Medical negligence and liability of health professionals
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Relevant German law in connection with the criminal proceedings instituted against U. 52. Pursuant to Article 222 of the German Criminal Code ( Strafgesetzbuch ) a person causing the death of another person through negligence shall be liable to imprisonment of not more than five years or a fine. Article 12 stipulates that unlawful acts punishable by a minimum sentence of less than one year ’ s imprisonment or by a fine shall be qualified as misdemeanours. Article 56 §§ 1 and 2 of the Criminal Code provides that prison sentences which do not exceed two years may be suspended and probation be granted under the conditions specified in that provision. 53. Articles 5 to 7 of the Criminal Code deal with the jurisdiction of Germany for offences committed abroad. The relevant part of Article 7 stipulates that German criminal law shall apply to offences committed abroad if the act constitutes a criminal offence at the place where it was committed and if the offender was a German national at the time he committed the offence. 54. In accordance with Article 152 of the German Code of Criminal Procedure ( Strafprozessordnung ) the public prosecution authorities shall, as a rule, be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications that an offence was committed. Article 160 stipulates that as soon as the public prosecution authorities obtain knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether a bill of indictment is to be issued. 55. The rules concerning a conviction of an offender by penal order are to be found in Articles 407 to 412 of the Code of Criminal Procedure. Article 407, as far as relevant, provides that in proceedings before the criminal court judge a sentence for an offence that qualifies as a misdemeanour may be imposed by a written penal order without a main hearing upon written application by the public prosecution office. The public prosecution authorities shall file such application, if they do not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. It shall constitute the formal bill of indictment. Only certain sentences may be imposed for an offence by penal order, such as, inter alia, a fine or - where the accused is represented by counsel - imprisonment not exceeding one year, provided its execution is suspended on probation. In the case of suspension on probation, it is possible to impose in addition the payment of a certain sum of money for the benefit of a non-profit organisation or the treasury (Article 56b § 2 of the Criminal Code). Article 408 § 3 stipulates that the judge shall comply with the public prosecutor ’ s application if he has no reservations about issuing the penal order. He shall set down a date for the main hearing if he has reservations about deciding the case on the basis of a written procedure, if he wishes to deviate from the public prosecutor ’ s legal assessment in the application to issue the penal order, or if he wishes to impose a legal consequence other than the one applied for by the public prosecutor and the latter disagrees. In accordance with Article 409 of the Code of Criminal Procedure the penal order shall contain information as regards, inter alia, personal data of the defendant and of any other persons involved, the offence the defendant is charged with, the time and place of its commission, the evidence on which the statement of facts and legal assessment are based as well as the legal consequences imposed. It should further advise on the possibility of filing an objection against the penal order and that the latter shall become effective and executable if no such objection is lodged within the time-limit of two weeks following its service in accordance with Article 410 of the Code of Criminal Procedure. Where no objection is lodged the penal order shall be equivalent to a final judgment. 56. Pursuant to Article 201 of the Code of Criminal Procedure the presiding judge shall communicate the bill of indictment to the persons entitled to join the prosecution as joint plaintiffs ( Nebenklagebefugte ) if they so request. Article 395 provides that a person whose children, parents, siblings, spouse or civil partner were killed through an unlawful act and thus qualify as aggrieved persons of such act may join the public prosecutor as joint plaintiffs to the prosecution ( Nebenkläger ). Pursuant to Article 396 § 1 a declaration to join in penal order proceedings shall only take effect when the judge decides to schedule a date for the main hearing. Article 400 provides that joint plaintiffs to the prosecution may not contest a judgment with the objective of another legal consequence of the offence being imposed. 57. Articles 406 d to 406 h grant aggrieved persons, including those whose children, parents, siblings, spouse or civil partner were killed through an unlawful act, certain participation rights in criminal proceedings conducted in respect of the underlying offence. Article 406d § 1 stipulates that aggrieved persons shall, upon request, be notified of the termination of the proceedings and the outcome of court proceedings to the extent they are concerned by them. According to Article 406f aggrieved persons may avail themselves of the assistance of an attorney or be represented by such attorney. Pursuant to Article 406 e § 1 counsel for the aggrieved person may inspect the files that are available to the court or the files that would be required to be submitted to the latter if public charges were preferred, as well as the officially impounded pieces of evidence, if he can demonstrate a legitimate interest in this regard. In the event the aggrieved persons are the children, parents, siblings, spouse or civil partner of the victim as referred to in Article 395 (see § 56 above), there shall be no requirement to demonstrate such legitimate interest. Article 406h § 1, in the version in force at the relevant time, stipulated that aggrieved persons should be informed of their rights following from Sections 406d to 406 g and of their right to join the public prosecution as plaintiffs under Article 395. B. Relevant German and international law in connection with the extradition proceedings instituted against U. 58. The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002 / 584/JHA) provides in its Article 1 that Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 4 specifies that the judicial authority of a Member State may refuse to execute a European arrest warrant against a person where the latter is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based. Pursuant to Article 3 the executing judicial authorities of a Member State shall refuse to execute a European arrest warrant if it has come to their knowledge that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State. 59. Pursuant to section 1 of the German Act on International Cooperation in Criminal Matters ( Gesetz über die internationale Rechtshilfe in Strafsachen (IRG) ) its provisions shall govern the relations between Germany and foreign States regarding legal assistance in criminal matters. It further specifies that provisions of international treaties shall take precedence over the provisions of the Act to the extent that they have become directly applicable in the domestic legal order. Pursuant to section 80 (1) of the Act the extradition of a German citizen to a Member State of the European Union for the purpose of prosecution shall not be admissible unless measures are in place to ensure that the requesting Member State after a final conviction to a sentence of imprisonment or other sanction will offer to return the person sought, if he so wishes, to Germany for the purpose of enforcement and unless the offence has a substantial link to the requesting Member State. The competent Higher Regional Court in Germany, acting upon application of the relevant public prosecutor, decides on the admissibility of an extradition request (see section 29 of the Act). In accordance with section 83 b (1) of the Act, extradition may be refused if criminal proceedings are pending against the person sought in Germany for the same offence as the one on which the extradition request is based. Furthermore, section 9 stipulates that extradition shall not be granted in the event the offence at issue is also subject to German jurisdiction and a domestic court or other domestic authority has rendered a final decision against the prosecuted person in this respect. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 60. The applicants complained under Article 2 of the Convention, read in conjunction with the State ’ s general duty under its Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, that Germany did not provide for an adequate or effective official investigation into their father ’ s death. They further complained that the German authorities had refused to allow U. ’ s extradition to face trial in the United Kingdom. They relied in this respect on the procedural obligations inherent in Article 2 § 1 which provides in its first sentence: “1. Everyone ’ s right to life shall be protected by law. ... ” and, alternatively, on Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 61. The applicants maintained in particular 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. Moreover, the German authorities had failed to inform them of the proceedings and had thus deprived the deceased ’ s next of kin of any possibility to get involved and participate in the latter. 62. The Government contested that argument. 63. The applicants further complained that U. ’ s conviction by the Witten District Court could no longer be challenged since it had become final. They relied on Article 13 in this respect, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 64. The Court finds that the entirety of the applicants ’ complaints relate in substance to an alleged failure by the German authorities to discharge their procedural obligations under Article 2 § 1 of the Convention and therefore falls to be examined under that provision with no separate issue arising under its Articles 8 and 13 (with respect to Article 13 see also Gray v. Germany and the United Kingdom, cited above, § 76 ). A. Admissibility 65. The Government argued that as regards part of the complaints the application was inadmissible since the applicants had failed to exhaust domestic remedies. They contended, in the alternative, that there had been no breach of Article 2 § 1 of the Convention and that the application should be rejected as being manifestly ill-founded. 66. The Government conceded that the applicants did not have available an effective remedy under German law in the meaning of Article 35 § 1 of the Convention as regards their complaint that the criminal proceedings in Germany had not involved a proper investigation into their father ’ s death. They specified in this respect that German law did not provide for a right to request particular measures of investigation by the prosecution in criminal proceedings against third parties or to challenge the investigative authorities ’ measures in such proceedings. German criminal procedure did also not grant the next of kin of a crime victim the right to challenge the decision of the prosecution authorities and the domestic courts to prosecute and convict the perpetrator of an offence which, as in the instant case, qualified as a misdemeanour in summary proceedings without a main hearing. 67. The Government submitted that, by contrast, the applicants would have had the possibility to complain about the German prosecution authorities ’ alleged failure to inform them about the proceedings against U. in their capacity as next of kin of the deceased in accordance with Article 406 d et seq. of the Code of Criminal Procedure. The Government maintained, however, that such a complaint would not have had a prospect of success since the domestic authorities had fully complied with the applicants ’ related information requests throughout the proceedings and had thus respected their related rights. 68. The applicants argued that the Government appeared to concede that they had not had available an effective domestic remedy in respect of their complaints. 69. The Court reiterates that the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see among other references, Sejdovic v. Italy [GC], no. 56581/00, §§ 45 and 46, ECHR 2006 ‑ II ). The Court notes that in the instant case the Government themselves indicated that in respect of part of the applicants ’ complaints domestic law did not provide for an effective domestic remedy whereas the available remedy in respect of the remainder of the complaints would not have had any prospect of success. 70. Having regard to the above considerations the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies. Neither does the Court find the complaints manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It accordingly declares the application admissible. B. Merits 1. The parties ’ submissions (a) The applicants 71. The applicants maintained that given the gravity of the offence committed by U., the summary written penal order proceedings conducted against him in Germany and the sentence imposed by the Witten District Court were not sufficient to discharge the procedural guarantees enshrined in Article 2 § 1. The criminal proceedings in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. In this respect the applicants, whilst accepting that U. had confessed in writing that his medical malpractice had been at the origin of their father ’ s death, pointed to the fact that he had never been formally interviewed by the German prosecution authorities or trial court. 72. The applicants conceded that, in the generality of cases, and so as not to overburden the judicial system, a Member State could legitimately allocate a proportion of its criminal caseload to written proceedings. The instant case was however atypical due to its international dimension resulting from the fact that investigations had been simultaneously pending in the United Kingdom and that the British police authorities had informed their German counterparts of their continued intention to take action against U. In this context the applicants also pointed to the fact that in 2007 two incidents had been reported where locum doctors having previously trained and practised in Germany had treated patients in the United Kingdom and had administered overdoses of diamorphine from palliative care boxes to patients on two separate occasions. The applicants took the view that in an unusual and sensitive case like the present one the prosecution authorities ’ decision to apply for a conviction by penal order in summary proceedings was open to question. 73. The applicants further submitted that the Bochum prosecution authorities had not informed them of their various procedural rights in their capacity as next of kin of the deceased in accordance with Article 406 h of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) which, as a consequence, had not been effective in practice. Moreover, they had not been able to exercise their right to join the public prosecutor as plaintiffs in the proceedings against U. since the prosecution authorities had omitted to notify counsel for the second applicant mandated in Germany of the termination of the investigations and of their decision to charge U. by means of an application for a penal order. Insofar as German criminal procedure did not impose an express obligation on the prosecution authorities to keep potential joint plaintiffs to the prosecution informed on the state of progress of pending (preliminary) criminal proceedings, the applicants argued that domestic law failed to give full effect to the procedural guarantees inherent in Article 2 § 1. They contended in this connection that the German authorities had concealed their intention to prosecute and convict U. in Germany with a view to preventing his extradition to the United Kingdom where he would have expected a heavier sentence for having caused their father ’ s death through negligence. (b) The Government 74. The Government argued that German legal order provided for an effective and independent judicial system with a view to establishing the cause of deaths resulting from medical malpractice and with a view to making those responsible for the death of patients accountable, in accordance with the procedural guarantees enshrined in Article 2 § 1 as specified in the Court ’ s case- law (citing Šilih v. Slovenia [GC], no. 71463/01, §§ 192 and 195, 9 April 2009, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I). Within the framework of such judicial system, the background and circumstances of Mr Gray ’ s death had been promptly and thoroughly investigated and assessed. 75. The Government maintained that, contrary to the applicants ’ submissions, the fact that U. had been tried in summary criminal proceedings without a main hearing had had no impact on the scope and quality of the investigations underlying his conviction. Preliminary criminal proceedings leading to a suspect ’ s conviction by penal order did not differ from those that were followed by a main hearing. 76. The Government explained that pursuant to Article 407 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) the public prosecution authorities were under an obligation to apply for an accused ’ s conviction by means of a penal order if in the course of the criminal investigations in respect of a misdemeanour sufficient material had been gathered to allow a complete assessment of the case by the criminal court and a main hearing could not be expected to lead to any deviation from the investigation results. The Government contended that these requirements had been clearly met in the instant case. They further took the view that the conduct of a main hearing had also not been necessary for special or general preventive purposes ( aus Gründen der Spezial - oder Generalprävention ). They specified in this context that, having regard to the particular circumstances under which the medical malpractice leading to Mr. Gray ’ s death had occurred and the fact that U. did not have a criminal record in Germany, there had been nothing to establish that he would commit a similar error of treatment in Germany. 77. Accordingly, the prosecution authorities ’ decision to apply for U. ’ s conviction by penal order had been justified and the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure since no main hearing had been scheduled by the trial court (see Relevant domestic and international law and practice above). In this connection the Government pointed to the fact that potential joint plaintiffs to the prosecution did not have available a legal remedy to challenge the domestic authorities ’ decision to convict an accused in summary proceedings without a main hearing. For this reason, German criminal procedure did also not impose an obligation on the prosecution authorities to inform potential joint plaintiffs to the prosecution of their decision to apply for a penal order. 78. The Government further argued that the applicants ’ rights in their capacity as the deceased ’ s next of kin had been fully respected in the course of the criminal proceedings against U. They had been granted effective access to the investigative proceedings and had been involved in the procedure to the extent necessary to safeguard their legitimate interests in line with the requirements set out in the Court ’ s case- law. The Government maintained in this context that the applicants had been involved in the proceedings from the beginning through the intermediary of the second applicant ’ s lawyer mandated in Germany and had been informed about the proceedings instituted against U. according to their respective requests submitted to the prosecution authorities. 79. The Government concluded that the proceedings at issue had fully complied with the procedural requirements of Article 2 of the Convention. 2. The Court ’ s assessment 80. The Court reiterates that the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia, cited above, § 192; Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V; and Calvelli and Ciglio, cited above, § 49 ). 81. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case ( see Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 ‑ VIII). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the medical practitioners concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio, cited above, § 51; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII). 82. The State ’ s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law 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 (see Šilih, cited above, § 195; Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy ( dec. ), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006 ). 83. The Court observes that in the case at hand the applicants did not in any way suggest that their father ’ s death was intentional. They also do not seem to contest that the German legal order does in principle provide for an effective independent judicial system with a view to determining the cause of death of patients in the care of the medical profession and making those responsible for an unlawful killing arising out of negligence accountable. The Government submitted in this context that in the event of a patient ’ s death as a result of medical malpractice his or her next of kin may lodge a criminal complaint against those allegedly responsible should the prosecution authorities not already have started investigations ex officio. Moreover, next of kin may bring claims in negligence against those responsible for the victim ’ s death before the civil courts with a view to obtaining compensation. In addition, depending on the circumstances of the case, professional or administrative disciplinary measures may be imposed on those answerable for the unlawful killing. 