CONCURRING OPINION OF JUDGE SAJÓ

1. I agree that the Article 2 rights of the applicant were violated in the present case. However, I disagree with my colleagues as I find this violation to be of a strictly procedural nature . The case-law, perfectly summarised in the judgment (§ 103), is as follows:

“Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see Calvelli and Ciglio v. Italy , no. 32867/96, § 53, 17 January 2002). Therefore the Court is called to examine 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.”

2. The Court finds that there were deficiencies in the criminal procedure that was chosen by applicant. I agree: the legal remedy used by the applicant as applied in practice was not capable of holding those at fault accountable.

3. As to the substantive violation of Article 2, the Court has concluded that no intentional deprivation of life by the doctors can be established. However, the majority claims that the life of the applicant was put at risk due to certain dysfunctions in the coordination of the medical services involved in her treatment and a delay in providing the appropriate emergency treatment required by her condition (§ 106).

4. Of course, an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual ’ s life at risk by denying healthcare which they have undertaken to make available to the population in general. For the Court this is, therefore, a denial of service. The majority refers to Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001 ‑ IV, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002, and Mehmet Åžentürk and Bekir Åžentürk v. Turkey , no. 13423/09 , § 88, ECHR 2013 .

5. However, in the case of Cyprus v. Turkey the denial was understood as being deliberate:

“ [ T ] he Commission was unable to establish on the evidence that the “TRNC” authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. It observes that during the period under consideration medical visits were indeed hampered on account of restrictions imposed by the

“TRNC” authorities on the movement of the populations concerned and that in certain cases delays did occur.”

6. Likewise in Nitecki, where the State failed to fully fund prescription medication, the issue was again one of (lack of) hampering of medical service. Finally, in Mehmet Şentürk and Bekir Şentürk (cited above) medical treatment was denied, on account of the inability to advance the costs, in violation of the law. Again, this was a case of denial of medical service and not a medical negligence case.

7. I had the opportunity to express my concerns regarding this departure from the Court ’ s case-law on medical negligence in a joint dissenting opinion prepared together with Judge Tsotsoria, in Lopes de Sousa Fernandes v. Portugal , no. 56080/13 , 15 December 2015 . In the present case too there is a noticeable trend to discreetly impose a duty to provide a specific level of healthcare service under Article 2 (1). Here too the Court disregards the findings of the domestic experts without proper reason and in disregard of the natural boundaries of its capacity to review issues of medical expertise on matters dealt with by the national forensic experts. The Court did not offer any reasons for departing from its own case-law as reaffirmed for a factually similar situation in Eugenia Lazăr v. Romania , no. 32146/05 , 16 February 2010, quoted in at least a dozen cases. Where a Contracting State has made adequate provision for securing high professional standards among healthcare professionals and the protection of the lives of patients, it cannot accept that matters such as an error of judgment on the part of a healthcare professional or negligent coordination among healthcare professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Stihi-Boos v. Romania (dec.), no. 7823/06, § 54, 11 October 2011, and Florin Istrățoiu v. Romania , no. 56556/10, § 74, 27 January 2015 ) .

8. While it is legitimate for an applicant to choose among the domestic remedies available, we should not encourage the use of criminal law in medical negligence cases, whereas the Court has noticed an evolution of the domestic laws in the healthcare field whereby the responsibility of health ‑ care professionals is attached to the risk relating to the exercise of that profession, thus constituting an objective basis for a more efficient legal remedy aimed at compensating the damage caused to a patient ’ s life or health (see Florin Istrățoiu v. Romania , § 82, cited above). [1]

9. It is for this reason that, to my regret, I could not agree with the finding of a substantive violation of Article 2. From the perspective of a procedural violation the award of just satisfaction would be unusually high, notwithstanding the undeniable suffering resulting from this tragedy. Not all tragedies amount to violations of the Convention.

[1] In the discussion of the admissibility of the application the present judgment ( § 81) refers to W. v. Malta ([GC], no. 25644/94, § 34, 29 April 1999) , in wh ich the Court stated that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot also be required to have tried others that were available but probably no more likely to be successful. It seems to me that in view of the above consideration in Istrățoiu the civil remedy is more likely to be successful. However, in view of the specificity of the remedy and the fin ding in W. v. Malta I consider that to reject an application on that ground would have be en unfair. It is for this reason that the admissibility standards of Bajić v. Croatia , no. 41108/10, § 74, 13 November 2012, (a standard that goes back to at least 1985) w ere found applicable, although the Court leaves open the issue as if the two standards were the same. As the present context indicates, and in view of Istrățoiu , they are not.