CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1969 and lives in Vila Nova de Gaia.

On 26 November 1997 the applicant’s husband was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy (removal of nasal polyps).

The operation took place the following day without particular incident.

On 28 November 1997 at 10 a.m. the applicant’s husband left hospital and returned home. He returned to the emergency department of the CVHNG at 1.30 a.m. the following day suffering from violent headaches. He was examined by the doctors on duty, in particular by a neurologist. The doctors diagnosed psychological problems and prescribed tranquilisers. They recommended that he leave hospital but the applicant objected.

At 9 a.m. that day the applicant’s husband was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture, which revealed that he had bacterial meningitis (Pseudomonas).

At 3.30 p.m. he was transferred to the hospital’s intensive care unit.

On 30 November 1997 a scan revealed a cerebral oedema.

The applicant’s husband left intensive care on 5 December 1997 following an improvement in his clinical condition. He was transferred to the hospital’s general medical D. ward, where he was under the care of Dr J.V.

On 10 December he was diagnosed with two duodenal ulcers.

On 13 December the applicant’s husband was discharged from hospital as his condition was considered to be stable.

Five days later he returned to the CHVNG emergency department suffering from vertigo and headaches. He was examined by Dr J.V., who kept him under observation since he had acute diarrhoea, abdominal pain and severe anaemia.

On 19 December an endoscopy was performed which showed that the applicant’s husband had a gastroduodenal ulcer.

He left hospital on 23 December and medication was prescribed.

The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the hospital’s emergency department. He was examined by Dr J.V., who did not consider it necessary to admit him. He therefore returned home the same day.

On 25 January 1998 the applicant’s husband was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests also showed up the presence of the Clostridium difficile bacterium.

The applicant’s husband was placed on a drip and treated with antibiotics.

At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. He prescribed oral treatment and referred the applicant’s husband for further treatment in the hospital’s outpatient department.

On 17 February 1998 the applicant’s husband went to Santo António General Hospital in Oporto. He was admitted the same day after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including pseudomembranous colitis, an infection with the Clostridium difficile bacterium, and Crohn’s disease. All these possibilities were subsequently ruled out.

The condition of the applicant’s husband worsened.

On 5 March 1998 he was examined by a doctor who judged the situation to be under control. His condition deteriorated the following day. He was examined by a doctor who diagnosed a possible perforated viscus. An X-ray and an abdominal ultrasound were carried out, which showed ascites in the abdomen. At 5.30 p.m. the applicant’s husband was again examined by a doctor. A sigmoidoscopy was performed which showed that he had rectocolitis. As his abdominal pain was worsening, it was decided that he should undergo surgery.

On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen.

At 3 p.m. he was examined by a general physician and thirty minutes later by a surgeon. The latter, noting the existence of widespread peritonitis, decided that an immediate operation was needed. The applicant’s husband entered the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. and left it an hour and a half later, unconscious. He died the following day at 2.55 a.m.

According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus.

On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association. She stated that she had received no response from the hospitals by way of explanation for the sudden deterioration in her husband’s health and his death.

On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband’s medical records.

On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband’s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health (IGS) with a view to the opening of an investigation.

In an order of 20 September 2000 the Inspector General for Health ordered an investigation (processo de averiguações).

On 6 November 2001 an inspector was appointed to head the investigation.

On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.

The applicant gave evidence on 3 April 2002.

On 23 September 2002 medical expert reports were requested. Reports prepared by experts in the fields of general medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, it would not have been possible to save the applicant’s husband’s life in view of the deterioration of his state of health after the nasal polypectomy.

The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant’s husband had been appropriate.

In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant’s husband.

In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.

On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.

On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.

A fresh investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant’s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:

“The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient’s] care ...”

Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.

In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband’s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.

The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.

The applicant gave evidence again on 27 April 2006.

The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant’s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant’s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to his care in Santo António Hospital, the expert considered that the applicant’s husband’s condition had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant’s husband’s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.

On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:

The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the healthcare professionals involved in A.’s medical treatment ...

... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...

Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG’s medical department between 25 January and 3 February 1998.

The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...”

In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V. The outcome of the proceedings was not specified.

On 31 August 1998 the Medical Association acknowledged receipt of the applicant’s letter of 13 August, informing her that steps would be taken in response to it.

The case was referred to the Medical Association’s regional disciplinary council for the North region, which, after obtaining the patient’s medical records, sought the opinions of the following specialist panels (Colégios de especialidades) of the Medical Association:

- ear, nose and throat (ENT),

- infectious diseases,

- general surgery, and

- gastroenterology.

In a report of 14 July 1999 the gastroenterology panel issued the following conclusions:

A simple X-ray of the abdomen performed the day before the patient’s death did not detect any dilatation or perforation of the colon.

The patient’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.

The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.

The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.

The conclusions of the report of 13 December 1999 by the infectious diseases panel read as follows:

“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death.

In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.

The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory (mandatória) in cases of this type in order to shed light on the chain of events.”

In a report of 24 April 2001 the general surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:

“1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient’s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.

In a report dated 1 August 2001 the ENT panel concluded as follows:

“1. Meningitis following microendoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).

The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.

The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.

No ENT procedures were performed during any of the patient’s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.”

In an order of 28 December 2001 the regional disciplinary council for the North region decided to take no further action on the applicant’s complaint, on the ground that there was no evidence of misconduct or medical negligence. The disciplinary council observed the following:

(i) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;

(ii) the applicant’s husband had received appropriate treatment during his various hospital stays;

(iii) the patient’s bacterial meningitis (Pseudomonas) had been treated properly;

(iv) although the infectious diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;

(v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient’s serious clinical condition, a fact acknowledged by the gastroenterology and general surgery panels;

(vi) although the infectious diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general surgery panel.

On 29 April 2002 the applicant lodged an appeal against the order with the Medical Association’s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.

On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.

She gave evidence on 7 June 2002.

By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor (assistente).

On 6 December 2007 the public prosecutor’s office made its submissions, charging Dr J.V. with homicide by gross (grosseira) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant’s husband on 3 February 1998 in so far as the patient’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.

The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant’s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association’s Disciplinary Council.

On 15 January 2009 the District Court discontinued the proceedings, taking the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been upheld by the five medical experts who had given evidence during the trial.

As to the facts, the District Court considered the following to be established:

“The patient’s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...

The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient’s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...

When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.”

On the subject of the surgery preceding the death of the applicant’s husband, the District Court observed as follows:

“... the patient presented in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency (falência supra-renal aguda), and broad-spectrum antibiotics;

... in this medical context the patient’s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;

... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.”

In the District Court’s view, it had not been demonstrated that the care provided to the applicant’s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer.

The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant’s husband in the CHVNG and his death, which

“... was caused by a perforated viscus that was unconnected to the colonic disease treated by the accused, the Clostridium difficile ...”.

It inferred from this that

“...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.”

The applicant did not appeal against that judgment.

On 6 March 2003 the applicant brought a civil action in the Oporto Administrative and Tax Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband’s death. She alleged, inter alia,

(i) that her husband’s meningitis had been caused by the Pseudomonas cepacia bacterium which, she alleged, had been present in the operating theatre during the nasal polypectomy;

(ii) that the meningitis had been diagnosed too late, allowing the illness to become serious;

(iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband’s death.

In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.

Between 4 and 24 April 2003 the eight doctors contested their standing to be sued (ilegitimidade passiva), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.

On 16 April 2007 the court gave a preparatory decision (despacho saneador) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing (ilegitimidade passiva) in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.

On 17 January 2011 the applicant gave evidence.

During the three hearings the court heard evidence from the following witnesses:

(i) eleven doctors who had been involved in treating the applicant’s husband during his various stays in the CHVNG and Santo António Hospital;

(ii) the applicant’s husband’s general practitioner;

(iii) two doctors who were friends of the family;

(iv) the inspector who had written the final report on completion of the investigation within the IGS; and

(v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.

On 24 May 2011 the court made an order concerning the facts. Taking into account the applicant’s husband’s medical records and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,

(i) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;

(ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy;

(iii) that the origin of the bacterium linked to the patient’s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;

(iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis;

(v) that the applicant’s husband had been treated with drugs to protect his stomach in the CHVNG;

(vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and

(vii) that the applicant’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.

On 23 January 2012 the Oporto Administrative and Tax Court delivered a judgment in which it dismissed the applicant’s claims. On the facts, the judgment stated as follows:

“ The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...

When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.

On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;

Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.

When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.

While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests.

On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;

It was not until 7 March 1998 that the patient’s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;

The perforation had occurred 24 hours before surgery.”

The judgment concluded as follows:

“ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...

It is considered established that A.R.’s death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer ...

No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various aftereffects were duly explained.

Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of A.R.’s meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).

Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.

It is none the less surprising that the death of the claimant’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to A. at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.”

The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital.

On 26 February 2013 the Supreme Administrative Court dismissed the applicant’s claims, upholding the judgment of the Oporto Administrative and Tax Court. It first of all declined to review the facts considered by the court below to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court’s decision. The Supreme Administrative Court summed up its judgment as follows:

“The court below considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to the applicant’s treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.

For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient’s death.

The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.

Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.”


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms Janina Zima, is a Polish national, who was born in 1960 and lives in Ropczyce.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarized as follows.

On 28 November 1997 the applicant filed an application with the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with her application for a pension, she submitted, among other documents concerning her son’s health, a medical certificate issued by a specialist doctor on 3 November 1997. The certificate stated that the child (born in 1988) suffered from hypothyroidism (niedoczynność tarczycy) and was in need of the parent’s constant care.

On 16 December 1997 the SSB issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 377 Polish zlotys (PLN) per month, starting from 1 November 1997.

The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right.

On 13 July 2009 the SSB reviewed the applicant’s pension application under section 114 (1a) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – “the 1998 Law”).

The SSB requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 15 July 2009 the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care.

On 17 July 2009 the SSB simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 August 2009. By virtue of the second decision, the Board revoked the initial decision of 16 December 1997 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”).

The applicant appealed against the above-mentioned decision divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to her original application for a pension.

On 2 December 2009 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. On the basis of a report on the state of health of the applicant’s child prepared by an expert in endocrinology the court found that the applicant’s son had not required, as of 28 November 1997, a constant care of his mother. It held that the proceedings had been reopened by the SSB in accordance with section 114 of the 1998 Law and the applicant had been rightfully divested of her right to an EWK pension.

On 10 February 2010 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment. It agreed with the first-instance courts’ findings of fact. As regards the reopening of the proceedings, it observed that the SSB had acted in accordance with section 114 of the 1998 Law. In that context, it referred, in particular, to paragraph 1a of this provision which explicitly allowed the SSB to reopen the proceedings if it came to light that the submitted evidence had not constituted sufficient grounds for the right to the pension to be established. It also noted that, in the applicant’s case, the proceedings had been reopened because new evidence had been obtained by the authority, namely the documents relating to the course of the child’s medical treatment.

The applicant did not lodge a cassation appeal with the Supreme Court (Sąd Najwyższy).

Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of the Constitutional Court (Trybunał Konstytucyjny) of 28 February 2012 declaring section 114(1a) of the 1998 Law unconstitutional (see paragraphs 22-27 below).

The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012.

By virtue of the law of 20 April 2004 on amendments to the law of 1998 on retirement and disability pensions paid from the Social Insurance Fund and to certain other acts (Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw – “the 2004 Act”), which entered into force on 1 July 2004, a new paragraph 1a was added to section 114 of the law. The amended section 114 of the 1998 Law provided as follows:

“1. The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances, which had existed before issuing the decision and which have an impact on the right to benefits or on their amount, are discovered.

1a. Paragraph 1 applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established.”

