CEDH · CASELAW;CLIN;ENG — 22 mai 2014

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Germany - 49278/09 Judgment 22.5.2014 [Section V] Article 2 Article 2-1 Effective investigation Criminal proceedings in Germany against German doctor responsible for a patient’s death in the United Kingdom: no violation Facts – The applicants’ father died in his home in the United Kingdom as a result of medical malpractice by a German doctor who had been recruited by a private agency to work for the British National Health Service. Criminal proceedings were instituted against the doctor in the United Kingdom. Following a request by the British prosecution authorities for legal assistance, the German authorities also initiated criminal proceedings in Germany, which resulted in the doctor’s conviction for having negligently caused the father’s death. In view of the German proceedings, the German authorities did not execute the European Arrest Warrant issued against the doctor in the United Kingdom and refused to extradite him. Accordingly, the criminal proceedings brought against the doctor in the United Kingdom had to be discontinued. Law – Article 2 ( procedural aspect ): The criminal proceedings conducted in Germany had enabled the investigative authorities to determine the cause of death and establish the doctor’s responsibility therefor. In view of the available evidence taken as a whole, the prosecution authorities’ decision to apply for the doctor’s conviction in summary proceedings without a main hearing had been justified. As to the applicants’ allegations that they had not been sufficiently involved in the German proceedings, the Court noted that under the German rules of criminal procedure the prosecution authorities were not obliged to inform the applicants on their own initiative about the institution or progress of the proceedings. In the Court’s view, in the instant case such an obligation did not follow from the procedural requirements inherent in Article 2 §   1 of the Convention either. Although in situations where the responsibility of State agents in connection with a death was at stake, Article 2 §   1 required that the next of kin be involved in the procedure to the extent necessary to safeguard his or her legitimate interests, in contrast the procedural obligation imposed by Article   2 in the sphere of medical negligence did not necessarily require the provision of a criminal-law remedy so that it may therefore be arguable whether and to what extent the applicants’ involvement as next of kin was required where, as in the applicants’ case, the prosecution authorities had recourse to such a remedy on their own initiative. In any event, the applicants had been involved in the criminal proceedings against the doctor. Since the circumstances of the case had been sufficiently established in the course of the investigative proceedings, their participation at any main hearing could not have further contributed to the trial court’s assessment of the case. Indeed, even if a hearing had been scheduled the applicants would not have had the right to contest the trial court’s judgment with the objective of a heavier penalty being imposed. There was, therefore, nothing to establish that the legitimate interests of the deceased’s next of kin were not respected in the domestic proceedings. In reality, the applicants’ complaint was that the doctor was convicted in Germany and not in the United Kingdom, where he may have faced a heavier penalty. The German authorities had, however, been obliged to institute criminal proceedings by operation of domestic law once they had learned of his involvement in the events surrounding the death and consequently had a basis under the relevant domestic and international law for their decision not to extradite him. The procedural guarantees enshrined in Article   2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State. In addition to the criminal proceedings, investigations regarding the doctor’s fitness to practice had also been conducted by the German authorities and the applicants had been granted an opportunity to provide further information. As a consequence of the disciplinary proceedings, the doctor had been reprimanded and fined. Accordingly, the German authorities had provided for effective remedies with a view to determining the cause of the father’s death and the doctor’s responsibility for it. There was nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to the death had fallen short of the procedural guarantees inherent in Article 2 §   1 of the Convention. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes