CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 octobre 2022

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margin-bottom:0pt; text-align:right } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify }     THIRD SECTION CASE OF GARRIDO HERRERO v. SPAIN (Application no. 61019/19)     JUDGMENT   Art 2 (procedural) • Ineffective investigation into cause of applicant’s child’s death following alleged failure in ventilator sustaining life after road traffic accident • Criminal investigation excessively long and too narrow in scope • Failure to obtain necessary expert evidence   STRASBOURG 11 October 2022   FINAL   06/03/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Garrido Herrero v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani , President,   Georgios A. Serghides ,   María Elósegui ,   Anja Seibert-Fohr ,   Peeter Roosma ,   Frédéric Krenc ,   Mikhail Lobov , judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   61019/19) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms   María Isabel Garrido Herrero (“the applicant”), on 12 November 2019; the decision to give notice to the Spanish Government (“the Government”) of the complaints concerning Articles 2 and 6 of the Convention; the parties’ observations; Having deliberated in private on 13 September 2022, Delivers the following judgment, which was adopted on that date: THE FACTS 1.     The applicant was born in 1960 and lives in Orihuela. She was represented by Mr J. García Espinar, a lawyer practising in Madrid. 2.     The Government were represented by Mr A. Brezmes Martínez de Villarreal and Mr L. Vacas Chalfoun, Agents of the Kingdom of Spain to the European Court of Human Rights. 3.     The facts of the case may be summarised as follows. 4.     The applicant’s daughter was born on 29 July 2005. She was involved in a traffic accident in March 2010. She was initially admitted to the La   Arrixaca de Murcia Hospital for three months, and was later transferred to the Guttmann Institute of Badalona. On 15 March 2011 she was discharged from the hospital and transferred to her home. As a result of the accident, the child was left in need of assisted ventilation (she was permanently connected to a ventilator to sustain life). After being discharged from hospital, she was assisted by the applicant, who was herself a doctor. The company that distributed and maintained the ventilator which was provided to the child (hereinafter, “the distributor” or “the company”), was also responsible for sending technicians to the applicant’s home, in order to service the ventilator and supply the necessary disposable medical equipment. 5.     On 4 March 2012 the child fell into a coma following an alleged fault in her ventilator, which ultimately led to her death the following year (see paragraph   14 below). This resulted in the child having to be hospitalised again. 6.     On 4 May 2012, following a diagnosis of the child’s brain death, the applicant requested a voluntary discharge from hospital and took the child home under her care. 7 .     On 19 July 2012, the manufacturer sent a notice (“Urgent Field Safety Notice”) where it informed the distributor that a malfunction could occur in the operation of that particular model of ventilators. That potential malfunction was related to the possible failure of a component called condenser C53. The possible malfunction of this component could result, according to the notice, in ventilator failure due to the ventilator’s inability to automatically switch from AC power to internal battery operation when the ventilator is disconnected from the electrical network or when there is a power failure during use. In that case, an audible alarm would sound for a minimum of 10 seconds. The ventilator would restart by connecting it to the mains or external battery. The manufacturer and the distributor had agreed in principle to replace all affected components of all the ventilators. Their technical repair solution implied a concrete plan for the delivery of the necessary spare parts which would be developed by the manufacturer, as the legally responsible company for the equipment, and the distributor would replace the affected components as a matter of urgency as soon as the new spare parts were received from the manufacturer. In addition, they committed to use stock equipment of the same model of the ventilator and without this problem in order to speed up the replacement as much as possible. According to the manufacturer, no failures had occurred so far for that reason but the company had nevertheless decided to take that preventive action to avoid any future failures due to this degradation of the condenser. 8 .     On 31 August 2012 the applicant lodged a criminal complaint for bodily harm caused by serious negligence against the distributor, against the manufacturer of the ventilator, and against their respective insurance companies. She considered that they were both responsible for the child’s condition because (i) the ventilator had not been appropriate for a child, since one of the pieces attached to it (called “the T-piece” or “the tubular piece”) was not suitable for paediatric purposes and did not adequately fit the ventilator, which had resulted in its disconnection, causing severe damage to her daughter; (ii) the alarm system was not connected and the alarm signal did not light up when the machine failed; and (iii) according to the applicant, the distributor had admitted that the manufacturer had previously informed the distributor that a failure in the ventilator could occur. 9 .     The judicial pre-trial proceedings commenced on 20 September 2012 before Investigating Court no. 5 of San Javier. On 21 October 2012, the court provisionally discontinued ( sobreseimiento provisional ) those proceedings without taking any investigative steps, since in the judge’s view the commission of an offence had not been duly established, without prejudice to the applicant’s ability to institute civil proceedings. 10 .     The applicant lodged an appeal ( recurso de reforma ) against the provisional discontinuance of proceedings, which was dismissed on 3 April 2013 by the investigating court, which reaffirmed that an alleged fault in the ventilator was not necessarily constitutive of serious negligence and that, given the criminal jurisdiction’s nature of ultima ratio , the complaint would be better dealt with in civil proceedings. 11 .     The applicant lodged another appeal ( recurso de apelación ) and requested permission to present evidence before the Court of Appeal ( Audiencia Provincial ). On 22 November 2013 the Audiencia   Provincial ordered the reopening of the proceedings and witness testimony from the technician who had installed the ventilator. It held that: “if what is being claimed is that, when the ventilator was installed to the child, it incorporated a non-paediatric T-piece – that is to say, a T-piece of larger dimensions than those of the tube’s diameter – which made it easier for it to be detached causing the disconnection of the ventilator, and without any alarm going on, then what should be determined is whether this installation was what really caused the accident, and whether the installation constituted a negligence, taking into account that a mere mechanical failure would not constitute any offence but merely give raise to civil liability. Only a conscious act of carrying out an installation in poor conditions due to carelessness, negligence or lack of skill, without duly considering the potential harmful result, could be the grounds to find the existence of a criminal negligence. It is therefore advisable, before confirming the decision to dismiss the case, to hear the statement from the distributor’s technician so that he can explain why allegedly a T-piece of a larger diameter was installed, and whether this installation entailed the risk that finally occurred. As a consequence, the decision to dismiss the case should be reversed.” 12.     None of the evidence or the judicial decisions thereafter referred to the manufacturing company; they focused exclusively on the distributor and its personnel. 13.     The public prosecutor had challenged both of the applicant’s appeals, supporting the investigating court’s decision to provisionally discontinue the proceedings. 14 .     The applicant’s daughter died on 2 November 2013 as a result of her injuries. 15 .     On 20 January 2014, almost one year and five months after the applicant had lodged the criminal complaint, the investigating court required the distributor to provide the name and location of the technician who had carried out the installation of the ventilator. The distributor responded that they had not carried out the installation, that the equipment had been supplied to the Guttmann Institute of Badalona, and that the installation must have been carried out by hospital staff. 16.     The applicant testified as a witness on 25 April 2014. She stated that the ventilator had not been adequately serviced or adjusted since it had been installed, and that she had been supplied with equipment for her daughter that had expired. She also submitted certain documents, among which was a medical inspection report from 15 March 2011. 17 .     On 4 August 2014 the investigating court required the distributor to identify and locate the technician who had signed the inspection report for the ventilator dated on 15 March 2011. The distributor identified the technician, informed the court that she was on maternity leave and provided details of another technician who had been involved in the inspection. This second technician testified as a witness on 27   February 2015, over six months after the court’s initial order. The technician stated that the company had never supplied any equipment that had expired, but the applicant had made extra requests for supplies, which were always delivered to her, and it was possible that some of those supplies had expired at her home. The technician also explained that the T-piece could not have been an adult one because it would have failed to fit the paediatric ventilator from the beginning, and the equipment supplied was adequate. She was unaware that the ventilator had really failed. 18 .     In light of that statement, on 27 March 2015 the applicant requested that the investigating court order the submission of more evidence. On 8 April 2015 the investigating court ordered the distributor to provide the inspection report for the ventilator, and the receipts for the delivery of certain pieces of the ventilator (the T-piece and the bellows). Also following a request from the applicant, the investigating court summoned the manager of a transport and distribution company which had been under contract with the distributor, and who had been in charge of collecting some of the expired supplies, to testify as a witness. 