Published on 23 September 2024

FOURTH SECTION

Application no. 48663/20
Nuriye Aysel VARDAR and Others
against Germany
lodged on 27 October 2020
communicated on 4 September 2024

SUBJECT MATTER OF THE CASE

The application concerns the alleged lack of adequate medical care of the late Ü.V. during his placement in a State-run psychiatric hospital, allegedly resulting in considerable suffering and death, as well as the alleged lack of an effective investigation into his death.

The applicants are the mother and two brothers of the late Ü.V. From 1989 to 2017 Ü.V. was placed in a psychiatric hospital run by the State of Berlin for crimes for which he could not be held responsible due to his paranoid schizophrenia. Shortly after his release in August 2017, Ü.V. was admitted to another State-run hospital in Berlin where he was diagnosed with a brain tumour and given a fentanyl patch to ease his suffering. He died on 5 November 2017.

The applicants lodged several criminal complaints for murder or involuntary manslaughter against doctors who had treated Ü.V. They claimed that the doctors at the psychiatric hospital had ignored the deterioration of his health since March 2015 even though Ü.V. had repeatedly asked for examination and his symptoms had clearly pointed to severe brain damage. They further claimed that the fentanyl patch given to Ü.V. at the second hospital had been contraindicated and had caused, or at least accelerated, his death.

During the investigation, the Berlin Public Prosecutor’s Office obtained several expert opinions to determine the cause of death. According to these opinions, Ü.V. had died of multiple organ failure triggered by brain haemorrhage caused by his brain tumour, and this situation had been beyond the doctors’ control. In view of these results, the Public Prosecutor’s Office considered it unnecessary to take other investigative measures requested by the applicants, in particular to hear evidence from the accused doctors and certain witnesses, to examine Ü.V.’s medical records or obtain additional expert opinions.

On 26 April 2019 the Public Prosecutor’s Office discontinued the proceedings on the grounds that the expert opinions had not indicated any negligence or malpractice on the part of the accused doctors. On 21 August 2019 the Berlin General Public Prosecutor’s Office rejected the applicants’ appeal. On 25 November 2019 the Berlin Higher Regional Court declared the applicants’ request for a judicial decision inadmissible on the grounds that they had not sufficiently explained the course of the investigation so that the court had not been able to assess, solely on the basis of the written request, whether the authorities had investigated the case with due diligence. On 17 September 2020 the Federal Constitutional Court declined to accept the applicants’ constitutional complaint for adjudication, without providing reasons (2 BvR 240/20).

It appears from the applicants’ submissions that they also lodged a civil claim in this matter against the State of Berlin which the Berlin Regional Court decided on 4 June 2024 (5 O 3/21). The applicants neither submitted copy of that decision nor did they provide any details as to the outcome of those proceedings.

The applicants complained under Article 2 of the Convention that Ü.V. had died because he had not received adequate medical care at the psychiatric hospital and because the fentanyl patch had been contraindicated. Under the same Article, they also alleged that the authorities had failed to carry out an effective investigation into his death. Lastly, invoking Article 3 of the Convention, they complained that Ü.V. had suffered considerably before his death due to the inadequate medical care.

QUESTIONS TO THE PARTIES

1.  Have the State authorities complied with their positive obligations under Article 2 of the Convention concerning Ü.V.’s death? In particular:

(a)  Did the domestic authorities provide Ü.V. with an adequate medical care necessary to safeguard his life (Mustafayev v. Azerbaijan, no. 47095/09, §§ 53 and 54, 4 May 2017; Jasinskis v. Latvia, no. 45744/08, § 60, 21 December 2010; Karpylenko v. Ukraine, no. 15509/12, § 79, 11 February 2016)? In this connection the parties are invited to provide detailed information about Ü.V.’s health while in the psychiatric hospital, his requests for treatment and the authorities’ reaction to any such requests, in particular between March 2015 and his release in August 2017.

(b)  Did the inquiry in the present case satisfy the requirements of an effective investigation under Article 2 of the Convention (Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 172‑82 and 225, 14 April 2015)? In particular, were all necessary measures taken to determine whether the doctors at the psychiatric hospital could have discovered Ü.V.’s brain tumour at an earlier stage or treated it more adequately and thus prevented his death? Would additional investigative measures, such as those requested by the applicants (see above), have helped in establishing the facts?

2.  Did the alleged lack of appropriate medical care of Ü.V. during his placement in the psychiatric hospital amount to treatment contrary to Article 3 of the Convention (Blokhin v. Russia [GC], no. 47152/06, §§ 136-37, 23 March 2016)?

3.  What is the relevance, if any, of the civil proceedings initiated by the applicants before the Berlin Regional Court (5 O 3/21) for the above complaints under Articles 2 and 3 of the Convention? In particular:

(a)  Can the outcome of those proceedings result in the applicants no longer being “victims” within the meaning of Article 34 of the Convention in respect of the alleged violation of the substantive limb of Article 2 of the Convention (Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012)?

(b)  In the circumstances of the present case, can those proceedings satisfy the requirements under the procedural limb of Article 2 of the Convention? If so, did these proceedings satisfy the said requirements?

The parties are invited to submit a copy of the applicants’ civil claim, the decision of the Berlin Regional Court of 4 June 2024, as well as any appeals which may have been lodged and related decisions.

APPENDIX

Application no. 48663/20