FOURTH SECTION

DECISION

Application no. 20680/20 Vinod MALHOTRA against Germany

The European Court of Human Rights (Fourth Section), sitting on 4 April 2023 as a Chamber composed of:

Gabriele Kucsko-Stadlmayer , President , Tim Eicke, Faris Vehabović, Branko Lubarda, Armen Harutyunyan, Anja Seibert-Fohr, Ana Maria Guerra Martins , judges , and Andrea Tamietti, Section Registrar,

Having regard to the above application lodged on 14 May 2020,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vinod Malhotra, is an American national who was born in 1950 and lives in the United States of America.

2. The facts of the case may be summarised as follows.

3. The applicant is the father of M., a Tanzanian national born in 1980. On 26 July 2017 M. asked to be admitted to L.M. Hospital, a psychiatric hospital in Tanzania, for treatment of his bipolar disorder.

4 . H. and G. are German nationals. H. worked in the administration of L.M. Hospital at the time of M.’s admission. G. is a psychiatrist and practised at a hospital in Bielefeld, Germany. From August to October 2017 G. was seconded to L.M. Hospital to assist the local staff.

5. The applicant had been in contact with both H. and G. via email. On 24 August 2017 G. informed the applicant that she had taken over M.’s treatment and that his son was stable but still suffered from depression. Subsequently, M.’s mental state deteriorated. During two phone conversations with the applicant on 20 and 25 September 2017, M. appeared distressed and told the applicant that he wanted to return home. After a suicide attempt on 2 October 2017, M. was placed in an isolation room under surveillance at thirty-minute intervals. On the same day he took his own life by hanging himself.

6 . According to the applicant’s submissions, the Tanzanian police were informed immediately and transferred the body to a nearby hospital, but no further information regarding the circumstances of M.’s death was provided to the next of kin. The applicant alleged that the police had been paid off in order to cover up any liability of L.M. Hospital.

7 . On 25 October 2017 the applicant lodged a criminal complaint against H. and G. with the German authorities. Both had returned to Germany. The applicant alleged that the surveillance during M.’s isolation had been inadequate and, furthermore, that M. had been held at the hospital against his will.

8 . The Bielefeld public prosecutor’s office formally initiated a criminal investigation in order to consider the criminal complaint and to decide whether to bring charges against H. and G. On 10 January 2018 it terminated the proceedings under Article 170 § 2 of the Code of Criminal Procedure (see paragraph 17 below), finding that there were insufficient grounds to bring charges. The decision stated that the German authorities were not in a position to carry out an autopsy to ascertain the cause of M.’s death and that without this information further investigative steps, notably questioning H. and G., lacked any prospect of success. That decision was confirmed on 16 August 2018 by the Hamm General Public Prosecutor’s Office, which referred, in addition, to the lack of a mutual legal assistance agreement between Germany and Tanzania.

9 . On 10 October 2018 the applicant filed a motion with the Hamm Court of Appeal seeking to have charges for involuntary manslaughter and deprivation of liberty brought against H. and G. He submitted in particular his email correspondence with H. and G. and a three-page report regarding M.’s death provided to him by L.M. Hospital. Referring to the report, he stressed that despite the stipulation of surveillance at thirty-minute intervals, the last observation mentioned in the report had been at 1 p.m. and M.’s death had not been discovered until 5.45 p.m. However, H. and G. were not mentioned in the report and the documents were only submitted in the original English version.

10 . On 13 November 2018 the Court of Appeal dismissed the applicant’s motion as inadmissible. Reiterating that such a motion had to be supported by an indication of the facts intended to substantiate the charges and the evidence as to the offence having been committed, it considered that the applicant had not properly substantiated his motion. It noted in particular that the report did not provide sufficient information as to who had authorised M.’s isolation on the day of his death and whether G. had still been involved in his treatment at that point. Regarding the alleged deprivation of liberty, the court considered that it did not follow from the telephone conversations the applicant had had with his son on 20 and 25 September 2017 that M. had subsequently been held at the hospital against his will.

11. On 5 December 2018 the applicant lodged a complaint with the Court of Appeal, alleging a violation of his right to be heard. He contended that the court had not properly addressed his arguments regarding H. and G.’s involvement in his son’s treatment.

12. On 17 January 2019 the Court of Appeal dismissed the complaint, stating that it had taken into account the entirety of the applicant’s submissions.

13. On 12 December 2018 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He alleged, in particular, that the Court of Appeal’s decision had violated his right to be heard.

14 . On 10 February 2020 the Federal Constitutional Court declined to examine the applicant’s constitutional complaint on the grounds that it was inadmissible. The court considered that the applicant had failed to demonstrate that the Court of Appeal had ignored his arguments. Rather, he had challenged the Court of Appeal’s assessment of the facts of the case. In addition, the court pointed out that the applicant’s motion to the Court of Appeal had been inadmissible on the grounds that the applicant had failed to provide the court with the necessary translations of his supporting documents.

15 . Separately, on 18 November 2017 the applicant lodged a complaint against G. with the Westphalia-Lippe Medical Association ( Ärztekammer – “the Medical Association”) claiming that she had breached her professional duties . The Medical Association is an independent public-law institution responsible for overseeing the professional conduct of its members . G. gave a written statement in the complaint proceedings. On 4 February 2019 the Medical Association informed the applicant that it did not have sufficient evidence to find a breach of professional duties and that the proceedings had been terminated.

RELEVANT LEGAL FRAMEWORK

16. Article 7 § 2 no. 1 of the Criminal Code provides that German criminal law applies to offences committed abroad by German nationals.

17 . Under Article 152 § 2 of the Code of Criminal Procedure, the public prosecutor’s office is under an obligation to open a criminal investigation if there are “initial grounds for suspicion” ( Anfangsverdacht ) of an offence having been committed. Under Article 153c of the Code of Criminal Procedure, the public prosecutor’s office may decline to prosecute offences committed abroad. A criminal complaint will generally lead to the opening of a criminal investigation, unless it is evident that the facts of the complaint do not constitute a criminal offence. Article 170 § 2 of the Code of Criminal Procedure states that proceedings must be terminated if the investigations do not provide sufficient reasons for bringing charges.

18. A detailed account of the conditions under which the public prosecutor’s office’s decision not to bring charges may be challenged can be found in Hanan v. Germany ([GC], no. 4871/16, §§ 98-100, 16 February 2021).

COMPLAINTS

19. The applicant complained under Articles 2, 3, 5 § 1, 6, 13 and 14 of the Convention. He criticised that the domestic authorities had refused to investigate the death of his son M. and that the Medical Association had declined to impose sanctions on G. Furthermore, he complained that his arguments regarding the criminal responsibility of H. and G. had not been properly addressed by the courts and that the Federal Constitutional Court had dismissed his complaints on the grounds that the supporting documents had been submitted in English.

THE LAW

20 . The applicant complained that the domestic authorities had refused to investigate the death of his son and that his arguments regarding the criminal responsibility of H. and G. had not been properly addressed by the courts. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint solely under the procedural limb of Article 2 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...”

21. At the outset, the Court reiterates that from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial (see Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019, and H.F. and Others v. France [GC], nos. 24384/19 and 44234/20, §§ 184-86, 14 September 2022). In this connection, the Court reiterates that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law (for example, under provisions on universal jurisdiction or on the basis of the active or passive personality principle), the institution of that investigation or those proceedings may be sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the Court (see H.F. and Others v. France , cited above, § 188).

22. Turning to the facts of the present case, the Court notes that following the applicant’s criminal complaint, alleging that his son had died in Tanzania as a result of medical negligence of two German nationals working there, the Bielefeld public prosecutor’s office formally opened an investigation in respect of H. and G. for the purpose of considering the applicant’s criminal complaint. However, after examining the applicant’s submissions, the public prosecutor’s office considered that the German authorities were not in a position to properly investigate M.’s death. No further investigative steps were taken (see paragraph 8 above).

23. The Court considers it doubtful whether the formal opening of an investigation into the death of the applicant’s son without any further investigate steps being taken was on its own sufficient to establish a jurisdictional link for the purposes of Article 1 of the Convention between Germany and the applicant in relation to the procedural obligation under Article 2. The investigation had been opened in order to examine the applicant’s criminal complaint and was shortly thereafter terminated on the grounds that the authorities had not been in a position to properly investigate the incident (compare and contrast the investigative measures undertaken by the domestic authorities in Güzelyurtlu and Others , cited above, § 191, and Gra y v. Germany , no. 49278/09, § 40, 22 May 2014). However, this question can ultimately be left open. Even assuming that such a jurisdictional link were established in the present case, the application is in any event inadmissible as it is manifestly ill-founded for the reasons set out below.

24. In the domestic context, the Court has interpreted the procedural obligation of Article 2 in the context of health care as requiring States to set up an effective and independent 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, can be determined and those responsible held accountable (see Lop es de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017). In medical negligence cases the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal ‑ law remedy 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 responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. It has also accepted that disciplinary measures may also be envisaged (ibid., §§ 137 and 215). In such cases, the States’ procedural obligations may come into play upon the institution of proceedings by the deceased’s relatives (ibid., § 220). Finally, the Court stresses that this procedural obligation is not an obligation of result but of means only. Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (ibid., § 221).

25. The Court further reiterates that the procedural duty under Article 2 must be applied realistically, with regard being had to restrictions on the respondent State’s legal powers to take investigate measures outside its territorial or extraterritorial jurisdiction (see, mutatis mutandis , Hanan , cited above, §§ 145, 200 and 224).

26. Turning to the present case, the Court notes that the domestic authorities opened a criminal investigation against H. and G. and disciplinary proceedings against G. based on the applicant’s submissions (see paragraphs 8 and 15 above).

27. Regarding the criminal complaint, the Court does not overlook that the public prosecutor’s office had refrained from questioning H. and G. However, the Court observes that any further investigative steps to determine whether H. and G. did bear a criminal responsibility for M.’s death could have only been taken in Tanzania where the German authorities had no legal powers to undertake any investigate measures but would have had to depend entirely on the assistance of the local authorities (compare and contrast Gray , cited above, §§ 22 and 31, where the British investigators had submitted a request for mutual legal assistance to the German authorities and a European Arrest Warrant had been issued). Without such assistance the German authorities were, in particular, not in a position to perform an autopsy or hear witnesses of the incident. The Court would also observe that any such investigative measures would have been further hampered by the lack of an agreement for mutual legal assistance between Germany and Tanzania (see paragraph 8 above; compare J. and Others v. Austria , no. 58216/12, § 117, 17 January 2017; and contrast Ran tsev v. Cyprus and Russia , no. 25965/04, § 241, ECHR 2010 (extracts)). In addition, the Court notes that the Medical Association heard G. and concluded that it did not have sufficient evidence to find a breach of professional duties (see paragraph 15 above).

28. Lastly, there is no indication that Germany failed to cooperate with any investigation by the Tanzanian authorities.

29 . In view of the foregoing, the Court concludes that the complaint is manifestly ill-founded and, as such, it must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

30. The applicant complained that the Federal Constitutional Court had dismissed his constitutional complaint on the grounds that the supporting documents had been submitted in the original English version. The Court notes that this complaint concerns the applicant’s right to access to court as guaranteed by Article 6 § 1 of the Convention.

31. The Court observes that the applicant’s motion before the domestic courts did not concern a civil right within the meaning of Article 6 § 1 of the Convention (compare and contrast Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). Rather, the applicant sought to have criminal proceedings instituted against H. and G. regarding the death of his son. In this connection, the Court reiterates that Article 6 § 1 does not give rise to a right to have criminal proceedings instituted in a particular case or to have third parties prosecuted or sentenced for a criminal offence (see Rantsev , cited above, §§ 331-32, and the authorities cited therein). It follows that the proceedings challenging the public prosecutor’s office’s decision to terminate the investigation into M.’s death do not fall under the protection of Article 6 of the Convention.

32. The complaint is therefore incompatible ratione materiae with Article 6 of the Convention and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 April 2023.

Andrea Tamietti Gabriele Kucsko-Stadlmayer Registrar President