19 .     The distributor submitted various documents on 12 June 2015, as a result of two orders of the investigating court. On 21 July 2015 the applicant argued that those documents were not the ones that she had asked to be examined. She contended that the company had not supplied her with the necessary equipment to assist her daughter at home and had not carried out proper inspections of the ventilator. She also accused the distributor of forging documents. The company denied any tampering of the documentation and affirmed that it had provided the investigating court with all the documents that the court had ordered to be provided. Moreover, the distributor requested that the proceedings be provisionally discontinued.   The investigating court replied that it first needed to hear the witness that had been requested by the applicant. 20 .     On 13 November 2015 the manager of the transport and distribution company which was under contract with the distributor (see paragraph   18 above) testified, and explained that his company supplied disposable equipment to patients who had home assistance provided by the distributor, including oxygen supplies for ventilators. He explained that they had supplied extra equipment to the applicant following her requests, and that in one of the deliveries, he had also collected some equipment from her that had expired. However, he did not know when the equipment had been supplied, and responded that he was only responsible for distribution and transport, not the inspection of the equipment that had been supplied by the distributor. 21.     Three days later, the applicant requested that the investigating court summon the managing director of the distributor between 2011 and 2012, and the director of the same company in the province of Alicante in 2013. The investigating court replied that it first needed to decide the application for provisional discontinuance that had previously been made by the distributor. The public prosecutor submitted that the prosecution did not oppose the discontinuance of the proceedings requested by the company, in the light of the lack of evidence of any criminal offence. 22.     The applicant made the same request on 20 November 2015, insisting on the relevance of the testimony in question. 23 .     On 13 April 2016 the investigating court agreed to provisionally discontinue the case for the second time on the grounds that, from the content of the proceedings, it could not be reasonably inferred that the entity being investigated had committed any criminal offence. The investigating court held that “in the face of contradictory versions of events, [and] lacking any evidence to believe one over the other, both positions have the same probative value for the adjudicator, and in the absence of other objective indications that prove the commission of the crime by the entity being investigated, a crime cannot be proved because neither the perpetration of the acts investigated, nor the alleged perpetrators of the same, appears to be sufficiently established”. 24.     The applicant lodged an appeal against the decision, which was again challenged by the public prosecutor. 25 .     On 26 July 2016 the Audiencia Provincial again quashed the provisional discontinuance order “since the minimum enquiries necessary to obtain full knowledge of the exact manner in which the facts occurred have not been carried out, and therefore it is appropriate to continue the investigations”. It further considered that the principle of minimum intervention of the criminal law was of no application in the present case, given that “there are facts revealing the existence of a fault in the installation, which caused the minor’s injuries”. 26 .     The proceedings were reopened, and on 9 September 2016 the investigating court asked the distributor to provide identifying information for the three technicians who had allegedly been involved in the case according to the documents provided, one of whom was the one who had previously been on maternity leave and who, according to the applicant, had installed the ventilator. The company submitted the three names. 27 .     On 30 September 2016 the applicant requested the summoning of twelve health workers from the La Arrixaca de Murcia Hospital, four doctors from the General Hospital of Santa Lucía of Cartagena, two officials from child protection services, another doctor, and the primary care manager of the Murcia Health Service. She also requested that the La Arrixaca de Murcia Hospital and the Emergency Coordination Centre of Murcia submit all the documentation they had concerning her daughter. The investigating court responded that the decision whether to grant the applicant’s request would be handed down after the three witness statements already ordered had been considered. 28.     