Information Note on the Court’s case-law 207

May 2017

Jurica v. Croatia - 30376/13

Judgment 2.5.2017 [Section II]

Article 8

Positive obligations

Alleged ineffectiveness of proceedings for medical negligence in Croatia: no violation

Facts – The applicant brought a civil action for damages alleging medical negligence, but her claim was dismissed after the domestic courts found on the basis of expert reports that the deterioration in her health was the result of complications in her treatment and not of medical malpractice.

In the Convention proceedings, the applicant complained, inter alia , that the concept of medical negligence was not properly defin ed in the domestic legal system making it impossible to obtain a judicial determination of the responsibility for medical malpractice. She further complained that it was impossible to secure an independent and impartial expert report on the issue of medica l negligence in Croatia since the competent experts all worked and collaborated with those suspected of medical negligence.

Law – Article 8: It was well established in the Court’s case-law that the States have a positive obligation under Article 8 of the C onvention to provide victims of medical negligence with access to proceedings in which they can, where appropriate, obtain compensation. However, in view of the broad margin of appreciation enjoyed by the States in laying down their health-care policies, a nd in choosing how to comply with their positive obligations and organise their judicial systems, there was no basis on which to hold that the Convention requires a special mechanism which facilitates the bringing of medical malpractice claims at domestic level.

Seeking compensation for medical malpractice in Croatia by way of a claim for damages was not a possibility that existed only in theory. There had been awards of damages at the domestic level with responsibility arising either on the principle of fa ult or, in particular circumstances, on the principle of objective liability.

As to the objectivity of the expert evidence, the fact that an expert was employed in a public medical institution specially designated to provide expert reports on a particular issue and financed by the State did not in itself justify a fear of a lack of neutrality or impartiality. Croatian law laid down several procedural safeguards designed to ensure the reliability of expert evidence: for example, court experts were required b y law to provide their opinions objectively, impartially and to the best of their knowledge and the provisions on the disqualification of judges applied also to experts. There was no evidence that those safeguards had not been properly applied in the appli cant’s case or that the experts whose opinions formed the basis for the courts’ rulings in the case had lacked the requisite objectivity. In addition, the domestic courts had not simply admitted the written reports in evidence, but had also heard evidence from them in open court in the presence of the parties who were able to put questions. Supplementary reports and fresh reports by new experts were also ordered to cast further light on points which remained unclear or were contested.

It could not therefore be said that the authorities had failed to provide the applicant with an effective procedure enabling her to obtain compensation for the medical malpractice to which she alleged she had fallen victim.

Conclusion : no violation (unanimously).

The Court also held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings and made an award of EUR 3,500 in respect of non-pecuniary damage under that head.

(See also Vasileva v. Bulgaria , 23796/10 , 17 March 2016)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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