The ECHR found a violation of the requirements of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 6 § 1 of the Convention for the Protection of Huma Сведения: 2018-07-26 06:52:44

Decision of the ECHR of 02 May 2017 in the case "Jurica (Jurica) v. Croatia" (application No. 30376/13).

In 2013 the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Croatia.

The case was successfully considered a complaint about the alleged ineffectiveness of the trial as a result of medical negligence against the applicant. There has been a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case did not violate the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicant brought an action for damages in connection with the carelessness of doctors, but her request was rejected when the domestic courts found, on the basis of expert opinions, that the deterioration of her health was a consequence of the complications of her treatment, and not of criminal negligence.

In the conventional proceedings, the applicant complained in particular that the notion of "medical negligence" was not properly defined in the domestic legal system, making it impossible to obtain a judicial determination of liability for the criminal negligence of the doctor. She also complained that it was not possible to provide an independent and impartial expert opinion on the negligence of doctors in Croatia, as competent experts worked and cooperated with suspected negligent doctors.


ISSUES OF LAW


The European Court's case-law has consistently established that States have a positive obligation under article 8 of the Convention to ensure that victims of carelessness of medical professionals have access to proceedings in which they can, if necessary, receive compensation. However, given the wide margin of discretion that states have in shaping their health policies and choosing how to fulfill their positive obligations and organize their judicial systems, there is no reason to argue that the Convention requires a special mechanism to promote the requirement of medical negligence at the domestic level.

The demand for compensation for medical negligence in Croatia due to the claim for damages was not only a theoretical possibility. There have been cases of awarding compensation for damage in Croatia, where liability has arisen from the principle of guilt or, in particular, circumstances on the basis of objective liability.

With regard to the objectivity of expert opinions, the fact that the expert worked in a public medical institution specifically designed for the preparation of expert opinions on a specific issue and funded by the state did not in itself justify the fear of lack of neutrality or impartiality. Croatian legislation has established a number of procedural safeguards to ensure the reliability of expert opinions: for example, the law obliged forensic experts to present their opinions objectively, impartially and on the basis of all their knowledge, and rules on the disqualification of judges were also applied to experts. There was no evidence that these guarantees were not properly applied in the applicant's case or that the experts whose conclusions formed the basis of the court decisions in the case did not show the required objectivity. In addition, the domestic courts not only took written conclusions as evidence, but also heard the relevant conclusions in an open court hearing in the presence of parties who could ask questions. Additional and new findings of new experts were also assigned to further clarify issues that remained unclear or contested.

Thus, it can not be asserted that the authorities failed to provide the applicant with an effective procedure that allowed her to receive compensation for the carelessness of medical personnel, the victim of which she allegedly was a victim.


DECISION


The requirements of Article 8 of the Convention were not violated (unanimously).

The Court also unanimously found that there had been a violation of the requirements of Article 6 § 1 of the Convention in connection with the length of the proceedings and awarded the applicant 3,500 euros in respect of non-pecuniary damage on this ground.

 

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