CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s76CF415B { page-break-before:always; clear:both } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sF023082F { margin-top:0pt; margin-bottom:0pt; text-indent:21.3pt; text-align:justify } Communicated on 29 January 2021 Published on 15 February 2021   SECOND SECTION Application no. 34505/16 Nataša RAJKOVIĆ against Serbia lodged on 10 June 2016 SUBJECT MATTER OF THE CASE The present case concerns the death of the applicant’s husband Mr Bojan Rajković, at the age of 35, while serving a prison sentence of two years and a half at Niš Penitentiary. Her civil claim for an award of damages, on the ground that the State should be held responsible for her husband’s death, and her further constitutional appeal were rejected by the civil courts and the Constitutional Court, respectively. The applicant complains under Articles 6 and 13 of the Convention: (a)   that her husband’s death was the result of medical negligence, namely wrong diagnosis, a number of errors during his medical treatment and his suffering in the final days; (b) that the circumstances of his death were not properly investigated; (c) of the unfairness of the civil proceedings, particularly that the domestic courts had given insufficient reasons for their decisions; and, lastly, (d) that she had no effective domestic remedy in respect of her complaints.   QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention, concerning her complaint about the Serbian authorities’ alleged failure to provide her husband with adequate and timely medical treatment, resulting in his ill-treatment and, ultimately, death? In particular, did the applicant invoke before the Constitutional Court, at least in substance, the right on which she now wishes to rely before the Court (see, for example, Vučković and Others v.   Serbia (preliminary objection) [GC], nos. 17153/11 and 29   others, § 72, 25 March 2014; Fressoz and Roire v.   France [GC], no. 29183/95, §§ 33-7, ECHR 1999 ‑ I; Gäfgen v.   Germany [GC], no. 22978/05, § 143, ECHR   2010)?   2.     Was the right to life of Mr Bojan Rajković, the applicant’s husband, protected by Article   2 of the Convention, violated in the present case (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, ECHR   2002 ‑ II and Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003 ‑ I)? Having regard to Mr Rajkovic’s medical condition and the fact that he died while he was serving his prison sentence under the responsibility of the domestic authorities, have the Government complied with their obligation to ensure that his health and well-being were secured by, among other things, providing him with the adequate and prompt medical assistance, as required by Article 2 of the Convention? The parties are invited to comment, in particular, on the alleged long-lasting indifference by the prison authorities to the doctor specialist’s recommendation to organise a computerised tomography (CT scan) and a control examination, as well as on the alleged distraction of the medical examinations by the applicant’s husband on two occasions.   3.     Having regard to the procedural obligation of the State to protect the right to life (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 185-196, 19 December 2017), was the investigation following the death of the applicant’s husband in breach of Article   2 of the Convention?   In this connection, 3.1.     Did the investigating authorities conduct an investigation to establish as to whether there had been a malpractice on the part of the prison medical service, as alleged by the applicant? 3.2.     If so, did it afford a sufficient element of public scrutiny, including being accessible to the applicant (see, mutatis mutandis, McKerr v.   the   United Kingdom , no.   28883/95, § 148, ECHR 2001-III)? 3.3.     Did the conclusion reached by the competent courts constitute a “plausible explanation” for the death of the applicant’s husband and the lack of any responsibility on the side of the State authorities within the meaning of the Court’s case-law? 3.4.     Lastly, the Government are invited to comment on the fact that the prison medical service’s report on medical condition of the applicant’s husband was drafted only after he had died and she had initiated the civil proceedings against the State.   4. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, having regard to her allegation that the courts’ decisions adopted in the course of refreshed civil proceedings for damages were not based on valid legal reasons for this kind of claims (see, mutatis mutandis , Anđelković v.   Serbia , no.   1401/08, § 27, 9 April 2013)?   5.     Did the applicant have at her disposal an effective domestic remedy, as required under Article 13 of the Convention, in connection with her complaints under Articles 2 and 6 of the Convention?   6.     The Government are requested to submit full and legible copies of all documents contained in (a) the medical files of all authorities which dealt with the medical examination and treatments of the applicant’s husband and also his hospitalisation while imprisoned; (b) his prison records on physical activities and work duties ( karton radnog angažovanja ), and (c) and the files on the investigation into the death of the applicant’s husband.