FacultyofLawAcademicYear2016-17

ExamSession[1]

PositiveobligationsundertheECHRintheareaofmedicalnegligence

LLMPaperbyKaterynaLytovka

Studentnumber:01610264

Promoter:dr.LaurensLavrysen

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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION....…………………………………………………………....2

1.1. Aims of the study……………………………………………………………....…....………..2

1.2. State of art…………………………………………………………………………………….3

1.3. Scope of the study and research question…………………………………………………….5

CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE

AREA OF MEDICAL NEGLIGENCE ………………………………………………………..7

2.1. General overview of positive obligations under ECHR. …………………………………….7

2.2. Procedural positive obligations as the Court’s traditional approach. ………………………10

2.2.1. General characteristics of procedural obligations in medical negligence…………..11

2.2.2. Right to a procedure….……………………………………………………………..15

2.2.3. Right to a remedy..………………………………………………………………….16

2.2.4. Procedural quality control..…………………………………………………………20

2.2.5. Procedural obligations in substantive provisions vs. procedural provisions………..24

2.3. Specific issues arisen from positive obligations under Articles 3 and 8……………………26

2.4. Conclusions…………………………………………………………………………………30

CHAPTER 3: EVOLUTION OF THE COURT’S APPROACH TO THE POSITIVE

OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE …………………………31

3.1. Distinction of positive obligations. An obligation to set up an adequate legal framework....31

3.2. From procedural to substantive protection. …………………………………………...……33

3.3. Implication of vulnerability concept for expanding positive obligations…………………...39

3.4. Conclusions………………………………………………………………………………….44

CHAPTER 4: GENERAL CONCLUSION…………………………………………………...46

BIBLIOGRAPHY………………………………………………………………………………49

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CHAPTER 1: INTRODUCTION

Right to life, right to human integrity, right to private life are supreme indispensable

rights, that Member States, parties to the Convention for the Protection of Human Rights and

Fundamental Freedoms and its Protocols (hereinafter – the Convention), agreed to guarantee

and protect. There is no doubt that the State is obliged to refrain from intentional killing,1 is

prohibited to commit torture, inhuman or degrading treatment or punishment in any case, and

should respect and not interfere2 in private life.

However, the question arises when it comes to the non-intentional violations of such

rights. Is the State responsible for the death occurred due to the malpractice of the doctor3, or for

medical intervention without parental consent,4 or when medical personnel fails to inform a

patient regarding risks to health?5 When will matters such as an error of judgment of a doctor or

negligent health professionals in the treatment of a particular patient amount to a breach of the

state’s positive obligations under the Convention? Will the issue of whether the doctor, who is

allegedly guilty in medical negligence, works for public or private hospital influence the

existence of the state’s positive obligations under the Convention? Will the vulnerable status of

an applicant influence the Court’s finding of the violation of positive obligations by a state: in

case the patient dies in psychiatric hospital,6 or when a detainee suffers from inappropriate

medical treatment,7 or in case of the failure by state authorities to provide necessary medical

assistance to military servicemen8?

The importance of the state’s protection of conventional rights by fulfilling positive

obligations is apparent. Though, in the specific sphere of health care, complexity of issues

associated with allegations of medical negligence influence the findings of the European Court

of Human Rights (hereinafter – the Court) of whether the states are in violation of positive

obligations.

1.1. Aims of the study

The aims of this study is to describe the positive obligations in the area of medical

negligence based on the analysis of the Court’s case law, in order to gain better understanding of

1 Except in circumstances prescribed by the Convention. 2 Except when such interference meet the requirements set in the Article 8 of the Convention. 3 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96; ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01; 4 ECtHR, 23 March 2010, M.A.K. and R.K. v. The United Kingdom, no. 45901/05 and 40146/06 5 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05. 6 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08 7 ECtHR, 9 January 2014, Budanov v. Russia, no. 66583/11 8 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06

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the Court’s substantive and procedural approaches in finding state’s violations. The study will

show the evolution of the way the Court deals with medical negligence cases and the increasing

recourse to the substantive approach by the Court.

1.2. State of the art

Although it may seem that the Court has developed a substantial body of case-law in

the sphere of medical negligence, a single approach to positive obligations can not be easily

defined due to the multiplicity of the subject. The recent Chamber judgement in Lopes de Sousa

Fernandes v. Portugal case9 with the considerable departure from the established case-law,

which will be discussed hereunder10, confirms such statement.

State positive obligations in general gained limited scholarly attention, that can be

connected with the complexity of the Court’s positive obligations case law.11 Despite this,

significant input in the doctrine of the state positive obligations was made by the prominent

researchers: D. Xenos12, A. R. Mowbray13, K. Starmer14, C. Droge15, J.-F. Akandji-Kombe16 and

others. The development of the theory of positive obligations of the state has risen to a new

extent in the study of Laurens Lavrysen17. The mentioned monographs and doctoral thesis

provided the theoretical background for this study. However, the focus will be made on the

more specific area of the Court’s case law — positive obligations in the area of medical

negligence, — that will be analysed in line with the scholarly findings concerning state

obligations in the area of medical negligence in general,18 and Kamber’s analysis of procedural

9 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13 10 The explanation why Lopes de Sousa Fernandes v. Portugal case is seen as a considerable departure will be given in Section 3.2. 11 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 14. 12 D. Xenos, The Positive Obligations of the State under the European Convention on Human Rights (Abingdon, Routledge, 2012). 13 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004). 14 K. Starmer, “Positive Obligations under the Convention” in J. Lowell and J. Cooper (eds.), Understanding Human Rights Principles (Portland, Hart Publishing, 2001), 139-159. 15 Dröge, C., Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer-Verlag, 2003). 16 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights – A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007). 17 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 18 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001); Filkins, J.A., Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007), 508.

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obligations in medical negligence under the Convention in particular.19 For now it seems that

the subject has not been widely developed by scholars with a view to describing the Court’s

approach evolving from the mere examination of state procedural obligations in the area of

medical negligence to the assessment of positive obligations of states under the substantive

limb.

1.3. Scope of the study and research question

As it was indicated in the section 1.1. the evolution of the Court’s approaches in

dealing with medical negligence cases brings along the focus of this LLM-paper. Therefore, the

notion of medical negligence will be given in order to limit the scope of the study to the

appropriate extent.

Medical negligence was defined by scholars as “an act or omission of a physician

rendered in the course of treating a patient, which is the cause in fact of harm to the patient and

which fails to meet the appropriate standard of care, but which is rendered without any

deliberate intent to harm the patient”.20 On the level of Council of Europe the fault of a doctor

was characterised as a failure “to act according to the required standard of care (a wrong

diagnosis or treatment)”21 or failure “to respect individual patients’ rights (failure to inform the

patient properly concerning the risks related to the particular treatment).”22

Following this, in the current study state positive obligations will be assessed in cases,

when the death of patient occurred as a cause of medical malpractice (Article 2), when a

patient’s sufferings were caused by negligent medical treatment, that, however, did not result in

death (Article 223 or Article 324), when patient did not receive information regarding risks to his

health (Article 825) and when medical intervention was performed without patient’s consent

(Articles 326 and 827).

This paper will focus on positive obligations in mentioned and similar situations in the

area of medical negligence without considering other health-related issues that could amount to 19 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173–190. 20 J.A Filkins, Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007), 508. 21 H. Nys, European Committee on Legal Co-Operation: Report on medical liability in Council of Europe Member States. Strasbourg, 7 March 2005, 1. 22 Ibid 23 if the applicant survived by chance, but the most likely result was death (see ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05) 24 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06 25 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05 26 Infringement of one’s physical integrity (see ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07) 27 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08.

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breaches of state positive obligations under the Convention — i.e. cases in which applicants

complain about the requisite level of healthcare28, or about the refusal of state authorities to

allow patients access to unauthorized drugs.29

In the recent case law, the Court seems to change the vector of implication of positive

obligations from the procedural to the substantive. This observation was crucial in shaping the

research questions of the present study. To what extent does the Court impose substantive

positive obligations in medical negligence cases? And subsequently it will be interesting to see

if the Court, when imposing substantive obligations, applies a purely substantive approach or

rather a mixed approach in which it integrates substantive arguments in its traditional

procedural approach?

Analysis of the starting point of the evolution of Court’s approaches in medical

negligence cases is therefore a necessary first phase. Thus, it is indispensable to provide an

overview of the general concept of positive obligations. Following this general introduction, the

second chapter will continue with the review and assessment of procedural positive obligations

as the Court’s traditional approach in medical negligence cases. The different aspects of

procedural guarantees of the Convention will be scrutinised.

Acknowledging the emergence of substantive obligations in this area, the question of

the notion of the substantive positive obligations of states and the distinction between them and

procedural obligations arises. Therefore, the chapter will firstly review the distinction of positive

obligations and the emergence of the state obligation to set up an adequate legal framework, and

then the evolution of the Court’s approach from procedure to substance in medical negligence

cases will be addressed.

At the end of the third chapter, the focus will be switched to the concept of

vulnerability as “deepening existing positive obligations”,30 as a result of the Court’s dynamic

interpretation of the Convention. A comprehensive analysis will be provided of different

vulnerable groups and how their specific conditions affect the Court’s finding of a state’s failure

to protect their conventional rights when medical negligence occurs. However, issues of

expulsion of ill people and discrimination on the grounds of health fall outside the scope of this

study.

The LLM-paper will draw to a close by setting out the findings of the paper with regard

to the evolution of the Court’s approach to the assessment of state positive obligations in the

area of medical negligence.

28 ECtHR (inadm.), 4 January 2005, no. 14462/03; 29 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12 30 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 212

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CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE

AREA OF MEDICAL NEGLIGENCE

2.1. General overview of positive obligations under the ECHR

To begin, it is worthy mentioning, that positive obligations rarely derive from the

express wording of the Convention, but are developed by the Court in its case law. The doctrine

of implied positive obligations was first debated almost 50 years ago in the Belgian Linguistics

case, that concerned the right to education. Although, Judge Terje Wold disputed in his dissent

that it was not justified by the wording of the Convention “[to] insert into Article 2, first

sentence (P1-2), a positive obligation”31, the majority were of the opposite opinion.

Subsequently, the decisive development of positive obligations came with future cases (Marckx

v. Belgium and Airey v. Ireland), enabling the Court to find a violation of conventional human

rights in a way that was inconceivable according to the classical liberal model.32

Article 2 is an example of a Convention provision of which the express wording allows

positive obligations to be derived: “everyone’s right to life shall be protected by law”. It is clear

that Article 2 places a positive obligation on states to protect the right to life by legislative

means. An opposite example is Article 3, that does not directly establish any positive

obligations. However, within years the Court has gradually supplemented the relatively

minimalist wording of Articles 2 and 3 of the Convention with a wide, and increasing, range of

implied positive obligations, by establishing and subsequently reaffirming them in case law. 33

Thus, states have been found by the Court in breach of duty to prevent ill-treatment of

persons under state surveillance, including harm caused by non-state actors; failing to carry out

an effective investigation into incidents of death or ill-treatment; failing to provide a proper

redress and other violations of positive obligations (will be discussed in more details in Section

2.2. and 3.1). In other words, states were found failing to take the range of measures, such as:

legislative, regulatory, preventive, investigative and punitive.34

Although as it was said the Court developed a wide range of implied positive

obligations, the Court’s case law does not provide a clear definition of the concept of positive

obligations. However, Judge Martens in his dissenting opinion in Gül v. Switzerland

31 ECtHR (Plenary), 23 July 1968, Belgian Linguistic, nos. 1474/62 32 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 3. 33 Ph. Leach, Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at 124. 34 Ibid

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characterised them as “requiring member states to … take action”35. This at first sight simple

definition resembles the most important element of the numerous positive obligations placed

upon the states — the duty to undertake specific affirmative tasks.36

In Rees v. the United Kingdom the Court has held that with regard to the diversity of

situations, the scope of obligations will “inevitably vary”.37 The logical question then arises:

how does the Court determine whether the state has positive obligations and what is the content

and scope of such obligations?

The general legal grounds for the existence of positive obligations can be found in the

Convention. K. Starmer defined three inter-related principles: l) the requirement under Article l

of the Convention that states should secure conventional rights to all persons within their

jurisdiction; 2) the general principle of the effectiveness of rights guaranteed by the Convention

(Airey v. Ireland); 3) the supplementing obligation under Article 13 to provide an effective

remedy.38

It should be noted that the Court acknowledges that the determined obligations should

not impose an impossible or disproportionate burden on the authorities.39 However, the Court

often interprets conventional rights as implying state positive obligations, that in the Court’s

view are derived from the general duty of states to secure respect for human rights under Article

1 of the Convention.

In order to determine the content and the scope of positive obligations the principles of

knowledge, proximity and effectiveness play an important role.40 Thus, under the knowledge

condition, the State can only be found responsible if the risk of harm was foreseeable.41

According to the proximity principle, only state’s omissions that have knowingly contributed to

the harm suffered by the victim lead to state’s responsibility, thus linking an alleged failure of a

state to comply with a positive obligation to a particular harm.42 The principle of effectiveness,

further used as a “general interpretative principle” under the Convention, was established in the

case Airey v. Ireland, where the Court held that “[t]he Convention is intended to guarantee not

rights that are theoretical or illusory but rights that are practical and effective.”43 Although the

Court does not explicitly indicate which measures the State should take in order to comply with

35 ECtHR, 19 February 1996, Gül v. Switzerland, no. 23218/94 36 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004), 189. 37 Rees v. the United Kingdom, 17 October 1986, ECHR, App. no. 9532/81, para. 37 38 K. Starmer, European human rights law (London : Legal Action Group, 1999), 753 39 Osman v. the United Kingdom, 28 October 1998, ECHR, App. no. 23452/94, para.116 40 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 41 Ibid, 128 42 Ibid, 136 43 Ibid, 137, citing ECtHR, 9 October 1979, Airey v. Ireland, no. 6289/73, § 24

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its positive obligations, such measures should be appropriate and sufficient in order to enable

effective enjoyment of the Convention rights.44

Moreover, the Court while contesting the existence of positive obligations in each case,

makes assessments of the competing balance of rights and a consideration of the fairness of the

imposition of burdens on the state.45 Such assessment differs from case to case and evolves with

a time, as the Convention is considered as a living instrument.46

As the study is devoted to positive obligations in a particular sphere, continuing with

deeper analysis of general tests and principles applied to positive obligations would go beyond

the scope of this study. Some important issues concerning the content of positive obligations in

the area of medical negligence will be discussed in the following chapters.

For comprehensive analysis of duties of states in case of medical negligence, a

typology of positive obligations will be provided. On the basis of the Court’s positive

obligations case law, scholars have developed different categorizations of positive obligations.

C. Droge presents “horizontal” — the protection of human rights between private parties — and

“social” — obligations that enable the effective enjoyment of human rights in social reality (i.e.

rights to legislative action) — dimension.47

L. Lavrysen points out that it is better to distinguish between horizontal and vertical

positive obligations on one side and, what C. Droge calls “rights to legislative action” and

positive obligations of a more ad hoc nature on another side.48 He further stresses on the

distinction between vertical and horizontal scenario, in order to accurately evaluate the

responsibility of the state. Thus, the difference lays between the situations when a violation

directly occurs as a result of the state’s inaction (vertical scenario) and when violation occurs as

a result of the action of third parties (horizontal scenario), meaning indirect state’s failure to

protect human rights.49

However, the mere fact that a third party has breached conventional rights cannot lead

to a finding against the state.50 The state will be held liable if it failed, legally or materially, to

prevent the violation of the right committed by a private party. For example, a violation on the

44 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 154 45 Leach, Ph., Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at 123. 46 ECtHR, 25 April 1978, Tyrer v. The United Kingdom, no. 5856/72 47 C.Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer-Verlag, 2003), 382. 48 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 74 49 Ibid 50 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights – A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007), 14

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part of a state will be found in case of the failure to provide an adequate legal framework to

secure rights, or to set up effective judicial system, “amounting sometimes to an absence of

legal intervention”51, or the absence of an effective intervention.

As it was mentioned above, it is not clear from the Court’s case law whether there is a

definite classification of positive obligations.52 However, the Court in its reasoning regularly

distinguished between two types of positive obligations: substantive and procedural ones.53 The

study will further focus on this particular classification while analysing the procedural and

substantive obligation from the perspective of medical negligence case law.

2.2. Procedural positive obligations as the Court’s traditional approach

There are two distinct aspects to the States’ human rights responsibility in case of

medical malpractice.54 The first one is, when the state fails to regulate the health profession and

health care, that is the substantive aspect of positive obligations, and the second one — in case

the state fails to provide effective procedural measures by which those responsible may be

identified and held accountable — the procedural aspect.55

The medical negligence undoubtedly affects human rights. In most cases the violation

of Convention rights found by the Court were directly connected with the the state’s failure to

provide an adequate procedural response to occurred medical malpractice.56 In this chapter the

focus will lie on the procedural aspect of state’s positive obligations, as the Court’s traditional

approach to assess whether the State has complied with its human rights obligations in the area

of medical negligence.

2.2.1. General characteristics of procedural obligations in the area of medical

negligence

51 Ibid, 15 52 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 43 53 Ibid, with reference to V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation, Lund University, 2015), 449. 54 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 175 55 Ibid 56 ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01

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Generally, the Court, in its case law, has strengthened the guarantees for the protection

of human rights set in substantial conventional provisions by adding a “procedural layer”.57

From the majority of substantive rights, the Court derives procedural obligations, differing in

the degree and consistency.58 Such procedural obligations vary in nature and could be applied ex

ante — the procedure leading to the decision that breached the right (i.e. the procedure leading

to the individual decision allegedly breaching the Convention; adoption of the normative

framework regulating issues that gave rise to an alleged violation)— as well as ex post facto —

the procedure that follows the violation occurred (i.e. investigation, remedies).59 Examples of ex

ante and ex post facto procedural obligations arisen in the area of medical negligence will be

provided hereunder.

The Court developed the procedural obligation in medical negligence cases “by

implication”60 from the requirement set in Article 2 of the Convention to protect everyone’s life

by the means of law, and the general duty of the state to secure respect for human rights under

Article 1 of the Convention.61 The Court emphasises on the fundamental importance of the first

sentence of Article 2, which enshrines one of “the basic values of the democratic societies

making up the Council of Europe”, and declares that Article 2 enjoins the State not only to

refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives

of those within its jurisdiction.62

In early cases arisen from medical negligence63 the Court did not assess positive

obligations separately from the procedural and the substantive limb, as it appears in later

judgements.64 In the 1999 case of Erikson v. Italy65 concerning the death of the applicant’s

mother after prescribed X-rays by the public care doctor, the Court stated that positive

obligations to protect life include two elements:

1) the requirement for hospitals to have regulations for the protection of their

patients' lives;

57 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 138. 58 Ibid. 59 Ibid. 60 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298 61 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 177 62 ECtHR (inadm.), 27 November 2007, Rajkovska v. Poland, no. 37393/02 63 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97., ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9 64 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09 65 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97.

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2) the obligation to set up an effective judicial system for:

• establishing the cause of a death which occurs in hospital;

• establishing any liability on the part of the medical practitioners concerned.

In later cases, the Court examined separately procedural and substantive positive

obligations, and the Court stressed that finding a procedural breach did not depend on whether

the substantive part was violated.66 The evolution of the Court’s approach and the distinction

between positive obligations will be discussed in more detail in Chapter 3.

Already in 1999 in the abovementioned judgement, the Court emphasised the

importance of an effective investigation or scrutiny of the events that led to the death of the

patient, and, not less significant, the importance of the disclosure of the facts to the public and in

particular to the relatives of a victim. The Court defined its task as to review whether and to

what extent the national judicial bodies have carried out the careful scrutiny required by Article

2 in order “to maintain the deterrent effect of the judicial system in place and ensure that

violations of the right to life are examined and redressed”.67 The requirements for the effective

investigation set by the Court in the case law on medical malpractice will be described in

following chapters.

The duty to carry out an effective investigation, in order to establish the cause of death

of the patient and to hold those liable accountable, are ex post facto procedural obligations. The

state fails to adopt the measures after the death as a result of the medical negligence already

occurred. However, not less important are obligations preceding the lethal outcome — ex ante

procedural obligations.

The aim of ex ante obligations is the prevention of violations. For instance, through

obliging the state to react appropriately to credible allegations of breach of human rights.68 Or

the positive procedural obligation to monitor activities of a public importance undertaken by

private actors, in which human rights are likely to be affected,69 as in Öneryildiz v. Turkey, the

case about the death of thirty-nine people as a result of a methane explosion at a rubbish tip,

where the Court established state obligation to monitor dangerous activities.70 In this regard, the

interesting question arises whether states are under obligation to monitor activities in the sphere

66 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13 67 ECtHR (Grand Chamber), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 133; ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no. 48939/99, § 96. 68 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 139. 69 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 83 70 ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no. 48939/99, § 90.

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of health care? According to Lavrysen, contrary to Öneryildiz, in other cases concerning

activities of public importance the Court took another route.71 He refers to the De Hert’s concept

of “system responsibility”, where the State is obliged within its legal system to ensure an

efficient distribution of responsibilities in such a way, that private actors can be held

accountable for human rights violations.72 In cases in the area of medical malpractice, the

positive obligation to organise the legal system in such a way as to protect the rights of patients

was imposed on states by the Court: “…positive obligations therefore require States to make

regulations compelling hospitals, whether public or private, to adopt appropriate measures for

the protection of their patients' lives”.73 In subsequent cases the Court upheld this line of

reasoning.74 The question should such positive obligation be addressed under procedural or

rather substantive limb will be examined more extensively in Chapter 3.

So, it seems that, if the obligation to put in place the legal system in the sphere of a

healthcare is fulfilled, state monitoring of medical practice is not required. However, some

authors are of the opinion that in certain circumstances the absence of such a control can lead to

finding a state liable for violation of Article 2.75 For example, according to Harpwood, in the

absence of a proper system of supervision of vaccination scheme or of a public health protection

programme, the state can be found contravening the Convention.76 In Association X v UK,

concerning children suffering from severe brain damage after vaccination, the parents

complained that a state vaccination scheme was inefficiently administered and could even lead

to death, in violation of Article 2.77 Here, however, the Commission was persuaded by the

evidence of the UK Government, that the scheme was properly controlled and administered:

“sufficient to comply with its [State] obligation to protect life under Article 2 of the

Convention”.78 Still the case confirms that the absence of an appropriate system of control can

sometimes amount to finding states liable for negligence in managing their health care systems

under Article 2.

71 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 85 72 Ibid, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting, in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011), 33. 73 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 § 49 74 Ibid 75 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 200 76 Ibid 77 ECtHR (inadm.), 12 July 1978, Association X. v. The United Kingdom, no. 7154/75 78 Ibid

13

Going back to the concept of “system responsibility”79, the logical question arises,

whether the distribution of responsibilities should be also applied to the public hospitals? Is the

state more likely to be found liable, if the medical negligence was committed by the public

doctor? It is apparent that public authorities (including employees) are obliged to act in

accordance with the Convention rights.80 However, as it appears from the case law, the type of

ownership of the hospital does not influence the Court’s assessment of the state’s responsibility.

The Court emphasises in its judgements that regulations concerning health care should be set up

requiring hospitals “be they private or public” to take measures to ensure the protection of

patients’ lives.81 The same principle applies to the requirement to set up an effective

independent judicial system in order to determine the cause of the death of a patient “under the

responsibility of health professionals… whether they are working in the public sector or

employed in the private structures”, and to make those responsible accountable.82

However, the slight departure from the established position can be seen in the Court’s

recent Chamber judgement Lopes de Sousa Fernandes v. Portugal case. The Court, while

examining the patient’s right to be duly informed about the foreseeable risk in advance by

doctors under the procedural limb of Article 2, expressed the opinion, that “if those doctors

work in a public hospital, the State Party concerned may be directly liable for this lack of

information”.83 The case was referred to the Grand Chamber, so soon it will be clear what the

Court’s final position is on whether the state should be found liable for mere medical

negligence, and whether it is decisive that the negligence occurred in a public hospital.

To sum, the Court interprets state positive procedural obligations in the area of medical

negligence as follows:

“… in the sphere of medical negligence the procedural obligation under

Article 2 has been interpreted by the Court as imposing an obligation on the State to

set up an effective judicial system for establishing both the cause of death of an

79 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 86, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting” in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011) 80 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 197 81 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 107 82 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 81; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96, § 49 83 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, §143

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individual under the care and responsibility of health professionals and any

responsibility on the part of the latter.”84

2.2.2. Right to a procedure

Following the general introduction to state’s procedural obligations in the area of

medical negligence, the requirements set by the Court in order to comply with such obligations

will be examined. The assessment will be given in accordance with the Brems’ categorization

on85:

1) requirements for the procedure to be available — the right to a procedure;

2) more specific requirements concerning guarantees that have to be included in

procedures — procedural quality control.

State obligations arising from procedural provisions of the Convention will be

discussed separately.

In general terms it could be said that the Court, instead of interpreting the Convention

provisions in such a way as to explicitly establish a new substantive right, has developed the

right to a procedure in order to ensure the enjoyment of rights guaranteed by domestic law.86 In

many cases the Court has found that, while the right is already substantively protected under the

national law, it can nonetheless not be enjoyed due to the lack of effective procedures.87

According to Brems, the right to a procedure, that applies to the ex post procedures, is

arguably the most important procedural right and includes:

1) right to an investigation into alleged violations;

2) right to a remedy.88

The effective official investigation is required “by implication”89 from states under the

obligation to protect the right to life enshrined in Article 290, read in conjunction with the State's

general duty under Article 1. However, the Court stresses that the obligation to conduct an

effective investigation “is not an obligation of result, but of means”91. The state is under the

obligation to take “whatever reasonable steps they can to secure the evidence concerning the

84 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 85 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 140 86 Ibid, 137 at 147 87 Ibid 88 Ibid, 137 at 140 89 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298 90 Similar principles apply under Article 3 ECHR (ECtHR (Grand Chamber), 13 December 2012, El-Masri v. FYROM, no. 39630/09, § 182). 91 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298

15

incident”92. The already mentioned case Erikson v. Italy, which was declared inadmissible by

the Court, can serve as a good example. The Court upheld the Government’s position that the

judicial authorities carried out a thorough investigation into the events, and consequently there

was no “failure by the respondent State to comply with the positive obligations, including any

procedural requirements, imposed by Article 2 of the Convention”. However, the investigation

did not lead to the establishment of the cause of death and no one was held responsible for the

death of an old woman as a result of prescribed X-rays, that turned to be lethal for her.

The requirements set by the Court in order for states to comply with the obligation to

conduct an effective investigation will be discussed under the procedural quality control section.

2.2.3. Right to a remedy

The procedural obligations under substantive provisions have been interpreted by the

Court in such a way as to cover the issues of how the applicants should be involved in the

proceeding, and the question of the compensation.93 The Court has repeatedly recognized a

procedural obligation to provide access to remedies:

“the concepts of lawfulness and the rule of law in a democratic society command that

measures affecting fundamental human rights be, in certain cases, subject to some form of

procedure before an independent body competent to review the reasons for the measures and

the relevant evidence […]. In ascertaining whether this condition has been satisfied, a

comprehensive view must be taken of the applicable procedures.”94

The effective judicial system required by the procedural limb of Article 2 must under

certain circumstances include the recourse to the criminal law, because of the fundamental

character and the importance of the right to life. However, due to the unintentional nature of the

infringement of the right to life as a result of the medical error, a criminal investigation is

typically not required.95 The Court stated long ago in Erikson decision, that the Convention

should not be interpreted as guaranteeing “a right to secure a conviction in criminal

proceedings”, and indicated the probability to obtain a better result for the applicant, had the

latter used civil proceedings to accuse a doctor in negligence.96 This wording evolved in the

fundamental principle from the case Calvelli and Ciglio v. Italy that has subsequently been used

in the majority of cases arisen from medical negligence: 92 Ibid 93 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 157 94 ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03, § 117; the same principles are enshrined in ECtHR, 2 September 2010, Kaushal and others v. Bulgaria, no. 1537/08, § 29 95 ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no. 32967/96, § 51 96 ECtHR (inadm.), 26 October 1999, Vo v. France, no. 53924/00

16

“…if the infringement of the right to life or to personal integrity is not caused

intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system

does not necessarily require the provision of a criminal-law remedy in every case. In the

specific sphere of medical negligence the obligation may for instance also be satisfied if the

legal system affords victims a remedy in the civil courts, either alone or in conjunction with a

remedy in the criminal courts, enabling any liability of the doctors concerned to be established

and any appropriate civil redress, such as an order for damages and for the publication of the

decision, to be obtained. Disciplinary measures may also be envisaged.”97

In the present case, that concerned the death of the applicants’ baby shortly after birth,

the parents claimed violation of Article 2 as “no criminal penalty was imposed on the doctor

found liable for the death of their child in the criminal proceedings”.98 The Court found that

Italy had complied with the positive obligations, as its legal system ensured the access to a

remedy for the injured party including both mandatory criminal proceedings and the possibility

to bring a claim in the civil court.99 The applicants had recourse to the both proceedings. In the

course of civil proceeding the applicants had made a settlement with the doctor’s and the

clinic’s insurers.100 With regard to this, the Court came to the conclusion, that, in doing so, “the

applicants denied themselves access to the best means… of elucidating the extent of the doctor's

responsibility for the death of their child”.101

The Calvelli case cannot be regarded as a radical departure from the Court’s prior case

law, as the similar conclusions had been already made in Powell:

“…where a relative of a deceased person accepts compensation in settlement of a civil

claim based on medical negligence he or she is in principle no longer able to claim to be a

victim in respect of the circumstances surrounding the treatment administered to the deceased

person or with regard to the investigation carried out into his or her death.”102

So, in case the applicant used a possibility to have recourse to the civil proceedings and

obtained compensation, the position of the Court is clear with respect to the right of the

applicants to resort to criminal proceedings. However, the question arises, what will be the

response of the Court on the admissibility of an application, if the applicant initiated only

criminal proceedings, and intentionally did not bring a claim to the civil court?103 Will the

Calvelli principle influence the Court’s ruling on the exhaustion of the domestic remedies?

97 ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no. 32967/96, § 51 98 Ibid, § 52 99 Ibid, § 53 100 Ibid, § 54 101 Ibid, § 55 102 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9 103 If in the imaginary situation the applicant seeks the justice over the negligent doctor, not the compensation

17

After the analysis of the Court’s case law, it would be wrong to conclude that the kind

of remedy pursued by the applicant is the decisive factor. The Courts position is that the person

is free to choose any remedy that “addresses his or her essential grievance”104. The Court held in

Šilih v. Slovenia that the state’s obligation inherent in Article 2 includes the obligation “to

provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the

case”.105 The most important for the Court is to review whether the remedy was effective in

practice. In this case, the Court rejected the Government’s argument on the non-exhaustion of

domestic remedies. The Government claimed that the applicants had a possibility to lodge a

disciplinary complaint and that the civil proceedings were still pending. However, the Court

found such remedies ineffective in the circumstances of the case.106

The element of the “effectiveness” seems to be central in examining the issue of the

exhaustion of domestic remedies.107 In cases, when the applicant instituted only criminal

proceedings and the government argues on non exhaustion of domestic remedies, as the the

applicant did not attempt to regulate the dispute by means of civil proceedings, the Court

examines whether such proceedings would have resulted in a more effective examination of the

case.108 For example, in Eugenia Lazăr v. Romania, the Court expressed doubts that, if the

applicant had brought a civil claim, after unsuccessful criminal and disciplinary proceedings, it

would have been effective under the circumstances.109

To conclude, if another remedy has in essence the same objective but would not

necessarily lead to a more effective examination of the case, the use of such remedy is not

required.110 It is an essential finding with respect to the right to a remedy in cases arisen from

medical negligence, as the Court recognises, that the three avenues (criminal, civil and

administrative) are cumulative with regard to the exhaustion of domestic remedies and

examination of the merits of the states’ procedural obligation.111

Kamber indicates on “a potential flaw” in the Court’s manner of examining procedural

obligations in medical negligence cases may arise due to the absence of a single Court’s

104 ECtHR, 13 November 2012, Bajić v. Croatia, no. 41108/10, § 74 105 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 154 106 Ibid § 168 - 170 107 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183 108 Ibid 109 ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no. 32146/05, § 72,86–92. 110 ECtHR, 13 November 2012, Bajić v. Croatia, no. 41108/10, § 79 111 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183

18

approach on whether the different types of medical errors call for different types of

accountability.112 As example the author refers to the cases against Slovakia concerning

involuntary sterilisation of Roma women113, where the Court, in accordance with the Calvelli

principle, held that both criminal and civil remedies could satisfy the procedural obligation

under the Convention.114 Kamber does not agree with the Court’s conclusion, as in his opinion,

the involuntary sterilisation could be regarded “as a deliberate deviation from the safe process

(error – violation) in terms of medical law”, and thus cannot be measured as other types of the

medical errors from other cases, that are referred to by the Court in these judgments:

“recklessness in assessing the medical history of a patient” (Calvelli and Ciglio v. Italy),

“negligence in the technical process of admitting a patient to the hospital” (Vo v. France ), or a

“possible mistake in assessing the appropriate form of medical treatment” (Byrzykowski

v.Poland ), which may be characterised as unintentional technical medical errors.115

Generally, the Court’s position is that remedies must correspond to the specificities of

the threat to the rights guaranteed by the Convention.116. Thus, in some cases the Court takes

another route away from the Calvelli principles, and states that in case of “gross medical

negligence” the state authorities were responsible “to act promptly and of their own motion” 117

in order to institute criminal proceedings.118

Another interesting case in this regard is Mehmet Senturk and Bekir Senturk v. Turkey,

the case concerned the death of the applicants’ wife and mother due to the pregnancy

compilations after the errors of judgements made by health professionals and after she was

denied treatment on account of her inability to pay the hospital fees in advance.119 Although the

Court leaves a wide discretion to the states for the classification of the alleged offences120, it

comes to the conclusion that in these circumstances “the negligence attributable to that

hospital’s medical staff went beyond a mere error or medical negligence, in so far as the

doctors working there, in full awareness of the facts and in breach of their professional

obligations, did not take all the emergency measures necessary to attempt to keep their patient

112 Ibid 113 ECtHR 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 125; ECtHR, 12 June 2012, N.B. v. Slovakia, no. 29518/10, § 84; and ECtHR 13 November 2012, I.G. and Others v. Slovakia, no. 15966/04 § 129. 114 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183-4 115 Ibid 116 ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03, § 117 117 ECtHR, 17 December 2009, Denis Vasilyev v Russia, no. 32704/04, § 153. 118 Ibid, § 154 119 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 90 120 Ibid, § 86

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alive.”121 This reasoning led to the Court’s decision that, notwithstanding the fact that the

applicants’ recourse to other remedies on their own initiative, the failure of the state to charge

those liable with a criminal offence or to prosecute them was in breach of Article 2.122

In cases concerning medical malpractice in the prison, the Court’s approach to the

states positive obligations concerning the accountability also differs. The cases in the area of

medical negligence towards prisoners and other vulnerable groups will be discussed in Chapter

3.

2.2.4. Procedural quality control

The Court thoroughly examine the procedural aspects of state obligations in order to

reach solutions that are just and fair, which is the main aim of any human rights adjudicating

body including the Court.123

In the area of medical negligence, the Court imposed on states the positive obligations

to set up an effective judicial system in order to determine the cause of death of an individual

under the care of health professionals and to hold accountable those at fault. The Court

emphasises that such obligations to guarantee the protection of patient’s rights in domestic law

“should not just exist in theory”.124 For this reason the Court has not only established the right

to access to a procedure, but has also developed procedural requirements that regulate these

procedures.125

When assessing the procedural aspect of positive obligations, the Court examines

whether the investigation conducted by the authorities met the requirements of “promptness,

effectiveness and reasonable diligence”.126

Concerning the first requirement, the Court held that the protective mechanisms must

“operate effectively in practice within a time-span such that the courts can complete their

examination of the merits of each individual case”.127 Frequently in cases arisen from medical

negligence the applicants complain about the length of the proceedings. The Court stresses that,

in the event of serious injury or death, states must have put in place an effective independent

judicial system capable of promptly establishing the facts and to hold accountable those

121 Ibid, § 104 122 Ibid, § 105 123 E. Brems, and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights” 35 Human Rights Quarterly (2013), 176 at 182 124 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 125 V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation , Lund University, 2015), 535. 126 ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no. 32146/05, § 72; ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 99; 127 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96, § 53; ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 196

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responsible and to grant an appropriate redress to the victim.128 A prompt response by the state

is deemed by the Court to be immensely important both in “maintaining public confidence in

their [authorities] adherence to the rule of law” and also “in preventing any appearance of

collusion in or tolerance of unlawful acts”.129

The importance of such prompt examination of compliance with the procedural

requirements by the state, in the medical sphere in particular, is connected not only with

compliance with ex post state obligations, but also with “the safety of users of all health

services”130 and thus with compliance with ex ante state obligations. As the knowledge of

possible medical errors obtained in the course of effective and prompt investigation will

contribute “to remedy the potential deficiencies and prevent similar errors”131. In rare cases132,

the Court can accept a justification for the length of the proceedings and therefore the

ineffectiveness of the investigation because of the complexity of the case or by referring to the

conduct of an applicant and the relevant authorities.133

Except for the length of the domestic proceedings, the Court also scrutinises the

decision-making process. The Court admitted that the requirements of a fair decision-making

process differ from case to case, depending on the nature of the decision under examination.134

Although it is therefore hard to identify the content of such procedural decision making

requirements, some of them the Court frequently applies in particular contexts.135

In medical negligence cases the Court regularly mentions such procedural decision

making requirements, as: the participation, the examination by the authorities of expert medical

reports and the problem of impartiality of medical experts.

Concerning the first criteria, when medical negligence occurs, the participation of the

victim is recognised as essential element of the fair procedure. Being that, the participation of

the interested person is a guarantee that his/her interests are taken into account136. In the

decision-making process, the Court finds it vital that the informed consent of the patient is

128 ECtHR (Grand Chamber), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v . Romania, no. 47848/08, § 132 129 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 101 130 ECtHR, 27 June 2006, Byrzykowski v . Poland, no. 11562/05, § 117. 131 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 132 I.e. ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97. 133 ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05, § 85 134 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 71 135 Ibid 136 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 150

21

obtained.137 The Court considers the absence of informed consent as a violation of Article 8, as a

result of a failure of a state to adopt the necessary regulatory measures obliging doctors to

inform patient about foreseeable consequences of a planned medical intervention on his/her

physical integrity in such a way that patient are able to give consent. If a doctor failed to obtain

informed consent prior the medical procedure, which turned to be fatal for the patient, the Court

in particular circumstances can find a state in violation of Article 2.138 The performance of a

medical intervention without duly informed consent resulting in lasting suffering of the

applicant can amount to violation of Article 3.139 Positive state duties arisen from Article 3 and

Article 8, in cases in the area of medical malpractice, will be discussed in Section 2.3.

The participation criteria can also be related to the ex post procedures. For the

investigation to be effective, in the Court’s view, it must be accessible to the family of the

victim to the extent necessary to protect their legitimate interests.140 The Court also requires

there to be a sufficient element of public scrutiny of the investigation, varying in degree

depending on the circumstances of the case.141 Such position of the Court reflects the Tyler’s

idea of the procedural justice principles,142 in particular the participation principle: “[C]itizens

must also infer that [their views are] being considered by the decision maker”.143

In the cases concerning medical negligence, the Court, while examining the procedural

violation of the Article 2 by the state, expressed the opinion that, due to the complications of the

investigation conducted, “the applicant was entitled to feel that she had not been informed as to

the cause of her husband’s death”.144 So the investigation, in particular the outcome, was not

accessible to the victim’s family, contrary to the principles of an effective investigation,

established by the Court in Giuliani and Gaggio v. Italy.

While verifying whether the medical decision-making was fair, the Court does not

assess the evidence. The Court emphasised that the assessment of evidence is a matter for the

domestic authorities (unless the Court finds that the prosecuting authorities arbitrarily assessed

137 Ibid, 137 at 151, with the reference to cases: ECtHR, 8 November 2011, V.C. v. Slovakia, no. 189 68/07, § 112 (under Article 3); ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 42 (under Article 8) 138 As in Altug and Others v. Turkey (ECtH, 30 June 2015, no. 32086/07, § 83) the Court found violation of Article 2 due to the failure of state authorities to ensure appropriate implementation of the relevant legislative framework on protection of patients’ right to life, as neither medical experts, nor the Turkish courts had addressed the possibility that the medical team had infringed the domestic law. 139 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 189 68/07, § 112 140 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 303 141 Ibid 142 E. Brems, and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights” 35 Human Rights Quarterly (2013), 176 at 180, with reference to Tom R. Tyler, Procedural Justice and the Courts, 44 Ct. Rev. 26, 30 (2007–2008). 143 Ibid, 176 at 181. With reference to Tom R. Tyler, Why People Obey the Law 8 (2006). 144 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 142

22

the evidence).145 Consequently, the Court reviews not the expert medical reports themselves, but

whether their examination by the authorities was fair and just.

In the case of Bajić v. Croatia, the experts, who concluded the medical reports in the

criminal proceedings against a physician allegedly liable for the death of a patient, were at the

same time employed as professors at the same faculty as the accused physician.146 The Court,

referring to the crucial weight of medical expert reports as evidence in medical negligence cases,

emphasised the need to ensure “the independence of the findings of the experts involved”, who

“must have formal and de facto independence from those implicated in the events.”147

The Court also establishes the requirements necessary in order to comply with the

state’s obligation to guarantee the right to a remedy. As it has been already discussed, the Court

considers that the possibility of obtaining civil redress in cases arisen from medical negligence,

afforded by the domestic legal system, is enough to comply with positive procedural obligations

by states.148 In line with Calvelli principles, in Šilih v. Slovenia, the Grand Chamber clarifies

that the legal system should guarantee the possibility for any appropriate civil redress, “such as

an order for damages and/or for the publication of the decision”, to be obtained.149 In the

subsequent judgements the Court makes a step further and states that the crucial question is

whether the redress in question is sufficient and appropriate in order to satisfy the positive

obligation under Article 2.150 In Oyal v. Turkey, the case about a child contaminated by HIV

when given blood transfusions immediately after his birth, the Court came to the conclusion that

“the redress offered to the applicants was far from satisfactory for the purposes of the positive

obligation under Article 2”, as the applicant received such a small non-pecuniary damage award

that only covered one year's treatment and medication.151

2.2.5. Procedural obligations in substantive provisions vs. procedural provisions

As has already been mentioned, that state's obligation to carry out an effective

investigation and to provide the applicants with the appropriate civil or criminal redress,

depending on the circumstances, has in the Court's case-law been considered as an obligation

inherent in Article 2, which requires the right to life to be “protected by law”.152 Moreover, the

145 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97. 146 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184-5 147 ECtHR, 13 November 2012, Bajić v Croatia, no. 41108/10, § 95. 148 See section 2.2.3. Right to a remedy. 149 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 194 150 ECtHR, 23 March 2010, Oya l v. Turkey, no. 4864/05, § 70 151 Ibid, §§ 71-72 152 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 154

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Court states that, even if the failure of states to comply with such an obligation influences the

right protected under Article 13, “the procedural obligation of Article 2 is seen as a distinct

obligation”.153

The Convention includes certain explicit procedural obligations. The most important

ones, due to their broad scope of application, are deemed to be enshrined in the right to a fair

trial (Article 6) and the right to an effective remedy against violations of Convention rights

(Article 13).154

The question why the Court focuses more on the review of the procedural obligations

arisen from substantial norms instead of conventional explicit procedural provisions, was

examined by Brems. In her opinion, the main motive of the Court to develop the procedural

rights and obligations, is to strengthen the protection of the substantive right.155 The procedural

obligations are distinct, meaning that they “can give rise to a finding of a separate and

independent interference”156 and regardless of whether states were ultimately found to be

responsible for the substantive violation. Consequently, the procedural failures may be the only

basis for the Court to hold a state liable for breach of the substantive rights. The procedural

obligations in the substantive guarantees are, according to Brems, instrumental, meaning that the

identification of their nature and scope aims to the improvement of substantive rights.157 As it

was explored in the previous Section, certain procedures are vital (and this is the reason why the

Court set the procedural requirements) in order to prevent or to remedy violations of substantive

rights. Contrary to this, the procedural provisions aim to protect against procedural harm

itself.158

Under certain circumstances the Court examines the procedure both from the viewpoint

of the substantive guarantees and from the viewpoint of procedural provisions, such as Article

13 in combination with the relevant substantive provision and Article 6 of the Convention,

considering them as “complimentary”.159 However, in some cases, it seems that they are

153 Ibid 154 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 52 155 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159 156 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 299 157 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159 158 Ibid 159 Ibid

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“interchangeable”.160 Brems comes to the conclusion, that the Court intends to cover various

types of harm “from each angle”.161 Generally, under the substantive provisions (Article 2 and

Article 3) the Court examines whether the state authorities met the requirements set for the

effective investigation, whether the cause of death was established and the perpetrator was held

accountable (not forgetting that the obligation to investigate is an obligation ofmeans, but not of

result). Whereas the procedural obligations enshrined in Article 13 are usually broader than the

investigative obligations under substantive provisions, including the question of how the

applicants should be involved in the proceedings and of the appropriate compensation to the

victim or his/her family.162 The Court will generally find a violation of Article 13, together with

a breach of the investigative obligation under the substantive Convention provision, in case it is

clear that such state’s failure influenced the applicants’ access to other available and effective

remedies for holding those responsible accountable and for obtaining compensation.163

However, in cases arisen from the medical negligence, the Court took another route and

interpreted the procedural obligations under the Article 2 and Article 3 as imposing the

obligations on states to ensure the involvement of the applicants in the procedure and to provide

the appropriate and sufficient redress.164 When the Court finds a violation of the procedural

obligations under Article 2 or Article 3, it considers it unnecessary to examine the same issues

under Article 6 § 1 and Article 13 of the Convention.165 Kamber expresses the opinion, that

there is no additional element inherent in Article 6, that calls for a separate examination.166

However, Brems supposes that obligations arisen from substantive guarantees and those arisen

from procedural provisions of the Convention serve different goals: procedural provisions

protect against procedural harm itself, whereas procedural obligations under the substantive

provisions protect the substantive rights.167

The interesting case in this regard is Oyal v. Turkey, where the Court examined the

applicants’ complaints about the length of the administrative proceedings by the authorities 160 Ibid, with reference to J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden/Boston:Martinus Nijhoff Publi shers2009), pp. 503—7 161 Ibid 162 Ibid 163 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 69. 164 The analysis and examples of cases are provided in Sections 2.2.3. and 2.2.4. 165 ECtHR, 27 June 2006, Byrzykowski v. Poland, no. 11562/05, § 122; ECtHR (GC), 9 April 2009, Šilih v. S lovenia, no. 71463/01, § 216; 166 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 181 167 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159

25

under the merits of Article 2, and then examined the same problem and the applicants

complaints about the absence of the effective remedies in domestic law — under Article 6 §

1and Article 13 respectively.168 According to Kamber, the reason for such examination by the

Court could be that a lack of an effective remedy for the inordinate length of administrative

proceedings is a systemic problem in the Turkish system.169

In sum, the Court interprets state procedural obligation in the area of medical

negligence as the obligation to set up an effective judicial system in order to establish the cause

of death of a patient and the liability of those accountable. Thus, the judicial system at the

domestic level must guarantee the right to an investigation into alleged medical negligence and

the right to a remedy. These rights should not just exist in theory, but be effective in practice.

Therefore, the Court has established requirements such as promptness, effectiveness and

fairness of the decision-making process.

2.3. Violation of procedural obligations arisen under under Articles 3 and 8

In cases of alleged medical malpractice the Court examined not only positive

obligations derived from Article 2, but also under Article 3 (prohibition of inhuman or

degrading treatment)170 and Article 8 (right to respect for private and family life)171 of the

Convention.

Generally, Article 3 has been most applied in contexts where the ill-treatment was

intentionally purposely inflicted by State agents or public authorities. The wording of Article 3

explicitly imposes a negative obligation on States to refrain from inflicting serious harm on

persons within their jurisdiction.172 However, the Court interprets Article 3, read in conjunction

with Article 1, as placing also a positive obligation on states to ensure that no one suffers from

such harm.173

In order to fall within the scope of Article 3, ill-treatment must reach the so-called

“Pretty threshold”174, meaning to attain a minimum level of severity and involve actual bodily

168 ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05, §§ 83—93 169 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 181 170 I.e. ECtHR, 5 March 2013, Gulay Cetin v Turkey, no. 44084/10; ECtHR, 13 October 2015, Akkoyunlu v Turkey, no. 7505/06 171 I.e. ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/0; ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05. 172 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111. 173 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 197 174 Joint Dissenting Opinion of Judges Tulkens, Bonello and Spielmann to ECtHR, 27 May 2008, N. v. the United Kingdom, no. 26565/05, § 5

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injury or intense physical or mental suffering.175 The “Pretty threshold” also includes

humiliation or debasement of an individual, or acts that arouse feelings of fear, anguish or

inferiority, that, according to the Court amount to degrading treatment.176 So the question arises

whether the person can rely on the the guarantees set in Article 3 if, in the course of the medical

treatment, he or she was subjected to suffering due to medical negligence?

As the Court states itself, due to the fundamental importance of Article 3, it has

reserved sufficient flexibility to address the application of this article in different situations.177

Thus, the Court also recognises that Article 3 imposes positive obligations on states, when the

suffering of the person is not caused by state agents, but “flows from naturally occurring illness,

physical or mental”, where it is, or risks being, “exacerbated by treatment” stemming from

measures for which the authorities can be held responsible.178 The Court emphasised on the high

threshold in such situations, as “the alleged harm emanates not from acts or omissions of the

authorities but from the illness itself”.179 The question whether suffering from naturally

occurred illnesses that was exacerbated by treatment amounts to violation of Article 3 mostly

was addressed by the Court in cases where the patient was deemed to be in vulnerable position.

State positive obligations arisen from medical negligence towards vulnerable persons will be

discussed in more detail in Chapter 3.

The question about the state’s violation of obligations under Article 3 is also raised

when the medical error did not result in the death of a patient, but in serious illnesses and

sufferings of the patient. However, in Oyal v. Turkey, when in the course of blood transfusions

after the birth the child was contaminated by HIV, the Court ruled that notwithstanding the fact

that the child did not die, the complaints must be examined under Article 2 as the State

authorities allegedly failed to fulfil their positive obligation to protect life by not taking

preventive measures against the spread of HIV through blood transfusions.180 In reasoning, the

Court referred to its established case law, where it accepted that Article 2 can be invoked in

certain circumstances even if the victims had not died.181 The Court examined the applicants'

complaints under Article 2 as the State authorities failed to fulfil their positive obligation to

protect life by not taking preventive measures against the spread of HIV through blood

175 ECtHR, 29 April 2002, Pretty v. the United Kingdom, no. 2346/02, § 52 176 Ibid 177 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111 178 ECtHR (GC), 13 December 2016, Paposhvili v. Belgium, no. 41738/10, § 175 with the reference to Pretty v. the United Kingdom, no. 2346/02, § 52 179 Ibid 180 ECtHR, 23 March 2010, Oya l v. Turkey, no. 4864/05, 181 Ibid, § 55 with reference to ECtHR (Grand Chamber), 28 October 1998, Osman v. the United Kingdom, no. 23452/94; ECtHR (GC), 20 December 2004, Makaratzis v. Greece, no. 50385/99 § 51;

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transfusions and by not conducting an effective investigation against those responsible for the

infection of the first applicant.182

Another example of finding states in breach of Article 3 in the course of medical care,

is when the Court recognises some acts of medical personnel as a degrading treatment.183 For

instance, in Elberte v. Latvia, the Court stressed that certain structural deficiencies in the field of

organ and tissue transplantation in Latvia caused the applicant’s suffering due to “the intrusive

nature of the acts carried out on her [applicant’s] deceased husband’s body and the anguish she

suffered in that regard as his closest relative”, that amounted to the violation of Article 3.184

Generally, in finding a state liable for a degrading treatment, the question concerning the

purpose of such treatment, whether it was to humiliate or debase the victim is an important

factor to be taken into account. However, the Court points out that the absence of any such

purpose cannot conclusively result in the absence of violation of Article 3.185

In Elberte v. Latvia the Court also examined issues concerning the failure of medical

personnel to receive the consent of the applicant prior to performing the removal of organs of

the applicant’s deceased husband. The Court found that Latvian law regarding the consent for

organs removal lacked clarity and did not guarantee adequate legal remedies against violations,

which was regarded by the Court as an unjustified interference with the applicant’s right to

respect for her private life, amounting to a violation of Article 8.186

Before, the Court had already emphasised the importance of both providing access to

the information regarding potential risks to health and of the obtaining an informed consent

from patients. In Trocellier v France, the Court established that “individuals’ physical and

psychological integrity, their involvement in the choice of medical care provided to them and

their consent in that respect and access of information enabling them to assess the health risks

to which they are exposed fall within the scope of Article 8 of the Convention”.187 The Court

further noticed that Article 8, in addition to the primarily negative obligations contained in it,

also includes state positive obligations that are “inherent in an effective respect for the rights

guaranteed”.188 Moreover, the Court indicated that the principles established in the case law

regarding the positive obligations to ensure the right to life under Article 2189 should be applied

182 Ibid, § 58 183 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 202 184 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08, §§ 135 - 43 185 ECtHR, 13 October 2015, Akkoyunlu v Turkey, no. 7505/06, § 32 186 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08, §§ 105 - 17 187 ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/01 188 Ibid 189 Discussed in Section 2.2.

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mutatis mutandis in case of the interference with the right to physical integrity falling within the

scope of Article 8.190

The Court defines the positive obligations under Article 8, as states’ duties to adopt

appropriate regulations that ensure that doctors acknowledge “the foreseeable consequences of

the planned medical procedure on their patients’ physical integrity” and are obliged to inform

their patients of such foreseeable consequences in advance to enable them to give informed

consent.191 Consequently, if the patient has not been duly informed by doctors prior to the

medical intervention and a foreseeable risk materialises, the state may be found directly

responsible for this lack of information under Article 8.192

In assessing whether the state violated positive obligations inherent in Article 8, the

element of foreseeability of the consequences of planned medical procedure is of crucial

importance. In Trocellier v France, the Court, referring to the expert report, found the

application inadmissible, as the paralysis experienced by the applicant after the operation was

not a “foreseeable” consequence of such operation.193

It seems that in Trocellier v France, the Court points out one more element that is

necessary for finding a state directly liable for violation of Article 8, that is: “if, as in the instant

case, those doctors work in a public hospital”.194 The Court uses the same expression in

Codarcea v. Romania.195 In M.A.K. and R.K. v. the United Kingdom the Court indicates on the

fact that the hospital, where the violation occurred, was a public institution and therefore the

acts and omissions of its medical staff could in principle engage state responsibility.196

However, in Csoma v. Romania, the Court already speaks about doctors in general, without

specifying the type of ownership of the hospital, where such doctor is employed.197

From the Court’s reasoning in Csoma v. Romania it flows that in certain circumstances

the Court may accept a justification for the doctor’s failure to obtain informed consent, namely

due to “time constraints”.198 However, in this particular case, the Court found that there was no

urgency, and thus the interference was unjustified. Although the Court admitted that Romanian

legislation expressly requires the doctor’s obligation to obtain informed consent prior to a

190 ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/01 191 Ibid 192 Ibid 193 Ibid 194 Ibid 195 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; 196 ECtHR, 23 March 2010, M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, § 76 197 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 44: “if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information”. 198 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 51

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medical procedure that involves any risk,199 due to the “serious consequences of the procedure”

and the absence of the informed consent obtained from the patient, the Court “finds it

unacceptable” that the performance of medical operation contravened rules established by the

national law.200 Finding, moreover, the state’s failure to provide the applicant with the proper

redress, the Court concludes that there has been a violation of Article 8. 201

Similar reasoning for establishing the state’s interference in applicants' right to respect

for their family life under Article 8, have earlier been used by the Court in M.A.K. and R.K. v.

the United Kingdom judgement. The case concerned taking of blood samples and photographs

of a child by the medical authorities in the absence of the parents and without their consent. As

in Csoma v. Romania the Court also examined whether the performance of medical procedures

of the child without parental consent was justified by the urgency, namely critical condition of

the patient or that her situation was likely to deteriorate, and came to the conclusion that there

was no pressing need in an immediate treatment of the child.202 Consequently, the Court did not

find grounds for justification of the authorities conduct and therefore established that the

interference with the right to respect for private life was not in accordance with the domestic law

and was in violation of Article 8.203

2.4. Conclusions

In assessing alleged violations of convention rights in the area of medical negligence,

the Court frequently refers to the concept of implied positive obligations, including procedural

obligations. From the case law it is seen that under procedural obligation in the area of medical

negligence, the Court understands the obligation to set up an effective judicial system in order to

establish the cause of a death of a patient and the liability of those accountable. Thus, the

judicial system at the domestic level must guarantee the right to an investigation into alleged

medical negligence and the right to a remedy. It appears that the Court, when examining

whether states have complied with an obligation to investigate, does not evaluate the result of

such investigation but the means of how it was conducted. The Court assesses the length and the

effectiveness of the procedure, whether the victim was provided with the opportunity to

participate in the investigation, as well as whether the victim can obtain access to the

conclusions of the investigation.

199 Ibid § 49 200 Ibid § 50 201 ibid § 68 202 ECtHR, 23 March 2010, M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, § 79 203 Ibid, § 80

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The question arose concerning the required remedies in cases of medical negligence. In

particular, the question whether recourse to criminal law is mandatory in order to exhaust

domestic remedies? Based on an analysis of the case law, it is seen that the Court considers the

possibility of obtaining civil redress in cases arisen from medical negligence, afforded by the

domestic legal system, as complying with positive procedural obligations by states. However,

the findings differ in case a gross medical negligence occurred. In the Court’s view, state

authorities are responsible to institute criminal proceedings in such cases.

In addition to the procedural guarantees under Article 2, victims of medical negligence

can also invoke the rights set in Articles 3 and 8 of the Convention. If the sufferings of a person

results from a naturally occurring illness, but was exacerbated by measures for which the

authorities can be held responsible, according to the established case law, the Court finds a state

in violation of Article 3. The failure of medical professionals to provide patients access to

information regarding potential risks to their health and the failure to obtain an informed consent

from patients can amount to a breach of Article 8.

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CHAPTER 3: EVOLUTION OF THE COURT’S APPROACH TO POSITIVE

OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE

3.1. Distinction of positive obligations. An obligation to set up an adequate legal

framework

In early judgements in the area of medical negligence, the Court did not examine

positive obligations of states under the substantive and procedural limb separately. For instance,

in Calvelli and Ciglio the Court did not attribute clearly the obligation “compelling hospitals …

to adopt appropriate measures for the protection of their patients' lives” to the substantive or

the procedural scope of Article 2. However generally, despite the Court itself not establishing a

particular classification of positive obligations, it has generally distinguished between

substantive and procedural positive obligations.204 Thus, in Giuliani v. Italy the Court speaks

about the procedural obligation under Article 2 as “a distinct obligation”, with the reference to

the case law, where the question of procedural obligations “has consistently [been] examined

separately” from the question of compliance by the state with the substantive obligation, and

often the violation of a procedural obligation under Article 2 has been claimed without any

complaint as to the substantive obligations.205 In some cases compliance with the procedural

obligation under Article 2 has even been subjected to a separate voting on the admissibility of

the case.206 Similarly, in later cases concerning medical negligence the Court found that “the

procedural obligation has not been considered dependent on whether the State is ultimately

found to be responsible for the death”207 and the procedural obligation to conduct an effective

investigation under Article 2 “can be considered to be a detachable obligation”.208

Substantive and procedural obligations in principle serve different rationales.209 Thus,

the former are regarded as “[t]he part of the law that creates, defines, and regulates the rights,

duties, and powers of parties”, whereas the latter are seen as “[t]he rules that prescribe the

steps for having a right or duty judicially enforced.”210 In general terms, it is considered that

substantive obligations have a preventive function, whereas procedural obligations a remedial

one. However, the distinction in functions can not be regarded as fully corresponding to the

204 V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation, Lund University, 2015), 449 205 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 158; ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 299 206 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 158, with reference to Slimani v. France, 27 July 2004, no. 57671/00, §§ 41-43, and Kanlıbaş v Turkey, (inadmiss), 28 April 2005, no. 32444/96. 207 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 156 208 Ibid, § 159 209 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 48 210 Ibid, with the reference to Black’s Law Dictionary (Abridged 9th edn, Saint Paul, West, 2010), 1039 and 1231

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distinction between both types of obligations, and therefore cannot serve as a ground for such

distinction.211 Another approach to make a distinction between substantive and procedural

obligations refers to the aim that such obligations are made to achieve. Hence, substantive

obligations aim to contribute to a particular state of affairs, and procedural — “aim only at a

certain kind of formal fairness”.212

As it was mentioned above, in later judgements in the area of medical negligence, the

Court examined separately procedural and substantive breaches under Article 2. The positive

obligation to set up a “regulatory structure” requiring hospitals to take appropriate steps to

ensure the protection of patients’ lives was subjected to the scrutiny under the substantive limb

of Article 2,213 and the obligation to set up “an effective judicial system” related to the

procedural aspect.214

The positive obligation to put in place a legal and administrative framework is required

by the Court in a number of cases,215 including cases in the area of medical negligence.

Lavrysen emphasised on the necessity of such obligation, especially in horizontal relations, as

private actors should be bound by domestic law to refrain from infringing human rights.216

Moreover, it is important to regulate the behaviour of private actors in advance, as an ex post

response to a violation may be already insufficient due to the risk of irreparable harm caused by

such violation,217 as, for example, if death of a patient occurred as a result of medical

negligence. Thus, the proper regulation of the behaviour of private actors in advance through the

provision of a legal and administrative framework may be more sufficient for the protection of

patients’ lives.

Van Leuven has identified three reasons why it may be more convenient for states to

intervene in horizontal relations through ex ante regulation rather than through ex post judicial

intervention. The first reason concerns the fact, that regulatory authorities and legislators “enjoy

more democratic legitimacy than courts”, and “are better placed to make general policy

211 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 46 212 Ibid, citing L. May, Global Justice and Due Process (Cambridge University Press, 2011), 48. 213 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 107 214 Ibid, § 125 215 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 110 216 Ibid 217 Ibid

33

choices”.218 The second reason is that, from the perspective of legal certainty, ex ante regulation

serves better.219 The third refers to the fact that legislators may employ other means of

protection than courts.220

Although it seems that the importance of the requirement to put in place an adequate

legal and administrative framework increased in numerous areas of the Court’s case law, the

Court has not been very clear about why in certain circumstances only an ad hoc response

nonetheless remains acceptable.221

The next Section of this paper will discuss the evolution of the Court’s approach from

mere examination of the states ad hoc response to breaches arisen from medical negligence

towards recognition of the ex ante obligation to put in place a legal and administrative

framework, that in particular situations leads to finding the state in breach of a substantive limb

of Article 2.

3.2. From procedural to substantive protection.

In cases on the state’s alleged responsibility arisen from medical negligence, the Court

had focused more on the procedural aspects of positive obligations, as was already mentioned

above. Following the case of Powell, where the Court examined the death of the applicants’ son

and the responsibility of the doctors involved “from the angle of the adequacy of the

mechanisms in place for shedding light on the course of those events”,222 more weight has

always been attached to the procedural requirements that are implicitly set in Article 2. Thus,

the Court scrutinised whether the national legal system was adequately tailored in order to

establish the cause of a death of the patient and any liability on the part of the medical staff

concerned.

However, already in Powell, the Court spoke about the obligation of the state to set

“adequate provision for securing high professional standards among health professionals and

the protection of the lives of patients”.223 Even before, in the Erikson decision, in addition to the

procedural obligation to establish an effective judicial system, the Court has already included in

the state’s positive obligation “the requirement for hospitals to have regulations for the

protection of their patients' lives”.224 Within time the Court established a separate self-sufficient

218 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 111, with reference to N. Van Leuven, Contracten en mensenrechten (Antwerpen, Intersentia, 2009), 49. 219 Ibid 220 Ibid, 112 221 Ibid, 114 222 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99 223 Ibid 224 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97.

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obligation in Calvelli and Ciglio v. Italy judgement: “…positive obligations therefore require

States to make regulations compelling hospitals, whether public or private, to adopt appropriate

measures for the protection of their patients' lives”.225 The reason to interpret Article 2 as

imposing such obligation on states lies in the necessity to protect patients, to the most possible

extent, from the serious consequences that medical interventions may inflict in this respect.226

However, in Calvelli and Ciglio v. Italy the Court did not explicitly indicate whether

this requirement — to make regulations obliging hospital to have such protective measures — is

a substantive positive obligation or relates to the procedural aspects. Moreover, in this particular

case the Court did not examine whether the authorities in fact complied with their obligation to

protect the patient’s life.227 The Court assessed the State’s compliance with Article 2 only in

connection with the obligation to set up an effective judicial system, in particular, to ensure the

applicant’s right to remedy.228 The Court used to scrutinise only the procedural aspects of the

case, instead of applying a genuine two-tiered scrutiny under the substantive and procedural

limb of Article 2.229

Along with establishing the obligation to have in place an adequate legal framework

securing the protection of the lives of patients, the Court in Powell developed the principle that,

if a state complied with such obligation, the “error of judgment on the part of a health

professional or negligent co-ordination among health professionals in the treatment of a

particular patient” cannot fall within state’s responsibility.230 This principle seemed to be

consistent with the Court’s position from the earlier judgements in the area of medical

negligence and also was upheld in the subsequent cases.231 For example, in 1991 in Tavares v.

France, the case concerned the death of the applicant’s wife as a consequence of serious

complications following the delivery of the child,232 the Commission rejected a complaint on the

ground that the women could not have died as a result of clinical negligence as the hospital had

the required procedures in place and doctors followed them as directed.233 The Commission was

satisfied with finding that the requirement to have the provisions in place was fulfilled by 225 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 § 49 226 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04, § 104. Available only in French. The Court stated as follows: “sur la nécessité de préserver ces derniers … des conséquences graves que peuvent avoir à cet égard les interventions médicales”. 227 Such wording was used by the Court in the subsequent case ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 110 228 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 §§ 51 - 7 229 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 45 230 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99 231 The same line of reasoning is used, for example, in Byrzykowski v. Poland (ECtHR, 27 June 2006, no. 11562/05, § 104) 232 ECtHR (decision), 12 September 1991, Tavares v. France, no. 16593/90 233 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 201

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France and did not deepen into how the system functioned in the instance of this particular

case.234

In later judgements in the area of the medical negligence, the Court started to assess the

alleged violations separately under the substantive and procedural limb of Article 2. Under the

substantive limb the Court only assessed whether the requirement to have in place the regulatory

framework aimed at protecting patients’ rights was fulfilled by a state. Consequently, the

Court’s examination did not result in violations of substantive obligations, if it found the

legislative framework of the state concerned compatible with Article 2 (“sufficiently clear…to

regulate with precision the decisions taken by doctors in situations such as that in the present

case”, and “apt to ensure the protection of patients’ lives”)235, or if the Court admitted that it

had not been found that the state health authorities had been or should have been aware about

the risks that resulted in the infringement of the patient’s right to physical integrity.236 In certain

cases, where the existence of a legislative and regulatory framework was not in dispute between

parties, the Court did not make any evaluations of the substantive obligations of the state

concerned.237

However, in Mehmet and Bekır Şentürk v. Turkey238 the Court, while examining the

alleged state violation of the substantive obligation under Article 2, used a different approach.

The Court emphasised on the considerable difference of the facts in the present case from the

preceding cases and therefore acknowledged that principles and requirements established

previously in the case law cannot be used per se, as they appeared in a “substantially different

context”.239 Contrary to the cases arisen from mere medical negligence, this case also included a

denial of the healthcare that the State concerned has undertaken to make available to citizens

generally. The applicants’ wife and mother death occurred as a result of not only error of

judgement on the part of medical staff, but also the refusal of the hospital to provide her with an

appropriate medical care due to inability to pay hospital fees.240 The Court defined its task as to

examine whether the authorities “did what could reasonably be expected of them”, and

consequently whether the obligation to protect the patient’s physical integrity was complied

with.241 The Court also indicated that it was not its task to decide on Turkish public-health

234 A.-P Den Exter, Health care law-making in Central and Eastern Europe: review of a legal-theoretical model (Antwerp | New York, Intersentia, 2002)., 88 235 ECtHR, 5 June 2015, Lambert and Others v. France, no. 46043/14, § 160 236 ECtHR, 1 December 2009, G.N. and Others v. Italy, no. 43134/05. The Court did not find substantive violations in this case, as there was no evidence that the Ministry of Health had known or should have known about the risk of transmission of HIV or hepatitis C via blood transfusion. 237 ECtH, 30 June 2015, Altug and Others v Turkey, no. 32086/07, § 73 238 The case has been already discussed in connection to the right to remedy in Section 2.2.3. 239 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 85 240 Ibid, § 90 241 Ibid, § 89

36

policy on access to treatment.242 The Court’s finding of the State’s failure to have in place a

legislative framework, that regulates situations of medical urgency, when the patient is unable to

pay fees, together with the fact that Mrs. Senturk was “deprived of the possibility of access to

appropriate emergency care”, was sufficient for the Court to hold that the State had failed to

comply with its substantive obligation to protect the patient’s physical integrity under Article

2.243

Another case, where Turkey was found in violation of the substantive requirements of

the right to life, is the case Asiye Genç v Turkey, about the death of the newborn in an

ambulance, while waiting to be treated for a respiratory problem.244 The Court rejected the

government’s argument that the death of a child was caused due to the absence of a place in

hospitals, which was argued by the government to be an objective obstacle not attributable to the

doctors.245 The Court stressed that a lack of space in hospital cannot justify the poor

coordination among health professionals and the absence of medical care provided to the

child.246 Moreover, the Court examined the adequacy of the public health and hospital system

and, in particularly, the quantity and the condition of equipment in the hospital concerned and in

other hospitals in the region.247 It was concluded that Turkey had not sufficiently ensured the

proper organization and functioning of the public hospital services and, as a result, the

applicant's son was denied in lifesaving medical treatment.248 In this case the Court was almost

referring to a general problem of the whole health care system in Turkey, as it mentions a

dysfunction of the health services.249 It can be argued that in this case the Court is slowly

moving towards recognition of a right to health under Article 2.250 Consequently, the judgement

met a lot of criticism, including from Judges Lemmens, Spano and Kjølbro, expressed in their

Concurring opinion. They argued that it was not in the Court’s power to examine the public

health system, having regard to the fact that Article 2 should not be interpreted as establishing

standards of the quality of treatment and the quantity of the equipment in public hospitals.251

To support its authority for contesting the deficiencies in the health care system of

Member States under the Convention, the Court stressed that “the traditional view must be read

242 Ibid, § 95 243 Ibid, § 96 244 ECtHR, 27 January 2015, Asiye Genç v Turkey, no. 24109/07 245 Ibid, § 80 246 Ibid 247 Ibid 248 Ibid, §§ 80-2 249 N. Quenivet, Emergency Health care and Article 2 ECHR, Euro Rights Blog. <http://eurorights.net/euro-rights-blog-emergency-health-care-and-article-2-echr/> (accessed on 10 April 2017) 250 Ibid 251 ECtHR, 27 January 2015, Asiye Genç v Turkey, no. 24109/07, Concurring Opinion of Judges Lemmens, Spano and Kjølbro, § 4

37

in the light of developments in the case-law under the Convention”.252 It seems that it becomes

more and more difficult to separate fundamental rights and freedoms enshrined in the

Convention and socio-economic rights, including health care issues. Moreover, the Court takes

into consideration the legal and policy documents relating to health that were adopted within the

framework of the Council of Europe, including recommendations of the Committee of Ministers

in the health sector, the Oviedo Convention, the case-law under the European Social Charter on

health-related issues.253 Such materials are used in order to enrich the Court’s judgments and

“provide a key point of departure” if it appears to examine whether there is an emerging

European trend in a particular area.254

However, the aim of the paper is not to deepen in the Court’s approach on dealing with

socio-economic rights, including the right to a health care, and relevant criticism of the Court’s

judicial activism. The paper, and this Chapter in particular, is intended to describe how the

Court’s approach towards the state’s responsibilities in the area of medical negligence evolved

from findings of purely procedural breaches into a more thorough examination and findings of

the substantive violations arisen from medical negligence.

After the judgements Mehmet and Bekır Şentürk v. Turkey and Asiye Genç v Turkey,

despite criticism received and separate opinions of judges, the Court has followed its position on

the existence of the direct causal link between the death of patients and the structural problems

of health care services in Turkey in the case Aydogdu v Turkey. The Court ruled against Turkey

once again, as the applicant’s child was found to be a victim of both negligence and structural

deficiencies that had precluded her from receiving appropriate emergency medical treatment.255

So, in these last judgements, while examining the state’s positive obligations under the

substantive limb of Article 2, the Court spoke about the structural failures of health services

that, solely or together with medical negligence, had led to the death of patients. However, the

Court did not recognise the state’s responsibility arisen only from negligence on the part of

doctor. That was before the Chamber judgement in the case Lopes de Sousa Fernandes v.

Portugal, that concerned the negligent failure to diagnose meningitis that subsequently led to the

death of applicant’s husband. Firstly, the Court admitted that “the authorities’ acts and

omissions in the sphere of public health-care policy may in certain circumstances engage their

responsibility under the substantive limb of Article 2”.256 Then, it found it important in the

252 Council of Europe/European Court of Human Rights. Thematic Report: Health-related issues in the case-law of the European Court of Human Rights. June 2015. 4 253 Ibid 254 Ibid 255 ECtHR,30 August 2016, Aydogdu v Turkey, no. 40448/06 256 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 108

38

circumstances of the present case to “ascertain whether the authorities did what could

reasonably be expected of them”, and particularly whether the authorities had adhered to their

obligation to protect the physical integrity of the patient, “especially by providing him with

appropriate medical care”.257 Although the Court admitted that it did not have an authority to

question the doctor’s judgement on clinical matters, it found that the lack of coordination

between hospital departments constituted a violation of the substantive aspect of Article 2.258

Such findings are seen as a radical departure from the prior case-law,259 as before the Court

stated that the mere error of judgement on the part of the doctor or negligent coordination

among medical staff are not sufficient to find a state in the breach of Article 2.260 On the

contrary, in Lopes de Sousa Fernandes v. Portugal, the Court asserted that such negligent

coordination demonstrated the failings in public hospital services, that may amount to a breach

under Article 2261 and thus this judgement is in accordance with the established case law

(Mehmet and Bekır Şentürk v. Turkey and Asiye Genç v Turkey). So, referring to the decision of

the majority of the Court, the mere negligence of doctors may be sufficient for a findings against

a state.

Not surprisingly, two of seven judges — Judges Sajó (President) and Tsotsoria —

voted against the substantive violation of Article 2 in this case. In their Dissenting Opinion,

they emphasised, firstly, the absence of the qualification of judges of the Court to decide on

medical diagnosis262 and also the contradiction of the present decision to the established in case

law principles “referred to in the judgment itself”.263 Taking into account the strength of the

dissent and the importance of the issue at stake, it will be interesting to see whether the Grand

Chamber will reaffirm the principle of the absence of state responsibility for mere doctor’s

negligence or will accept the Chamber’s evolved approach on the interpretation of state positive

substantive obligations in the area of healthcare.

