CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 mars 2025

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s3E39F0D2 { width:24.22pt; display:inline-block } .sED722BC { width:153.78pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION DECISION Application no. 37962/22 Maria CUSTÓDIA against Portugal   The European Court of Human Rights (Fourth Section), sitting on 18   March 2025 as a Committee composed of:   Tim Eicke , President ,   Ana Maria Guerra Martins,   András Jakab , judges , and Simeon Petrovski, Deputy Section Registrar , Having regard to: the application (no.   37962/22) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3   August   2022 by a Portuguese national, Ms Maria Custódia (“the   applicant”), who was born in 1938, lives in Arouca and was represented by Mr I. Leite, a lawyer practising in São João da Madeira; the decision to give notice of the complaint concerning the alleged length and ineffectiveness of the criminal proceedings on account of medical malpractice to the Portuguese Government (“the Government”), represented by their Agent, Mr Ricardo Bragança de Matos, Public Prosecutor, and, after 1   September 2022, Mr   Manuel Aires Magriço, Public Prosecutor, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns criminal proceedings initiated by the applicant with the Arouca public prosecutor’s office for alleged medical malpractice. Relying on Article 2 and Article 6 § 1 of the Convention, she complained that the proceedings lodged in respect of her allegations of medical malpractice had been lengthy and ineffective. The sequence of clinical events 2 .     On 19 January 2015 the applicant underwent a colonoscopy at the Misericórdia Hospital, in Arouca, following which she complained of severe abdominal pain. Consequently she twice had to undergo a procedure to extract air from her intestines, first by a nurse and later by the doctor who had carried out the colonoscopy. She was subsequently discharged. 3 .     On 22 January 2015 the applicant called the emergency services, complaining of severe abdominal pain and sickness. She was first taken to the public health centre of Arouca and subsequently transferred to Santa Maria da Feira Hospital. 4.     The applicant was diagnosed with a perforation of the bowel and therefore had to undergo surgery for a colostomy (that is, a permanent opening through the abdomen for the colon). 5.     On 23 January 2015 the applicant was transferred to Vila Nova de Gaia Hospital in an induced coma, following an infection. She remained in the intensive care unit until 30 January 2015 and was subsequently transferred to a clinical rehabilitation facility where she remained until 12 February 2015. Proceedings brought by the applicant 6 .     On 18 February 2015 the applicant lodged a criminal complaint with the Arouca public prosecutor, alleging that she had been the victim of medical malpractice. The public prosecutor initiated the investigation proceedings and requested copies of the medical files regarding the applicant’s hospitalisations in the Misericórdia Hospital, the public health centre of Arouca, the Santa Maria da Feira Hospital, and the Vila Nova de Gaia Hospital. 7 .     On 19 May 2015 the applicant and her son were heard by the public prosecutor. 8.     In July 2015 the applicant’s medical files were delivered to the public prosecutor. 9 .     In April 2016 the applicant provided the public prosecutor with a medical expert opinion, according to which bowel perforation during a colonoscopy was a rare but possible complication, inherent in the procedure. However, constant medical surveillance in the post anaesthetic care unit could have led to an early diagnosis which could have avoided a danger to her life. 10.     On 27 October 2016 the public prosecutor requested expert medical reports from the Portuguese Forensic Medicine Institute ( Instituto Nacional de Medicina Legal e Ciências Forenses, I.P . – “the INML”). 11.     An expert medical report was sent by the INML to the public prosecutor on 27 October 2017. According to the report, it was not possible to establish that the perforation had been a result of either the colonoscopy or the air extraction procedure (see paragraph 2 above). It further pointed out that, in any event, bowel perforation during a colonoscopy was a possible complication of the procedure and that there was nothing to suggest that the doctor had been negligent while performing it. 12 .     On 27 February 2018 the public prosecutor heard the doctor who had performed the colonoscopy. 13 .     On 28 February 2018 the public prosecutor discontinued the proceedings. Relying on the INML’s expert report, she found that bowel perforation during a colonoscopy was a rare complication, and that it had not been due to medical malpractice. Furthermore, it was not established whether the perforation had been caused during the colonoscopy or during the air extraction procedure performed first by a nurse and later by the doctor. In addition, the applicant had previously suffered from multiple diverticula. In sum, the cause of the perforation could not be established and there was nothing to suggest that the doctor had used the wrong technique. 14 .     On 24 April 2018, following a complaint lodged by the applicant with a higher authority, the Aveiro public prosecutor reopened the investigation proceedings in order to collect further evidence. 15.     On 23 July 2018 the INML submitted a second expert medical report. 16.     During the months of November and December 2018 and January   2019, the nurse on duty, the anaesthetist and the entire medical and nursing teams who had performed the applicant’s surgery in Santa Maria da Feira Hospital (see paragraph 3 above) were heard by the public prosecutor. 17.     On 17 September 2019 the doctor who had carried out the colonoscopy was heard a second time by the public prosecutor, this time as an accused ( arguido ) in the proceedings. 