84. Turning to the circumstances of the instant case, the Court notes that the German prosecution authorities started criminal investigations into the circumstances of Mr Gray ’ s death on their own initiative in June 2008 after they had been informed about the incident in the context of a request for legal assistance made by their British counterparts. Within the scope of the ensuing preliminary criminal proceedings in Germany the cause of death and U. ’ s involvement in the underlying events were conclusively established in due course by the German investigative authorities. In cooperation with their British counterparts, German police officers heard, inter alia, representatives of U. ’ s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia- Lippe Medical Association as witnesses with a view to assessing U. ’ s medical qualifications and to establishing whether U. ’ s treatment of the deceased had amounted to medical malpractice. Further written evidence was provided by the Cambridegshire police, such as the post mortem report of 25 June 2008 as well as depositions made by Mr Gray ’ s partner following the latter ’ s death. The prosecution authorities also had regard to an expert opinion from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards and which opinion had been established having regard to the information contained in the Cambridgeshire police ’ s investigation files. The German prosecution authorities also made an attempt to interview U., who, however, availed himself of his right not to testify. The Court observes in this connection that U. had confessed in writing from the outset that his medical malpractice had been at the origin of Mr Gray ’ s death. The description of the incident given in his apology letter of 10 July 2008 to the deceased ’ s partner and the first applicant as well as in his letter of 11 March 2008 to his professional indemnity insurance company had been consistent with the testimonies obtained from the further witnesses and experts examined during the investigations. 85. In view of these circumstances, the Court is satisfied that the criminal proceedings conducted in Germany enabled the investigative authorities to determine the cause of Mr Gray ’ s death and to establish U. ’ s responsibility in this respect. Having regard to the available body of evidence taken together, the Court accepts the Government ’ s finding that the prosecution authorities ’ decision to apply for U. ’ s conviction in summary proceedings without a main hearing had been justified and that the Witten District Court had available sufficient means of evidence to proceed to a thorough assessment of the circumstances of the case and U. ’ s guilt. It further notes that there is nothing to suggest that the penal order proceedings were not conducted in accordance with domestic law or that the evidentiary conclusions reached by the prosecution authorities or the trial court had been unfounded. The Court also notes the Government ’ s argument that in view of the fact that there was nothing to establish that U. would commit a similar error of treatment when practicing as a medical doctor in Germany, there had been no grounds to exceptionally hold a main hearing with a view to enabling an enhanced public scrutiny for preventive purposes in the instant case. 86. Turning to the applicants ’ allegations that they had not been sufficiently involved in the criminal proceedings conducted in Germany against U., the Court observes that the German prosecution authorities did not inform the applicants on their own initiative about the initiation of the criminal investigations at issue. Neither did they inform them of their decision of 12 March 2009 to apply for U. ’ s conviction by means of a penal order nor did they – being approached by the second applicant ’ s lawyer – comprehensively inform the applicants themselves of all their rights. It appears that the applicants only learned about the fact that a penal order had been issued by the Witten District Court against U. on 20 March 2009 after the order had become final on 15 April 2009. 87. The Court recognises that, as submitted by the Government, pursuant to German criminal procedure the prosecution authorities were not obliged to inform the applicants on their own initiative about the initiation and progress of the proceedings against U. The Court is of the opinion that in the instant case such obligation does not follow from the procedural requirements inherent in Article 2 § 1 of the Convention. The Court reiterates in this context that it has previously held that in situations where the responsibility of State agents in connection with a victim ’ s death had been at stake, Article 2 § 1 required that within the scope of the investigations conducted by the authorities into the underlying events “the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests” (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001 ‑ III (extracts), and Kelly and Others v. the United Kingdom, no. 30054/96, § 98, 4 May 2001 ). It notes that, by contrast, the present application does not concern a case where an involvement of State agents in the victim ’ s death is at issue or where the circumstances surrounding the death were suspicious or unclear. The Court further recalls that in the sphere of medical negligence the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal-law remedy and that it may therefore be arguable whether and to what extent the applicants ’ involvement as next of kin is required in the event the prosecution authorities have recourse to such a remedy on their own initiative as in the present case. The Court notes that, even assuming similar considerations as in its above cited case-law applied in the instant case, the applicants have been involved in the criminal proceedings against U. in the following manner. 88. The Court observes, firstly, that the German prosecution authorities had initiated criminal proceedings against U. ex officio in June 2008 at a time when they had not yet been aware of the applicants as possible next of kin of the victim. It notes that neither German law nor the procedural requirements inherent in Article 2 § 1 as defined in the Court ’ s case-law impose an obligation on the prosecution authorities to search on their own initiative for a victim ’ s next of kin with a view to informing them of the institution of investigations or their procedural rights in this respect. It would be particularly burdensome for the domestic authorities to comply with such an obligation in cases like the present one where the victim was a foreigner and the events at issue occurred abroad. 