SECOND SECTION

DECISION

Application no . 46962/08 Béláné TAKÁCS against Hungary

The European Court of Human Rights ( Second Section ), sitting on 4 March 2014 as a Committee composed of:

Helen Keller, President, András Sajó , Egidijus Kūris , judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 24 September 2008 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Béláné Takács , is a Hungarian national, who was born in 1951 and lives in Salgótarján . She was represented before the Court by Mr B. Gellér , a lawyer practising in Budapest .

The circumstances of the case

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

In 2001 the applicant ’ s daughter died during hospi talisation, as a result of toxic shock syndrome, while she was 12- week pregnant.

The Salgótarján District Public Prosecutor ’ s Office initiated criminal proceedings against the two doctors who had treated the applicant ’ s daughter, on charges of endangering the life and limb of the latter.

Both of them were acquitted by the Balassagyarmat District Court on 9 June 2004. The court assessed in detail the medical qualifications of the accused and found that they had the necessary experience and training to provide treatment for patients like the applicant ’ s daughter. The court also obtained the opinions of three forensic experts and heard the m in person to establish the cause of death. It also heard several witnesses, including family members and the nurses who had been in charge when the applicant had been hospitalised. The applicant participated in the proceedings as civil claimant.

The first-instance judgment was upheld by the Nógrád County Regional Court on 18 October 2004. The courts were satisfied that the daughter ’ s treatment had been performed according to the rules of the medical profession and there was no issue of professional misconduct in the case.

The applicant, acting as substitute private prosecutor, lodged a request with the Regional Court , seeking the retrial of the doctors. On 20 December 2007 the court dismissed her request establishing that she had no standing to make such a request . This decision was upheld by the Budapest Court of Appeal, acting as a second-instance court, on 17 March 2008.

In parallel, the applicant lodged an action in damages against the hospital. On an unspecified date, the Regional Court found for the applicant, ordering the respondent to pay compensation for moral damages sustained by the applicant. This decision was upheld on second-instance by the Court of Appeal.

COMPLAINTS

Challenging in essence the acquittal of the doctors in the course of the criminal proceedings, the applicant maintains that the judgments of the criminal courts were based on the wrongful assessment of the evidence. She relies on Articles 2 , 6 and 8 of the Convention.

THE LAW

Even assuming compliance with Article 35 § 1 of the Convention, the Court notes at the outset that Article 6 is not applicable to the criminal proceedings in question, since it applies only to the determination of a criminal charge against a person, which does not includ e the right to pursue criminal charges against third persons or to have them convicted. In so far as this complaint concerns the civil limb of Article 6, the Court notes that the applicant was awarded damages and cannot, therefore, claim to be a victim of her Convention rights in this respect.

It follows that these complaints are incompatible ratione materiae and personae , respectively, with the provisions of the Convention, within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

As regards the applicant ’ s complaint under Article 2, the Court reiterates that where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life ( see Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V ). The positive obligations imposed on the State by Article 2 of the Convention imply that a regulatory structure be set up, requiring that hospitals, be they private or public, take appropriate steps to ensure that patients ’ lives are protected. They also imply the obligation to put in place an efficient and independent judicial system by which the cause of death of an individual under the responsibility of health professionals can be established, whether they are operating in the public sector or employed in private structures, and, as the case may be, to ensure their accountability for their actions (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49 , ECHR 2002 ‑ I ). In the specific sphere of medical negligence the obligation may for instance also 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 doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (see Mehmet Åžentürk and Bekir Åžentürk v. Turkey , no. 13423/09 , § 83 , ECHR 2013 ) .

The Court notes that in the present case the possibility of bringing a civil action was open to the applicant and that she in fact brought such an action against the hospital, resulting in the award of compensation for non-pecuniary damage . In this respect the Court reiterates that the applicant may lose the status of “ victim” in instances where “the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). As regards the establishment of State liability for breaches of Article 2, it has previously been stated that successful civil or administrative proceedings were sufficient to deprive the applicant of his or her victim status (see Caraher v. the United Kingdom ( dec. ), no. 24520/94, ECHR 2000 ‑ I).

Moreover, as regards the applicant ’ s complaint that by acquitting the doctors the domestic authorities denied redress for a breach of her Convention rights, it is noted that Article 2 should not be interpreted as entailing the right for an applicant to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indee d in a particular sentence (see Krivova v. Ukraine , no. 25732/05 , § 49, 9 November 2010). In so far as the State ’ s obligations under Article 2 may have required the institution of criminal proceedings , the Court observes that an authority independent of the hospital, namely the Prosecutor ’ s Office, carried out a comprehensive investigation. Criminal proceedings were instituted against the doctors, who had treated the applicant ’ s daughter, before the Regional Court. This court held several hearings, heard witnesses including nurses and family members, and obtained expert opinions. Relying on the evidence thus collected, the court acquitted the doctors since it was concluded that no criminal act or negligence had been committed. Thus, the Court is satisfied that the domestic courts approached the case in accordance with the requirements of the Court ’ s case-law in this area (see, amongst others Calvelli and Cigli , cited above, § 53 ) in that they carried out an adequate investigation complying with the procedural requirements of Article 2 .

As to the complaint under Article 8 of the Convention, the Court observes that the applicant received compensation in respect of the loss which she sustained as a result of her daughter ’ s death. Assuming that she nevertheless retains her victim status for the purposes of Article 34 of the Convention, the Court further notes that the positive obligation under Article 8 requires the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention (see Kolyadenko and Others v. Russia , nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05 , § 216, 28 February 2012). In view of the conclusion reached above in the context of Article 2, the Court finds that the authorities fulfilled their positive obligation to protect the applicant ’ s family life.

It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Helen Keller Registrar President