CONCURRING OPINION OF JUDGE SICILIANOS

I have voted in favour of finding a violation of the procedural aspect of Article 2 of the Convention in the present case. As the judgment rightly underlines, “in Article 2 cases concerning medical negligence a requirement of promptness and reasonable expedition is implicit in determining the effectiveness of the domestic proceedings set up to elucidate the circumstances of the patient ’ s death” (paragraph 103 of the judgment). In this connection the Court noted that the applicant lodged his criminal complaint with the Zagreb Municipal State Attorney ’ s Office in October 1994 and that the proceedings ended on 26 November 2009, when the Constitutional Court adopted its decision. In other words, the domestic proceedings lasted for more than fifteen years. Neither the conduct of the applicant nor the complexity of the case could explain such length (paragraph 105).

With all due respect to my colleagues, I believe that this finding would have been sufficient and that it was unnecessary to go into the somewhat controversial issue of whether the findings of the experts involved were impartial. In fact the domestic courts commissioned three medical reports (paragraphs 15, 21, 29-30). Five experts and University Professors from both the Zagreb and the Rijeka University Medical Faculties found that there had been no medical malpractice. Furthermore, the expert report submitted by the applicant himself (by a professor in another discipline, namely urology) did not find that there had been malpractice by doctor V.B. It simply stated that “in order to exclude any failures in the postoperative course of treatment, it would be necessary to consult other documentation and make further examinations” (paragraph 25). Moreover, the Zagreb Municipal Criminal Court acquitted doctor V.B. of the charges of medical malpractice not merely on the basis of the impugned medical report, but also by taking into account the witness statements and other relevant medical documentation (paragraph 35). In those circumstances, the impugned judgments of the domestic courts do not disclose any arbitrariness or lack of impartiality. Consequently, the corresponding complaint by the applicant was of a ‘ fourth-instance ’ nature and should have been dismissed as manifestly ill-founded.