JOINT DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE , YUDKIVSKA AND PACZOLAY

1. The present case raises a legal question of the utmost importance regarding the domestic remedies provided to redress a violation of Article 3 of the Convention, namely whether an award of compensation on the basis of the objective civil liability of a psychiatric institution constitutes a sufficient remedy for injuries sustained by a person confined in that institution.

2. The majority ’ s decision was based on the fact that the domestic court, albeit after lengthy proceedings, awarded the applicant compensation for the injuries she sustained while she was confined in the asylum. They relied, inter alia , on the principle according to which, in cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by the Convention to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see paragraph 49 of the judgment). The majority concluded that “the civil courts established the facts surrounding the infliction of the grievous bodily harm upon the applicant and awarded her compensation” (see paragraph 65 of the judgment), and that therefore the State had complied with its obligations under Article 3.

3. We cannot share this conclusion. We respectfully disagree with our learned colleagues that there has been no violation of Article 3 of the Convention in the present case. C ontrary to the majority, we find that the compensation awarded to the applicant on the basis of the objective civil liability of the asylum cannot be considered a sufficient means of redress for a violation of Article 3, for the following reasons.

The Court ’ s standards

4. In previous judgments the Court has noted that compensation for non ‑ pecuniary damage should, in principle, be part of the range of available remedies if the infringement of the right to personal safety is not caused intentionally or in cases which do not concern the infliction of ill-treatment contrary to Article 3 of the Convention, but rather a failure by the authorities to protect persons from a breach of their rights under this provision. This consideration, nonetheless, by no means diminishes the duty to investigate and eventually prosecute, particularly where an applicant is under the care and responsibility of the authorities (see Sizarev v. Ukraine , no. 17116/04 , § 120, 17 January 2013). In addition, the Court has repeatedly pointed out that in cases which concern medical negligence it is important to ensure that the measures chosen by the Government are capable of establishing any liability of the doctors concerned (see, mutatis mutandis, Calvelli and Ciglio v. Italy, no. 32967/96 , § 51, ECHR 2002-I; Vo v. France, no. 53924/00 , § 90, ECHR 2004-VIII; and Tarariyeva v. Russia, no. 4353/03, § 75, ECHR 2006 ‑ XV (extracts) ).

5. In some cases the Court has found that it is only by recourse to criminal-law remedies that it can be ensured that situations are investigated and evidence is collected in conformity with the Convention requirements (see Mitkus v. Latvia , no. 7259/03, § 76, 2 October 2012, and Gorodovych v. Ukraine , no. 71050/11 , § 18, 19 January 2017). For example, in Mitkus , the Court concluded that civil proceedings had not offered the applicant a sufficient possibility to establish facts, gather evidence and find out the truth about the circumstances of his infection with HIV. In Arskaya v. Ukraine (no. 45076/05, 5 December 2013) , which concerned medical negligence allegedly leading to the death of the applicant ’ s son, the Court examined whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Rather than assessing the legal regime in abstracto , the Court decided to examine whether the legal system as a whole had adequately dealt with the case at hand (see Arskaya , cited above, § 66). Thus, the Court has stressed that providing compensation to the victims is only one of the aspects of the State ’ s obligations when it comes to protecting the life and physical integrity of a person. It must also be accompanied by measures that are capable of identifying the individuals whose actions or omission led to the infliction of bodily harm on the applicant. In Arskaya the Court found a violation of Article 2 owing to the failure of the domestic authorities to examine all the relevant facts concerning the death of the applicant ’ s son and to identify the persons responsible (§ 71). Furthermore, the Court noted the lack of adequate domestic regulations establishing a stringent procedure for the treatment of patients in a situation similar to that of the applicant ’ s son ( ibid., §§ 90-91).

6. We further reiterate that Article 3 imposes on the State a duty to protect the physical well-being of individuals who find themselves in a vulnerable position by virtue of being under the control of the authorities (see Denis Vasilyev v. Russia, no. 32704/04 , § 100, 17 December 2009, and Bataliny v. Russia, no . 10060/07 , § 107, 23 July 2015). The position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with (see M.S. v. Croatia (no. 2) , no. 75450/12, § 98, 19 February 2015), and the authorities should demonstrate special care in guaranteeing safe conditions corresponding to the special needs of persons with mental illnesses (see Hiller v. Austria , no. 1967/14, § 48, 22 November 2016).

The case at hand

7. Turning to the case at hand, we note that the bodily injuries were inflicted on the applicant by another patient in the asylum and that the asylum bore full responsibility for people admitted for treatment. In this respect we note that, in the second set of proceedings, responsibility was divided between the asylum and Ms B., respectively, in a proportion of 80% to 20%. The domestic courts did not provide reasons for this distribution of responsibility. They failed to establish all the circumstances of the incident which led to the infliction of severe bodily injuries on the applicant. In particular, it was never established whether B. had lacked legal capacity at the moment of the incident, since in the two sets of civil proceedings different conclusions were reached in this regard (see paragraphs 17 and 23 of the judgment). Hence, we do not think that the national authorities demonstrated due diligence when considering the complaint about ill ‑ treatment, establishing all the circumstances of the case and identifying the individuals responsible (see Virabyan v. Armenia, no. 40094/05, §§ 177 ‑ 178, 2 October 2012).

8. Furthermore, the domestic proceedings had several other serious shortcomings. Neither the first nor the second set of civil proceedings identified who exactly was responsible for the applicant ’ s placement in the same ward as B., allegedly known for her violent behaviour, and for leaving them both unattended for a certain period of time. Although the Government provided the Court with the asylum orderlies ’ list of duties, according to which the psychiatric patients should not have been left unsupervised, it remains unclear if these duties were made known to the asylum employees and, if that was the case, to what extent, if at all, they were implemented. This Court has underscored many times that the positive obligations under Article 2 require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients ’ lives (see Oyal v. Turkey , no. 4864/05, § 54, 23 March 2010, and Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts)).

9. Worse still, the disciplinary investigation that would have made it possible to establish all the circumstances of the case, including any errors in management, training or control over the asylum employees, was never conducted, despite the direct demand to that effect by the prosecutor . In these circumstances we are unable to conclude that the national authorities demonstrated genuine efforts towards finding out the actual causes of the incident.

10. Against this background we find that the compensation awarded to the applicant on the basis of the objective civil liability of the asylum was not a sufficient domestic remedy, since the domestic courts did not identify the specific individuals responsible for the injuries caused and the control mechanisms put in place. The domestic courts did not bother to consider whether the existing regulations on psychiatric institutions and the responsibility of their employees could have served as a sufficient means of preventing danger to the lives and health of the individuals confined therein. We also stress the fact that no measures were taken in order to prevent similar incidents in the future. These crucial flaws, unfortunately, were ignored by the majority.

11. Our assessment of the facts of the case in the light of the principles established in the Court ’ s jurisprudence leaves us no other choice than to conclude that the national authorities did not comply with their obligations under Article 3 of the Convention.