18.     On 6 November 2020 the clinical director of the gastroenterology department of the Santa Maria da Feira Hospital was heard for a third time. 19 .     On 10 May 2021 the applicant was granted leave to intervene in the proceedings as an auxiliary prosecutor ( assistente ), assisting the public prosecutor. 20 .     On 14 May 2021 the public prosecutor discontinued the proceedings, considering that the cause of the perforation had not been sufficiently established. 21 .     On 13 July 2021 the applicant lodged an application for the opening of adversarial investigation proceedings ( instrução ) for manslaughter against the doctor who had carried out the colonoscopy. 22.     On 29 November 2021 the Santa Maria da Feira Criminal Investigation Court dismissed the case ( despacho de não pronúncia ), basing its decision on the lack of sufficient evidence found by the commission of any offence on the part of the defendant. 23 .     On 18 January 2022 the applicant challenged that decision in the Oporto Court of Appeal. On 6 April 2022 the court upheld the decision. 24 .     Relying on Article 2 and Article 6 § 1 of the Convention, the applicant alleged that the criminal proceedings brought in respect of her allegations of medical malpractice had been lengthy and ineffective. THE COURT’S ASSESSMENT 25.     The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint raised by the applicant under Articles 2 and 6 § 1 of the Convention (see paragraph 24 above) from the standpoint of the procedural limb of Article 8 of the Convention only (compare Vilela and Others v.   Portugal , no. 63687/14, §   65, 23 February 2021). 26.     The general principles concerning the procedural obligations of the State in the field of medical negligence have been summarised in Erdinç Kurt and Others v. Turkey (no. 50772/11, §§ 51, 54 and 55, 6   June 2017), Mehmet   Ulusoy and Others v. Turkey (no. 54969/09, §§ 82, 86 and 90-93, 25   June 2019), Vilela and Others (cited above, §§ 76-79) and Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, §§ 214-21, 19 December 2017, in the context of Article 2 of the Convention), 27.     Regarding the effectiveness of the proceedings, the Court notes at the outset that the applicant had the opportunity to exercise her procedural rights and influence the proceedings (compare Vilela and Others , cited above, § 84). In particular, she was able to put forward her arguments, provide evidence (including an expert report) and dispute the evidence collected, trigger the reopening of the investigation proceedings, participate as an auxiliary prosecutor and challenge the public prosecutor and investigating judge’s decisions (see paragraphs 7, 9, 14, 19, 21 and 23 above). 28.     Regarding the thoroughness of the investigation, the Court considers that the first phase thereof was somewhat deficient. However, following the applicant’s request, the investigation was reopened and further extensive evidence was collected (see paragraphs 6-12 and 14-20 above). Accordingly, the investigation, taken as a whole, was thorough and the fact that the initial stages thereof were not entirely meticulous, cannot be regarded in itself sufficient to constitute a failure by the authorities to comply with their procedural obligations arising from Article 8 of the Convention. 29.     In the present case, the domestic authorities could not establish the cause of the perforation of the applicant’s bowel and held that there was nothing to suggest that the doctor had used a wrong technique, thus no causal link between the perforation and the doctor’s performance could be established. They relied on the evidence collected and in particular, on the expert reports provided by the INML, a public body whose aim it is to assist the courts by carrying out forensic examinations at their request (see Vilela and Others , cited above, § 85), and there is no objective element in the file to question this reasoning. 30.     Moreover, the Court reiterates that the procedural obligation under Article   8 of the Convention concerning cases of medical malpractice is not an obligation of result, but of means only . Thus, the mere fact that the proceedi ngs ended unfavourably for the applicant does not mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see, mutatis mutandis , Lopes de Sousa Fernandes , § 221, and Vilela and Others , § 77, both cited above). 31.     Turning to the duration of the criminal proceedings, the Court notes that they were initiated promptly (see paragraph 6 above) and were followed by the collection of a considerable evidence and that important procedural steps were taken (see paragraphs 6-23 above). The criminal proceedings lasted seven years, one month and eighteen days in total, including the investigation phase and at two levels of jurisdiction. However, the length of the proceedings was justified by the particular circumstances of the case, the number and nature of the procedural steps taken, with no significant periods of inactivity, and the exhaustive and detailed assessment undertaken by the domestic authorities (see paragraphs   6-23 above). The Court therefore considers that the length of the criminal proceedings did not breach the requirement of promptness under the procedural limb of Article 8 of the Convention. 32.     Lastly, the Court notes that the domestic law provided for the possibility to claim a compensation for an alleged medical negligence before the civil courts; the applicant did not avail herself of that avenue and did not submit any element to prove that it would have been ineffective in the circumstances of the case (see Erdinç Kurt and Others, cited above, § 56). 33.     In view of the foregoing considerations, the Court finds that the complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 10 April 2025.     Simeon Petrovski   Tim Eicke   Deputy Registrar   President