Šilih v. Slovenia

Application No. 71463/01
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Applicants were Slovenian nationals whose son of 20 years old died as a result of an allergic reaction to one of the medications. The medication was given by the duty doctor to treat the son’s urticaria. The applicants alleged medical negligence and filed a criminal complaint, which was dismissed for the lack of evidence.

The criminal investigation was reopened but discontinued again on the basis of lack of evidence. Thereafter, the appeal was dismissed. The applicants also filed a civil action against the duty doctor and the hospital. In the civil proceedings also, they remained unsuccessful. The applicants alleged that there had been a violation of Article 2 (right to life), Article 6 (right to a fair trial) and Article 13 (right to an effective remedy) as the Slovenian judicial system was inefficient in establishing liability for their son’s death.

The case before the Constitutional was pending at the time of filing of the application.

The Court (majority opinion) held that there had been a violation of Article 2 of the Convention. It stated that as the son’s health had deteriorated in the hospital leading to his death, it was most likely due to the results of the medications. The Court further stated that the civil proceedings were pending for a period of more than 13 years and there was unreasonable delays in the proceedings of the case. A frequent change in the bench/judge also affected how efficiently the case was dealt with. Therefore, the Court held that there was inefficiency on the part of the Slovenian judicial system in establishing liability for their son’s death. The judges did not examine Article 6 and Article 13 separately.

The dissenting opinion stated that there was no violation of Article 2 as the connection between the negligent act and the death was not well founded. They further stated that they would have found a violation of Article 6 instead due to the lengthy proceedings.

“The Court notes that the fact that the applicants' son's condition started significantly to deteriorate in the hospital and that his death was possibly related to the medical treatment he received has not been disputed either before the Court or in the domestic proceedings. It further observes that the applicants alleged that their son's death was a result of negligence on the part of the doctor. It follows that the State was under a duty to ensure that the proceedings instituted with regard to the death complied with the standards imposed by the procedural obligation of Article 2 of the Convention.” (Para 197)

 “Lastly, the Court considers it 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 it accepts that the domestic courts are better placed to assess whether an individual judge is able to sit in a particular case, it nevertheless notes that a frequent change of the sitting judge will undoubtedly impede the effective processing of the case. It observes in this connection that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, including those enshrined in the procedural obligation of Article 2 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997-VI).” (Para 210)

 

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