CEDH · CASELAW;CLIN;ENG — 26 novembre 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Legal summary November 2024 A.P. v. Austria - 1718/21 Judgment 26.11.2024 [Section IV] Article 2 Positive obligations Article 2-1 Life Effective investigation Death of the applicant’s son during a « heat march » while performing his compulsory military service: no violation Facts – In August 2017 the applicant’s son (T.P.) died during a “heat march” (Hitzemarsch) while performing his compulsory military service. A criminal investigation conducted by the police and the public prosecutor’s office into his death was eventually discontinued. The applicant’s judicial review application for continuation of the investigation was unsuccessful. A military investigation was also carried out. Law – Article   2 (procedural limb): The criminal investigation had been sufficiently independent overall as the persons who had been responsible for it and had carried it out had been hierarchically, institutionally and practically independent from those who had been implicated in the events. Furthermore, the authorities had reacted with exemplary diligence and promptness to T.P.’s death by immediately and on their own motion initiating the military and criminal investigations and undertaking several important investigative steps in the days following his death. The applicant had also been involved in the criminal investigation to the extent necessary to safeguard her legitimate interests. The court-appointed expert in forensic medicine, Dr D., who had performed the autopsy, had concluded that the cause of T.P.’s death had been sepsis. However, that had been contested by Dr K., expert, in among other areas, infectiology and internal medicine and commissioned by the applicant, and who had maintained that sepsis could not be inferred from the available documents and examination results. The question thus arose whether all reasonable investigative steps had been carried out with a view to elucidating – to the extent medically possible – the cause of T.P.’s death. Dr D. had found that transporting T.P. by army vehicle to the barracks instead of immediately calling an ambulance and an emergency doctor had delayed the initiation of the necessary medical measures by about the time it had taken to wait for the emergency doctor from the barracks to arrive and intervene. However, Dr D. had also found that in view of the very swift onset of symptoms, even if an emergency medical intervention had taken place on the spot, or if T.P. had been taken directly to hospital by ambulance, his death could not have been prevented with any certainty or high probability. Even if it was acknowledged that Dr D.’s conclusions only denied the criminal responsibility of the involved persons and left open the possibility that T.P.’s death could have been prevented, the Court accepted that such a “possibility” had not been sufficient for anyone to be criminally prosecuted and could not lead the Court to characterise the criminal investigation as “inadequate”. In cases where State responsibility for a loss of life crucially depended on whether the death in question had been caused by State agents (proving which usually required medical knowledge and research), it could not be excluded that there might be situations in which even specialised scientific experts were unable to establish the exact cause of death – despite all efforts undertaken in that respect. Furthermore, the authorities had requested Dr D. to provide additional clarifications and answers since some of his findings had been questioned by Dr K.’s expert report. Dr D. had then provided two supplementary reports, the second one however within a somewhat problematic delay. Two factual mistakes in those reports, pointed out by Dr   K., had only concerned ancillary circumstances that had not been relevant for the medical analysis and clinical findings as regards the cause of death. The Court saw no reason not to believe Dr D. or to question his competence, given that he had been appointed as an independent, sworn and court-certified expert. Indeed, he was an experienced specialist in forensic medicine and had examined the corpse himself while Dr K., who was not a specialist in forensic medicine and not court-certified, had based his expert report on a review of the case file only. Moreover, while Dr K. had contested the finding of sepsis as the cause of T.P.’s death and contended that earlier transportation to hospital would have increased his chances of survival, he had not elaborated on any other possible cause of death, had not contended that T.P. could have survived if he had been taken directly to hospital, nor mentioned anything that would have indicated criminal responsibility on the part of any of the persons involved. It had therefore been reasonable for the domestic court to follow Dr D.’s conclusions and to believe that the opinion of a third expert would not have shed more light on the cause of death. Consequently, the Court accepted the domestic court’s position that it had not been possible to get closer to the truth in this specific case. Moreover, although an autopsy had been ordered on the day of T.P.’s death, it had been performed four days later. That appeared to have had had important consequences in respect of the subsequent medical findings, as it had given rise to one of the points on which the two medical experts could not agree – namely, the significance in the PCR test of T.P.’s blood of the