FIFTH SECTION

DECISION

Application no. 7463/17 Rita Å TEINA against Latvia

The European Court of Human Rights (Fifth Section), sitting on 11 May 2023 as a Committee composed of:

Georges Ravarani , President , Mārtiņš Mits, María Elósegui , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 7463/17) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 January 2017 by a Latvian national, Ms Rita Šteina (“the applicant”), who was born in 1984, lives in Ādaži and was represented by Ms I. Nikuļceva, a lawyer practising in Riga;

the decision to give notice of the complaints under Article 2 of the Convention to the Latvian Government (“the Government”), represented by their Agent, Ms K. Līce;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s allegations under Article 2 of the Convention that the State failed to protect her father’s life, to provide a sufficient regulatory framework for the protection of hospital patients, and to ensure an effective investigation into her father’s death in a psychiatric hospital following an altercation with another patient.

2. The applicant’s father – V.O., who was suffering from paranoid schizophrenia – had been a patient in a closed psychiatric hospital since January 1998.

3. On 26 January 2013 another patient – J.K. – assaulted V.O., who sustained bodily injuries. The parties held different views as to when the altercation had taken place and when V.O. had first reported any pain to hospital staff. It is undisputed that at around 8 p.m. two nurses examined him, found no signs of trauma, and gave him painkillers. At around 11.30 p.m. the staff discovered that V.O.’s ribcage and face had swollen abnormally. A duty doctor (a psychiatrist) was consulted via telephone. He instructed the staff to give V.O. an antihistamine injection, which they did. As V.O.’s condition did not improve, the staff contacted the duty doctor again via telephone and, subsequently, called an ambulance. V.O. was taken to a regional hospital that night in a serious condition. A duty surgeon examined him and diagnosed the following: broken ribs, subcutaneous emphysema, pneumothorax and schizophrenia.

4. On 27 January 2013 the first set of criminal proceedings concerning the altercation had been instituted. Evidence was gathered and witnesses were questioned (including V.O., J.K., staff and residents of the psychiatric hospital, the applicant and her mother). On 1 February 2013 V.O. died. His final clinical diagnosis was as follows: broken ribs, pneumothorax, trauma-associated pneumonia and schizophrenia. Several forensic medical examinations were ordered and carried out (producing reports dated 1 March 2013 and 15 January 2014). In connection with those proceedings, the applicant’s mother was recognised as a victim and received approximately 1,138 euros (EUR) from the State in accordance with a law which provided that the State would grant compensation for the death of a family member due to a criminal offence.

5. On 8 May 2014 a district court found J.K. guilty of inflicting serious bodily injuries which, owing to his negligence, had caused V.O.’s death. He was relieved of criminal liability owing to his mental incapacity and was ordered to undergo compulsory medical treatment. The applicant’s mother lodged an appeal, but later withdrew it and the judgment became final. J.K. underwent compulsory medical treatment, which ended in 2015 as he was no longer considered dangerous.

6. Meanwhile, the Health Inspectorate – the institution responsible for monitoring healthcare establishments – carried out an investigation into the medical care provided to V.O. In its report of 21 July 2014, it found that V.O.’s state of health had already deteriorated before the events of 26 January 2013. The report also stated that certain healthcare regulations had been breached (the duty doctor had not been informed of V.O.’s initial complaints and had subsequently given instructions without seeing the patient), but it did not bring administrative-offence proceedings as they had been time-barred. It did, however, inform the State police about its findings.

7 . In response to a complaint by the applicant’s mother, a second set of criminal proceedings was instituted on 24 July 2014 in relation to possible negligence by the staff of the psychiatric hospital. Another forensic examination was ordered. In their report of 22 March 2016, a panel of experts concluded that the shortcomings in the medical care provided to V.O. – including those identified by the Health Inspectorate – had not caused his death. On that basis, a police inspector terminated those proceedings on 25 April 2016 for lack of corpus delicti . In doing so, she relied on the evidence from the first set of criminal proceedings (witness testimony and the reports of 1 March 2013 and 15 January 2014), the Health Inspectorate’s report of 21 July 2014 and the report of 22 March 2016 by the panel of experts.

8 . Three prosecutors examined the case material and the complaints brought by the applicant before upholding the decision to terminate the criminal proceedings. They emphasised that there were no elements of a crime in relation to either the alleged medical negligence or the failure to provide assistance. They dismissed the applicant’s allegation that V.O. had been injured during the daytime. V.O. himself had not been able to indicate at precisely what time he had been injured or that he had requested medical assistance immediately after the altercation. He had complained about pain in his chest for the first time after supper (after 7 p.m.) and had been advised to see a nurse. V.O.’s death had been caused by (i) the seriousness of the injuries sustained, (ii) the changes in his lungs caused by tuberculosis, and (iii) his old age. The breaches of healthcare regulations established by the Health Inspectorate were not of a criminal nature as no causal connection between them and V.O.’s death could be established. In view of the complexity of the case and the scope of investigative activities, the prosecution dismissed the applicant’s allegation that the investigation had been unduly protracted. On 28 July 2016 a final decision was issued in that respect.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

9. The applicant alleged that the State had breached its substantive and procedural obligations arising from Article 2 of the Convention. She referred to the obligation to protect the right to life, the obligation to put in place a regulatory framework for the protection of hospital patients and the obligation to investigate. She also relied on Article 13 in that respect.

