PARTLY DISSENTING OPINION OF JUDGES ROOSMA AND LOBOV

1. We voted in favour of finding a violation of Article 3 of the Convention under its procedural limb, but we respectfully disagree with the majority that there has also been a violation of the respondent State’s negative obligation under the substantive limb of Article 3, for the following reasons.

2. The majority considered that the respondent State bore direct responsibility for the inhuman and degrading treatment to which the applicant was subjected in so far as that treatment had been inflicted by the medical personnel of the Tuymazy Central Hospital (see paragraph 80 of the judgment). That finding was based on the sole fact that those health professionals were employees of a public hospital. In support of that argument, the majority referred, in particular, to the case of Glass v. the United Kingdom (no. 61827/00, § 71, ECHR 2004-II).

3. It must be noted, however, that the Court’s approach to the question of the Contracting States’ responsibility for acts or omissions of health professionals is far more nuanced than the majority seem to have assumed. Thus, in its judgment in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 49, ECHR 2002-I) the Grand Chamber clearly established the scope of the Contracting Sates’ obligations in the public-health sphere as requiring them “to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives”, as well as to set up “an effective judicial system ... so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, [could] be determined and those responsible made accountable”. In our view, such a reasonable and well-balanced approach was adopted for a good reason – indeed, the public-health sphere is an area where its professionals, irrespective of whether they are employed in the public or private sector, routinely engage in activities that potentially can cause harm to patients’ lives or health. Both public and private healthcare institutions provide their services in compliance with the same healthcare standards and procedures, which are set by the relevant State; the same requirements are to be observed by both public and private healthcare institutions as regards professional qualifications of their personnel, health insurance, licensing of their relevant activities, and the like. Importantly, medical personnel, even if employed by public healthcare institutions, normally have no coercive or regulatory powers in respect of third parties. Against this background, there is clearly no reason to draw any distinction between public or private healthcare institutions in terms of the Contracting States’ responsibility and the scope of their obligations in this field.

4. The judgment adopted by the Chamber in Glass (cited above, § 71), deviated from the above-mentioned principles, without any references to the then existing case-law and, in particular, the Grand Chamber judgment in Calvelli and Ciglio (cited above). Whilst stating that “it [had] not been contested that the hospital was a public institution and that the acts and omissions of its medical staff were capable of engaging the responsibility of the respondent State under the Convention”, the Glass judgment offered no clarification or guidance with a view to resolving an apparent conflict with the approach adopted by the Grand Chamber in Calvelli and Ciglio ; nor did it provide any criteria which made it possible to distinguish between the relevant cases, or to define situations in which acts or omissions of healthcare providers would be directly imputable to the State. The fact that the above-mentioned wording from the Glass judgment was subsequently reproduced verbatim in a number of Chamber cases, including those on which the majority relied in paragraph 80 of the present judgment, does not resolve the above-mentioned problems or make the reasoning in Glass on the question of States’ responsibility for acts or omissions of health professionals any more convincing.

5. Moreover, the Court’s approach to that question in its subsequent case-law can hardly be described as coherent and consistent. Indeed, if the acts or omissions of health professionals can and should be directly imputable to the respondent State on the sole basis of them being employed by a public medical institution, as suggested by Glass , then it is unclear why the Court has preferred to examine a number of cases involving medical personnel of public hospitals from the standpoint of the respondent State’s positive obligations (see, for instance, Lambert and Others v. France ([GC], no. 46043/14, § 124, ECHR 2015 (extracts), or Gard and Others v. the United Kingdom ((dec.), no. 39793/17, § 79, 27 June 2017, both cases concerning withdrawal of life-sustaining treatment, that is, clearly intentional – rather than just negligent – acts of medical staff of public hospitals). Recently, the Third Section of the Court has also examined two cases involving intentional acts of medical personnel of public hospitals from the perspective of the States’ positive obligations (see Reyes Jimenez v. Spain , no. 57020/18, § 33, 8 March 2022, concerning allegations of medical intervention performed in the absence of informed consent, and Mortier v. Belgium , no. 78017/17, § 141, 4 October 2022, not yet final, concerning the novel issue of an act of euthanasia performed at a public hospital). At the same time, in the present case the majority within the same Section favoured the Glass case-law without any distinction, clarification or explanation.

6. The foregoing considerations make it clear that the question of the Contracting States’ responsibility for acts or omissions of healthcare providers is a complex and sensitive one, and that the Court’s case-law on that issue is somewhat contradictory and inconsistent, so it would arguably be for the Grand Chamber to provide appropriate guidance. Be that as it may, we believe that the mere fact that the relevant healthcare providers are employees of a public medical institution is insufficient, on its own, to engage the direct responsibility of a Contracting State for their acts or omissions, be they intentional or negligent. In our view, in the present case, it would have been more prudent to leave open the more general question of whether acts or omissions of personnel of public healthcare institutions, as such, should be imputable to a Contracting State, as in any event there were no reasons in the specific circumstances of this case to hold the respondent State directly responsible for the ill-treatment inflicted on the applicant.

7. It is of relevance in the above connection that, according to the Court’s settled case-law, a Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties. Where the behaviour of a State agent is unlawful, the question of whether the impugned acts can be imputed to the State requires an assessment of the totality of the circumstances and consideration of the nature and circumstances of the conduct in question (see, as a recent authority, V.K. v. Russia , no. 68059/13, § 174, 7 March 2017). It is noteworthy that in the present case the tragic situation which the Chamber had to examine was the result of the concerted actions of the applicant’s parents and the relevant medical personnel of a public hospital. More specifically, the medical personnel concerned subjected the applicant to inhuman treatment in the context of their criminal venture with the applicant’s parents rather than as a patient admitted to the hospital in a regular manner. Being in flagrant violation of domestic law, as was acknowledged by the public prosecutor and the domestic courts themselves (see paragraphs 26, 36 and 40 of the judgment), and prompted in essence by a joint criminal deal between the applicant’s parents and the medical personnel concerned, the latter’s actions were therefore very far removed from the performance of their regular professional duties. Furthermore, in view of the blatantly irregular way in which the applicant was received at the hospital without any records being kept by anyone (see paragraph 23 of the judgment), there is no reason to suspect the hospital management or the public authorities of any acquiescence or connivance (contrast, for instance, Moldovan and Others v. Romania (no. 2) , nos. 41138/98 and 64320/01, §§ 94 and 103-04, ECHR 2005 ‑ VII (extracts)).

8. In view of the above, it can hardly be argued in the present case that the acts of the medical personnel concerned were performed within their professional functions and thus can or ought to be imputed to the respondent State. The Chamber could, and indeed should, have approached this case as one centrally concerning an incident where a family had imposed a serious medical procedure on the applicant to assert their dominance over her, and thus a form of domestic violence, with the respondent State’s positive obligation in this area being at stake, rather than as a case involving direct responsibility of the State for the acts of medical personnel, thereby equating the latter, in essence, with State agents, such as police officers or service personnel. This approach by the majority does not seem consistent with international law on State responsibility.