presence of DNA material from two pathogenic germs. However, even Dr K. had not alleged that this had constituted a breach of the standards applicable in forensic medicine. The Court therefore considered that that in itself could not call into question the quality of Dr D.’s expert reports or the general adequacy of the entire criminal investigation. Accordingly, the Court held that the authorities had carried out all reasonable investigative steps available to them with a view to elucidating the cause of T.P.’s death to the extent medically possible. Given the very particular circumstances of the case, it could not discern a deficiency in the criminal investigation that could be considered to have undermined it to such an extent as to have fallen short of the Convention standards. Conclusion: no violation (six votes to one). Article   2 (substantive limb): The “heat march” at issue could be considered to have fallen into the category of dangerous activities, which routinely were to be performed during military service. Therefore, the question that arose was whether the positive duty to protect had been complied with (including whether the risk created had been reduced to a minimum). Special regulations had been put in place in respect of conditions of extreme heat or cold in the form of the decree on the performance of military-service duties during extreme outside temperatures. Furthermore, a new decree had been issued introducing certain changes in the wake of the events of the instant case – notably requiring that trained medical personnel be present during training that took place outside the barracks. The authorities had also proceeded to review the applicable training regulations. Even assuming that an insufficient regulatory framework had been in place at the material time, the central question related to how that regulatory framework had been applied in practice in the present case. The events within the military unit which had led to T.P.’s death had happened within a very short period, namely just over two hours. While the military investigation had found that given the prevailing temperatures and the absence of the predicted cooling down of temperatures, the “heat march” had constituted a “problematic” leadership decision, it had nevertheless been accompanied by certain preventive measures. Moreover, only the first part of the march route had been in open terrain, with the second part being set in a wooded valley. When T.P. had not been able to continue, he had been provided with shade and water. When he had become listless and collapsed on his way back to the barracks, the civilian emergency doctor had been immediately called and arrived at the barracks about six minutes later. Thus, the military staff had attempted, at least to a certain extent, to take the steps they had considered necessary to overcome T.P.’s quickly worsening state of health. Although certain questionable acts or omissions on the part of State agents had preceded T.P.’s death, none of the experts could indicate with the necessary degree of likelihood that T.P. would have survived if the military personnel involved had acted diligently and T.P. had reached the hospital earlier. Thus, the Court could not speculate as to whether any reasonable measure that the authorities had failed to take could have had a real prospect of avoiding T.P.’s tragic death. It followed that there was insufficient evidence for the Court to find beyond reasonable doubt a causal link between the acts and omissions of the military staff in respect of the “heat march” and T.P.’s death, and that those acts or omissions had therefore been responsible for his death. As it had not been shown that the reasonable measures that the domestic authorities had failed to take would have had a real prospect of altering the outcome or mitigating the harm, Article   2 had not been violated on account of the State’s preventive positive obligation. In past case-law the Court had held that in respect of persons in the army (where the events in issue lay wholly, or in large part, within the exclusive knowledge of State authorities), strong presumptions of fact would arise in respect of injuries and death occurring. In such a context, the burden of proof lay on the authorities as regards the provision of a satisfactory and convincing explanation for such injuries or death. In the instant case however – given that the failure of squad leader A.W. to exercise due diligence had been established – the crucial question was of a medical nature: namely, whether A.W., had he acted with due diligence, could have prevented T.P.’s death in view of the medical condition from which T.P. was suffering at the time of the events in question. Given the fact that during their investigation, the domestic authorities had relied on three expert reports by a court-appointed forensic doctor, who had held that it could not be said (with the probability required for criminal proceedings) that T.P.’s death could have been prevented, it could not be asserted that those authorities had not exerted sufficient efforts to uncover the facts of the case. No presumptions of facts (notably the presumption that T.P.’s death could have been prevented) could therefore been applied here. In view of the above considerations, the Court was unable to find that there had been a violation of Article   2 in its substantive limb. Conclusion: no violation (six votes to one).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .