CEDH · CASELAW;CLIN;ENG — 17 janvier 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; 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 } Information Note on the Court’s case-law No. 104 January 2008 Dodov v. Bulgaria - 59548/00 Judgment 17.1.2008 [Section V] Article 2 Positive obligations Lack of accountability for disappearance of a patient from a nursing home: violation   Facts : In May 1994 the applicant’s mother was admitted to the Sofia Nursing Home. According to a medical opinion her memory and other mental faculties were progressively deteriorating as a result of Alzheimer’s disease and she needed constant supervision. The nursing home staff had therefore been instructed not to leave her unattended. On a visit to his mother in December 1995, the applicant was informed that she had gone missing. It was explained to him that his mother had been accompanied by a medical orderly to consult a dermatologist outside the nursing home and had been left alone in the courtyard for a few minutes during which time she had disappeared. The police, alerted to the disappearance the same day, interviewed witnesses from the nursing home who testified that they had immediately searched the area of the nursing home in vain. Four days later the applicant’s mother was recorded as a person sought by the police and, seven days thereafter, a press release was issued. The police also subsequently checked admissions to psychiatric clinics and leads given by the public. The applicant’s mother has never been seen since. In July 1996 the applicant brought criminal proceedings against the nursing home staff alleging that they had been negligent and were responsible for his mother’s disappearance. The ensuing investigation was discontinued and reopened four times. In 1998 and 2000, the prosecuting authorities decided to discontinue the proceedings on the ground that the staff had acted in accordance with normal practice in leaving residents in the courtyard, which was surrounded by a fence and guarded. In 2001 the prosecutors stated that the staff had been negligent but discontinued the proceedings on the ground that such negligence was not punishable under Bulgarian criminal law. Finally, in 2003 the proceedings were terminated as prosecution of those responsible had become time-barred. In that decision it was suggested that the applicant’s mother might have scaled the fence of the nursing home or left through another exit. It was also found that regulations on the duties of staff in the nursing home were not clear. The applicant had also filed a complaint against the police, accusing them of failing to take the necessary steps to search for his mother. It was decided however not to open criminal proceedings. Finally, the applicant brought civil proceedings against the Ministry of Labour and Social Care, the Ministry of the Interior and the Sofia Municipality for compensation for non-pecuniary damage caused by his mother’s disappearance. Those proceedings are apparently still pending. Law : The Court found it reasonable to assume that the applicant’s mother had died. It also found that there was a direct link between the failure to supervise his mother, despite the instructions never to leave her unattended, and her disappearance. However, a simple error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient could not be sufficient by themselves to call a Contracting State to account from the standpoint of its positive obligations under Article   2. It was therefore necessary to examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have secured legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. In this respect, the Court observed that there had been lengthy periods of inactivity in the criminal investigation and that basic investigative measures, such as questioning the nursing home staff, had been taken several years after the applicant’s mother had disappeared and only at his insistence. Furthermore, the prosecuting authorities’ various decisions to terminate the investigation had been contradictory: the facts had changed in each decision and the legal grounds for refusing to bring proceedings against the nursing home staff were unclear. In particular, the decisions of 1998 and 2000 had essentially been based on the argument that staff had acted in accordance with normal practice, without analysing whether that practice had indeed revealed negligence. Furthermore, no disciplinary measures had been taken against the nursing home staff despite the prosecutors’ finding that staff members had been negligent. Moreover, it appeared that at no time had the relevant authorities sought to identify any errors in management, training or control. Lastly, the subsequently instituted civil proceedings had thus far lasted more than ten years and had not yet produced even a first-instance decision. That delay was in itself sufficient to conclude that the civil proceedings had not established the facts surrounding the disappearance and presumed death of the applicant’s mother, nor did they call to account those responsible in an effective and timely manner. The Court therefore concluded that, despite the availability in Bulgarian law of three avenues of redress – criminal, disciplinary and civil – the authorities had not, in practice, provided the applicant with the means to establish the facts surrounding the disappearance of his mother and bring to account those people or institutions that had breached their duties. Faced with an arguable case of negligent acts endangering human life, the legal system as a whole failed to provide an adequate and timely response as required by the State’s procedural obligations under Article   2. Conclusion : violation (unanimously). Article   41 – EUR 8,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes