CEDH · PRESS;GCJUDGMENTS;ENG — 9 avril 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   304 9.4.2009   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT ŠILIH v. SLOVENIA   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Šilih v. Slovenia (application no. 71463/01).   The Court held, by 15 votes to two, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the inefficiency of the Slovenian judicial system in establishing the cause of and liability for their son’s death.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 7,540   euros   (EUR) in respect of non-pecuniary damage and EUR   4,039 for costs and expenses. (The judgment is available in English and French.)   1.     Principal facts   Franja and Ivan Šilih are Slovenian nationals who were born in 1949 and 1940 respectively and live in Slovenj Gradec (Slovenia).   The applicants’ son, Gregor Šilih, aged 20, died in hospital on 19   May   1993 after suffering anaphylactic shock, probably as a result of an allergic reaction to one of the drugs administered to him by a duty doctor in an attempt to treat his urticaria.   On 13   May   1993 the applicants lodged a criminal complaint against the duty doctor for medical negligence, which was subsequently dismissed for lack of sufficient evidence.   On 1   August   1994, following the entry into force of the European Convention on Human Rights in respect of Slovenia, the applicants used their right under the Slovenian Criminal Procedure Act as an aggrieved party to act as prosecutors and lodged a request to launch a criminal investigation. The investigation was reopened on 26 April 1996 and an indictment lodged on 28 February 1997; the case was twice remitted for further investigation before the criminal proceedings were discontinued on 18   October   2000 on the ground, once again, of insufficient evidence. The applicants appealed unsuccessfully.   In the meantime, on 6 July 1995 the applicants also brought civil proceedings against the hospital and the doctor concerned. The first-instance proceedings, stayed between October 1997 and May 2001, were terminated with the claim being dismissed on 25   August   2006, more than 11   years after the proceedings were first instituted. During that period, the case was dealt with by at least six different judges. Subsequently, the applicants lodged an appeal and an appeal on points of law, both of which were unsuccessful.   The case is currently still pending before the Constitutional Court.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 19 May 2001.   In its Chamber judgment of 28   June 2007, the Court held unanimously that there had been a violation of Article   2 of the Convention concerning the lack of effective legal proceedings to establish the cause of and responsibility for the death of the applicants’ son in hospital.   On 27   September 2007 the Government requested that the case be referred to the Grand Chamber under Article   43 [2] (referral to the Grand Chamber) and on 12   November 2007 the panel of the Grand Chamber accepted that request.   A public hearing was held in the Human Rights Building, Strasbourg, on 2   April 2008.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Christos Rozakis (Greece), President , Nicolas Bratza (the United Kingdom), Peer Lorenzen (Denmark), Josep Casadevall (Andorra), Ireneu Cabral Barreto (Portugal), Rıza Türmen (Turkey), Karel Jungwiert (the Czech Republic) Boštjan M. Zupančič (Slovenia), Rait Maruste (Estonia), Snejana Botoucharova (Bulgaria), Anatoly Kovler (Russia), Vladimiro Zagrebelsky (Italy), Dean Spielmann (Luxembourg), Päivi Hirvelä (Finland), Giorgio Malinverni (Switzerland), András Sajó (Hungary), Nona Tsotsoria (Georgia), judges , and also Michael O’Boyle , Deputy Registrar .   3.     Summary of the judgment [3]   Complaints   The applicants complained about the inefficiency of the Slovenian judicial system in establishing liability for their son’s death, in breach of Article 2 (right to life). Further relying on Articles 6 (right to a fair hearing) and 13 (right to an effective remedy), they also alleged that the legal proceedings were excessively lengthy and that the criminal proceedings were unfair.   Decision of the Court   Article 2   The Court noted that the parties did not dispute the fact that Gregor Šilih’s condition had started to significantly deteriorate in hospital and that his death had possibly been related to his medical treatment there. The applicants having alleged that their son had died as a result of medical negligence, the State, in order to comply with its obligations under Article 2, was required to set up an effective and independent judicial system to determine the cause of death and bring those responsible to account.   The applicants used two legal remedies, criminal and civil, with a view to establishing the circumstances of and liability for their son’s death.   The Court considered that the excessive length of the criminal proceedings, and in particular the investigation, could not be justified by either the conduct of the applicants or the complexity of the case.   The civil proceedings, instituted on 6 July 1995, are, more than 13 years later, still pending before the Constitutional Court. Notably, although those proceedings had been stayed for three years and seven months pending the outcome of the criminal proceedings, they had in fact already been at a standstill for two years before that. Indeed, even after the criminal proceedings had been discontinued in October 2000, it took the domestic courts a further five years and eight months to rule on the applicants’ civil claim.   The applicants’ requests for a change of venue and for certain judges to stand down had admittedly delayed the proceedings to a degree; however, the delays that had occurred after the stay had been lifted had often not been reasonable. Certain hearings for example had been delayed by up to nine or ten months simply due to a change of venue or as a result of the case having been taken over by yet another judge. It was worth noting that the sixth and final judge had concluded the first-instance proceedings in less than three months.   Lastly, it was unsatisfactory for the applicants’ case to have been dealt with by at least six different judges in a single set of first-instance proceedings. While the domestic courts were better placed to assess whether an individual judge was able to sit in a particular case, a frequent change of the sitting judge had to have impeded effective processing.   The Court therefore concluded that the domestic authorities had failed to deal with the applicants’ claim concerning their son’s death with the level of diligence required by Article 2. Consequently, there had been a violation of Article 2 on account of the inefficiency of the Slovenian judicial system in establishing the cause of and liability for the death of the applicant’s son.   Article 6 and 13   Given the reasoning which led the Court to finding a violation of Article 2, it held that there was no need to examine separately the case under Articles 6 and 13.     Judges Lorenzen and Zupančič each expressed a concurring opinion. Judge Zagrebelsky expressed a concurring opinion joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó. Judges Bratza and Türmen expressed a joint dissenting opinion. They are annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [3] This summary by the Registry does not bind the Court.