On 18 January 2017, over four years after the criminal complaint had been lodged, the three employees of the distributor testified. They provided similar statements, according to which none of them had carried out the installation of the ventilator, which had been installed at the Guttmann Institute of Badalona. The first witness declared that she had only entered the applicant’s home on 15 March 2011, after which she had never been inside the house, and had never conducted any inspection of the ventilator. They all agreed that it was not possible for the paediatric ventilator to have been supplied with an adult T-piece because adult T-pieces did not fit paediatric ventilators at all, and the air would have leaked out, activating the alarm system. The three witnesses explained that the ventilator had to be inspected every three months, but they had not been allowed by the applicant to enter her house and inspect the ventilator, and the applicant, herself a doctor, had carried out the appropriate measurements and parameter checks. They also stated that the applicant had made requests for extra equipment and it had always been supplied to her. The first witness explained that she had downloaded the ventilator’s alarm record after the applicant had reported the failure in the ventilator, and at the time of the alleged incident, there was no record of any fault in the ventilator. 29 .     Following the above statements, the investigating court ordered the distributor to specify the hospital in which the ventilator had been installed. On 31 January 2017 the company informed the court that the ventilator had originally been delivered to the paediatric intensive care unit of the La   Arrixaca   de Murcia Hospital but had later been transferred to the Guttmann Institute in Barcelona, as was the child. They did not provide any supporting documents. 30.     In the light of the above response, on 7 February 2017 the investigating court ordered the distributor to clarify who had carried out the installation. They replied the following day that the ventilator had initially been delivered to two doctors at the La Arrixaca de Murcia Hospital, but they were aware that the ventilator had actually been installed by the staff of the Guttmann Institute, and they did not know which doctors were responsible for the installation. 31.     On 6 February 2017 the applicant requested permission to testify again. She did not receive an answer from the court. 32 .     On 15 August 2017 the applicant submitted that the explanations provided by the distributor were untrue, as were the statements by the technicians, and the ventilator had actually been installed by one of the distributor’s technicians at her home. She requested the summoning of another seven health workers from the La Arrixaca de Murcia Hospital (including the doctors to whom the ventilator had been delivered by the company), of a nurse from the Los Alcazares local health clinic, of the manager of the Murcia Health Service, of the manager of the distributor in the Cartagena local office, and of the general manager of the same company. She also requested documents from the Los   Alcazares local health clinic and the La Arrixaca de Murcia Hospital, and the receipt for the delivery of the paediatric tubing, the new ventilator model, the T-piece and the alarm box. 33 .     On 8 September 2017 the investigating court provisionally discontinued the case for the third time. It stated that the six-month time-limit for investigations provided for in Article 324 of the Code of Criminal Procedure (see paragraph 42 below) had expired on 2 November 2016, and that it could not extend the maximum time-limit for the investigation period without a request from the public prosecutor, which had not been made. No further investigative steps could therefore be taken. The court clarified that it was also not possible for the investigative steps requested by the applicant on 15   August 2017 to be taken because the investigation period had expired before that date. It further explained that, in accordance with the applicable procedural provisions, after the expiry of the investigation time-limit it only had two options: the discontinuance of the case, or a decision that the case would proceed to the trial stage. The latter option was not possible since a trial could not be held without a previous statement, given at the investigation stage, from the person who was to be charged as a defendant. Since it had not been established that the distributor personnel had carried out the installation, nobody had given a statement in the capacity of being an investigated person. As a result, the discontinuance of the case was the only option. 34.     The investigating court further stated: “From the result of the proceedings held, it is not possible to speak of an action on the part of the distributor in which it was conscious of carrying out an installation inadequately owing to carelessness, negligence or lack of skill, without taking into account the harmful result that should have been considered at the time of the installation, and this was the case because, as has been said, there is no evidence that it was the company that carried out the installation, so that its conduct cannot be classified as criminal negligence, which means that it should be considered that the situation falls within the circumstances contemplated in Article 641 [of the Code of Criminal Procedure], because the investigative activity carried out within the legally established time-limits does not allow the company to be held allegedly responsible for the offences charged.” 35 .     