ECHR asserts Principles on Human Rights for the Protection of patients' Health and Life in Hospitals
*Strasbourg/- In a series of 3 Judgements published in a row Today, concerning Human Rights related to Health and even Life, ECHR asserted Principles guiding Medical services' Responsibilities in various delicate and complex cases of patients' Deaths, which may help to judge also several other, even more lenient cases :
- A 1st important point was that the Credibility even of an apparently comprehensive Medical Report established by Specialists, even if numerous and/or Highly Qualified, may be seriously challenged if the particular circumstances of a case clearly reveal justified Doubts or even a blatant Contradiction vis a vis real and important Facts :
F.ex., the "Independence" of a whole panel composed by eminent Specialists Medical Doctors was challenged, even if it was contardicted just by a differend conclusion by a non-specialist, because they came from the same University Faculties and/or Hospitals as an influential Professor of Medicine whose action vis a vis a patient who died in controversial circumstances had to be assessed, (see case "Bajic v. Croatia").
In consequence, even if it wasn't yet proven false, their Report wasn't judged reliable enough, mainly because, in those circumstances, it wasn't possible to exclude People's legitimate Concerns about a Risk of Collusion of interests which might not reveal the whole Truth. Thus, the State's responsibility to make a full, independent and efficient Investigation in order to find the real Causes for the Death of patient was engaged.
+ At another case, despite numerous Medical acts, and long, extensive and repeated Medical Treatments, Tests, Reports, etc., on a Prisoner condemned for Murder, who suffered from earlier Drug Addiction and HIV, added to subsequent symptoms of Tuberculosis, etc., another State's Authorities were found by ECHR to have failed to provide an "Adequate Medical care", because of certain unjustified Delays and other acts or ommissions which exposed the victim to unnecessary Health Risks, (f.ex. brief but repeated transferts to Jail Cells shared with other inmates affected by infectious diseases, etc), and, most of all, because a final Report by a team of Experts which had concluded by claiming that the victim's Health condition had evolved in a "Satisfactory" way, came just .. a few Months before he died !.. (See case of "Koryak v. Russia").
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Last but not least, ECHR judged, indirectly but clearly, that, even if an appliquant can't yet prove, not even openly claim that a State's agent might have "intentionaly killed" a victim, it's enough to simply "imply" such a possibility, in order to raise an issue concerning also the Substantial, and not only the Procedural obligations resulting from a State's duty to protect People's Human Lives, resulting in a full and extended control of its behavior, (including access to Criminal proceedings too).
But, in the opposite case, States' procedural obligation to "take approproate steps to Safeguard the Lives of those within its jurisdiction", is, in principle, fullfilled, if it "has made Adequate Provision to secure High Professional Standards among Health Professionals, and the Protection of patients' lives", even if "an error of judgement ..., or failure to coordinate by health professionals, in the treatment of a particular patient", might, eventually, reveal a "negligence" from them.
In particular, in cases of "Medical Negligence", States are "required to to set up an effective independent judicial system, so that the cause of death of patients in the care of the medical profession, ....can be determined and those responsible made accountable", ECHR confirmed.
In this regard, "Promptness and reasonable Expedition" is required, because, "even where there may be obstacles or difficulties which prevent progress in an Investigation in a particular situation, a Prompt response by the Authorities is Vital to the maintenance of Public Confidence in their adherence to the Rule of Law and to the prevention of any Appearance of Collusion in or Tolerance of Unlawful Acts".
Therefore, "the State’s obligation under Article 2 of the Convention will not be satisfied if the Protection afforded ...exists only in Theory: above all, it must also operate Effectively in Practice, and that requires a Prompt Examination of the case, without unnecessary Delays".
+ There are also "more General considerations (which) call for a Prompt Examination of cases concerning Death in a Hospital setting", because "Knowledge of the facts and of possible Errors committed in the course of Medical Care are Essential to enable the institutions concerned and medical staff to Remedy potential Deficiencies and Prevent similar Errors" in the Future, ECHR added.
