, because, even if Dr D. had indeed committed the offence of falsifying the documents, this would not automatically mean that she had also caused the applicant ’ s mother ’ s death through criminal negligence. It was clear that the applicant ’ s mother ’ s death had been due to objective reasons.

18. On 5 May 2006 the prosecuting authorities discontinued definitively the criminal proceedings, finding that Dr D. ’ s prosecution for falsifying documents had become time-barred. An ensuing appeal by the applicant against the discontinuance of the proceedings was declared inadmissible for lack of standing, as it was considered that he was not a “victim” of the alleged offence, which had not been directed against any individual rights but against the public and legal order.

19. In 2002 Dr D. received a disciplinary sanction – a fine – for administrative irregularities in the documents prepared in relation to the treatment of the applicant ’ s mother.

20. The applicant has not brought an action for damages against Dr D. or any of the other doctors who treated his mother, seeking to establish their liability for her death.

B. Rel eva nt domestic law and practice

1. Causing death by professional negligence

21. Article 123 § 1 of the Criminal Code provides that negligently causing the death of another, through lack of knowledge or the careless exercise of a profession or a dangerous activity regulated by law, is punishable by a term of imprisonment of up to five years.

2. Tort liability

22. Under Bulgarian law, tort liability is provided for in the Obligations and Contracts Act of 1950. Section 45 of the Act provides that

“everyone is obliged to make good the damage which they have, through their fault, caused to another”.

23. Section 49 of the Obligations and Contracts Act provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job.

24. In a judgment of 19 November 2010 (judgment no. 628, case no. 1711/2009), in a case under sections 45 and 49 of the Obligations and Contracts Act, the Supreme Court of Cassation ordered a doctor and the hospital which had employed him to pay damages to a patient whose state of health had deteriorated irreversibly after he had been given insufficient information on the gravity of his condition. The Supreme Court held that the deterioration was directly linked to the defendants ’ behaviour, in that the lack of rel eva nt information had led to the patient not undergoing the necessary treatment.

25. In another judgment of 18 December 2008 (judgment no. 1228, case no. 4894/2007), referred to by the Government (see paragraph 31 below), the Supreme Court of Cassation awarded damages to a patient whose state of health had deteriorated due to negligently performed surgery.

3. Rel eva nt provisions concerning civil procedure

26. Articles 97 § 3 and 154 of the Code of Civil Procedure of 1952, in force until 2008, authorised bringing an action to establish the authenticity, or the lack thereof, of a document, and contesting the veracity of a document presented as evidence by the other party. Identical provisions are contained in Articles 193 and 124 §§ 4 and 5 of the new Code of Civil Procedure, in force from 2008.

COMPLAINTS

27. The applicant complained, relying on Articles 6 § 1 and 13 of the Convention, that the authorities had failed to examine in an effective and prompt manner the cause of and the responsibility for his mother ’ s death, and in particular that the investigation of his mother ’ s death had been discontinued without having led to the establishment of the criminal responsibility of Dr D.

THE LAW

28. The applicant complained that the Bulgarian authorities had failed to examine in an effective and prompt manner the cause of and the responsibility for his mother ’ s death.

29. The Court is of the view that the complaint falls to be examined under Article 2 of the Convention, the rel eva nt part of which reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life ... ”

30. The Government argued that the applicant could have brought a tort action under the rel eva nt provisions of the Obligations and Contracts Act (see paragraphs 22 and 23 above) against the doctors who had treated his mother. In addition, the Government argued that the investigation of the applicant ’ s mother ’ s death in the framework of the criminal proceedings had been effective and comprehensive.

31. Referring to the standards set by the Court in the case of Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 ‑ I, t he Government argued that they had put in place a legal system effectively protecting the right to life and allowing any responsibility to be established whenever death has occurred at the hands of medical professionals . In support of this argument the Government submitted several judgments of the domestic courts given in criminal and civil proceedings concerning medical negligence .

32. The applicant contested the Government ’ s arguments. He reiterated his belief that his mother had died as a result of a wrong diagnosis and criminal negligence on the part of Dr D. In addition, he contended that the investigation had been marred by omissions and errors.

33. The applicant argued that it would have been pointless for him to bring a tort action against Dr D., given that the civil courts would have been bound by the findings of the criminal investigation that no offence had been committed in connection with his mother ’ s death.

34. The Court observes that in cases concerning death allegedly caused by medical negligence, if the infringement of the right to life or to personal integrity was not caused intentionally, the obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence that obligation might, for instance, also be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained (see Calvelli and Ciglio v. Italy [GC], cited above ; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; Å ilih v. Slovenia [GC], no. 71463/01, § 194, 9 April 2009) .

35. The Court observes that in cases of alleged medical negligence Bulgarian law provided, in the first place, for a criminal-law remedy, which the applicant made use of. The Court notes that the criminal proceedings established in what appears to be a satisfactory manner the factual circumstances of the case. The authorities carried out an investigation and collected numerous pieces of evidence. T he investigation established the cause of the applicant ’ s mother ’ s death and Dr D. ’ s conduct in the case, including the fact that she had not visited her patient as frequently as she had claimed. The criminal proceedings in the case were concluded with a finding that none of the doctors who had treated the applicant ’ s mother had committed a criminal act.

36. The Court notes the applicant ’ s insistence that the criminal-law remedy was the most adequate remedy in the case. However, he did not allege that his mother ’ s death had been caused intentionally. As observed above, in such cases Article 2 of the Convention does not necessarily require resort to a criminal-law remedy. In the cases of Calvelli and Ciglio and Šilih cited above the Court accepted that the requirements of Article 2 of the Convention in cases of alleged medical negligence could be satisfied if the aggrieved parties had at their disposal an effective civil remedy.

38. The Court is of the view that the applicant, if dissatisfied with the conduct and findings of the criminal investigation, could have brought a civil action to establish the existence of the causal link alleged by him between the actions of Dr D. and his mother ’ s death. It would have been open for him in a civil action to seek the opinion of medical experts and pose specific questions to them in the context of an adversarial procedure.

39. As to the allegedly falsified home visit records, in any civil proceedings the applicant would have had adequate procedural means to challenge their authenticity, even in the absence of a formal finding on the matter in the framework of the criminal proceedings (see paragraph 26 above).

40. The applicant argued that in his case it would have been pointless to bring a tort action because, had he done so, the civil courts would have been bound by the findings of the criminal investigation that no offence had been committed in connection with his mother ’ s death. However, in earlier cases against Bulgaria the Court has already established that under Bulgarian law a civil court was not formally bound by the findings that the prosecuting authorities make when discontinuing a criminal investigation (see, mutatis mutandis , Assenov and Others v. Bulgaria , 28 October 1998, §§ 111-12, Reports of Judgments and Decisions 1998 ‑ VIII, and Anna Todorova v. Bulgaria , no. 23302/03 , § 82, 24 May 2011). The Court thus concludes that the civil remedy available to the applicant could have led to the establishment of any responsibility of Dr D. and the award of any appropriate civil redress.

41. Having regard to the above considerations, the Court finds that domestic law provided for a judicial system capable of satisfying the requirements of Article 2 of the Convention, as set out in the cases of Calvelli and Ciglio , Vo and Å ilih cited above.

42. It follows from the above that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmi ssible.

Lawrence Early Lech Garlicki Registrar President