The applicant lodged an appeal, claiming that one of the witnesses (the technician who signed the inspection report of 15 March 2011) had lied and had in fact installed her daughter’s ventilator. The public prosecutor challenged the appeal, which was dismissed by the investigating court on 31   January 2018. The investigating court found that there was no indication that the technician had lied in her witness statement, or that she had carried out the installation of the ventilator. It considered that none of the evidence requested by the applicant (namely, many statements from witnesses) would have been relevant to clarify whether the installation of the ventilator, which seemed to have been carried out at the Guttmann Institute of Badalona, was what had caused it to subsequently fail. 36.     On 3 July 2018, the Audiencia Provincial dismissed the applicant’s appeal against the investigating court’s above decision, confirming the provisional discontinuance of the case. In particular, it observed that no extension had been requested by the public prosecutor, and that, on the basis of the investigations carried out, there was evidence against neither the technicians who had testified, nor against any other specific person, that would allow a decision to be made other than the provisional discontinuance of proceedings. 37.     Regarding the merits of the case, the Audiencia Provincial noted that the proceedings were based on the premise that one of the technicians had (inadequately) installed the ventilator, but that the evidence led to the conclusion that this had not been the case. The Audiencia Provincial stated: “Contrary to what is stated in the order appealed against, the expiry of the time-limits provided for in Article 324 of the Code of Criminal Procedure would not prevent, in and of itself, the taking of a statement, in the capacity of an investigated person, of another person other than a person who already has that status, or even if there is no other investigated person in the proceedings, as has been decided by case-law... However, the reasoning of the decision under appeal must be confirmed, on the basis of which there is no evidence against [the distributor’s technician accused of installing the ventilator], nor against any other specific person, that would allow a decision other than the provisional discontinuance of proceedings, nor – we add – to agree to hear them as a person under investigation even after the six-month term under Article 324 of the Code of Criminal Procedure, for which no extension has been requested by the public prosecutor or the private prosecution, and which has elapsed.” 38.     The Audiencia Provincial reiterated that the applicant herself had initially testified that the ventilator had been installed in the hospital, after which her daughter was transferred home. The court stated that the inspection report showed that the technician had merely checked the ventilator’s alarm system and the need for supplies to continue the treatment at home. In any event, this happened over a year before the fault that led to the injuries and ultimately the death of the child. It also held: “It would have to be determined by an expert whether the subsequent failure was caused by a deficient initial installation, by the absence of subsequent servicing, by the use of out-of-date components or by any other cause, which would require new investigative measures which are prohibited by Article 324 of the Code of Criminal Procedure, and it would be just as untimely to carry out any of the measures that have been refused or any other measures aimed at finding out who might be responsible”. 39.     To the investigating court, if any other person potentially liable for an offence had been identified within the investigation stage time-limit, that person’s testimony could have been heard even outside that time-limit. However, since no offence was proved, and the admission of any additional evidence would be outside the maximum time-limit for the investigation stage, this resulted in the proceedings having to be discontinued even if the court had not identified who had carried out the installation of the ventilator, or the cause of the applicant’s daughter’s death. 40 .     The applicant lodged an amparo appeal with the Constitutional Court on 3 August 2018, which was declared inadmissible owing to its lack of constitutional relevance. The public prosecutor appealed against the Constitutional Court’s decision, arguing that the applicant had justified the special constitutional relevance of the case by means of extensive reasoning, in connection with the fundamental rights’ violations alleged. In the public prosecutor’s view, that appeal presented an opportunity for the Constitutional Court to rule on the preclusive nature of the (then new) time ‑ limits of the investigation stage in criminal proceedings, in force since 6 December 2015 (see paragraphs 42 and 44 below). That appeal was dismissed by a decision of the Constitutional Court sitting in a three-judge formation on 22   May 2019, with one dissenting opinion. The majority considered that the appeal did not provide an opportunity to assess the new legislation (which could arguably have given it constitutional relevance) but merely concerned an assessment of the sufficiency of the evidence gathered during the investigation stage to continue or provisionally discontinue the proceedings, which was not for the Constitutional Court to reassess. As a result, that court confirmed that the appeal lacked constitutional relevance. RELEVANT LEGAL FRAMEWORK AND PRACTICE 41.     The relevant provisions of the Spanish Constitution state as follows: Article 15 “Everyone has the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment. The death penalty is hereby abolished, except as provided by military criminal law in times of war.” Article 24 “Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended.”   42 .     The relevant parts of the Code of Criminal Procedure, as in force at the relevant time, state as follows: Article 101 “Criminal actions are public. All Spanish citizens may exercise them in accordance with the provisions of the law.” Article 105 § 1 “Officials of the public prosecutor’s office shall be obliged to bring, in accordance with the provisions of the law, all the criminal actions that they consider appropriate, whether or not there is a private prosecutor in the case, except those that the Criminal Code reserves exclusively for private prosecution.” Article 106 “Criminal actions for a crime or minor offence that give rise to proceedings of the court’s own motion shall not be extinguished by a waiver by the offended party.” Article 324 “1.     The investigation stage shall take place during a maximum period of six months from the order to commence pre-trial proceedings or preliminary investigations. Nevertheless, prior to expiry of this time-limit, the investigating judge, at the request of the public prosecutor’s office and after hearing the parties, may declare the investigation stage to be complex for the purposes provided for in the following paragraph where, owing to circumstances arising during the investigation, this cannot be completed within the time-limit stipulated, or where any of the circumstances provided for in the following paragraph of this Article arise. 2.     If the investigation is declared to be complex, the time-limit for the duration of the enquiry will be eighteen months, which may be extended by the investigating judge for the same period, or a shorter one, at the request of the public prosecutor’s office and after hearing the parties. The request for extension must be submitted in writing, at least three days prior to the expiry of the maximum time-limit. There can be no appeal against the order dismissing the request for an extension, without prejudice to the request being repeated at the appropriate moment in the proceedings. The investigation will be considered to be complex where: (a)     it concerns criminal groups or organisations; (b)     it has numerous punishable acts as its subject; (c)     it involves a large number of parties being investigated or victims; (d)     it requires the examination of expert opinions or other forms of cooperation requested by the judicial body involving the examination of extensive documentation or complicated analyses; (e)     it involves proceedings abroad; (f)     it requires the review of the management of public or private legal persons; or (g)     a crime of terrorism is concerned. ... 4.     Exceptionally, prior to the expiry of the time-limits provided for in the previous paragraphs or, as appropriate, the extension that may have been agreed, if requested by the public prosecutor’s office or any of the parties to the proceedings, if reasons arise that justify this measure, the investigating judge, having heard the other parties, may set a new maximum time-limit for the investigation to be finalised. ... 6.     The judge shall conclude the investigation stage on finding that its purpose has been fulfilled. Once the maximum time-limit, or its extensions, have expired, the investigating judge shall terminate the pre-trial proceedings ... 7.     The investigative measures agreed prior to the expiry of the time-limit shall be valid, without prejudice to their admission after the expiry of the time-limit. 8.     The mere lapse of the maximum time-limit provided for in this Article shall never give rise to the proceedings being dismissed if the circumstances provided for in Articles   637 or 641 have not been met.” 43.     Articles 637 and 641 of the Code of Criminal Procedure establish the circumstances in which a case can be discontinued, including when it emerges from the case file that a crime has been committed but there are insufficient grounds to accuse a specific person or persons of its commission. 44 .     The wording of Article 324 of the Code of Criminal Procedure was amended by Law no. 41/2015 of 5 October to the wording in the above paragraph. The amendment entered into force on 6   December 2015. This provision has subsequently been amended by Law no. 2/2020 of 27 July 2020, extending the usual period to conduct pre-trial criminal investigations to twelve months. 45 .     The Spanish Criminal Code (Organic Law no.   10/1995 of 23   November 1995) provides that any person who causes the death of another by serious negligence will be convicted of manslaughter (Article 142 § 1) and that when manslaughter is committed owing to professional negligence, the sentence will also impose a ban on the exercise of the relevant profession (Article 142 § 3). 46.     Other relevant articles of the Criminal Code (as in force at the material time) concerning civil liability within criminal proceedings, read: Article 109 “1.     