Communicated on 18 December 2014

FIRST SECTION

Application no. 3048/14 Jozo EZGETA and Jagoda EZGETA against Croatia lodged on 27 December 2013

STATEMENT OF FACTS

The applicants, Mr Jozo Ezgeta and Ms Jagoda Ezgeta , are Croatian nationals, who were born in 1955 and 1970 respectively and live in Zagreb. They are represented before the Court by Ms M.H. Kordek , a lawyer practising in Sesvete .

The circumstances of the case

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

1. Background to the case

The first and the second applicants are husband and wife.

On 13 October 2008 the second applicant gave birth to a son.

Due to the child ’ s heart complications the second applicant went to see a doctor M.J. on 2 March 2009, who examined him and instructed the second applicant to seek further medical help in the Zagreb Clinical Hospital Centre ( Klini č ki bolni č ki centar Zagreb ; hereinafter: the “hospital”).

On the same day, upon the admission in the hospital, the child died.

After the death of the applicants ’ son, the Ministry of Health ( Ministarstvo zdravstva i socijalne skrbi ) conducted an internal investigation which resulted in an expert commission report of 16 and 28 September 2009 finding irregularities in the postnatal treatment of the indications of the child ’ s heart problems.

This report was forwarded to the State Attorney ’ s Office of the Republic of Croatia ( Dr ž avno odvjetni š tvo Republike Hrvatske ) on 30 September 2009 and on an unspecified date to the competent disciplinary bodies of the Croatian Medical Chamber ( Hrvatska lije č ni č ka komora ).

On 23 November and 16 December 2009 and 27 April 2010 the applicants inquired with the State Attorney ’ s Office of the Republic of Croatia about the actions which had been taken in relation to the report of the Ministry of Health. They complained that after the death of their son no relevant measures had been taken and made allegations of medical negligence against the doctor M.J. and several other doctors involved in their son ’ s treatment.

2. Minor offences proceedings against doctor M.J.

On 25 February 2011 the applicants indicted doctor M.J. in the Zagreb Minor Offences Court ( Prekr Å¡ ajni sud u Zagrebu ) on charges of failure to administer properly the relevant medical records concerning the treatment of their son.

On 2 November 2012 the Zagreb Minor Offences Court found doctor M.J. guilty and fined him with 5,000 Croatian kunas .

This judgment was confirmed by the High Minor Offences Court ( Visoki prekr Å¡ ajni sud Republike Hrvatske ) on 23 January 2013.

3. Criminal proceedings no. Kio-530/11 against M.J. and S.S.

On 30 June 2011 the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) rejected the applicants ’ complaint against doctor M.J. on charges of medical negligence and the pathologist S.S. on charges of professional malpractice and forgery of documents. It instructed the applicants that they could take over the prosecution as subsidiary prosecutors by lodging an indictment in the competent criminal court.

On 19 July 2011 the applicants lodged an indictment in the Zagreb Municipal Criminal Court ( Op ć inski kazneni sud u Zagrebu ) against doctor M.J. on charges of medical negligence and the pathologist S.S. on charges of professional malpractice and forgery of documents.

On 7 December 2011 the part of the case concerning doctor M.J. was forwarded to the investigating judge of the Zagreb County Court for further investigation. The part of the case concerning the charges against the pathologist S.S. is still pending before the Zagreb Municipal Criminal Court.

The judge also obtained an expert report commissioned in the course of the proceedings in the case no. Kio-239/10 (see above). The report at issue was drafted by the expert V.A. who had, as it was later established, used the official memorandum of the Medical Faculty of the Rijeka University ( Medicinski fakultet Sveu č ili š ta u Rijeci ) although he had not been authorised to do so as he had only presented his private opinion and not that of the Faculty.

Another expert report was obtained from doctor Z.Z. who was one of the experts in the Ministry of Health ’ s commission which produced the report of 16 and 28 September 2009 (see above). Doctor Z.Z. merely reiterated that she had nothing to add to her previous report.

On 20 November 2012 the investigating judge questioned doctor M.J. who denied all charges against him.

