Bajić v. Croatia

The applicant’s sister died in 1994 after being admitted to the hospital for an abdominal tumor. The applicant lodged a series of criminal, administrative, and civil complaints against Dr. V.B., a surgeon and a professor at the University of Zagreb Medical Faculty. The applicant alleged medical malpractice and bribery.

In 1994, the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office. As part of its inquiry, the State Attorney’s Office commissioned a medical report on the cause of death of the applicant’s sister from two professors at the University of Zagreb Medical Faculty. Their report found no medical malpractice, and  the charges of medical malpractice were thus rejected.

The applicant requested that the Zagreb Municipal Criminal Court commission a new report from experts not affiliated with the accused. The Court commissioned a new report from an unaffiliated doctor, Dr. M.U., which  found no failure in the treatment of the applicant’s sister. Despite Dr. M.U.’s admission that he was not a permanently appointed medical expert, the Court acquitted Dr. V.B. of charges of medical malpractice. Proceedings related to the bribery charge were discontinued in 2000 on the grounds that they had become time-barred.

The applicant appealed to the Zagreb County Court, which ordered a re-trial and commissioned a new report, again prepared by professors at the University of Zagreb Medical Faculty. At trial, the Municipal Criminal Court denied the applicant’s request to commission a new report from an expert outside of the country and acquitted the accused. The applicant eventually appealed to the Constitutional Court, which held that his constitutional complaint was inadmissible on the grounds that the proceedings at issue had not concerned any of his civil rights or any criminal charge against him.

In 1995, the applicant had also brought a complaint to the Ministry of Health, which declined to comment on charges of medical malpractice absent evidence of wrongdoing but instituted disciplinary proceedings related to bribery.

The applicant then brought his claim before the European Court of Human Rights, alleging a violation of Article 2 of the European Convention of Human Rights (“Convention”), which protects the right to life. He also alleged violations of Article 13, the right to an effective domestic remedy, and Article 6, the right to a fair trial.

The Court held that the government violated the applicant’s right to an adequate and timely response pursuant to procedural guarantees concerning the right to life in Article 2 of the Convention.

The Court noted that Article 2 creates a positive obligation on states to set up an independent judicial system to determine the cause of death of patients in care. The court held that this requires independent investigating parties and that the requirement was violated when both the Ministry of Health and the Zagreb Municipal Criminal Court failed to commission an official report from a medical expert not affiliated with the accused.

The Court also noted that Article 2 guarantees a prompt and reasonable response by the government. The Court found that the time it took to resolve the applicant’s initial criminal inquiry, from his initial claim in the Zagreb Municipal Criminal Court in 1994 to the final judgment of the Zagreb County Court in 2009 dismissing his appeal, was unreasonably long for a case of this complexity.

The Court declined to consider the Article 13 violation. It asserted that the issue of effectiveness of remedies was sufficiently dealt with in its discussion of Article 2.

The Court held that the alleged violation of Article 6 was inadmissible under Article 35 § 3 as manifestly ill-founded.

“The court has held, as regards cases of alleged medical negligence, that the positive obligations under Article 2 of the Convention require States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical professional, whether in the public or the private sector, can be determined and those responsible held accountable.” Para. 75

“The requirements of Article 2 go beyond the stage of the official investigation, where it has led to the institution of proceedings in national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law and the prohibition of ill-treatment.”Para. 89.

“A requirement of independence of the effective domestic system set up to determine the cause of death of patients in the care of the medical profession is implicit in this context. This above all means not only a lack of hierarchical or institutional connection, but also the formal and de facto independence of all parties tasked with conducting an assessment as part of proceedings set up to determine the cause of death of patients from those implicated in the events.” Para. 90.