CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22836/93                       by N. and subsequently I.L.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 29 November 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 March 1993 by N. and subsequently I.L. against Sweden and registered on 28 October 1993 under file No. 22836/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The application was initially brought by N., a Swedish citizen, born in 1942 and residing at Bandhagen. After N.'s death on 25 May 1994 her mother I., a Swedish citizen, born in 1926 and resident at Årsta, stated to the Commission that she wished to take over the application.         The facts of the case, as submitted by N. and maintained by I., may be summarised as follows.   Particular circumstances of the case         On 15 June 1987 E., N.'s father and I.'s husband, then 79 years old, sought emergency care in the surgery ward of the Southern Hospital (Södersjukhuset) in Stockholm and was examined, inter alia, by physician B., who prescribed a laxative. On 2 August 1987 E. was admitted for care in the hospital, his legs having become paralysed. He was also found to be suffering from a bacterial infection of the spine. On 15 September 1987 E. was transferred to Årsta Hospital, where he died on 3 October 1987. On his arrival at this hospital he was suffering from, among other things, a large pressure wound on his back.         In May 1988 N. lodged a complaint with the Disciplinary Board of Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd) against a physician, Dr. B., three further physicians, the nursing staff on duty at the Southern Hospital between 2 August and 15 September 1987 as well as against the ambulance staff on duty on 31 July and 2 August 1987.         On 12 November 1990 N. requested that the physician in charge of E.'s care at Årsta Hospital, Dr. S., be heard by the Disciplinary Board in regard to, inter alia, the discrepancies between the diagnosis concerning E. which had been made at the Southern Hospital and the findings from the autopsy carried out at Årsta Hospital after E.'s death. N. submitted, inter alia, that E. had been incorrectly diagnosed at the Southern Hospital, that his inadequate treatment there had caused his pressure wound and that the wound had not been treated properly. N. also demanded that B. should be heard by the Board.         In February 1991 N. was allegedly informed by officials of the Disciplinary Board that because of a time-bar Dr. S. could no longer be heard in the investigation.         On 18 April 1991 the Disciplinary Board rejected N.'s complaint after having studied E.'s patient records and having heard five physicians and one ambulance driver. The Board did not find it necessary to hear Dr. S. and/or Dr. B.         N. appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm, essentially alleging that the Disciplinary Board's investigation of her complaint had been too summary and slow. She also considered that the Disciplinary Board should have granted her requests of 12 November 1990.         On 7 October 1991 the Administrative Court of Appeal found it unnecessary to obtain further evidence in the case and rejected N.'s appeal.         N. requested leave to appeal to the Supreme Administrative Court (Regeringsrätten), again arguing that Dr. S. and Dr. B. should have been heard.         On 16 October 1992 the Supreme Administrative Court refused leave to appeal.   Relevant domestic law         An official who has, either deliberately or by negligence, failed to fulfil his or her professional duties in a way which cannot be considered insignificant, may be punished by a disciplinary sanction in the form of a remark or a warning (section 12 of the 1980 Act on the Supervision of Health and Medical Care Staff and Others; lag 1980:11 om tillsyn över hälso- och sjukvårdspersonalen m.fl.). Proceedings before the Disciplinary Board of Health Care may be instituted by the National Board of Health and Social Welfare (socialstyrelsen), the patient or a close relative of the patient (sections 19 and 24).         If an official can reasonably be suspected of having committed an offence for which imprisonment is prescribed, the incident shall be reported to the police either by the National Board of Health and Social Welfare or the Disciplinary Board for the purpose of possible criminal charges being brought (section 13, subsection 2 and section 38, subsection 3). Insofar as such charges have been brought against an official, the Disciplinary Board is barred from instituting or pursuing disciplinary proceedings (section 13, subsection 1).          A disciplinary sanction may not be imposed on an official, if, inter alia, he or she has not been notified of the complaint before the Disciplinary Board within two years from the incident at issue (section 14).         The proceedings before the Disciplinary Board are normally in writing. The Board may, however, hold an oral hearing, if this can be expected to facilitate the investigation of a complaint (section 28).         A complaint lodged with the Disciplinary Board shall be communicated to the respective official(s) against whom it has been introduced. The official(s) shall be ordered by the Board to respond to the complaint. No communication to the official(s) concerned is needed, if it is evident that the complaint cannot be successful or if a notification is otherwise considered unnecessary (section 29, subsection 1).         An official who has been notified of a complaint against him or her shall respond to it in writing, unless the Disciplinary Board decides that his or her views shall be presented at an oral hearing (section 30, subsection 1).         According to the 1972 Tort Liability Act (skadeståndslag 1972:207), the State, a municipality or a similar public organ is liable for personal or pecuniary damages caused by fault or negligence of a public official when carrying out an activity for which the State or the municipality is responsible (chapter 3, section 2). Such actions for damages are examined by ordinary civil courts.         According to the Code of Judicial Procedure (rättegångsbalken), a complainant has an independent standing in criminal proceedings. He or she may therefore pursue a private prosecution, if the Public Prosecutor has decided not to bring charges in spite of the complainant's request for such action in a matter falling under public prosecution (chapter 20, section 8, subsection 1). A private claim against an accused in consequence of a suspected offence may be joined with the criminal charges brought either by the Public Prosecutor or the complainant (chapter 22, section 1).   COMPLAINTS   1.     Article 2 para. 1 of the Convention has allegedly been violated, since the medical treatment of E. in the Southern Hospital led to his death.   2.     Article 6 para. 1 has allegedly been violated, since N.'s complaint to the Disciplinary Board was dealt with too summarily. In particular, the Board did not hear Dr. S. and Dr. B. and was therefore unable properly to assess the adequacy of E.'s treatment.   3.     Article 13 has allegedly also been violated.   THE LAW   1.     According to N., and subsequently I., Article 2 para. 1 (Art. 2-1) of the Convention has been violated, since the medical treatment of E. in the Southern Hospital led to his death. Under Article 6 para. 1 (Art. 6-1) it is also submitted that the authorities dealt with N.'s complaint too summarily. In particular, the Disciplinary Board heard neither Dr. S. nor Dr. B. and was therefore unable properly to assess the adequacy of E.'s treatment.   (a)    The Commission recalls that under Article 25 (Art. 25) of the Convention it may receive petitions from "individuals claiming to be the victim of a violation by one of the Contracting Parties of the rights set forth in [the] Convention ...". It observes that N., who originally lodged the application, died on 25 May 1994 following which her mother and the deceased E.'s wife I. stated to the Commission that she wished to pursue the case in her own name.         The Commission recalls that an heir of a deceased applicant may not claim any general right to have the examination of a complaint brought by the deceased continued. The essential point is whether the particular nature of the complaint allows it to be, in the circumstances of the case, considered as transferable (cf., e.g., No. 10828/84, Dec. 6.10.88, D.R. 57 p. 5).         The Commission observes that the complaint now at issue relates to the treatment of E. It considers that, as the deceased E.'s spouse, I. may reasonably claim to be a "victim" within the meaning of Article 25 para. 1 (Art. 25-1) in regard to the present complaint.   (b)    The Commission next recalls that under Article 26 (Art. 26) of the Convention it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. Article 26 (Art. 26) nevertheless only requires the exhaustion of such remedies relating to the breaches of Convention as are effective and sufficient. There is no need to try other remedies which are available, but probably ineffective (cf. No 9248/81, Dec. 10.10.83, D.R. 34 pp. 78, 85). An applicant cannot be criticised for not having had recourse to legal remedies which would have been directed essentially to the same end as a remedy already tried and which would in any case not have offered better chances of success (see, e.g., Eur. Court H.R., A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48, para. 32; Lopez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, para. 38).         The Commission observes that under Swedish law a relative of a deceased person may complain to the Disciplinary Board of Health and Medical Care for the purpose of obtaining an assessment of the adequacy of the care afforded to the patient. This Board may impose disciplinary sanctions on medical and nursing staff. In certain cases it must report the incident to the police for the purpose of possible criminal charges being brought. In the present case the Disciplinary Board found no reason to criticise E.'s treatment. In these circumstances the Commission finds that N.'s complaint to the Disciplinary Board was an effective and sufficient remedy within the meaning of Article 26 (Art. 26) of the Convention.   (c)    The Commission has next examined whether there is any appearance of a violation of Article 2 para. 1 (Art. 2-1) in this case. In so far as this provision is relevant it reads as follows:         "Everyone's right to life shall be protected by law. ..."         The Commission recalls that this sentence imposes an obligation on Contracting States not only to refrain from taking life "intentionally" but also to take appropriate steps to safeguard life (No. 7154/75, Dec. 12.7.78, D.R. 14 p. 31). For the purpose of examining the present case, the Commission will assume that the treatment of E. incurred State responsibility.         On the basis of an overall assessment of N.'s complaint to the Disciplinary Board, the evidence actually obtained by that Board as well as the present application, the Commission finds no indication that E.'s death was caused by a failure to provide him with proper care. Accordingly, there is no appearance of a violation of Article 2 (Art. 2) of the Convention on account of his allegedly inadequate treatment.         The Commission recalls, however, that in a previous case regarding death in a hospital it has held that the State's positive obligation to protect life implies regulatory measures for hospitals and an efficient judicial system permitting the cause of death in a hospital and the possible liability of the doctors or the hospital to be established. If there is no indication that the authorities arbitrarily assessed the evidence before them, the Commission must rely on the facts established by those authorities (No. 20948/92, Dec. 22.5.95, D.R. 81-A p. 35; see also No. 16593/90, Dec. 12.9.91, unpublished).         In the present case the Commission notes that one of the physicians against whom N. had lodged her complaint, Dr. B., was in no way heard by the Disciplinary Board or the Administrative Court of Appeal, these bodies having found such a hearing to be unnecessary. The same is true as regards the failure to hear Dr. S. The Commission observes, however, that the Disciplinary Board heard five other physicians and also acquainted itself with E.'s patient records. In the particular circumstances of this case it therefore finds no appearance of a violation of Article 2 (Art. 2) in so far as the complaint under this provision may be considered to pertain to the allegedly improper manner in which the disciplinary proceedings were conducted.         It follows that the above aspects of the complaint under Article 2 (Art. 2) must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (d)    The Commission has next examined the complaint under Article 2 in conjunction with Article 13 (Art. 2+13) of the Convention which reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The Commission recalls that, according to the European Court of Human Rights, an applicant, who is found to have no "arguable claim" that another Convention provision has been violated, is not entitled to a remedy under Article 13 (Art. 13) (see, e.g., Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, pp. 14-15, paras. 31-33 and p. 20, para. 46). The concept of an arguable claim nevertheless falls to be determined having regard to the particular facts of the case and the nature of the legal issues raised (cf. Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, p. 11, para. 27; No. 12474/86, Dec. 11.10.88, D.R. 58 p. 94).         On the basis of an overall assessment of the complaint under Article 2 (Art. 2) the Commission concludes that N. had no "arguable claim" of a breach of that provision which would have entitled her to a remedy under Article 13 (Art. 13). It need not therefore determine whether she had at her disposal an "effective remedy" within the meaning of that provision.         It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The allegedly too summary nature of the disciplinary proceedings is also addressed under Article 6 para. 1 (Art. 6-1) of the Convention which reads, in so far as it appears to be relevant, as follows:         "In the determination of his civil rights and obligations       or of any criminal charge against him, everyone is entitled       to a fair and public hearing within a reasonable time by an       independent and impartial tribunal established by law. ...         The Commission need not determine whether I. may reasonably claim to be a "victim" within the meaning of Article 25 para. 1 (Art. 25-1) also with regard to the present complaint, since the complaint is in any case inadmissible for the following reason.         The Commission first notes that N. chose to institute disciplinary proceedings against E.'s doctors instead of privately prosecuting them or claiming damages in civil proceedings. The disciplinary proceedings resorted to did not, however, determine any "civil right" of N. Accordingly, Article 6 para. 1 (Art. 6-1) does not apply in the instant case.         It follows that this complaint must be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.     Recalling its conclusion in 1 (d), the Commission finds no further issue under Article 13 (Art. 13) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.        Secretary to                              Acting President   the Second Chamber                         of the Second Chamber     (M.-T. SCHOEPFER)                               (G.H. THUNE)