CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 février 2024

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 11 March 2024   SECOND SECTION Application no. 27121/23 Anton LEVON against Lithuania lodged on 20 June 2023 communicated on 21 February 2024 SUBJECT MATTER OF THE CASE The application concerns an investigation into the circumstances of the applicant’s father’s death at the hospital. On 25 December 2020, at around 8.50 p.m., the applicant called an ambulance because his 78-year-old father was feeling unwell. The ambulance arrived in around twenty-five minutes and took his father to the Šalčininkai municipal hospital (hereinafter “the hospital”). On the following day, at around 9.30 p.m., the applicant’s father died at the hospital. The hospital considered that it was not necessary to conduct a post-mortem examination and the applicant objected to an autopsy. In June 2021 the applicant lodged a complaint with the Commission for Determining the Damage Caused to Patients’ Health (hereinafter “the Commission”), alleging that the medical care which had been provided to his father at the ambulance and at the hospital had been inadequate and had led to his death. Having examined his father’s medical history and the documents concerning his treatment at the hospital, the Commission concluded (in a decision taken on 7 December 2021) that the medical care had been adequate and that the death had been caused by his father’s pre-existing illnesses and the delay in seeking medical help. The applicant lodged a claim with the courts seeking compensation from the State. He contended that the crew of the ambulance had not properly assessed his father’s health, had not provided him with urgent medical help and had made an improper choice as to the hospital to which he should be taken. He further contended that at the hospital his father had not been promptly examined by a relevant doctor and that certain necessary medical procedures had not been carried out. In the proceedings before the first-instance court he was not represented by a lawyer and he did not ask the court to order a forensic examination. On 30 June 2022 the Vilnius Regional Court dismissed the claim, finding that there were no grounds to depart from the conclusions reached by the Commission. The applicant, represented by a lawyer, lodged an appeal against the first-instance court’s decision. He submitted, in particular, that the court had based its decision on the findings made by the Commission. However, the Commission’s decision contained contradictions; moreover, it indicated that some of the documents provided by the hospital had been illegible because of the poor quality of the copies. In addition, according to the documents from the hospital, certain medical services had been provided to the applicant’s father on 27   December 2020, that is the day after his death; the applicant contended that this demonstrated that the hospital had falsified the medical records and that the remaining documents could not be considered reliable either. Accordingly, he asked the appellate court to order a forensic medical deontological examination in order to determine whether the treatment provided to his father had been adequate. He submitted that he had been unable to lodge such a request during the proceedings before the first-instance court because he had not been represented by a lawyer and had lacked the necessary legal knowledge; he contended that the court ought to have informed him about the need for representation and that it ought to have ordered such an examination on its own motion. In parallel to the civil proceedings, the applicant lodged a complaint with the police, alleging that the hospital may have committed the criminal offences indicated in Article 300 § 1 of the Criminal Code (falsification of documents) and Article 132 § 1 of the Criminal Code (manslaughter). On 12   August 2022 the Šalčininkai police opened a pre-trial investigation. It appears that the applicant asked the Court of Appeal to adjourn the civil proceedings until the decision was taken in the criminal proceedings but that this request was rejected. On 24 January 2023 the Court of Appeal dismissed the appeal lodged by the applicant. It refused to order a forensic examination, finding that such a request should have been lodged before the first-instance court and that, in any event, the available evidence was sufficient for the court to decide on the issues raised in the case. Having examined the Commission’s decision and documents provided by the hospital, the Court of Appeal endorsed the findings of the first-instance court. It considered that the applicant had failed to prove his allegations of inadequate treatment. The applicant lodged an appeal on points of law, in which he raised essentially the same arguments as in his previous appeal, but on 13   March 2023 the Supreme Court refused to accept it for examination as raising no important legal issues. Following a request by the Šalčininkai police in the context of the above-mentioned criminal proceedings, in December 2022 and March 2023 the State Accreditation Service for Healthcare Activities under the Ministry of Health (hereinafter “the Accreditation Service”) inspected the healthcare services provided to the applicant’s father at the ambulance and at the hospital. It found that the ambulance had complied with all the relevant legal requirements: it had arrived within the time-limit prescribed by law, had assessed the patient’s health and provided the necessary treatment and had taken him to the nearest hospital. By contrast, the Accreditation Service found that the hospital had breached several requirements of the law. In particular, after the patient’s initial examination, it had been recommended that he be examined by an anaesthesiologist-reanimatologist, but such an examination had not been performed. Moreover, the description of the patient’s condition and medical history by the hospital was lacking in detail and certain medical procedures had not been carried out with the required promptness. Lastly, when his condition had suddenly deteriorated (at around 9 p.m. on 26   December 2022), he had not been resuscitated in accordance with the relevant requirements – the doctor who had been on duty had tried to resuscitate him herself, instead of calling a specialist; the hospital had not approved a protocol for resuscitating patients and it was unclear what rules the doctor had followed when attempting to resuscitate the applicant’s father. The criminal proceedings are still pending. The applicant complains that the courts in the civil proceedings failed to examine the case in an objective and thorough manner. He submits that determining the reason of his father’s death required expert medical knowledge, but the courts did not order a forensic medical deontological examination. Instead, they relied exclusively on the documents provided by the hospital, despite the fact that the hospital had an obvious interest in the outcome of the proceedings and that some of those documents were illegible or might have been falsified. Moreover, the Court of Appeal refused to adjourn the civil proceedings until the adoption of a decision in the criminal proceedings. He points out that, in the context of the criminal proceedings, the Accreditation Service identified several shortcomings in the treatment which his father had received at the hospital. He raises these complaints under Article 6 § 1 and Article 13 of the Convention. QUESTIONS TO THE PARTIES Did the domestic authorities discharge their procedural obligation under Article   2 of the Convention to determine the cause of the applicant’s father’s death at the hospital and, if appropriate, to hold accountable those responsible (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214-21, 19 December 2017, and the cases cited therein)? In particular, was the domestic authorities’ examination of the adequacy of the treatment provided to the applicant’s father sufficiently thorough? In this connection, the Court refers to the following complaints raised by the applicant:   (a)     that the Commission based its findings exclusively on documents provided by the hospital, which could not be considered impartial in the circumstances, and that the courts in the civil proceedings endorsed the Commission’s decision without carrying out their own assessment (see, mutatis mutandis , Bajić v. Croatia , no. 41108/10, §§   95 and 101-02, 13   November 2012);   (b)     that the courts in the civil proceedings refused to adjourn the case until the adoption of a decision in the criminal proceedings concerning the same event (see, mutatis mutandis , E.M. and Others v. Romania (dec.), no.   20192/07, § 50, 3   June 2014).