257 Ibid, § 110 258 Ibid, § 114 259 J. Hyam, Mere negligence may breach Art 2 in NHS hospital cases. The UK Human Rights Blog. <https://ukhumanrightsblog.com/2016/01/12/jeremy-hyam-mere-negligence-may-breach-art-2-in-nhs-hospital-cases/> (accessed on 15 April 2017) 260 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97; ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9; ECtHR, 27 June 2006, Byrzykowski v. Poland, no. 11562/05 261 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 114 262 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, Dissenting Opinion of Judges Sajo and Tsotsoria 263 Ibid, principles established in Powell, referred to in Byrzykowski v. Poland, that were already described above.

39

3.3. Implication of the vulnerability concept for expanding positive obligations

The vulnerability concept was introduced by the Court in Chapman v. the United

Kingdom.264 The case concerned the Roma minority, who were recognised by the Court as

vulnerable, and characterised as belonging to a group whose vulnerability is caused by societal,

political and institutional circumstances.265 Following this, the Court extended the list of

vulnerable groups to persons with mental disabilities, people living with HIV and asylum

seekers.266

Although the Court did not establish clear indicators to determine what makes a group

vulnerable, based on the case law following characteristics of vulnerability concept can be

identified: relational, particular, and harm-based.267 Firstly, as defined by Timmer: “the Court

locates vulnerability not in the individual alone but rather in her wider social circumstances.”

The notion “particularly” means that such people are “more vulnerable than others”.268 Another

characteristic concerns harm that was inflicted on vulnerable groups due to the “(historical)

prejudice and stigmatization”, and — stemming from later judgements269 — due to “social

disadvantage” and “material deprivation”270. Recently, the Court started to focus on poverty

and “negative social attitudes”271 as indicators of vulnerability in the context of Articles 3 and

8.

The vulnerability concept was expanded by the Court in M.S.S. v. Belgium and Greece,

where dependency on the State support was regarded as one more indicator of a person’s

vulnerability.272 Although the dependency argument has previously been relied upon by the

Court in other Article 3 cases, concerning prisoners and detainees273, the Court’s finding in

M.S.S. v. Belgium and Greece was criticised from the standpoint that such interpretation can

lead to “the problem of the open-endedness of the vulnerable group concept”.274

In sum, after analysis of the Court’s case law, the set of indicators that determine what

renders a group vulnerable include: prejudice and stigmatization, dependency on the State,

264 ECtHR (Grand Chamber), 18 January 2001, Chapman v. the United Kingdom, no. 27238/95, § 96 265 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 162 266 ECtHR, 20 May 2010, Alajos Kiss v. Hungary, no. 38832/06; ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09 267 Ibid, 162 268 Ibid, 163 269 ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09, ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07 270 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 163-65 271 Ibid, 165 272 ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09 273 I.e. ECtHR, 17 December 2009, Denis Vasilyev v. Russia, no. 32704/04, § 115 274 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 169

40

social exclusion and disadvantage. However, according to Timmer, who refers to international

human rights reports and scholarly works, more groups could have been recognised as

vulnerable groups, like: national minorities, religious minorities and LGBT people.275

The advantage of broadening of the vulnerability concept is connected with

developments, seen by scholars as positive276, in the Court’s case law. Timmer speaks about

“recognition of positive obligations” when it comes to the members of particularly vulnerable

groups. Thus, states are obliged to provide a certain level of protection that is necessary to the

particular needs and concerns of vulnerable groups.277

In the area of medical negligence, the most prominent case where the Court implied the

vulnerability concept for expanding positive obligations is Centre for Legal Resource on behalf

of Valentin Campeanu v. Romania (hereunder — CLR for Valentin Câmpeanu).278 The Court

reiterated the state positive obligation established in Calvelli and Ciglio v. Italy279, with

emphasis that such obligation applies in following circumstances: “especially where patients’

capacity to look after themselves is limited”280, when “young children who are especially

vulnerable and are under their exclusive control”281, and “regarding the medical care and

assistance given to young children institutionalised in State facilities”.282 The Court recognized

the vulnerability of persons in custody and the duty of state authorities to protect them, and even

more, “to demonstrate special care in guaranteeing such conditions as correspond to special

needs resulting from disability”.283 While assessing the evidence, the Court stressed on the

necessity to pay particular attention to Mr Câmpeanu’s vulnerable condition and dependence of

him on the state for the duration of his whole life, and thus State’s obligation “to account for his

treatment” and “to give plausible explanations concerning such treatment”.284 The Court

concluded that the continuous failure of the medical personnel to provide Mr Câmpeanu with

appropriate care and treatment has led to his untimely death. Thus, Romania was found in

breach of the substantive requirements of Article 2 “by not providing the requisite standard of

275 Ibid, 170 276 Ibid, 175 277 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 177 278 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08 279 “to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives” Calvelli and Ciglio v. Italy, § 49, described in Section 3.2. 280 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 130, with reference to Dodov v. Bulgaria, § 81 (ECtHR, 17 January 2008, no. 59548/00) 281 Ibid, with reference to Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, § 35 (ECtHR, 10 April 2012, no. 19986/06) 282 ibid, with reference to Nencheva and Others, §§ 105-116 (ECtHR, 18 June 2013, no. 48609/06) 283 Ibid, 49 284 Ibid, 52

41

protection for Mr Câmpeanu’s life”.285 This case can serve as a good example proving

Timmer’s opinion, that the Court often reacts to vulnerability by deepening existing substantive

positive obligations, in particular by transforming an obligation of care into an obligation of

result.286

Moreover, in CLR for Valentin Câmpeanu one of the factors that influenced the Court’s

finding of a substantive violation was the failure of authorities to obtain the consent of Mr

Câmpeanu for his transfers from one medical unit to another, for his admission to the psychiatric

institution and the failure to inform or consult Mr Câmpeanu about the medical care provided to

him.287 In the judgement in the case Stanev v. Bulgaria, the Court established that, when

providing a protective measure, authorities should take into account to the most possible extent

the wishes of persons capable of expressing their will. Failure to do so could amount to abuse

and violation of the rights of vulnerable persons.288

The vulnerability concept is frequently used by the Court in cases concerning the

alleged inhuman and degrading treatment under Article 3 in connection with the state failure to

provide appropriate medical care to persons in custody. In the Court’s case law, it is firmly

established that detainees are vulnerable due to their dependency on the state. The fact that such

persons are within the control of the authorities means that their physical well-being depends on

the state.289 In the case of M.S. v. The United Kingdom, the Court ruled that states are under an

obligation to provide adequate treatment to detainees with mental health problems.290 Generally

states are obliged to provide “the requisite medical assistance” to all ill prisoners.291 Albeit, the

Court accepts that medical assistance in prison can not always be on the same level as in the best

hospitals.292 However, the aim of the paper is not to deepen into the right to health of certain

vulnerable groups, including detainees, but to discover how the vulnerability can influence the

Court’s examination of the positive obligations arisen from medical negligence.

285 Ibid, §§ 143-44 286 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 212. Timmer points on the case M.S. v. UK, where the Court has held that the authorities are under an obligation to ensure detainees with mental health problems are given adequate treatment, as an example of turning an obligation of care into an obligation of result by the Court on the ground of the vulnerability of the applicant. 287 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 135 288 ECtHR (GC), 17 January 2012, Stanev v. Bulgaria, no. 36760/06, § 153. 289 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 199, with reference to Denis Vasilyev v. Russia, § 115 (ECtHR, 17 December 2009, no. 32704/04) 290 ECtHR, 3 May 2012, M.S. v. United Kingdom, no. 24527/08, 291 F. Tulkens, V. Panayotis, “The right to health in prison: developments in Article 3 of the European Convention on Human Rights”, The global community: yearbook of international law and jurisprudence (2007, vol.1), 145 at 154. With reference to ECtHR, 29 April 2003, McGlincliexi v. the United Kingdom, § 46; ECtHR, 14 November 2002, Mouisel v. France, § 40 292 Ibid, referring to ECtHR, 26 October 2006, Khudobiu v. Russia, § 93.

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In cases, where medical negligence allegedly amounts to inhuman and degrading

treatment under Article 3, the main question is whether such treatment reaches “the minimum

level of severity” (“Pretty threshold”) in order to find state in violation of Article 3 and in this

test vulnerability is a decisive factor.293 As it was previously mentioned294, under “Pretty

threshold”, except actual bodily injury and/or intense physical or mental suffering, Article 3 also

may be enacted if “the suffering which flows from naturally occurring illness, physical or

mental…exacerbated by treatment, whether flowing from conditions of detention, expulsion or

other measures, for which the authorities can be held responsible”.295 Such exacerbation may

be found by the Court in case of a refusal to provide a medical treatment to a prisoner296, the

failure to provide treatment that corresponds to the prisoner’s state of health297, when medical

treatment is not administered by a specialist298 or in case of the absence of a correct diagnosis299.

In addition to influencing substantive positive obligations, the vulnerability concept

also influences the required procedural safeguards. In Denis Vasilyev v. Russia, the Court ruled

that an exceptionally neglectful and inadequate response of the medical services to a severe head

injury of the applicant after a violent attack against him amounted to “gross medical

negligence” that called for an official and effective criminal investigation.300 Further important

progress was made in the case of Gulay Cetin v. Turkey, where the Court had expressly

distinguished the medical negligence in general from medical malpractice towards persons in

custody.301 In this case, concerning the continued detention of women diagnosed with cancer

that resulted in death302, the Court held that, contrary to the principles established in Calvelli

and Ciglio on the procedural obligation arisen in case of medical negligence303, in prison

context ,the obligation of the authorities to initiate promptly an official investigation was found

by the Court to be the only appropriate procedural response.304 The Court notices that it has

293 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 210 294 Section 2.3. 295 ECtHR, 29 April 2002, Pretty v. the United Kingdom, no. 2346/02, § 52 296 ECtHR, 4 October 2005, Sarban v. Moldova, no. 3456/05, § 82 297 ECtHR, 12 July 2007, Testa и Croatia, no. 20877/04 , § 52 298 ECtHR, 3 April 2001, Keenan v. the United Kingdom, no. 27229/95, § 115 299 ECtHR, 13 July 2006, Popov v. Russia, no. 26853/04, § 212 300 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184 301 Ibid 302 ECtHR, 5 March 2013, Gulay Cetin v Turkey, no. 44084/10 303 not binding criminal liability, discussed in Section 2.2.3. 304 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184

43

never suggested that the requirements set in Calvelli and Ciglio on the non-mandatory recourse

to criminal proceedings should be applied similarly and without any distinction to the issues of

protection of the health of prisoners. This approach was also followed in subsequent

judgements.305

An interesting approach was taken by the Court in case Akkoyunlu v. Turkey in

connection with medical assistance provided to military serviceman. The Court examined this

case with special regard to the status of an applicant as a conscript.306 The Court noticed that

while being a conscript, the applicant was not able to receive the necessary medical treatment

from a hospital of his own choice.307 The Court further stressed on the dependency of a

conscript on the State and on the fact that events occurring in the army “lie wholly, or in large

part, within the exclusive knowledge of the authorities”.308 Moreover, in connection to military

personnel the Court interpreted Article 3 as imposing positive obligation on states “to ensure

that a person should be able to perform his military service in conditions which are compatible

with respect for human dignity”, including securing his health and well-being and “providing

him with the medical assistance he requires”. The Court, with reference mutatis mutandis to

Beker v. Turkey309, established that “the State is under an obligation to account for any injuries

or health problems allegedly resulting from acts or omissions of the military authorities”.310

So, after the analysis of the established case law it is seen how the vulnerability

reasoning influence the extension of existing rights through the doctrine of positive obligations.

What is more, vulnerability considerations sometimes result in the creation of new rights under

the Convention provisions.311 Thus, the Court has relied on the vulnerability concept to justify

the gradual extension of positive obligations into the socio-economic sphere.312 In CLR for

Valentin Câmpeanu the Court concluded that domestic authorities put Mr Câmpeanu’s life in

danger not only due to the failure of medical staff to provide proper treatment, but also due to

the inadequate situation at the Poiana Mare Neuropsychiatric Hospital (PMH) with the lack of

heating and appropriate food, the shortage of medical staff and medical resources, including

medication, that had led to an increase in the number of deaths during the winter of 2003.313 So,

305 I.e. ECtHR, 14 March 2013, Salakhov and Islyamova v. Ukraine, no. 28005/08, § 187 306 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06, § 33 307 Ibid 308 Ibid, § 34 309 ECtHR, Beker v. Turkey, 24 March 2009, no. 27866/03, §§ 41-43, 310 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06, § 34 311 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 212 312 Ibid 313 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 143

44

the Court through the positive obligation of a state towards a vulnerable group assessed

generally the situation in the sphere of healthcare in Romania, in particular in PMH.