On 5 June 2003, before paragraph 1a was added to section 114 of the 1998 Law, the Supreme Court adopted a resolution in which it held:

“A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”

In a judgment given on 21 September 2010 (case no. III UK 94/09) the Supreme Court held that, when applying section 114(1) of the 1998 Law, the domestic courts should take into account the criteria set out in the Court’s judgment in the Moskal case. They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned. In examining whether the social security authority was allowed to reopen the proceedings, they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted. When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual’s right to a social benefit. Accordingly, where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual, the relevant decision should not be revoked.

In a judgment of 24 March 2011 (case no. I UK 317/10) the Supreme Court reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under section 114 of the 1998 Law should be assessed in the light of the criteria set out in the Court’s judgment in the Moskal case. In this connection the Supreme Court underlined that the European Convention on Human Rights constituted an integral part of the Polish legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the Court.

In a judgment of 5 April 2011 (case no. III UK 92/10) the Supreme Court held that section 114(1a) of the 1998 Law should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with section 114(1). If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence, it would have to be considered incompatible with the principle of the rule of law set forth in Article 2 of the Constitution. The Supreme Court considered that its interpretation of the provisions of the 1998 Law was further supported by the principles set out in the Moskal judgment of the Court.

On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114(1a) of the 1998 Law to be declared unconstitutional. The Ombudsman argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority.

On 28 February 2012 the Constitutional Court held that section 114(1a) of the 1998 Law was in breach of Article 2 (the principle of the rule of law) and Article 67 § 1 (the right to social security) of the Constitution. It found that, as the provision in question allowed for an unlimited re-assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit, it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution.

Furthermore, the Constitutional Court found that the provision in question did not strike a fair balance between the general interest and an individual’s right to social security under Article 67 § 1 of the Constitution. The court considered that an interference with individual rights guaranteed by Article 67, which pursued the aim of correcting the authority’s own mistake, could only be justified under exceptional circumstances. However, on the basis of the impugned provision the social security authority could, at any time and without any limitations, review the decision concerning a social security benefit by means of re-assessment of the evidence before it.

In the grounds for the ruling the Constitutional Court also referred to the Court’s Moskal judgment. It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings, which had been, however, based on section 114(1) of the Law 1998 as section 114(1a) had not been in force at the material time. It further observed that the Court’s judgment had influenced the interpretation of section 114(1) of the 1998 Law by the Supreme Court (see paragraphs 19-21 above).

Lastly, with regard to the consequences of its ruling, the Constitutional Court noted that the breach of Constitution should be remedied by restoring the state of conformity with the law (wymaga przywrócenia stanu zgodnego z prawem). In that context, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114(1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision.

On 8 March 2012 the judgment was published in the Journal of Laws of the Republic of Poland (Dziennik Ustaw) and entered into force on that date.

Article 190 of the Constitution, in so far as relevant, provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court,... shall be published immediately.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act...

A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, final administrative decision or ruling on other matters was given, shall be a basis for reopening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.”

In accordance with Article 399 read in conjunction with Article 4011 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened, if the Constitutional Court has found that the normative act on the basis of which this judgment was given was incompatible with the Constitution.

Pursuant to Article 407 § 2, a request to that effect shall be lodged within three months from the date on which the judgment of the Constitutional Court has entered into force. Pursuant to Article 408 a request for the reopening of the proceedings must be lodged within five years from the date on which the final judgment has been given, unless the party could not act in the proceedings or was not properly represented.

Under Article 412 § 1 of the Code, a reopened case is to be examined within the limits determined by the grounds for the reopening. According to § 2 of this provision, after a fresh examination of the case, the court may either dismiss the request for reopening, or allow it and alter or quash the impugned judgment. If need be, it may reject the claim on formal grounds or discontinue the proceedings.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

The applicant was born in 1983 and lives in Iğdır.

On 14 January 2005, while the applicant was serving as a conscript in the army, he fell from the roof where he was on guard. Subsequently, he was treated in various civilian and military hospitals. According to a medical report dated 4 May 2005, the applicant was diagnosed as suffering from a left parietal craniotomy and was declared unfit for military service.

On 8 July 2005 the applicant applied to the Ministry of Defence for compensation for his injury.

Following a tacit dismissal of the claim by the administrative authorities, the applicant initiated compensation proceedings in respect of the injuries he had sustained during his military service before the Supreme Military Administrative Court on 1 November 2005. He sought 20,000 Turkish liras (TRY) (approximately 12,400 euros (EUR)) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage.

An expert report dated 4 October 2007 assessed the applicant’s pecuniary damage at TRY 58,384 (approximately EUR 36,260).

On 19 October 2007 the applicant asked the court to increase his initial claim via an amendment (ıslah), stating that he had only become aware of the true extent of his pecuniary damage when he had received the expert’s report.

On 28 November 2007 the Supreme Military Administrative Court ruled in favour of the applicant and awarded him the full amount of his initial claim in respect of pecuniary damage, namely TRY 20,000. It awarded him a further TRY 12,000 in respect of non-pecuniary damage. However, the court dismissed the applicant’s application for an amendment, considering itself bound by the initial claim. The court stated in particular:

“The purpose of an amendment is to rectify a procedural act. Having regard to the judgment of the Constitutional Court published in the Official Journal of 4 November 2000, we must conclude that, in civil law, injured persons are entitled to seek additional compensation once an expert report has been issued. However, in the proceedings before the Supreme Military Administrative Court, the time-limits of one year [from the date when a claimant becomes aware of the impugned act] and sixty days from the date of referral of the administrative authorities apply. Under section 46(4) of the Supreme Military Administrative Court Act, the amount claimed cannot be rectified once those deadlines have passed. Consequently, the applicant’s amendment claim must be rejected for being out of time ...”

By a judgment of 16 April 2008 the Supreme Administrative Court dismissed the applicant’s application for rectification of its previous decision.


Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr Fırat Çakmakçı, is a Turkish national who was born in 1985 and lives in Istanbul. He was represented before the Court by Mr S. Durak, a lawyer practising in Istanbul.

The Turkish Government (“the Government”) were represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

At the time of the events giving rise to this application, the applicant was a conscript soldier (private rank) serving at the Bozkuş gendarmerie station in Kars.

According to the information provided by the applicant in his application, on 7 June 2006 the commander of the Bozkuş gendarmerie station, S.Ö., ordered him and another conscript, K.Ö., to make some poles for the purpose of tethering the guard dogs of the station. Accordingly, the applicant and K.Ö. found some metal rods and cut them in half. When looking for tools in the generator room of the station to straighten the curved ends of the poles, the applicant found what he thought to be a used mortar shell, which he believed presented no risk of exploding, and decided to hit the poles with it. The mortar shell exploded upon impact with the metal pole, as a result of which the applicant lost a finger and a toe, and K.Ö. lost both his feet. The applicant was first taken to the Sarıkamış Military Hospital in Kars, and was then transferred to the GATA Military Hospital in Istanbul for further medical treatment.

It appears that the commander of the gendarmerie station, S.Ö., lost consciousness after the incident due to anxiety and was also taken to the Sarıkamış Military Hospital, where he was given sedatives.

On 17 January 2007 the GATA Military Hospital issued a medical report, declaring the applicant unfit for military service on account of the injuries he had sustained. According to this report the third finger of his left hand, the fifth toe of his left foot and the fourth toe of his right foot had had to be amputated. The applicant had also sustained various fractures to his feet and suffered from some loss of vision in his left eye. This report was approved on 6 March 2007.

The Sarıkamış military prosecutor’s office initiated an investigation of its own motion into the circumstances of the incident. Accordingly, all the evidence at the site of the incident was photographed and recorded, and an incident report was prepared on 7 June 2006. The military prosecutor also took witness statements from fourteen soldiers serving at the Bozkuş gendarmerie station. The pertinent witness statements are summarised below:

- Lt. H.A.S.:

“... while S.Ö. was in the emergency room [at the hospital], the military prosecutor called me ... he asked to talk to S.Ö. S.Ö. told the [prosecutor] that he had found an old [mortar shell] two years ago, which he had placed on the roof of the station, and that he did not know how the [mortar shell] had ended up at the scene of the incident.”

- Sgt. S.Ç.:

“... I first saw the bomb in September 2005. When I asked the station commander what it was, he told me it was unexploded ordnance.”

- Pte. S.Ç.:

“... I was responsible for cleaning the generator room. I saw a shiny object in that room. Yet I did not know what it was.”

- Pte. M.F.:

“The mortar shell has been in the generator room since I first arrived at the station in November 2005. I did not know it was a bomb though, none of the privates at the station did. We had not been given any information about it.”

On 8 June 2006 the military prosecutor interrogated S.Ö. It appears that S.Ö. did not remember talking to the military prosecutor on the phone while in hospital, as he had been under the effect of sedatives. However, he did not deny that he may have made the statement alleged by Lt. H.A.S.

Later on the same date S.Ö. was taken before the military court in Sarıkamış (Kara Kuvvetleri Komutanlığı Dokuzuncu Motorlu Piyade Tugay Komutanlığı Askeri Mahkemesi). Before that court, he said the following:

“I took up duty at the Bozkuş gendarmerie station in 2004. During the period of my duty, I never found any ordnance. Therefore, I did not put any such material on the roof. I have been a soldier for nineteen years, I know what action to take if I find [explosive] ordnance ... we have received orders on [handling and storage of ordnance]; we have also participated in a seminar. Yet, since I had not found any ordnance, I had not had to take [the ordered] precautions ... I lost consciousness [after the incident]. I remember talking to the military prosecutor on the phone, but I do not remember saying that I had found a [mortar shell] two years ago which I had placed on the roof ... There is a sergeant in charge of the generator room, A.E. Both he and I inspect the generator room on a daily basis. There was no ordnance in the generator room ...”

The military court ordered S.Ö.’s arrest after taking his statement.

On 12 June 2006 the military prosecutor took the statement of the applicant’s friend K.Ö., who said the following:

“... Upon receiving orders from S.Ö. to fix dog chains, I went to the generator room with [the applicant] ... We found a used mortar shell there. I do not know how long that object had been there. I had not noticed it before. [The applicant] told me that we could use that object, that it would not present any danger as it had already exploded. The mortar shell exploded when we started ... meddling with it ...”

On 28 June 2006 a military prosecutor took the applicant’s statement, recording the following:

“... We went to the generator room to find other tools. There was normally a generator, [the soldiers’] suitcases and building supplies in the generator room. We found a hollow iron cylinder there. We did not initially realise that it was ordnance. We fixed two of the metal rods [with the help of that object]. S.Ö. in fact saw us [handling that object]. He told us that what we were holding was ordnance. He asked us if there was any TNT inside it. I told him there was nothing in it as I had already fixed two metal rods with it and nothing had happened, and the hollow part [of the object] looked empty and rusty ... As we were fixing the third metal rod, the object exploded ... The object that we used in the generator room had been there since I had started my military service”.

The applicant later repeated this statement before the court on 20 February 2009.

The ballistic report dated 1 August 2006 confirmed that the explosion had been caused by a military-grade mortar shell.

On 26 October 2007 S.Ö. was indicted by the military prosecutor for causing bodily harm by negligence under Article 89 § 4 of the Turkish Criminal Code (Law no. 5237), by virtue of Article 146 of the Military Criminal Code (Law no. 1632), on account of his failure to obey the orders to store the mortal shell in question safely, despite having received specific instructions and having attended a seminar on the matter. The military prosecutor stressed in the indictment that despite his denials, there was witness evidence to confirm that S.Ö. had been aware of the presence of the mortar shell in the station.

