Information Note on the Court’s case-law 127

February 2010

Eugenia Lazăr v. Romania - 32146/05

Judgment 16.2.2010 [Section III]

Article 2

Article 2-1

Effective investigation

Inadequacy of rules on forensic medical reports: violation

Facts – One night in July 2000 the applicant took her son to the county hospital as he was showing signs of suffocation. He was admitted to the emergency ward at 2.30 a.m., before bei ng transferred to a specialist department, where Dr C. gave him a cortisone injection. At about 2.45 a.m. C. sent for another doctor, who decided to perform a tracheotomy on the young man in order to clear his respiratory tract. At about 3.15 a.m. the two doctors operated on the applicant’s son, who suffered respiratory arrest, could not be resuscitated and died at about 5 a.m. At the request of the prosecution service, the Higher Forensic Medical Board – the supreme national authority on forensic medical e xaminations – gave its opinion on the conclusions of two previous reports and found that the doctors had not committed any medical errors. Following appeals by the applicant, fresh expert reports were ordered, but the three forensic medical institutes whic h had previously submitted reports refused to do so again, in the first two institutes’ case because the Higher Forensic Medical Board had already given its opinion and in the case of the Board itself because no new evidence had emerged. The proceedings we re therefore discontinued and none of the other remedies used by the applicant against the medical profession were successful.

Law – Article 2: The Court examined whether the domestic remedies were adequate in relation to the procedural obligation implicit in Article 2. It considered the criminal remedy first of all, before looking at the other types of remedy.

(a) The criminal remedy used : The Court first examined the length of the investigation before addressing the question of its effectiveness.

(i) Le ngth of the criminal investigation – A requirement of promptness and reasonable expedition was implicit in cases of medical negligence examined under Article 2. That requirement had not been satisfied in the present case, since the proceedings had lasted a pproximately four years and five months for two levels of jurisdiction and the investigation by the prosecution service had taken nearly four years.

(ii) Effectiveness of the criminal investigation – The Court noted two significant shortcomings in the con duct of the investigation: firstly, a lack of cooperation between the forensic medical experts and the investigating bodies and, secondly, the lack of reasons given in the experts’ opinions.

(α) Lack of cooperation : The investigating bodies had been incapable of providing a coherent and scientifically based answer to the questions arising, such as the fundamental question whether the applicant’s son’s death had occurred accidentally during the tracheotomy, a factor that would have determined whether or not there had been medical negligence and whether the medical staff concerned could be held criminally liable. The prosecuting authorities had met with resistance from the forensic medical institutes, which had refused to answer their questions, citing a Government ordinance which in their view prevented them from carrying out fresh expert examinations if the supreme national authority on forensic medicine had given its opinion and/or no new evidence had emerged. The co nclusion reached by the court of final instance – namely that evidence acquired probative value where it could no longer be replaced by fresh evidence or be refuted by other evidence of equal scientific value – was contrary to Article 2, which required the national authorities to take steps to produce a complete record and an objective analysis of clinical findings. The Higher Forensic Medical Board had avoided answering the requests which the judicial authorities had sent it with a view to obtaining the in formation they needed to reach fully informed decisions based on objective reasons. The very existence in domestic law of provisions authorising the forensic medical institutes responsible for issuing opinions to ignore requests by the judicial authorities and thus to refuse to cooperate with them whenever the needs of the investigation so dictated was scarcely compatible with the State’s primary duty to secure the right to life by putting in place an appropriate legal and administrative framework to establ ish the cause of death of an individual under the responsibility of health professionals.

(β) Lack of reasons for forensic medical opinions : The forensic medical laboratory that had issued the first report had clearly noted that there had been flaws in th e hospital’s emergency medical assistance protocol, which had resulted in a delay in performing the surgery. That conclusion had been confirmed, at least in part, following the review by the second forensic medical institute. However, the Higher Forensic M edical Board, whose function was to issue opinions solely on the basis of the reports by lower-level institutes without conducting on-the-spot visits, had simply rejected the conclusion without explaining why. The Court considered that only a detailed and scientifically substantiated report containing reasons for any contradictions between the lower institutes’ opinions and answers to the questions put by the prosecuting authorities would have been capable of inspiring public confidence in the administratio n of justice and assisting the judicial authorities in discharging their duties. The obligation to state reasons for scientific opinions was especially important in the present case since, by virtue of the provisions of domestic law governing forensic medi cal reports, the formulation of an opinion by the supreme national authority in the field prevented lower institutes from producing fresh reports or supplementing previous ones. Moreover, the national courts and litigants had been – and were still – unable to rely, in evidence, on scientific opinions issued by independent establishments other than the State forensic medical institutes listed in a Government ordinance. The issue of whether the power to conduct forensic medical examinations should be extended to private establishments and/or other independent experts duly authorised by law had been raised at domestic level.

In those circumstances, the domestic rules on forensic reports should include sufficient safeguards to preserve their credibility and efficacy, in particular by requiring experts to state reasons for their opinions and to cooperate with the judicial author ities whenever the needs of the investigation so dictated.

(b) Other types of remedy : The authorities had displayed excessive formalism in the disciplinary proceedings brought unsuccessfully by the applicant. Furthermore, an appeal to the joint committees – composed of doctors and civil servants appointed by the Ministry of Justice, and not independent and impartial judicial authorities – would not have been effective since the forensic medical institutes were authorised by law not to produce a report once the highest authority had issued its opinion. Lastly, a civil action for damages would have been very uncertain to succeed in the absence of a finding of medical negligence.

Conclusion : violation (unanimously).

Article 41: EUR 20,000 in respect of non-pec uniary damage.

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

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