CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 28 juin 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   459 28.6.2007   Press release issued by the Registrar   CHAMBER JUDGMENT ŠILIH v. SLOVENIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Šilih v. Slovenia (application no. 71463/01).   The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the lack of effective legal proceedings to establish the cause of and responsibility for the death of the applicants’ son in hospital.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 7,540   euros (EUR) in respect of non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicants, Franja and Ivan Šilih, are Slovenian nationals who were born in 1949 and 1940 respectively and live in Slovenj Gradec (Slovenia).   On 3   May   1993, the applicants’ son, Gregor Šilih, aged 20, went to Slovenj Gradec General Hospital complaining of nausea and itching skin.   On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid (Dexamethason) and an antihistaminic (Synopen). Following the injections, Gregor Šilih's condition significantly deteriorated, probably indicating that he was allergic to one or both of the drugs. A diagnosis of anaphylactic shock was made.   He was transferred to intensive care, where he stopped breathing. He was given cardiopulmonary resuscitation and then connected to a respirator. His blood pressure and pulse returned to normal, but he remained in a coma with severe brain damage.   He was transferred to Ljubljana Clinical Centre, where he died on 19   May   1993.   On 13 May 1993 the applicants lodged a criminal complaint against M.E. for medical negligence, which was dismissed on 8 April 1994 for lack of sufficient evidence.   On 1 August 1994 they lodged a request for the opening of a criminal investigation against M.E which was ultimately unsuccessful.   In July 1995 the applicants also brought civil proceedings against Slovenj Gradec General Hospital and M.E.. The proceedings were stayed on 21 October 1997 pending a final decision in the criminal proceedings. In the meantime the applicants filed a supervisory appeal, motions for a change of venue and for judges involved in the case to stand down.   The applicants obtained a medical opinion that myocarditis (inflammation of the heart muscle), considered to be a contributory factor in Gregor Šilih’s death, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995, they lodged a request to reopen a criminal investigation Their request was granted and, in the course of the investigation, a forensic expert stated that the administration of antihistaminic had led to Gregor Šilih’s allergic reaction. He expressed doubts as to the pre-existence of myocarditis.   On 28 February 1997 the applicants lodged an indictment against M.E. for the criminal offence of “causing death by negligence” but were directed to request additional investigative measures. Several witnesses were examined and a forensic expert concluded that the reason for Gregor Šilih’s death was rather uncertain. On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been gathered in the extended investigation and were again directed to gather more evidence by requesting additional investigative measures, which they did. The investigation was closed on 3 May 2000.   In August 2000 the applicants complained to the Judicial Council about the length of the criminal proceedings and requested that certain judges involved in the case stand down. Their request was rejected.   The criminal proceedings were discontinued on 18   October   2000 on the ground of insufficient evidence. The applicants appealed unsuccessfully.   On 13 March 2001 the applicants lodged an unsuccessful constitutional appeal with the Constitutional Court, complaining about the unfairness and length of the proceedings and that they had been denied access to a court. They also lodged an unsuccessful criminal complaint against certain judges who had sat in the case and made several unsuccessful attempts to re-open the case.   Civil proceedings were resumed in May 2001, five months after the final decision in the criminal proceedings. On 25   August   2006 the applicants’ civil claim was rejected, more than 11 years after the proceedings were instituted. The case is currently pending on appeal.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 19 May 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Corneliu Bîrsan (Romanian), President , Boštjan M. Zupančič (Slovenian), Jean-Paul Costa (French), Alvina Gyulumyan (Armenian), David Thór Björgvinsson (Icelandic), Ineta Ziemele (Latvian), Isabelle Berro-Lefèvre (Monegasque), judges , and also, Santiago Quesada , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants alleged that their son had died as a result of medical negligence and complained about the inefficiency of the Slovenian judicial system in establishing liability for his death. They further complained about the length of the legal proceedings and alleged that the criminal proceedings were unfair. They relied, in particular, on Articles 2, 6 (right to a fair hearing) and 13 (right to an effective remedy) of the Convention.   Decision of the Court   Article 2   Medical negligence The Court found that the applicants’ allegation of medical negligence was based on facts which occurred and ended before 28   June 1994 when the Convention entered into force in Slovenia. It was therefore inadmissible.   Inadequacy of the legal proceedings The Court noted that the alleged defects in the proceedings originated at the earliest on the date the proceedings were instituted, which was after 28 June 1994. The complaint concerning the inadequacy of the legal proceedings was therefore admissible.   The Court noted that it was understandable that the applicants were critical of the outcome of the criminal proceedings, not least because it was they who carried the burden of pursuing the investigation. The Court also observed that almost five years had elapsed between the applicants' second request for an investigation and the dismissal of the charge.   The Court reiterated that, in the context of Article   2, a prompt response by the authorities might generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. It was for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 2.   The Court accepted that the medical questions involved in the case were of some complexity. It also appreciated that the evidence adduced in the criminal proceedings could be relevant to the decisions in the civil proceedings. It therefore did not find that the decision to stay the civil proceedings was in itself unreasonable since it could have been dictated by considerations related to the fair and efficient administration of justice.   Furthermore, in the civil proceedings, the applicants repeatedly challenged the judges sitting in their case and lodged several motions for a change of venue of the proceedings. However, some of the applicants’ requests turned out to be well-founded.   It was apparent from the case file that the applicants’ conduct had no effect on the length of the civil proceedings before they resumed in May   2001. The Court found that the delays which occurred in the criminal proceedings, through no fault of the applicants, might have contributed to the length of that part of the civil proceedings.   After the civil proceedings resumed, it took an additional five years for the relevant court to reach a verdict. Even if the applicants’ behaviour contributed to the delays in that part of the civil proceedings, the Court did not consider that it justified the overall length of those proceedings.   It was also unsatisfactory that the applicants’ case had been dealt with by so many different judges. The Court found that that factor, among other things, contributed to the applicants' lack of trust in the conduct of the proceedings.   Having regard to the above background and noting that, after almost 12 years, the proceedings instituted in order to elucidate the allegations of medical malpractice were still pending, the Court could not accept that they resulted in an effective examination into the cause of and responsibility for Gregor Šilih's death.   The Court further observed that more general considerations also called for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care were essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent the repetition of similar errors. The prompt examination of such cases was therefore important for the safety of users of all health services.   There had therefore been a violation of Article 2 concerning the lack of effective legal proceedings to establish the cause of and responsibility for Gregor Šilih's death.   Other Articles of the Convention   The Court held that it was unnecessary to examine separately the applicants’ other complaints.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.