89. Subsequently, by letter of 1 October 2008, counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that he had been mandated by a son of the deceased. He asked for information whether preliminary criminal proceedings were pending against U. and requested access to the relevant investigation files. Having reiterated his request by letter of 23 October 2008, counsel was informed by the prosecution authorities about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file. The Court further notes that within the course of the preliminary proceedings the applicants had the opportunity to contribute to the investigations. For instance, on 6 November 2008 counsel for the second applicant transmitted U. ’ s apology letter of 10 July 2008 as well as TCN ’ s letter dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file. 90. It follows that the applicants did in fact avail themselves of their rights as aggrieved persons in the proceedings against U. pursuant to Articles 406d to 406 g of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). As contended by the Government there had thus been no need for the prosecution authorities to provide further information to the applicants in this respect, in particular in view of the fact that the latter had been represented by counsel throughout the proceedings. Having regard to the fact that U. confessed from the outset that he had negligently caused Mr Gray ’ s death through medical malpractice, it must have been evident to counsel that according to German criminal procedure U. ’ s conviction by means of a penal order had been an option in the instant case. 91. The Court finally observes that the German authorities ’ decision to convict U. in summary proceedings without previously notifying the applicants of their intention to proceed in such way did not affect the applicants ’ legitimate interests as aggrieved persons or potential joint plaintiffs to the prosecution. In this respect the Court refers to the Government ’ s submissions that as a consequence of the domestic authorities ’ justified decision to have recourse to summary proceedings and to refrain from scheduling a main hearing (see §§ 84 and 85 above ) the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). The Court further accepts the Government ’ s argument that, since the circumstances of the case had been sufficiently established in the course of the investigative proceedings, a participation of the applicants in a potential main hearing, even if it might have a cathartic effect for the victim ’ s next of kin, could not have further contributed to the trial court ’ s assessment of the case. It notes in that context that the applicants have not specified which aspect of U. ’ s responsibility for medical negligence causing the applicants ’ father ’ s death has not been sufficiently clarified. Moreover, even in the event a hearing had been scheduled, pursuant to Article 400 § 1 of the Code of Criminal Procedure, the applicants would not have had the right to contest the trial court ’ s judgment with the objective of a heavier penalty being imposed on U. 92. Having regard to the above considerations, the Court considers that there is nothing to establish that the legitimate interests of the deceased ’ s next of kin were not respected in the domestic proceedings. 93. The Court observes 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 (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II, and Gray v. Germany and the United Kingdom, cited above, § 95 ). 94. The Court further finds it relevant to note that in addition to the criminal proceedings conducted against U., investigations regarding his fitness to practice as a physician had been conducted by the competent German administrative authorities. Within the scope of the investigations regarding U. ’ s fitness to practice medicine, the latter had been heard by the competent health authorities on two occasions and the applicants were granted an opportunity to provide further information on the circumstances of the case. Furthermore, as a consequence of the disciplinary proceedings instituted against U. before the Münster Administrative Court on the initiative of the Westphalia -Lippe Medical Association, the latter was reprimanded for having committed a grave error in the treatment of Mr Gray and imposed a fine. The Court recalls in this connection that in the specific sphere of medical negligence disciplinary measures may also be envisaged with a view to satisfying the procedural obligation of Article 2 (see § 81 above ). 95. The Court concludes that in the present case 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. 96. There has accordingly been no violation of Article 2 of the Convention.
The Court held that there had been no violation of Article 2 (right to life) of the Convention, finding that the criminal proceedings in Germany against the doctor responsible for the applicants’ father’s death had been adequate. It accepted in particular that the German trial court had sufficient evidence available to it for the doctor’s conviction by penal order without having held a hearing. Moreover, the applicants had been sufficiently informed of the proceedings in Germany, and the German authorities had been justified in not extraditing the doctor to the United Kingdom in view of the proceedings before the German courts.