JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, MOTOC AND RAVARANI

1. To our regret, we are unable to agree with the majority ’ s finding concerning the admissibility of the application. Instead of finding no violation on the merits, the Court should have found the present application inadmissible, as the applicants had lost their victim status.

2. Even though the criminal proceedings might not have been effective, it follows clearly from the Court ’ s case-law that where medical negligence is at stake, an award of damages through civil or administrative proceedings may offer appropriate redress , a fact also conceded in the present judgment (see paragraph 51 of the judgment). In Calvelli and Ciglio v. Italy the Grand Chamber found that “if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” [1] . In that case the Court also noted various procedural shortcomings in the criminal investigation, as a result of which the criminal proceedings instituted against the doctor concerned had become time-barred. However, since the applicants were also entitled to issue proceedings in the civil courts and had done so, the positive obligations arising under Article 2 were satisfied. In that connection, the Court reiterated that where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim, and found it unnecessary to examine whether the fact that a time-bar had prevented the doctor being prosecuted for the alleged offence was compatible with Article 2. Therefore, having joined an objection on the applicants ’ victim status to the merits of the case, the Court found no violation of Article 2, basing its finding precisely on the lack of victim status. The same approach, we believe, should have been taken here.

3. As the judgment concedes in paragraph 59, the applicants also had access to civil proceedings and introduced a civil claim against the hospital. They were awarded compensation for the pecuniary and non-pecuniary damage caused by the inadequate medical services that contributed to their daughter ’ s death. In its decision in Kolaczyk and Kwiatkowski v. Poland (no. 34215/11, 22 October 2013), the Court found that “the action for damages in the civil courts was an effective remedy that enabled the applicants to obtain redress ... Therefore it is not necessary to assess the effectiveness of the criminal investigation carried out in the present case. There is no doubt that the procedural obligation under Article 2 was complied with in the present case” [2] .

4. Against this background we wonder whether it was the correct approach, as stated in paragraph 53, to “firstly address the applicants ’ submissions concerning the effectiveness of the criminal proceedings at the pre-trial and trial stage”, given that the detailed examination in paragraphs 54-57 ultimately led to a conclusion in paragraph 58 which remains a pure obiter dictum .

5. In sum, following the case-law of the Court and having regard to the fact that the present case concerns a death through negligence, we consider that the applicants had an effective remedy in civil proceedings (as they did not claim that these proceedings were unfair or ineffective [3] ) and thus can no longer claim to be victims of the alleged violation of Article 2. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and should have been rejected in accordance with Article 35 § 4. We therefore voted against point 1 in the operative part of the judgment.

DISSENTING OPINION OF JUDGE MOTOC

I have voted for the inadmissibility of the case for the reasons I have set out with Judges Yudkivska and Ravarani in our joint separate opinion. I consider, however, that once the case had been considered admissible, it was logical for the Court to find a violation of the procedural limb of Article 2 of the Convention. In fact, the domestic courts had never properly addressed the procedural violation of Article 2, only the substantive violation.

STATEMENT OF DISSENT BY JUDGE PACZOLAY

I am unable to follow the finding of the majority that there has been no violation of Article 2 of the Convention.

[1] . Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I.

[2] . Kolaczyk v. Poland ( dec. ) , no. 34215/11, § 50; see also Vo v. France [GC], no. 53924/00, § 91, ECHR 2004 ‑ VIII .

[3] . See § 60 of the judgment.