On 3 December 2012 the investigating judge forwarded the case file to a three-judge panel of the Zagreb County Court indicating that he found no reasonable suspicion warranting the opening of an investigation against doctor M.J. because neither of the expert reports suggested that any medical malpractice had occurred in the treatment of the applicants ’ son.

On 3 April 2013 a three-judge panel of the Zagreb County Court dismissed the request to open an investigation against doctor M.J., endorsing the findings of the investigating judge.

The applicants appealed against this judgment to the Supreme Court ( Vrhovni sud Republike Hrvatske ) arguing, inter alia , that the investigating judge did not question any other doctors who had treated their son nor did he examine any other relevant evidence concerning his medical treatment and death. They also submitted that the expert report of V.A. was formally defective as it had been presented as an expert report of the Medical Faculty of the Rijeka University although that had not been true. This report had been commissioned in another set of proceedings and referred to the responsibility of doctor M.J. only in one sentence. There had also been other substantive and flaws in the proceedings before the investigating judge.

On 5 June 2013 the Supreme Court dismissed the applicants ’ appeal as ill-founded endorsing the reasoning of the three-judge panel of the Zagreb County Court.

The applicants then reiterated their above complaints before the Constitutional Court ( Ustavni sud Republike Hrvatske ).

On 24 October 2013 the Constitutional Court declared their constitutional complaint inadmissible on the grounds that the case did not raise any issue pertaining to their rights or obligations.

The decision of the Constitutional Court was served on the applicants on 15 November 2013.

4. Criminal proceedings no. Kio-239/10 (KO-2878/11) against E.J., V.V. and N.P.M.

On 18 August 2010 the Zagreb Municipal State Attorney ’ s Office asked an investigating judge of the Zagreb County Court ( Ž upanijski sud u Zagrebu ) to open an investigation in respect of doctors E.J., V.V. and N.P.M., the hospital ’ s medical staff, suspecting them of medical negligence concerning the death of the applicants ’ son.

After having heard the suspects, the investigating judge opened an investigation on 25 October 2010.

During the investigation the applicants gave their evidence to the investigating judge and the judge obtained an expert report.

On 30 June 2011 the Zagreb Municipal State Attorney ’ s Office asked the investigating judge to discontinue the proceedings on the grounds that the expert report did not find any irregularities in the applicants ’ son medical treatment by the defendants.

The investigating judge accepted the request and discontinued the investigation on 4 October 2011. She also informed the applicants that they could take over the prosecution as subsidiary prosecutors by lodging an indictment before the competent criminal court.

On 17 October 2011 the applicants lodged an indictment with the Zagreb Municipal Criminal Court against the doctors E.J., V.V. and N.P.M. on charges of medical negligence.

On 17 February 2012, following the applicants ’ complaints to the State Attorney ’ s Office of the Republic of Croatia, the Zagreb Municipal State Attorney ’ s Office informed the Zagreb Municipal Criminal Court that it wished to participate in the proceedings by taking over the prosecution from the applicants. It also requested the Zagreb Municipal Criminal Court that the case against the doctor M.J. (see below) be joined to the criminal case at issue.

On 29 May 2013 the Zagreb Municipal Criminal Court dismissed this request on the grounds that the case file had been forwarded to the investigating judge of the Zagreb County Court for further investigation.

In September 2013 an indictment was served on the accused allowing them to lodge their objections against it.

The proceedings before the Zagreb Municipal Criminal Court are still pending.

COMPLAINT

The applicants complain, under Articles 2 and 13 of the Convention, about the lack of an effective domestic procedure concerning the death of their son allegedly caused by medical negligence.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies in respect of their complaints of medical negligence, as required by Article 35 § 1 of the Convention?

2. Have the domestic authorities complied with their procedural obligations under Article 2 of the Convention, with regard to the effectiveness of the procedures establishing the circumstances of the applicants ’ relative ’ s death allegedly caused by medical malpractice?

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 2 of the Convention, as required by Article 13 of the Convention? In particular, was there a domestic remedy, other than the criminal and minor offences proceedings and the disciplinary proceedings, which could have secured a more effective examination of the applicants ’ complaints?

The Government are requested to submit two copies of the relevant documents in the applicants ’ cases.