SECOND SECTION

DECISION

Applications nos. 51282/18 and 51515/18 Branka BIJELIČ against Slovenia and Anto BIJELIČ against Slovenia

The European Court of Human Rights (Second Section), sitting on 16 February 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on 26 October 2018,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant in the first case, Ms Branka Bijelič, was born in 1958. The applicant in the second case, Mr Anto Bijelič, was born in 1950. Both applicants are Slovenian nationals who live in Logatec. They were represented before the Court by Mr D. Sluga, a lawyer practising in Ljubljana.

2 . The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney.

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

4 . On 16 April 2004 the applicants ’ son, X, died as a result of a malignant melanoma.

5 . On 16 April 2007 the applicants lodged a claim for damages with the Ljubljana District Court against the L. Health Care Centre. They contended that Dr D., the employee of the Centre who had examined their son, had been negligent (in delaying their son ’ s treatment). They sought compensation amounting to 20,000 euros (EUR) each in respect of non ‑ pecuniary damage arising from his death.

6 . On 23 November 2010 the court appointed an institution to act as an expert witness. On 12 May 2011 the expert institution submitted an expert opinion to the court. It transpires from the opinion that the applicants ’ son ’ s appointment at the dermatologist had been scheduled for 5 June 2002 and that an urgent medical procedure had taken place thereafter. The experts considered that the melanoma had in all likelihood metastasised before 19 April 2002. In their opinion, X ’ s chances would have been considerably higher if the melanoma had been removed before April 2002, whereas its removal in the period between 20 April 2002 and 5 June 2002 would in all probability not have changed the course of the disease.

7 . On 3 October 2013 the court held a hearing at which it heard the expert witness. On the same day it dismissed the applicants ’ action. It found it established that on 19 April 2002 X had shown a suspicious mole to Dr D., who had referred him to a dermatologist by a “normal” procedure (without writing “urgent” on the referral). Following Dr D. ’ s referral, X had gotten an appointment with a dermatologist on 5 June 2002, when Dr K. had examined him. He had referred X to an urgent removal of the suspicious mole on that same day. It further held that it was highly likely that the melanoma had already metastasised at that point and that, assuming that the signs of a malignant melanoma had been apparent at the time of Dr D. ’ s examination, the doctor had not acted negligently by not referring X for urgent (immediate) tests. Finally, relying on the expert opinion, the court held that any causal link had in any event been broken because the removal of the mole on 19 April 2002 (instead of on 5 June 2002) would not have significantly changed the course of the disease or X ’ s chances of survival.

8 . On 5 December 2013 the applicants appealed.

9 . On 17 September 2014 the Ljubljana Higher Court reversed the judgment, granted the applicants ’ claim on the merits ( vmesna sodba ) and remitted the case to the court of first instance to determine the amount of compensation. It concluded that the referral ( napotnica ) which Dr D. had issued in X ’ s case had not been prepared in accordance with medical doctrine and practice. Moreover, by not informing X of the suspected diagnosis and the associated risks, Dr D. had failed to seek his informed consent. In the light of this, the court considered that Dr D. had committed a medical error. As regards the question of a causal link, the court elaborated on the importance of a swift medical response in cases of patients with a detected malignant melanoma. It held that the applicants had established that X ’ s chances of survival would have been higher had Dr D. referred him for further tests as a matter of urgency. The burden of proof (in this case, proving that X would have died even if the referral had been issued in compliance with the relevant rules) had thereby shifted onto the defendant party, which had failed to prove this with the required degree of conviction.

10 . On 24 March 2015 the defendant party lodged an appeal on points of law against the Higher Court ’ s judgment. On 18 May 2015 the applicants submitted a response.

11 . On 3 December 2015 the Supreme Court granted the appeal on points of law, reversed the impugned judgment and upheld the first-instance court ’ s judgment, finding that the Higher Court had erred in its application of the rules on the burden of proof in relation to the question of a causal link as an element of a civil wrong. It reiterated that the question whether a doctor could have prevented a patient ’ s natural death was very complicated for the court and the parties because it related to a hypothetical situation. This justified the use of a different standard of proof, one that did not impose an impossible burden on the plaintiff. It was therefore sufficient for the plaintiff, the applicants, to argue and prove that the action which the doctor had omitted to perform could have contributed to a non-negligible degree to preventing X ’ s death. The probability that this action could have prevented the death was an expert medical question. On the basis of the facts established by the lower courts, according to which (i) the melanoma had in all likelihood fatally metastasised before Dr D. had seen it on 19 April 2002, (ii) the chances of survival in that case were estimated at 5%, and (iii) the removal of such an aggressive tumour at that point would not have significantly changed the course of the disease and the success rate of the treatment, the Supreme Court concluded that the applicants ’ son ’ s death could not realistically have been prevented even if Dr D. had acted differently, and that the doctor ’ s omission could therefore not be considered a legally relevant cause of X ’ s death.

