Jasmina MOMCILOVIĆ v. Serbia

On March 5, the European Court of Human Rights (hereinafter: the Court) issued a decision in the case, and on March 28, 2024, it announcedMomčilović v. Serbia (number 44530/18).

The decision was made by a three-member Board.

The case refers to the issue of violation of the right to life from Article 2 of the Convention, in the context of the state's positive obligation to conduct an effective investigation into the death of the applicant's mother, which was allegedly caused by medical negligence.

The court found that the applicant did not initiate civil proceedings in which her complaints would be adequately considered and an appropriate response would be provided.

• Circumstances of the case

The applicant's mother underwent tumor surgery in 2013, which was performed in a state hospital. A few days after her discharge from the hospital, her condition worsened, and in the next three months she was treated in several medical institutions. In the last discharge list from May 2013, numerous diagnoses were noted. She died in August of the same year.

In October 2013, the applicant filed a criminal complaint against the doctor who operated on her mother, believing that during or after the intervention he "infected" her with sepsis, for which she was treated until her death seven months later.

In January 2016, the applicant's attorney submitted an objection to speed up the proceedings before the prosecution to the competent court. The objection was rejected as inadmissible, because in the specific case no criminal proceedings were initiated.

The applicant then, through her attorney, submitted a constitutional appeal to the Constitutional Court against the decision to reject the objection.

The Constitutional Court rejected her constitutional appeal.

• The applicant's complaint

Referring to Article 2 of the Convention, the applicant complained about the absence of an effective investigation into the death of her mother, which was allegedly caused by medical negligence.

• Decision of the Court

The government argued that the petition should be rejected due to non-exhaustion of domestic legal remedies, because the applicant did not properly present her complaints before the Constitutional Court, nor did she initiate civil proceedings by filing a claim for damages.

The court considered that in this particular case there is no need to examine the objections of the Government, since the applicant's complaint is clearly unfounded in any case.

Namely, the Court established that the domestic legal system provided the applicant with the opportunity to initiate a civil proceeding, within which she could receive appropriate answers and the opportunity for her arguments to be considered in a valid manner. The court noted that the applicant, however, did not use this means of legal protection, and rejected her complaint under Article 2 of the Convention as clearly unfounded.