The execution of an act described by the Law as a crime or an offence obliges to repair, in the terms foreseen in the Laws, the damage and prejudices caused by it. 2.     The injured party may, in any case, choose to claim civil liability before the Civil Jurisdiction.” Article 110 “The liability established in the foregoing article includes: 1.     Restitution. 2.     Reparation of the damage. 3.     Compensation for material and moral damage.” Article 115 “When declaring the existence of civil liability, the Judges and Tribunals shall reasonably establish in their decisions the basis on which they base the amount of damages and compensation ...” Article 116 “1.     Any person criminally responsible for a crime or offence is also civilly responsible if the act gives rise to damage ...” 47.     There is relevant case-law from the Spanish Constitutional Court on the interpretation of the right to access to a court. By way of example, judgment no. 87/2020 of 20 July 2020 (the third legal ground): “A)     The right to effective judicial protection of access to a court, in its aspect of the right of access to a court through the exercise of criminal actions, has been conceived in the doctrine of this court as a ius ut procedatur , whose constitutional examination operates from the perspective of Article 24 § 1 of the Spanish Constitution (SC), and the guarantees of Article 24 § 2 SC are also applicable ... It has the following characteristics: a)     The exercise of criminal actions does not give an unconditional right to the opening and full conduct of criminal proceedings; nor does it impose on judicial bodies the obligation to carry out an investigation beyond what is necessary, or to unduly prolong the investigation or proceedings (judgments of CC [the Constitutional Court] 176/2006 of 5 June 2006; 34/2008 of 25 February 2008, and 26/2018 of 25 February 2018). b)     The complainant or claimant has, as the holder of the ius ut procedatur , the right to initiate criminal proceedings, to have them conducted in accordance with the rules of fair process and to obtain a reasonable and lawful response (judgments of CC 120/2000 of 10 May 2000, and 12/2006 of 16 January 2006), but it does not include the material right to obtain a conviction and to have a judgment imposed, since ius puniendi is exclusively public in nature and belongs to the State ... c)     The effective judicial protection of the complainant or claimant is satisfied by a court decision ordering the early dismissal of the criminal proceedings, without the opening of the trial stage, when that decision is based on a reasoned and reasonable concurrence with the grounds legally provided for granting the discontinuance, final or provisional (under Articles 637 and 641 of the Code of Criminal Procedure and, if applicable, Article 779 § 1.1 of the Code of Criminal Procedure). On the other hand, there will be an infringement of this right if the court decision not to proceed with the criminal investigation affects, at any of those procedural stages, evidence requested by the appellant (provided that the appellant is a party to the court proceedings), affecting his or her right to the use of evidence; or also when, once that evidence has been sufficiently examined, the determination of what has happened on the basis of that evidence, or the legal classification of the facts established, is affected (judgment of CC 26/2018 of 5 March 2018). d)     The effectiveness of the right to judicial protection in those cases will correspond to the adequacy of the investigation stage. It will depend, therefore, not only on whether the decision to discontinue is justified and contains sufficient legal grounds, but also on whether the investigation of the complaint has been sufficient and effective, since the protection initially requested consists of an investigation into what happened. e)     A sufficient and effective investigation can only be assessed by evaluating the specific circumstances of the complaint and of what was reported, as well as the seriousness of what was reported and its previous lack of transparency (judgments of the CC 34/2008, and 26/2018), so that there will be a violation of the right to effective judicial protection if an investigation is not opened, or is discontinued, when there are reasonable suspicions of the possible commission of a crime and such suspicions are revealed as being susceptible to being resolved through the investigation. This requirement does not imply the opening of the investigation in any case, just as it does not prevent its early discontinuance. Nor is there a right to the unlimited use of evidence in such a way that it requires the carrying out of as many investigative measures as possible or imaginable, proposed by the parties or carried out of the court’s own motion, particularly if it becomes evident that the deployment of further measures is unnecessary. Such an obligation would lead to unnecessary orders, to the detriment of the general interest in a rational and effective management of the resources for the administration of justice ... B)     However, the need to adapt the interpretation of the rules relating to fundamental rights and freedoms recognised by the Constitution (Article 10 § 2) to the international human rights treaties and agreements ratified by Spain, especially the European Convention on Human Rights (ECHR), should lead us to take special account of the