Gray v Germany – effective criminal prosecution of medical negligence

The European Court of Human Rights found on Thursday in the case of Gray v Germany (49278/09) no violation of Article 2 (right to life) of ECHR concerning the effective investigation and prosecution of medical doctor before German court for death of his patient in the United Kingdom. The Witten District Court initially found that medical doctor was responsible for patient’s death by negligence as he mixed two drugs. He was thereafter sentenced to suspended sentence of imprisonment and fine.  The proceedings have been simultaneously started in the United Kingdom; however, German authorities refused the UK’s request for extradition on the basis of the European Arrest Warrant. The applicants, sons of the deceased patients, thereafter complained before the European Court of Human Rights that “the summary criminal proceedings instituted against U. in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence” (para. 60). The Court, however, did not agree with their claim. It noted that :

… in reality, the applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It notes in this context that the German authorities were obliged to institute criminal proceedings against U. by operation of domestic law once they had learned of his involvement in the events surrounding Mr Gray’s death and consequently had a basis for their decision not to extradite U. to the United Kingdom in accordance with the relevant domestic and international law. The Court would point out in this respect that 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. It reiterates in this connection that the procedural obligation under Article 2 is not an obligation of result but of means only …(footnotes omitted) (para. 93).

The Court therefore concluded that :

the German authorities have provided for effective remedies with a view to determining the cause of the applicants’ father’s death as well as U.’s related responsibility. There is further nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to Mr Gray’s death fell short of the procedural guarantees inherent in Article 2 § 1 of the Convention. (para. 95).

The Court’s reasoning and decision are not surpising as they are in the line with its previous case law. Procedural dimension of Article 2 of ECHR establishes only state obligation of conduct but not also of result. States can meet their obligatons under Article 2 of ECHR if they provide an effective investigation and prosecution into medical negligence resulting in patient’s death.