10. In view of the Court’s case-law (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, 19 December 2017), the applicant’s complaints fall to be examined under Article 2, which reads as follows:

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

Admissibility

11. The Government argued that the applicant had lost her victim status as her mother had received redress at the domestic level in connection with the same facts. They argued that the applicant had failed to exhaust domestic remedies as she had not lodged a civil claim against the psychiatric hospital (they referred to Dumpe v. Latvia (dec.), no. 71506/13, 16 October 2018, and provided further examples of domestic case-law in that respect). In any event, they submitted that her complaints were manifestly ill-founded.

12. The applicant disagreed. She considered herself a victim as there had been no acknowledgement of a breach of the right to life at the domestic level and because the sum of EUR 1,138 paid to her mother had not constituted sufficient redress. A civil claim would not have been effective in circumstances where doctors had not been found to have been at fault and where the medical care provided had not been found to have caused her father’s death. The applicant alleged that the second set of criminal proceedings had been ineffective but did not complain about the first set of criminal proceedings.

13. The Court considers that there is no need to examine the Government’s objection as to the applicant’s victim status as the application is in any event inadmissible for reasons set out below.

14. As to the obligation to protect the right to life, the Court refers to the general principles as established in Fernandes de Oliveira v. Portugal ([GC], no. 78103/14, §§ 108-09 and 113, 31 January 2019). There is nothing in the case material indicating that the applicant’s father was at real and immediate risk from the criminal acts of a third party in the psychiatric hospital. It appears that J.K. and V.O. were involved in a spontaneous fight. Accordingly, it cannot be said that the authorities knew or ought to have known that there was any risk to the life of V.O. The applicant’s complaint is manifestly ill ‑ founded in that respect.

15. As to the obligation to put in place a regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives, the Court refers to the relevant general principles as established in Lopes de Sousa Fernandes (cited above, §§ 185-96). The Court agrees with the Government that the facts of the present case do not fall under the very exceptional circumstances in which the responsibility of the State may be engaged under the substantive aspect of Article 2 (concerning healthcare providers, ibid., §§ 190-96). There is no indication in the case material that V.O.’s life was knowingly put in danger by denial of access to life-saving emergency treatment or that there was a systemic or structural dysfunction in hospital services resulting in him being deprived of access to such treatment (ibid., §§ 190-92). Moreover, it has not been demonstrated that the alleged fault attributable to the healthcare professionals went beyond a mere error or medical negligence or that the healthcare professionals failed to provide emergency medical treatment to the applicant’s father despite being fully aware that his life was at risk if that treatment was not given (ibid., § 202). The applicant’s complaint is manifestly ill-founded in that respect.

16. As to the procedural obligation of Article 2 in the context of healthcare: it requires 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 (ibid., § 214).

17. In that respect, the Court has to examine whether the available legal remedies, taken together, as provided for in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Valeriy Fuklev v. Ukraine , no. 6318/03, § 67, 16 January 2014).

18. In the present case, there is nothing to indicate that the death of the applicant’s father was caused intentionally by the authorities or healthcare professionals, so a criminal remedy was not necessarily required. However, if deemed effective, criminal proceedings would by themselves be capable of satisfying the procedural obligation under Article 2 (see Lopes de Sousa Fernandes , cited above, § 232).

19. Facts pertaining to the altercation with J.K. and V.O.’s subsequent death were established in the first set of criminal proceedings. J.K. was found guilty of inflicting bodily injuries but was relieved of criminal responsibility. He was ordered to undergo compulsory medical treatment, which he did. Furthermore, facts pertaining to the allegations of medical negligence were examined in the second set of criminal proceedings. The applicant did not contest the independence and impartiality of the domestic authorities in that regard. She was able to participate in those proceedings. Her allegation that those proceedings were opened belatedly is unsubstantiated as they commenced upon receipt of her mother’s complaint. As regards the thoroughness of those proceedings, the Court sees no indication that it was lacking (see paragraphs 7-8 above). Those proceedings were concluded within two years, which is not unreasonable in the circumstances (see paragraph 8 above). Hence, the complaint about the effectiveness of the second set of criminal proceedings is manifestly ill-founded.

20. It remains to be established what avenues of redress were available to the applicant in the present case. Despite the applicant’s submissions to the contrary, in view of its case-law, the Court considers that the applicant had a reasonable prospect of success in claiming compensation in respect of the allegations of medical negligence in civil proceedings against the hospital, and that she had to have recourse to a civil-law remedy before lodging an application with the Court (see Dumpe , cited above, §§ 62-76). The Court notes that the applicant could have had recourse to a civil-law remedy at the time of lodging her application with the Court, but she failed to make use of that opportunity. Hence, the Court upholds the Government’s objection and this part of the applicant’s complaint must be rejected for non-exhaustion of domestic remedies.

21. It follows that the applicant’s complaints must be rejected in accordance with Article 35 §§ 1, 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 1 June 2023.

Martina Keller Georges Ravarani Deputy Registrar President