Information Note on the Court’s case-law 98

June 2007

Å ilih v. Slovenia - 71463/01

Judgment 28.6.2007 [Section III]

Article 2

Positive obligations

Civil proceedings in alleged medical negligence case rendered ineffective by lengthy delays and procedural problems: violation

[This case was referred to the Grand Chamber on 12 November 2007]

Facts : In May 1993 the applicants' twenty-year old son died aft er going into anaphylactic shock following the administration of drugs to treat a skin allergy. There was medical evidence to suggest that myocarditis (inflammation of the heart muscle) may have been a contributory factor in the death, but the experts were divided as to whether this was a pre-existing condition. The applicants lodged a criminal complaint for medical negligence against the hospital doctor who had ordered the administration of the drugs, but it was dismissed for lack of evidence. In August 19 94 they lodged a further request for a criminal investigation against the doctor and in July 1995 brought civil proceedings against both the doctor and the hospital. These were later stayed pending a final decision in the criminal proceedings. In the meant ime the applicants filed various motions for changes of venue and judge. The criminal proceedings were discontinued in October 2000 for want of sufficient evidence. The applicants appealed unsuccessfully. The civil proceedings resumed in May 2001 and ended at first instance with the rejection of the applicants' claim in August 2006. An appeal is pending.

Law : (a) Admissibility : The death occurred before the Convention entered into force in respect of Slovenia and so the substantive complaint was incompatib le ratione temporis . However, since the alleged procedural defects in the civil proceedings originated at the earliest on the date the proceedings were instituted, which was after the date Slovenia ratified the Convention, the Court had temporal jurisdicti on to examine the applicants' complaint concerning the procedural aspect of Article 2.

Conclusion : procedural complaint admissible (unanimously).

(b) Merits : The Court accepted that the medical questions involved were of some complexity and that the decis ion to stay the civil proceedings was not in itself unreasonable as the evidence from the criminal proceedings could have been of relevance. It also accepted that the applicants had repeatedly challenged the judges sitting in their case and lodged motions for a change of venue. However, their conduct had had no effect on the length of the civil proceedings before their resumption in May 2001 while the delays in the criminal proceedings may have contributed to the length of that part of the civil proceedings . Thereafter, it had taken an additional five years for the district court to reach a verdict. The applicants' partial responsibility for the delays during that part of the proceedings did not justify the overall length of the proceedings. It was also unsa tisfactory for the applicants' case to have been dealt with by at least six different judges at first instance while various matters that had been criticised by the Ombudsman – including a judge's failure to stand down, the trial judge's refusal to allow c ertain questions, and a decision to file unnecessary charges against the first applicant for allegedly insulting behaviour – had also contributed to the applicants' mistrust of the proceedings. Having regard to the above and noting that, after almost 12 ye ars, the proceedings were still pending, there had not been an effective examination into the cause of and responsibility for the death.

Conclusion : procedural violation (unanimously).

Article 41 – EUR 7,540 to the applicants jointly for non-pecuniary dama ge.

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

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