In a statement he made before the military court on an unspecified date, S.Ö. maintained that he did not remember talking to the military prosecutor while at the Sarıkamış Military Hospital. He further claimed that Lt. H.A.S. had come to the gendarmerie station two days before the incident for an inspection, that he had also inspected the generator room, and that neither of them had seen a mortar shell there. He added that all the arms and ammunition at the station were kept in a special storage room, and that keeping material outside of that room was against regulations. He lastly claimed that all soldiers under his command had been under strict orders to inform him if they found any explosives, and that he had received no such information.

On 19 September 2008 K.Ö. stated before the military court that he and the applicant had found a mortar shell outside the storage room. When they had asked S.Ö. whether the mortar shell was at risk of exploding, he had responded that it would not explode owing to its age.

Based on the witness statements and other evidence furnished by the prosecution, including an order dated 11 November 2005 from the Selim provincial gendarmerie command regarding the storage of firearms and munitions, and the training documents on a seminar given at the Bozkuş gendarmerie station in April 2006 regarding explosives, the military court in Sarıkamış convicted S.Ö. as charged on 13 November 2009 and sentenced him to five months’ imprisonment. The military court held that S.Ö.’s failure to store the mortar shell, which had apparently been in the station for over two years, with caution and to hand it over to the responsible authorities, despite strict orders regarding the safe storage and handling of munitions, had been clearly negligent. The pronouncement of the judgment was, however, conditionally suspended (hükmün açıklanmasının geri bırakılması) for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271).

On 28 April 2009 the applicant submitted a request to the Ministry of Defence, asking to be compensated for the injuries he had sustained on account of the explosion. The applicant claimed that the Ministry of Defence had failed in its responsibility to properly store and dispose of the mortar shell, and had likewise failed to provide proper training on firearms and munitions and to issue warnings regarding the explosives found in the Bozkuş gendarmerie station.

On 11 May 2009 the Ministry of Defence dismissed the applicant’s request, on the grounds that the gendarmerie forces were under the responsibility of the Ministry of the Interior.

Accordingly, on 2 June 2009 the applicant submitted his compensation request to the Ministry of the Interior. Upon that Ministry’s failure to respond to his request, on 3 September 2009 the applicant filed an action for compensation against the Ministry of the Interior with the Supreme Military Administrative Court.

By a judgment of 2 June 2010 the Supreme Military Administrative Court rejected the applicant’s compensation claim for being out of time. The court held that if the applicant believed that he had suffered damage on account of a wrongful act of the authorities, then he should have lodged a compensation claim with the relevant authorities within one year of the notification of the impugned act or from the date on which he had otherwise learned of the impugned act and, in any event, within five years of the commission of that act, in accordance with section 43(1) of the Supreme Military Administrative Court Act (Law no. 1602). Bearing in mind that the relevant incident had occurred on 7 June 2006 and that the medical report issued by the GATA Military Hospital in relation to his injuries resulting from the mortar shell explosion had become final on 6 March 2007, the petition he had lodged with the Ministry of Defence on 28 April 2009 had been lodged out of time.

Section 43 of the Supreme Military Administrative Court Act (Law no. 1602 of 20 July 1972) reads as follows:

“Anyone who considers himself or herself to have suffered damage on account of a wrongful act of the authorities must lodge an application for compensation with the relevant authority within a year of notification of the impugned act or from the date on which he or she learned of the impugned act and, in any event, within five years of the commission of that act.

Should all or part of the claim be dismissed, or if no reply is received within sixty days, an application for judicial review may be lodged ...”

Article 146 of the Military Criminal Code (Law no. 1632 of 15 June 1930) provides:

“Anyone who causes injury or death to someone due to negligence [in handling] his or her arms and munitions or non-compliance with rules and orders shall be punished in accordance with Articles 455 and 459 of the [now defunct] Turkish Criminal Code.”

Article 89 §§ 1 and 4 of the new Turkish Criminal Code (Law no. 5237 of 12 October 2004) provides as follows:

“Negligent injury

Anyone who negligently inflicts physical pain on someone, or impairs someone’s health or cognitive capacity shall be sentenced to a term of imprisonment of between three months and one year, or to a fine.

Where the [negligent] act leads to the injury of more than one person, [the offender] shall be sentenced to a term of imprisonment of between six months and three years.”

The relevant domestic law and practice on the storage and handling of munitions and the training provided to soldiers on these matters are outlined in paragraph 30 below.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1953 and lives in Roman.

The applicant’s daughter was monitored during her pregnancy by Dr I.M., a gynaecologist working at the Suceava County Hospital. She was examined on a monthly basis and her pregnancy developed normally.

On 8 October 2001, Dr I.M. performed a routine check-up on the applicant’s daughter when she was eight months pregnant. According to the applicant, on that occasion Dr I.M. informed her daughter that she needed to be hospitalised for further investigations because an imminent premature birth was suspected.

On the same date the applicant’s daughter was admitted to hospital with the diagnosis of imminent premature birth and sub icterus of unknown aetiology.

On 9 October 2001 the applicant’s daughter was examined and blood samples were collected because it was suspected that she was suffering from viral hepatitis and an internal condition. She was also suffering from pain in the lumbar region and food poisoning was suspected because she had stated that she had eaten mushrooms picked from the forest. She was treated with Duvadilan (a vasodilator, prescribed for peripheral vascular disease associated with cerebrovascular insufficiency and premature labour) and other medication. According to the applicant, as a result of this treatment large ecchymoses caused by the rupture of blood vessels appeared on her daughter’s legs and abdomen.

On the night of 9 to 10 October 2001 the medical condition of the applicant’s daughter worsened.

On 10 October 2001 the applicant’s daughter was transferred to the intensive care unit and her condition continued to deteriorate.

According to the applicant, after repeated requests from her and her son-in-law, Dr I.M. agreed to contact Dr D.D. from the Cuza-Vodă Clinic located in Iaşi. Dr D.D. was a university professor. When he received information about the patient’s condition and treatment, Dr D.D. diagnosed the applicant’s daughter with Hellp syndrome (an exceptionally serious prenatal condition) and asked Dr I.M. to perform an emergency C-section in order to save the mother’s life.