case-law of the European Court of Human Rights. In particular, with regard to the requirement addressed to judicial bodies requiring them to exercise the utmost diligence in the investigation, prosecution and, where appropriate, repression of allegedly criminal acts committed against vulnerable victims in cases of gender-based violence or violence that takes place within the family or emotional environment. The European Court of Human Rights has emphasised the duty of States Parties to strengthen their action in the areas of prevention, protection and punishment of conduct which, within their respective jurisdictions, may involve a violation of the rights to life and the prohibition of torture and inhuman and degrading treatment (Articles 2 and 3 ECHR) in the area of private and family life (Article 8 ECHR), so as to eliminate any passivity, omission, ineffectiveness or negligence on the part of the State in prevention and protection work, but also the lack of due diligence in investigation work where this proves necessary. Obviously, the duty of effective protection can only arise if in the specific case there was effective knowledge of the facts or the possibility of knowing them on the part of the authorities and their agents, who adopted measures aimed at reducing or minimising that risk, always with full respect for the rights and procedural guarantees of the person under investigation (judgments of the European Court of Human Rights, Osman v. the United Kingdom , 28 October 1998, § 116, Reports of Judgments and Decisions 1998 VIII, and Opuz v. Turkey , no. 33401/02, § 129, ECHR 2009).” THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 48.     The applicant complained that the domestic courts had failed to sufficiently investigate the causes of her daughter’s death following injuries caused by an alleged fault in her ventilator, which amounted to a violation of the procedural limb of her right to life as provided for in Article   2 §   1 of the Convention, which reads as follows: “1.     Everyone’s right to life shall be protected by law...” Admissibility 49.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 50.     The applicant submitted that manslaughter is a public offence under Spanish criminal law, which does not require the victim’s representatives to carry out a prosecution, since the public prosecutor has the duty to do so, and which the courts have to investigate in any event (see paragraph 27 above). She complained that the investigating court did not carry out a sufficient investigation in order to clarify whether there had been a gross negligence that had ultimately led to her daughter’s death. 51.     She pointed out that the investigating court had dismissed the proceedings immediately after her criminal complaint, without carrying out any investigative steps. The Audiencia Provincial had ordered the reopening of the proceedings in order to find out who had installed of the ventilator, but the investigation still could not identify the technician and this resulted in the proceedings being dismissed for the second time. The Audiencia Provincial ordered the reopening for the second time, on the grounds that the essential investigations had not been carried out in order to establish who had been responsible for the installation of the ventilator, whether it met the morphological requirements to be adequate for a child, whether the “T-piece” was paediatric, or whether there was any safety system in place in order to avoid a potential accident caused by a failure in the equipment. The Audiencia Provincial admitted in this decision (see paragraph 25 above) that, although there was no evidence that the T-piece installed was not paediatric, and there was therefore a possibility that the malfunctioning had been caused by a mechanical failure which could be analysed from a purely civil liability perspective, in this case it was persuaded that “there was revealing data of the existence of a failure in the installation of this equipment” and as a result, a criminal investigation was pertinent. 52 .     The applicant insisted that she had requested numerous investigative steps in order to ascertain the cause of her daughter’s injuries and death and the persons responsible for it, and most of them had been rejected or unanswered by the investigating court. On other occasions, the investigating court had not verified that the distributor had correctly submitted the evidence that it had been ordered to submit. For instance, the distributor had not complied with the investigating court’s order to provide evidence of the inspection report for the ventilator that had failed, and reports about the delivery of the T-piece and the bellows (see paragraphs 14-18 above). The applicant complained that no expert report was presented in order to analyse the actual failure of the ventilator. 53.     The applicant had also requested on various occasions (see paragraphs   18 and 20 above) the witness statements of two managing directors of the distributor, but the statements had never been accepted by the investigating court. Similarly, she had requested the testimony of many workers from the La   Arrixaca de Murcia Hospital (including doctors from the paediatrics department and the specialised healthcare personnel responsible for the child’s respiratory assistance) to provide information about th