=> "Therefore, the Prompt Examination of such cases is Important for the Safety of Users of all Health Services", EuroJudges stressed.
But, if there are "No grounds for any Doubts" "with regard to the Treatment administered", then, an eventual "Failure to conduct certain Examinations should have been considered a Lack of Due Diligence", only, "and Not Medical Malpractice", and, if the State concerned has made an "Investigation ..(which).. elucidated the circumstances relevant to any .. Responsibility on the part of the Medical personel for the Death" of a patient, then, it has "Dealt with the applicant’s Claim ...with the Level of Diligence Required" by that State, ECHR concluded, (in the case "Z v. Poland").
Even if these Judgements were published by Differend Sections of the ECHR, and were presented amidst various others cases, nevertheless, it's also a Fact that All 3 concern Similar issues, and were published Together Today, while being obviously complementary to each other, towards establishing CoE Member States' duties to ensure Medical Standards respectful of elementary Human Rights.
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(NDLR : "DraftNews", as already send earlier to "EuroFora"s Subscribers/Donors. A more accurate, full Final Version might be published asap).
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Hu Jia's prize brings SAKHAROV's wife to "EuroFora" on murders of Journalists Politkofskaya, Gongadze and Adali :
- Elena Bonner : "All Journalists' murders must be fully investigated", without Double Standards.
During a special Mega-Event to celebrate 20 Years of SAKHAROV Prize for "Freedom of Thought", attributed in 2008 by EU Parliament to jailed Chinese Cyber-Dissident Hu JIA, the move was reinforced by strongly criticizing the persisting impunity in three cases of Journalists' Murders, such as POLITKOVSKAYA in Russia, GONGADZE in Ukraine, and ADALI in Turkish-occupied part of Cyprus.
Any bureaucratic doubt about whether Cyber-dissidents like Hu JIA might have, or not, a right to be protected as all Journalists must be, particularly when they take risks to search, find and publish original and critical News on issues of general interest to the society, could not resist to the emotion provoked by the message of his Wife, Zeng JINYAN spectacularly transmitted at a big screen in EU Parliament's hemicycle :
- "The most important and most interesting thing he did was to ... say the Truth :.. to write about the phenomena he observed... He never stopped Publishing.. on websites, so that the Public could learn about the reality .. and understand it. In my view, this has been his greatest contribution", stressed the young wife of the jailed man, eager to cite also the cases of other critical journalists who faced various kinds of "harassment".
- "Welcoming all those who have suffered for defending Human Rights", EU Parliament's President, German MEP Hans Gert POETTERING, who had invited to Strasbourg all former Sakharov prize-winners from various Countries throughout the World, said that "China needs Europe, and Europe needs China : A great nation" with which "we want to have a good relationship", "association and ..friendship". "But we are never going to stop our fight for Human Rights, and No Government can expect this from us".
- "It's impossible to achieve goals of Peace, if Human Rights are left out. In fact, Peace and Human Rights are intrinsequaly linked", added POETTERING.
It's in this spirit that MEPs adopted, on Thursday, a Resolution denouncing that "the criminal
investigation and trial following the murder of (a) Journalist ...raises serious concerns with regard to transparency and respect for the rule of law", when a "brutal killing has not yet been fully investigated and solved in a satisfactory way".
The text refered to dissident Journalist "Anna POLITOVSKAYA", a critic of Tchechen conflict, killed some years ago in Moscow, where Russian Authorities have found, arrested and are currently judging two executants, while also searching to arrest also a 3rd one, allegedly escaped in Belgium. But they have not yet found the instigators.
Similar texts were adopted recently also on dissident Ukranian Journalist Georgiy GONGADZE's murder, for which Ukranian Authorities have at least found, arrested and condemned 2 executants to 12 and 13 Years of jail, but not yet the instigators. For that purpose, they recently accepted an International Experts team to participate to the investigations.