This and other cases are examples of how the Court interprets the Convention in an

evolutive manner. It is seen that except the concept of “the Convention as a living instrument”,

the vulnerability concept is also a “part of the Court’s toolbox of concepts that it uses to create

its dynamic approach”.314 However, the weight the Court attaches to the vulnerability concept

should not be overstated, as it is often only one of the factors taken by the Court into account,

albeit very often a decisive one.315 Timmer quotes Judge Power from a dissent in F.H. v.

Sweden “vulnerability is a factor to be weighed in the balance.”316 Nevertheless, it is clear that

the Court insists that the state should take into account the particular vulnerability of the persons

it is dealing with.317

3.4. Conclusions

The Chapter demonstrates the evolution of the Court’s approach from only examination

of the states’ response to breaches arisen from medical negligence, towards, firstly, assessment

of compliance of states with substantive obligation to put in place a legal and administrative

framework, and, secondly, towards the examination of mere medical negligence on part of the

medical personnel that could in particular circumstances lead to findings against the state.

Firstly, it was found that in early judgements in the area of medical negligence, the

Court did not make a distinction between substantive and procedural aspects of positive

obligations. Although the Court included in positive obligations the requirement for hospitals to

have regulations for the protection of patients' lives, the assessment was mostly directed on

whether states had complied with the obligation to provide the access to remedy and the

obligation to conduct an effective investigation. The evolution of the Court’s approach is seen in

later judgements, as positive obligation to set up a regulatory structure requiring hospitals to take

appropriate steps to ensure the protection of patients’ lives was independently scrutinized under

the substantive limb of Article 2, while the obligation to set up an effective judicial system was

examined from the viewpoint of the procedural limb.

Further, the aim was to analyse to what extent, in recent judgements, the Court has

imposed substantive positive obligations. It appears that previously the Court rejected complaints

in cases when death had occurred as a result of clinical negligence, if the hospital had the

314 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 213 315 Ibid, 177 316 Ibid, 211, referring to F.H. v. Sweden, (20 January 2009, no. 32621/06, Power and Zupančič J., dissenting). 317 Ibid

45

required procedures in place and doctors followed them as directed. However, when the case

involved not only mere medical negligence, but also a denial of the healthcare that the State has

undertaken to make available to citizens, the Court found violations of substantive obligations by

the state regardless of the existing legislative framework. It was concluded that the mere

negligence on the part of health professionals did not amount to the responsibility of a state

before the case Lopes de Sousa. It seems that in the judgement on this case, the Court went a step

further and found Portugal to be in violation of Article 2 for the mere medical negligence of a

doctor.

After analysing Lopes de Sousa case in comparison with previous cases in the area of

medical negligence, it can be said that this time the Court seems to be radical in its reasoning.

Before, the Court stated that a mere error of judgement on the part of the doctor or negligent

coordination among medical staff are not sufficient to find a state in breach of Article 2. On the

contrary, in Lopes de Sousa, despite the Court having admitted that it did not have the authority

to question a doctor’s judgement on clinical matters, it found that the lack of coordination

between the hospital’s departments «attests to failings in the public hospital service», that led to

the deprivation of applicant’s husband of the possibility of access to appropriate emergency care

and thus constituted a violation of the substantive aspect of Article 2. The case was referred to

the Grand Chamber, so soon it will be clear whether the Grand Chamber accepts the reasoning

that mere medical negligence (in this case negligent coordination of information between units

of the same hospital) can be regarded as failings in public hospital services that deprive persons

of the access to medical care and thus a state can be found in violation of Article 2.

The last Section was devoted to a discussion of whether the vulnerable status of an

applicant influences the Court’s finding of the violation of positive obligations by a state. In

particularly, analysis was provided of cases where the patient had died in a psychiatric hospital,

where a detainee had suffered from inappropriate medical treatment, and where state authorities

had failed to provide necessary medical assistance to military servicemen.

It was found that the Court often reacts to vulnerability by deepening existing positive

obligations, in particular by transforming an obligation of care into an obligation of result. The

Court stressed on the necessity to pay particular attention to a patient’s vulnerable condition and

on his or her dependence on the state, and thus a state is obliged to account for his/her treatment.

The continuous failure of the medical personnel to provide such patients with appropriate care

and treatment amounts to a breach of the Convention. The conclusion was made that the Court

uses the vulnerability concept for expanding positive obligations in order to better protect

vulnerable groups.

46

CHAPTER 4: GENERAL CONCLUSION

The Court interprets the rights guaranteed by the Convention as imposing obligations on

states to not only refrain from committing violations, but also to take positive steps to secure

human rights. The concept of implied positive obligations is widely used by the Court in the area

of medical negligence. One of the research questions of the present study was whether the Court,

while addressing issues of the compliance of states with substantive obligation under the

Convention, applies a purely substantive approach or whether it integrates substantive arguments

into its traditional procedural approach.

Therefore, after the general introduction of the concept of implied positive obligations

in the case law, the second Chapter analysed the Court’s traditional procedural approach in

medical negligence cases. It was concluded that, in early judgements, the Court used to examine

alleged state violations arisen from medical negligence from the perspective of state compliance

with an ex post facto procedural positive obligation, which is regarded as the obligation to set up

an effective judicial system in order to establish the cause of a death of a patient and any liability

on the part of the medical practitioners concerned and as the obligation to grant an appropriate

redress to the victim. So it was seen that, although the Court included in positive obligations the

requirement for hospitals to have regulations for the protection of patients' lives, the assessment

was mostly directed on state compliance with the obligation to adopt the measures after the

medical negligence occurred.

The Court has developed procedural requirements for such measures, such as

promptness, effectiveness and fairness of a decision-making process. On the basis of an

examination of these requirements in the case law in the area of medical negligence, it was found

that the Court frequently evaluates the length of the procedure, the participation of the victim and

the accessibility of the outcome of the investigation to the victim. The Court does not engage

into reviewing the medical reports, as the Court has stressed that it does not possess the

necessary expertise to do so. The task of the Court is to define whether the examination of such

reports by the authorities was fair and just.

When analysing the Court’s case law with respect to the right to a remedy for medical

negligence, it was found that the recourse to criminal law, in case of unintentional infringement

of the right to life as a result of the medical error, is not mandatory, and that access to a civil

remedy will suffice for a state to comply with its obligations. It was also concluded that for the

Court in assessing the compliance of states with procedural obligations the decisive factor is not

the kind of remedy pursued by the applicant, but the effectiveness of such remedy and the

possibility that other remedies guaranteed by the domestic law for the kind of situation occurred

will be more effective. However, the Court has established that in case of gross medical

47

negligence or medical negligence committed towards a person, who is dependent on the state,

the state authorities are required to institute criminal proceedings.

After examining the case law, it was seen that if sufferings of the person, resulting from

naturally occurring illness, were exacerbated by treatment for which the authorities are

responsible, the Court finds a state in violation of Article 3. The Court also emphasised the

importance of providing access to information regarding potential risks to health and of the

obtaining informed consent from patients. The failure to do so can amount to a breach of Article

8.

Another research question inquired to the extent to which the Court imposes substantive

positive obligations in medical negligence cases. Therefore, the last Chapter showed the

development of the Court’s approach in examining state positive obligations arisen from medical

negligence towards the recognition of and more thorough examination of state substantive

obligations. Contrary to the early judgements in the area of medical negligence, where the Court

did not separate the examination of substantive and procedural aspects of positive obligations, in

later judgements, the Court started to assess the compliance of states with the substantive

obligation to put in place a legal and administrative framework, and further moved towards the

examination of mere medical negligence on part of medical personnel that could in particular

circumstances lead to findings against the state.

It stems from the previous case law that the Court rejected complaints in cases when

death had occurred as a result of clinical negligence, if the hospital had the required procedures

in place and doctors followed them as directed. However, when the case involved not only mere

medical negligence, but also a denial of the healthcare that the State had undertaken to make

available to citizens, the Court declared that a state was in violation of substantive obligations

regardless of the existing legislative and regulatory framework.

So, in these last judgements, while examining the state’s positive obligations under the

substantive limb of Article 2, the Court spoke about the structural failures of health services that,

solely or together with medical negligence, had led to the death of patients. However, the Court

did not recognise state responsibility arisen only from negligence on the part of a doctor. That

was before the Chamber judgement in the case Lopes de Sousa, where the Court found that the

lack of coordination between hospital departments demonstrated failings in public hospital

services, leading to the deprivation of applicant’s husband of the possibility of access to

appropriate emergency care, and thus constituted a violation of the substantive aspect of Article

2. Before the Court stated that the mere error of judgement on the part of the doctor or negligent

coordination among medical staff were not sufficient to find a state in the breach of Article 2.

So, it can be concluded that this judgement constitutes a departure from the established case law.

48

The case was referred to the Grand Chamber. The judgement will be decisive from the

perspective of whether the responsibility of the state for a violation of substantive obligations

can arise from a mere medical negligence resulted from negligent coordination between

departments of the same hospital. If to follow the Court’s logics from Lopes de Sousa, then any

negligence coordination between medical professionals can be seen as evidence of failings in the

public hospital service of a state. If so, the question arise, how should states fulfil implied ex ante

obligation in order to prevent themselves from the possible responsibility for negligence

coordination between medical professional, if the legal and regulatory framework is already in

place?

Also the paper has addressed the issues of the influence of the vulnerability concept on

the development of the Court’s approach to positive obligations in the area of medical

negligence, in particular whether the Court has used such concept for expanding positive

obligations by transforming an obligation of care into an obligation of result. The analysis was

provided on the basis of cases concerned the situations when the patient had died in psychiatric

hospital, when a detainee had suffered from inappropriate medical treatment, when state

authorities had fail to provide necessary medical assistance to military servicemen were

analysed.

It was concluded that the Court stresses the necessity to pay particular attention to

patient’s vulnerable condition and his or her dependence on the state. The failure of the medical

personnel to provide vulnerable persons with appropriate care and treatment amounts to a breach

of the Convention.

In sum, it cannot be said that in medical negligence cases the Court fully changed the

vector of examination of implied positive obligations from the procedural to the substantive. The

Court provides a separate, thorough assessment of both types of positive obligations. What has

definitely changed is the Court’s approach to evaluating the compliance of states with

substantive obligations. It seems that the Court has used the concept of implied positive

substantive obligations in medical negligence cases to hold states responsible for flaws in the

public healthcare system and even for individual errors on the part of medical professionals.

Whether such approach will be further developed will be clear after delivery of the Grand

Chamber’s judgement in the case of Lopes de Sousa Fernandes v. Portugal.

49

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ECtHR (inadm.), 12 September 1991, Tavares v. France, no. 16593/90.

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ECtHR (GC), 19 February 1998, Guerra and Others v. Italy, no. 14967/89.

ECtHR, 25 May 1998, Kurt v. Turkey, no. 24276/94.

ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97.

ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99.

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ECtHR (GC), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96.

ECtHR, 29 April 2002, Pretty v. the United Kingdom, no. 2346/02.

ECtHR (GC), 8 July 2003, Hatton and Others v. the United Kingdom, no. 36022/97.

ECtHR (GC), 30 November 2004, Öneryildiz v. Turkey, no. 48939/99.

ECtHR (GC), 6 July 2005, Nachova and Others v. Bulgaria, no. 43577/98.

ECtHR, 4 October 2005, Sarban v. Moldova, no. 3456/05.

ECtHR, 27 June 2006, Byrzykowski v. Poland, no. 11562/05.

ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03.

ECtHR, 12 July 2007, Testa и Croatia, no. 20877/04.

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ECtHR, 17 January 2008, Dodov v. Bulgaria, no. 59548/00.

ECtHR, 13 May 2008, McCann v. the United Kingdom, no. 19009/04.

ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01.

ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04.

ECtHR, 9 June 2009, Opuz v. Turkey, no. 33401/02.

ECtHR, 1 December 2009, G.N. and Others v. Italy, no. 43134/05.

ECtHR, 8 December 2009, Osman Yilmaz v. Turkey, no. 18896/05.

ECtHR, 17 December 2009, Denis Vasilyev v. Russia, no. 32704/04.

ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no. 32146/05.

ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05.

ECtHR, 23 March 2010, M.A.K. and R.K. v. The United Kingdom, no. 45901/05 and 40146/06.

ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09.

ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02.

ECtHR (GC), 7 July 2011, Al-Skeini and Others v. the United Kingdom, no. 55721/07.

ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07.

ECtHR (GC), 17 January 2012, Stanev v. Bulgaria, no. 36760/06, § 153.

ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05.

ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v.

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ECtHR, 9 January 2014, Budanov v. Russia, no. 66583/11.

ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v.

Portugal, no. 56080/13.

ECtHR, 27 January 2015, Asiye Genç v Turkey, no. 24109/07.

ECtHR, 5 June 2015, Lambert and Others v. France, no. 46043/14.

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ECtH, 30 June 2015, Altug and Others v Turkey, no. 32086/07.

ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06.