Published on 3 April 2023

FOURTH SECTION

Application no. 51185/20 Leonel DOS SANTOS FRANÇA and Pedro Nuno CALDAS DOS SANTOS FRANÇA against Portugal lodged on 10 November 2020 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The application concerns proceedings initiated by the applicants on 21 March 2014 with the Prosecutor’s Office of Lisbon, and on 7 October 2014 before the Inspectorate General for Health, for alleged medical negligence which resulted in the death of D., the applicants’ mother and wife, respectively, at Curry Cabral Hospital in Lisbon. Both sets of proceedings were unsuccessful and ended respectively with a judgment of the Lisbon Court of Appeal of 27 February 2020 and a decision from the Inspector General for Health of 29 May 2015 declaring the investigation closed.

Relying upon Article 2 of the Convention, the applicants allege that the proceedings as a whole, lodged in respect of their allegations of medical malpractice, were ineffective. They complain in particular of the lack of an autopsy to establish the cause of death.

QUESTIONS TO THE PARTIES

Having regard to the procedural obligation of the State to protect the right to life ( Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214 ‑ 21, and 225, CEDH 2017; Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009) was the domestic system as a whole for dealing with the question of the alleged medical malpractice in conformity with Article 2 of the Convention ?

In particular:

1. Was the State’s positive obligation, envisaged in Article 2 of the Convention, to set up an effective legal system respected (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214-21, 19 December 2017)?

2. Was the investigation into the allegations of medical negligence effective, having regard, inter alia , to the decision not to carry out an autopsy in the early stages ?