12 . On 7 March 2016 the applicants lodged a constitutional complaint against the Supreme Court ’ s judgment.

13 . On 4 June 2018 the Constitutional Court refused to accept the constitutional complaint lodged by the applicants for consideration.

14 . Under the provisions of the Code of Obligations (Official Gazette no. 97/07 with relevant amendments), health institutions and their employees are liable for pecuniary and non-pecuniary damage resulting from the death of a patient through medical malpractice. The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee ’ s failure to conform to the relevant standard of care. Employees are directly liable for death or injury under the civil law only if it is caused intentionally. However, the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter ’ s gross negligence (see Šilih v. Slovenia [GC], no. 71463/01, § 95, 9 April 2009).

15 . The Act on Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , Official Journal no. 49/2006 – “the 2006 Act”) became operational on 1 January 2007. It provides for two remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ). For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia (dec.), no. 24342/04, §§ 17-25, 18 October 2007.

16 . On 20 November 2008 the Supreme Court upheld a judgment granting the claim of a plaintiff who was found to have proved with a sufficient degree of probability that the belated reaction of the hospital employees in a medical negligence case had increased to a legally relevant extent the chances of damage occurring (no. II Ips 671/2008). The Supreme Court emphasised that the standard of proof was lower when the specificity or nature of the relevant fact was such that to prove it with certainty would be almost impossible. The standard of proof that the Supreme Court applied in practice in that kind of case was that of sufficient probability. On 12 July 2017 the Ljubljana Higher Court, relying on the Supreme Court ’ s case-law, reiterated that in medical negligence cases concerning hypothetical situations the plaintiff was regarded as having discharged the burden of proof if he or she proved that the action which the doctor had omitted to take was such as to prevent the occurrence of damage to a significant (non ‑ negligible) degree (no. II Cp 658/2017).

COMPLAINTS

17 . The applicants complained under Articles 2 and 6 § 1 of the Convention that the Supreme Court ’ s view on the absence of a causal link between the doctor ’ s error and their son ’ s death, as well as the related standard and burden of proof imposed on the applicants, had not given sufficient consideration to their son ’ s right to life.

18 . Furthermore, they complained that the length of civil proceedings had violated Article 6 § 1 of the Convention.

THE LAW

19 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

20 . The applicants complained under Articles 2 and 6 § 1 of the Convention that the Supreme Court ’ s view on the absence of a causal link between their son ’ s death and the doctor ’ s negligence had violated their son ’ s right to life. The Court, as master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, ECHR 2018), will examine these complaints from the standpoint of Article 2 of the Convention alone (see Altuğ and Others v. Turkey , no. 32086/07, § 47, 30 June 2015). This provision reads, in so far as relevant, as follows:

Article 2

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

(a) The applicants

21 . The applicants submitted that the Supreme Court ’ s view on the absence of a causal link (based on the premise that the treatment was irrelevant when the chance of the patient ’ s survival was statistically insignificant) was harmful to general prevention. In their opinion, the interpretation that at the lower levels of survivability healthcare institutions had no obligation to make equal efforts to ensure the recovery or even survival of the patient violated Article 2 of the Convention. The applicants, endorsing the Higher Court ’ s conclusions (see paragraph 9 above), argued that once they had proved the possibility of their son ’ s survival, the burden of proof should have shifted onto the healthcare institution, which had not discharged its burden of proof (to prove that X would have died even if the doctor had acted in accordance with the rules).

(b) The Government

22 . The Government argued that the Code of Obligations provided effective judicial protection of the right to life, a fact confirmed by numerous court decisions in which the Slovenian courts had established the liability of doctors and/or health institutions and, where such liability was established, had also awarded compensation.

23 . As regards the Supreme Court ’ s position, the Government reiterated that in order to succeed with a claim for damages, the injured party had to claim, and prove, the existence of all the elements of a civil wrong. The burden of proof with respect to those elements, including the causal link, was on the plaintiff. According to the case-law, the plaintiff ’ s burden of proof was discharged if he or she claimed and proved that the action which the doctor had omitted to perform, in breach of his her obligation of due diligence, was inherently such as to prevent the occurrence of damage to a significant (non-negligible) degree (see paragraph 16 above). The probability that due diligence on the doctor ’ s part would have prevented the harm was a medical issue that had been determined by the domestic courts with the help of a medical expert witness, who had confirmed that even if the doctor had acted differently X ’ s death could not realistically have been prevented. For this reason it would not have been justified to identify the doctor ’ s omission of due action as a legally relevant cause of death (in addition to a clear natural cause).

(a) Relevant principles

24 . The Court has held on many occasions that the Contracting States have a positive obligation under Article 2 of the Convention to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). In the specific sphere of medical negligence, this obligation may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the physicians concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Calvelli and Ciglio, cited above, § 51, and Colak and Tsakiridis v. Germany , nos. 77144/01 and 35493/05, § 30, 5 March 2009).