But, it's only for the Murder of dissident Turkish Cypriot Journalist ADALI, in the occupied territories of Cyprus, that Turkey has NOT yet found ANYONE responsible, and even claimed recently inside CoE that it would be "impossible" to do so !
These astonishing differences exist despite the fact that ECHR condemned alike Ukraine and Turkey with 2 Judgements on the same year : 2005, for the murders of Journalists GONGADZE and ADALI, strong critics of Corruption in Ukraine, and of Ankara's policies on mass-influx of Turkish Settlers in the Occupied Territories of Cyprus, respectively.
Regarless of that, CoE's Committee of Ministers, who is entrusted with the duty to supervise execution of ECHR's judgements, has just asked Ukraine's Government to reply to further questions on Gongadze's murder before March 2009, while Turkey, curiously, got a longer postponement for answering questions on Adali's murder, until June...
A comparison of these cases, raises serious questions about Double Standards :
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On TRANSPARENCY :
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On Gongadze's murder, CoE's body speaks even about the participation of
"an INTERNATIONAL group of Experts" in the Investigation, (f.ex. of "Tape Recordings"), accepted by Ukraine.
On the contrary, on Adali's murder, CoE is obliged to repeatedly ask (for a 2nd
time) Turkey whether, at least, it informed the victims' Family, or not...
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- On EFFICIENCY :
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On Gongadze's murder, CoE formally "recalls that the Committee (of Ministers) ..URGED the Ukranian authorities.. to TAKE ALL NECESSARY INVESTIGATIVE STEPS TO ACHIEVE CONCRETE and VISIBLE RESULTS in the INVESTIGATION, aimed at the Identification of the INSTIGATORS and Organisers of the Murder", and "STRONGLY INVITED the Ukranian Authorities to provide information on the PROGRESS IN THE INVESTIGATION", before MARCH 2009.
But, on Adali's murder, on the contrary, CoE's body merely .. "took note" of the "arguments presented by" Cyprus, which denounce the absence of any proof of new "investigation" by Turkey. Following Turkey's own suggestion (!), it simply "noted" that there is "no limitation period" for "any new element" to "lead potentialy (sic !) to a Re-Opening of the Investigation". Without saying who might find any such "new" fact, since Turkey stoped searching... It also POSTPONED the issue until .. JUNE !
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- On the PUNISHMENT OF THOSE RESPONSIBLE :
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- On Gongadze's murder case, Ukranian Authorities already arrested and condemned, at least 2 suspects, to 12 and 13 Years of jail. And on Politkovskaya's murder at least 2 suspects are judged, and a 3rd one "wanted".
On the contrary, on Adali's murder case, the Turkish authorities simply claim that "it had not been possible to obtain new .. information .. on the basis of which criminal charges could be brought against ANY person" !...
Moreover, a LETTER sent by Turkey ...2 Years after CoE's 2006 call to re-investigate anew Adali's murder case, is totally EMPTY of Facts ! As Cypus' Delegation denounced earlier, Turkey's Letter ONLY CLAIMS that a "New Investigation" was made without any result, but does NOT even cite ANY FACT to prove it :
F.ex.,on the crucial issue of the "MOTIVATIONS" behind Adali's murder, noted by ECHR, Turkey MERELY CLAIMS that "all allegations were investigated; without result", but OMITS ANY FACT TO PROVE IT !..(It doesn't even remind which were these "allegations").. .
+ On ECHR's astonishment that the Turkish Occupation regime didn't produce any "BALLISTIC REPORT" on the Shots which murdered Adali, Turkey again repeats, 12 years later, that, still, even until now, "it was not possible to obtain the BalisticReport"...
- As for the astonishing absence of key-WITNESSES' Testimonies, denounced by ECHR, Turkey agains repeats various pretexts avoiding to reveal anything, (Fex. that a person "left" the Occupied Territories "on 2002", or that another witness was heard, but without revealing nothing of what he said, etc).
Turkey obviously "FAILS TO MEET THE CRITICISM made BY THE COURT" for lack of any efficient Investigation in Adali's case, concluded Cyprus' Government.
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Replying to our Question which COMPARED these 3 outstanding cases of "JOURNALISTS MURDERS", Adali, Gongadze and Politkovskaya, in order to avoid "Double Standards" by asking from Ukraine and Russia more than what is asked EU candidate Turkey, many European personalities were critical /
They criticised Ankara's recent claim at the CoE to stop investigating, because it would be "impossible to find anyone" responsible for the 5 bullet shots which killed Kutlu ADALI in front of his Family Home, contrary to the other two Journalists' murders, where Ukraine and Russia at least arrested the executants, searching now for the instigators :
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- "Where was that ? In Turkish Occupied Cyprus ? WITHOUT ANY DOUBT : Any murder of Journalist should be investigated in full ! All these Murders must be investigated !", replied the famous SAKHAROV's wife, Elena BONNER to our question on Adali's case, compared to Gongadze and Politofskaya.
Elena Bonner spoke us EXCLUSIVELY shortly after being honored by the President
of EU Parliament on the occasion of 20 Years of her husband's SAKHAROV Prize.
A strong personality, Sakharov's wife even had to struggle against an anonymous EU staffer who, astonishingly, tried to stop her speaking when h heard our question on "Turkey" (!) : - "Please, let me translate, she continues
speaking, don't stop us !", had to cry Sakharov's daughter, (a Journalist
herself), who was translating her mothers' reply, (obliged to speak louder to
make her voice heard despite the harassment).. (= + Audio Proof !)
Earlier, Elena Bonner also fustigated "Double Standards" at another case, on
Western countries' attitude vis a vis Kosovo and the Kurds : -F.ex. "You have
recognized a few 400.000 Kosovars as an "independent" country, but you still
deny that to 30 millions of Kurds in Turkey !", she denounced.
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- "This (ADALI's murder) is an issue which should be pursued by the Committee
for Human Rights. That's why we have one, and it's its duty to examine cases of
Journalists' murders as the one you referred to. You should bring the case in
front of that Committee", suggested in reply to our question on Adali, EU
Parliament's President, German MEP Hans Gert POETTERING.
- "It's impossible to achieve goals of PEACE, if HUMAN RIGHTS are left out :
in fact, Peace and Human Rights are intrinsequaly linked", added POETTERING.
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+ "For us (European/International Federation of Journalists) it's clear :
Whenever a Journalist is Murdered, the Investigation should continue until
those Responsible are found !", replied earlier to another question on ADALI
EFJ/IFJ's Secretary General, Aidan WHITE.
Speaking as a matter of General Principle, White asked us for "concrete data"
on the execution of ECHR's judgement on Adali case, in order to "look at it in
depth" and "make a formal statement", in comparison with the other Murdered
Journalist case, also pending at CoE's Ministers for completing its execution,
on Ukranian Gongadze.
----------------------------------------------------
From EU Rapporteur on Human Rights, vice-President of EU Parliament Liberties' Committee, MEP Giusto CATANIA, we were told that, since there is an ECHR judgement in both Adali and Gongadge's cases, "Turkey must naturally execute the judgement and make a full and efficient investigation, until those responsible for the Journalist's murder are found and punished".
Even if "we (Catania's "EuroLeft" Group) support Turkey's EU perspectives, this does not mean that Ankara should not behave properly. On the contrary, it means that they have to meet tough conditions, particularly on Human Rights", was added on the occasion of Adali's murder case.
Moreover, "since you raise the issue of Mr. Adali's muder as a part of a Series of Journalist's murders, including fex. Gongadze, Politkovskaya, ao., tthen we (EU) could also act together with CoE's Commissioner on Human Rights, Thomas HAMMARBERG, it was suggested.
- "We (EU) must step up efforts against the problem of IMPUNITY : Real Peace cannot exist without Justice", stressed also this week at EU Parliament in Strasbourg, French Minister on Human Rights, Mrs Rama YADE.
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