According to the applicant, Dr I.M. refused to perform the emergency C-section, but eventually agreed that the applicant’s daughter could be transferred to the Cuza-Vodă Clinic in Iaşi.

The applicant’s daughter was transferred by ambulance to Iaşi, 150 kilometres away from Suceava, unaccompanied by a doctor. Her condition worsened during the transport.

She was admitted to the Cuza-Vodă Clinic in a coma, with the diagnosis of Hellp syndrome. An emergency C-section was performed thirty minutes after she arrived at the hospital. She died ten minutes after the surgery from cardiac arrest, despite resuscitation manoeuvres. The applicant’s granddaughter died on 12 October 2001 from cardiac arrest, despite resuscitation manoeuvres.

On 10 October 2001 the Iaşi Police Department initiated of its own motion a criminal investigation into the death of the applicant’s daughter. They carried out an examination of the body, took photographic evidence and they interviewed Dr C.N., who had assisted Dr D.D. during the surgery, as well as the applicant’s son-in-law.

On 12 October 2001 a post-mortem report was produced in respect of the applicant’s daughter’s and granddaughter’s deaths at the Iaşi Police Department’s request. It concluded that the cause of the applicant’s daughter’s death had been cardio-respiratory and hepatic-renal insufficiency with brain hypoxia. In addition, the applicant’s granddaughter’s death had been caused by lung and brain hypoxia.

On 27 March 2002, the Iaşi Forensics Institute produced a forensic necropsy report. It noted amongst other things that according to the serology examination report no spores of poisonous mushrooms were found. It concluded that the death of the applicant’s daughter was pathological and was caused by hepatic-nephritis and generalised haemorrhagic vasculopathy, with cardio-respiratory and circulatory insufficiency. In addition, the assessment of the medical assistance provided to the victim during pregnancy and upon giving birth had to be made, after medical documents were adduced, by a review commission (comisia de avizare) composed of obstetrics and gynaecology experts.

On 30 May 2002, the Iaşi Forensics Institute, sitting as a review commission, informed the Iaşi Police Department that they approved the conclusions of the forensic necropsy report of 27 March 2002 as scientifically grounded and based on the medical data included in the report. In addition, it found that there had been no omissions in the techno-medical treatment of the victim (în atitudinea tehnic-medicală față de victimă nu se constată omisiuni).

On 6 February 2002, the applicant’s son-in-law lodged a criminal complaint, with no civil claims, with the Iaşi Prosecutor’s Office, requesting an investigation into his wife’s and daughter’s deaths following his wife’s admission to the Cuza-Vodă Clinic in Iaşi. His complaint was registered on 12 February 2002 with the Iaşi Prosecutor’s Office under criminal file no. 670/P/2002.

On 27 March 2002, the applicant’s son-in-law lodged a second criminal complaint, with no civil claims, with the General Prosecutor’s Office attached to the Court of Cassation (“the General Prosecutor’s Office”) against the medical personnel of the Suceava County Hospital and the Cuza-Vodă Clinic in Iaşi. He relied on Article 178 (2) of the Romanian Criminal Code, and argued that the medical personnel had been medically negligent. In addition, he contended amongst other things that the criminal investigation lacked the required speediness. The complaint was registered on 23 April 2002 with the Iaşi Prosecutor’s Office under criminal file no. 2294/P/2002.

By an order of 26 July 2002 the Iaşi Prosecutor’s Office decided to join the criminal files nos. 670/P/2002 and 2294/P/2002 and not to open criminal proceedings (neînceperea urmăririi penale) in the case. It held, on the basis of the medical evidence, the forensic necropsy report and the approval of the review commission of 30 May 2002, that the death of the victim had had natural causes and had not been induced by any medical error. Subsequently, the order was notified to the applicant’s son-in-law and he challenged the order before the superior prosecutor.

On 31 July 2002, the applicant’s son-in-law challenged the order before the Prosecutor General’s Office. His complaint was subsequently referred to the Iaşi Prosecutor’s Office.

On 30 September 2002, the superior prosecutor dismissed the applicant’s son-in-law’s challenge to the order of 26 July 2002.

On an unspecified date in 2002, the applicant’s son-in-law lodged a criminal complaint against Dr I.M. with the Suceava Prosecutor’s Office for involuntary manslaughter following the deaths of his wife and daughter. The complaint was registered under criminal file no. 735/P/2002.

On 8 January 2003 the Suceava Prosecutor’s Office informed the applicant’s son-in-law that the criminal investigation concerning Dr I.M. was pending; that he would be heard after the medical authorities had submitted the relevant medical and forensic documents; and that once the investigation had ended he would be notified of the outcome.

On 22 January 2003 the applicant’s son-in-law was heard in respect of the circumstances of his wife’s death.

On 16 May 2003 the Suceava Police Department asked the Iaşi Forensics Institute to help them clarify certain aspects of the case and to explain: (a) if Dr I.M. had acted correctly by hospitalising the patient and by giving her the treatment he did; (b) if the treatment with Duvadilan was appropriate for the patient’s condition and if the treatment had influenced the deterioration of her condition; (c) what were the possible causes of the patient’s death occurring soon afterwards; (d) what would have been the patient’s chances of survival, given her diagnosis, if the surgery had been performed as soon as her condition had deteriorated.

On 16 May and 21 August 2003, Dr I.M. was heard in respect of the circumstances of his patient’s death.

On 10 June 2003 the Iaşi Forensics Institute informed the Suceava Police Department that given his patient’s diagnosis Dr I.M. had had a duty to carry out haemolysis and other blood tests in order to identify a state of pre-eclampsia, given that the patient had been hospitalised with sub icterus. In addition, the prompt treatment recommended in case of suspicion of Hellp syndrome would have been the immediate evacuation of the pregnancy in order to avoid aggravation of the hepatic and vascular lesions. Furthermore, with careful monitoring of the mother and of the foetus as well as prompt treatment, the deaths might have been avoided. The fact that the patient reached the Cuza-Vodă Clinic in Iaşi in a serious condition suggested inadequate monitoring. The absence of a diagnosis for three days aggravated the patient’s condition. Given the doctor’s aforementioned duties, he should have been aware of the evolution of a state of preeclampsia, and he was obliged to exhaust all the available remedies to avoid it and treat it. The extremely low level of thrombocytes in the patient’s blood in Suceava was an important aid to a suspicion of this type of complication and an indication that prompt intervention was necessary.

On 25 August 2003, following Dr I.M.’s objections, the Suceava Police Department reiterated before the Higher Forensics Commission attached to the National Forensics Institute in Bucharest (“the Higher Forensics Commission”) the same questions raised before the Iaşi Forensics Institute on 16 May 2003, and asked it to help them clarify those aspects of the case and to provide explanations.

On 12 January and 8 March 2004, the Suceava Police Department asked the Higher Forensics Commission to provide its conclusions in respect of their request from 25 August 2003. It emphasised that the conclusions were necessary to solve the case, and that the victim’s family had complained repeatedly before the domestic authorities about the lack of promptness of the criminal investigation.

On 29 January 2004 the applicant complained before the superior prosecutor attached to the Suceava Prosecutor’s Office that the criminal investigation lacked promptness and had failed to clarify the circumstances of the victims’ deaths. She stated that the last written notification received concerning the case had been the information note of 8 January 2003. She also requested to be informed of the outcome of the investigation.

On 6 February 2004 the Suceava Police Department informed the applicant that the Higher Forensics Commission had been asked to produce a forensic expert report in the case. The applicant was also informed that as soon as the Higher Forensics Commission’s report was available a lawful solution would be issued in respect of the case and that she would be notified about it.

On 23 April 2004 the Higher Forensics Commission approved the note (avizul) produced by the Iaşi Forensics Institute on 10 June 2003 with additional explanations. In particular, it noted amongst other things that while she was in hospital the applicant’s daughter stated that she had eaten forest mushrooms. At the time there was another patient in the hospital suffering from mushroom poisoning. This caused her medical condition to be blamed on the mushrooms, which delayed the Hellp syndrome diagnosis. It also noted that during the applicant’s hospitalisation on the intensive therapy unit the applicant’s daughter condition worsened. Dr D.D. was contacted by phone and he suggested that the pregnancy should be evacuated. Given the patient’s serious condition and the local intensive therapy possibilities (posibilitățile locale de terapie intensivă), in order to solve the case, Dr D.D. was contacted and he accepted that the patient be transferred to Iaşi. It further noted that according to the post-mortem report the patient had displayed symptoms of hepatic-nephritis and generalised haemorrhagic vasculopathy and subsequent cardio-respiratory insufficiency. It concluded that the actions of the Suceava Hospital’s staff could be explained from a medical standpoint, in the context of the patient’s anamnesis and given that according to the information available and on the basis of the patient’s symptoms they could have also concluded that the patient’s condition had been caused by mushroom poisoning, and not by Hellp syndrome as turned out to be the case. There were similarities in the symptoms of the two medical conditions.

By an order of 4 May 2004 the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M. for involuntary manslaughter, on the ground that such an unlawful act had not taken place.

On 13 December 2007 the applicant requested information from the General Prosecutor’s Office about the status of the criminal investigation and the measures taken in the case. She also accused the authorities investigating the case of procrastination and of waiting for Dr I.M.’s criminal liability to become time-barred.

On 13 August 2008, the Suceava Prosecutor’s Office informed the applicant that the criminal investigation against Dr I.M. had been terminated by the order of 4 May 2004, and that the aforementioned order had been communicated to her son-in-law. Also, it noted that the same information had been communicated to the applicant on 6 February 2008.

On an unspecified date, the applicant challenged the order of 4 May 2004 before the superior prosecutor attached to the Suceava Prosecutor’s Office.

On 1 September 2008, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge.

On 26 September 2008, the applicant challenged the orders of 26 July and 30 September 2002 as well as those of 4 May 2004 and 1 September 2008 before the Suceava County Court.

On 12 November 2008 the Suceava County Court declined jurisdiction to examine the case in favour of the Suceava District Court, on account of the nature of the offence under investigation.

On 25 November 2008, the applicant lodged a request with the Court of Cassation seeking the transfer of the file to a different district court.

On 4 February 2009, the Court of Cassation allowed the applicant’s request and ordered the transfer of the file for examination to the Iaşi District Court.

On 22 May 2009 the file was registered with the Iaşi District Court.

By a judgment of 20 November 2009, the Iaşi District Court allowed the applicant’s and her son-in-law’s challenge against the order of 4 May 2004, cancelled the order, and referred the file back to the prosecutor’s office for criminal proceedings to be opened against Dr I.M. for involuntary manslaughter. The challenge to the order of 26 July 2002 rendered by the Iaşi Prosecutor’s Office was dismissed as lodged out of time.

The court considered that the criminal investigation had not been complete, and that additional evidence was needed. It held that the decision not to open criminal proceedings had been based on the two forensic expert reports, but forensic expert reports had in fact not been asked for by the investigating authorities and had not been produced in the case. The document produced on 10 June 2003 was in fact a note of the Iaşi Forensic Service in response to the investigating authorities’ request for clarification of some aspects of the case. The aforementioned documents did not have the content of a forensic expert report produced according to law. The same considerations applied to the document issued by the Higher Forensic Commission on 23 April 2004.

According to the court, a forensic expert report was essential evidence in cases of suspected involuntary manslaughter and it was required when medical negligence had supposedly been the cause of death. Also, the content of the Iaşi Forensic Service’s note of 10 June 2003 which indicated a possible medical error by Dr I.M. made a forensic expert report even more necessary.