25 . The Court also reiterates that this procedural obligation is not an obligation of result but of means only (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 221, 19 December 2017). Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Besen v. Turkey (dec.), no. 48915/09, § 38 in fine , 19 June 2012, and E.M. and Others v. Romania (dec.), no. 20192/07, § 50, 3 June 2014).

(b) Application of the above principles in the present case

26 . In the present case, the applicants did not argue that the domestic framework itself was inadequate to ensure an appropriate level of care. Rather the applicants complained that the civil courts had failed to interpret and apply the provisions of domestic law relating to their compensation claims in the spirit of the Convention. In these circumstances the Court considers it appropriate to address the procedural aspect of the applicants ’ complaint, namely the question whether their son ’ s rights under Article 2 of the Convention were sufficiently respected in the context of the civil proceedings, in which they sought compensation for the alleged medical negligence of Dr D.

27 . The Court observes at the outset that in Slovenia, as in many other Contracting States (see, for instance, Powell , cited above; Iversen v. Denmark , no. 5989/03, § 54, 28 September 2006; Colak and Tsakiridis , cited above, §§ 19-20; and Vasileva v. Bulgaria , no. 23796/10, § 70, 17 March 2016), compensation for medical malpractice can be claimed under the law of tort or contract (see paragraph 14 above). It cannot be said that seeking compensation for medical malpractice in Slovenia by way of a claim for damages is a possibility that only exists in theory. Although, according to the applicants, it is difficult to make out a case of medical malpractice, the Court notes that it has been the subject of adjudication and that damages have been awarded in certain cases at the domestic level (see paragraph 16 above).

28 . The Court observes that the Supreme Court upheld the dismissal of the applicants ’ compensation claim on the grounds that there had been no causal link between the doctor ’ s omission and the applicants ’ son ’ s death (see paragraph 11 above). Relying on the expert report prepared by three doctors, it concluded that the applicants had not discharged the required burden of proof – to prove a statistically non-negligible probability that their son would not have died had the doctor referred him for urgent tests and warned him that he should immediately see a specialist. The Supreme Court ’ s conclusion on the subject of a causal link was in accordance with the domestic law provisions and an established line of case-law according to which a plaintiff requesting damages for medical malpractice bore the burden of proving the requisite causal connection between the medical negligence and the damage to health (see paragraph 16 above).

29 . The Court also finds it important to note that the Supreme Court ’ s interpretation and application of domestic law relating to the applicants ’ compensation claims, and in particular to the burden of proof, was different than it would have been in an “ordinary” compensation claim case. The Supreme Court considered that the application of a more lenient rule on the burden of proof in medical negligence cases involving doctors ’ omissions, such as the applicants ’ case, was justified because of the difficulties the plaintiffs faced in proving that hypothetically different behaviour on the part of a doctor could have led to a different outcome (see paragraph 11 above; compare and contrast Storck v. Germany , no. 61603/00, § 162, ECHR 2005 ‑ V). In this connection the Court reiterates that, in view of the broad margin of appreciation enjoyed by the Contracting States in choosing how to organise their judicial systems and meet their procedural obligations in relation to alleged medical negligence, there is no basis on which to hold that the Convention requires a special mechanism which facilitates the bringing of medical malpractice claims or a reversal of the burden of proof in such cases, as suggested by the applicants (see Jurica v. Croatia , no. 30376/13, § 89, 2 May 2017, and Vasileva , cited above, § 70).

30 . In the light of the above, the Court considers that the domestic courts, which examined the applicants ’ arguments in adversarial proceedings, had sufficient regard to the applicants ’ son ’ s right to life. In the circumstances of the present case, it does not appear contrary to the spirit of Article 2 of the Convention that the Supreme Court did not consider that there was a causal link between the doctor ’ s omission and X ’ s death, establishing the hospital ’ s liability under the civil law (see, mutatis mutandis , Colak and Tsakiridis , cited above, §§ 33-34). It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

31 . The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

32 . The Government argued that the applicants had not exhausted domestic legal remedies. In particular, they had not exercised any of the legal remedies introduced by the 2006 Act (see paragraph 15 above), which the Court had considered to be effective within the meaning of the Convention (see Grzinčič v. Slovenia , no. 26867/02, 3 May 2007).

33 . The applicants did not comment on the Government ’ s objection.

34 . The Court reiterates that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

35 . The Court notes that it has already examined the aggregate of remedies provided by the 2006 Act for the purposes of exhaustion of domestic remedies for excessive length of proceedings. It was satisfied that they were in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that had already occurred (see Grzinčič v. Slovenia , cited above, § 98, and Korenjak v. Slovenia (dec.), no. 463/03, § 62, 15 May 2007).

36 . In the present case the applicants failed to use any of the above remedies available to them under the 2006 Act from the time they initiated the civil proceedings in April 2007 (compare and contrast Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009). The length-of-proceedings complaint is therefore inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 25 March 2021 .

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President