CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 octobre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } Communicated on 14 October 2020 Published on 2 November 2020   FIFTH SECTION Application no. 57444/19 Zanda LAPSA against Latvia lodged on 22 October 2019 STATEMENT OF FACTS 1.     The applicant, Ms Zanda Lapsa, is a Latvian national, who was born in 1983 and lives in Valmiera. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 14 March 2008 at 10:30 the applicant was admitted to hospital for a planned labour induction, as she was in her 41-42 week of pregnancy. On 15   March 2008 at 15:48 the baby was delivered by caesarean section. On 16   March 2008 at 2:00 the child died of meconium aspiration syndrome. 4.     On 18 August 2008 the Health Inspectorate found deficiencies in the medical care provided to the applicant and her child. At an unidentified date, criminal proceedings were instituted, and on 3 March 2010 the two doctors who during their respective shifts had overseen the delivery – S.G. and V.M. – were declared suspects. On 7 June 2010 they were charged with medical negligence that had caused the child’s death. 5.     On 26 October 2010 the first-instance court started hearing the case. On 27 July 2011 the prosecutor requested that an additional forensic expert assessment be carried out. This request was granted, and the additional forensic expert report was delivered on 7   November 2011. 6.     At the hearing of 21 March 2012, the prosecutor, relying on the report of 7 November 2011, withdrew the criminal charges. On 23 March 2012 she submitted a written withdrawal that bore an approval from the superior prosecutor. On 26 March 2012 the first-instance court terminated the proceedings. The applicant appealed against this decision. The prosecutor also appealed against this decision, insofar as the defendants had been ordered to pay court fees. 7.     At the appellate court hearing the task of pursuing the public prosecution had been assigned to a different prosecutor. That prosecutor supported the appeal lodged by the applicant and also pursued the criminal charges against S.G. and V.M. 8.     On 7 August 2012 the appellate court annulled the decision whereby the criminal proceedings had been terminated. It found that the report of 7   November 2011, on which the withdrawal of charges had been based, had been inadmissible due to several procedural deficiencies, including a conflict of interest. This decision was not appealed against and took effect. 9.     On 12 February 2015 the first-instance court convicted S.G. and V.M. of medical negligence that had caused the child’s death and sentenced them to one year and three months’ and one year and six months’ imprisonment respectively. In determining the sentence, the court took into account that the proceedings had not complied with the reasonable time requirement. 10.     On 27 April 2017 the appellate court upheld S.G.’s and V.M.’s conviction. However, it changed the sentence to a fine of 100 minimum wages (38,000 euros (EUR)). Also the appellate court took into account that the reasonable trial requirement had been breached. 11.     On 14 June 2018 the Supreme Court revoked judgments of 12   February 2015 and 27 April 2017 and also the appellate court’s decision of 7 August 2012. The Supreme Court found that the decision of 7 August 2012 had breached the division of competences between the prosecution and the court. When reviewing the decision to terminate the criminal proceedings the appellate court had not had the competence to reassess the evidence on which the withdrawal of charges had been based and to question the merits of that withdrawal. Furthermore, at the appellate hearing the charges had been maintained by a prosecutor who had not had such powers. Accordingly, the renewal of the criminal proceedings and the subsequent convictions had been unlawful. 12.     On 3 September 2018 the appellate court upheld the first-instance court’s decision of 26 March 2012 whereby the criminal proceedings against S.G. and V.M. had been terminated. This decision was upheld by the Supreme Court on 23   April 2019. 13.     At that time, the ten-year time-limit for bringing civil proceedings had expired. Relevant domestic law 14.     The Criminal Procedure Law provides: Section 459 Duty of a Prosecutor to Withdraw from Prosecution “(1) If during the course of the criminal trial the prosecutor concludes that the criminal charges have not been confirmed, either completely or partially, he or she has a duty to completely or partially withdraw the charges by submitting to the court the reasoning for the withdrawal that has been approved by a higher-ranking prosecutor. (2) The prosecutor may withdraw the charges up until the court retires to the deliberation room to render the judgment.” Section 460 Consequences of a Withdrawal from Prosecution “(1) If a prosecutor withdraws the charges without complying with the procedure laid down in section 459, paragraph one of this Law, the court adjourns the court hearing. If the higher-ranking prosecutor does not change the prosecutor and does not renew the charges within three working days ..., the court terminates the criminal proceedings on the grounds that the prosecutor has withdrawn the charges. (2) Criminal case that has been terminated on the grounds that the prosecutor has withdrawn the charges can be renewed if new circumstances have been disclosed. (3) The withdrawal of the charges by the prosecutor is not an obstacle for claiming compensation for damages in accordance with the procedures laid down in the Civil Procedure Law.” COMPLAINTS The applicant complains under Articles 2 and 6 of the Convention that the circumstances of her child’s death were not elucidated, as the criminal proceedings were terminated on the grounds that the prosecutor had withdrawn the criminal charges. She further complains about various aspects of that withdrawal and about the unreasonable length of the proceedings. QUESTION TO THE PARTIES Having regard to the procedural obligation to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable (see paragraphs   214 ‑ 221 of Lopes de Sousa Fernandes v. Portugal [GC], no.   56080/13, 19   December 2017), were the proceedings in the present case concerning the alleged medical malpractice in breach of Article   2 of the Convention?