The court considered that essential aspects of the case needed to be clarified, namely to establish the cause of death and to examine whether Dr I.M. had administered medical treatment in accordance with his professional obligations, and, if such treatment had been inappropriate, whether this had had any causal link with the deaths of the applicant’s daughter and grand-daughter. In addition, the question of whether the applicant’s daughter had eaten forest mushrooms had not been entirely clarified. Dr I.M.’s statement that the applicant’s daughter had eaten the aforementioned mushrooms had not been confirmed or rebutted by any other evidence. The information concerning the consumption of mushrooms found in the clinical observation chart was also added there by Dr I.M. Furthermore, the reasons why the applicant’s daughter was not accompanied by a doctor during her transfer by ambulance remained unclear. Consequently, the court ordered a forensic expert report to be produced which would establish whether: (a) the doctor had been diligent enough to correctly establish the diagnosis; (b) the actual diagnosis had been established on the basis of the symptoms and the investigations made in the case; (c) the correct diagnosis could have been established on the basis of supplementary tests and examinations which should have been performed; (d) the medical treatment had been appropriate; (e) the medical intervention should have been performed at the Suceava County Hospital; (f) the applicant’s daughter’s health had deteriorated during her transfer to the clinic in Iaşi because she was not assisted by a doctor throughout the transportation; (g) any of the aspects above, or others, had any causal link with the death of the applicant’s daughter and her new born granddaughter. If the expert report established a causal link between the death and the fact that the transfer by ambulance had not been done with a doctor present, the reason why the patient had not been accompanied by a doctor and the identity of those responsible should be established. Consequently, the medical staff responsible for the transfer by ambulance should be heard. The court also ordered that the notes on the clinical observation chart should be checked for accuracy against the doctor’s statements regarding the consumption of forest mushrooms, and accordingly the victim’s mother and husband should be heard.

The Iaşi Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment.

On 30 March 2010, the Iaşi County Court dismissed the Iaşi Prosecutor’s Office’s appeal on points of law and upheld the judgment of the district court.

By an order of 21 December 2010, the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M., on the ground that his criminal liability had become time-barred.

The applicant challenged the order before the superior prosecutor. She argued amongst other things, that the investigating authorities had delayed the investigation of the case, although she had repeatedly asked for a speedy investigation. Also, she had not been notified without undue delay of the outcome of the criminal investigation, although on 6 February 2004 the Suceava Police Department had informed her that she would be notified about the outcome of the investigation.

On 1 February 2011, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge and upheld the order of 21 December 2010. It held amongst other things that the proceedings had not been abandoned by the authorities, since they had finished the investigation on 4 May 2004. The length of proceedings had been affected by the forensic expert reports, the last one being produced on 23 April 2004.

The applicant challenged the order before the Iaşi District Court.

On 22 April 2011, the Iaşi District Court declined jurisdiction in the case in favour of the Suceava District Court.

On 21 July 2011, the file was registered with the Suceava District Court.

On 21 September 2011, the Suceava District Court considered that only the Iaşi District Court was competent ratione loci to examine the case. Consequently, it referred the case to the Court of Cassation to examine and decide on the conflict of competence between the two district courts.

On 25 January 2012, the Court of Cassation decided that the Suceava District Court was competent to examine the case.

On 5 April 2012, the file was registered once again with the Suceava District Court.

By a final judgment of 6 June 2012 the Suceava District Court dismissed the applicant’s action as ill-founded and upheld the prosecutor’s office’s order. It held that according to the relevant criminal law provisions and given the nature of the offence he had been suspected of, Dr I.M.’s criminal liability had become time-barred eight years after the unfortunate event. The statute of limitations had not been suspended or interrupted by any act carried out in the case that had to be communicated to the accused (ȋnvinuitului) or to the defendant (inculpatului). Criminal proceedings against Dr I.M. had not been opened and therefore he had not been considered either an accused or a defendant, as the investigation against him had been carried out at the preliminary investigation (acte premergătoare) stage of the proceedings.

The court considered that the applicant’s argument that an expert medical report could be requested only after a criminal investigation had been opened was not supported by any legal provision. Also, it could not be accepted that the running of the statutory limit had been stopped or suspended, either by the request for a medical expert report to be produced or by the judgment of 20 November 2009. The judgment of a court quashing an order of the prosecutor’s office to discontinue a criminal investigation was not one of the lawfully permissible reasons to suspend the running of the statutory limit.

The court also held that the Suceava Prosecutor’s Office had been competent to investigate the case. The fact that the Court of Cassation had transferred the case for examination to a different district court would not have justified an investigation of the case by a different prosecutor’s office from the one which had initially investigated the case, once the examining court had referred the case back to the prosecutor. Furthermore, the prosecutor was legally bound to open criminal proceedings only if, after the evidence indicated by the court was adduced to the file, it did not appear that there were circumstances that would impede it. Also, even if the prosecutor’s office had taken into account the applicant’s granddaughter’s death and had requalified Dr I.M.’s acts from involuntary manslaughter to aggravated involuntary manslaughter and the maximum penalty had been increased by three years, the offence would still have been time-barred.

The applicant appealed on points of law against the judgment.

On 26 September 2012 the Suceava Court of Appeal dismissed as inadmissible the applicant’s appeal on points of law, on the ground that the domestic legislation did not allow a second level of jurisdiction in respect of court proceedings initiated against the prosecutor’s office’s orders or decisions.

On 16 May 2002, following Dr I.M.’s request, the Professional Jurisdiction Commission attached to the Suceava County College of Doctors (Comisia de Jursidicţie Profesională a Colegiului Judeţean al Medicilor Suceava) established that there were no elements to suggest medical error or other deficiencies in the medical treatment and investigations provided to the applicant’s daughter at the Suceava County Hospital. Her illness had been identified promptly once she was hospitalised, and she had been transferred to intensive care and afterwards to Iaşi. However, the seriousness of her illness led to her death. In addition, there had been no other case before the Romanian College of Doctors in which Dr I.M. had been accused of medical error or breaches of the code of medical ethics.

On 30 May 2002, the Suceava County College of Doctors validated the Professional Jurisdiction Commission’s decision.