MEDICAL ERROR AND LIABILITY FOR IT IN SOME POST-SOVIET COUNTRIES (BELARUS, KAZAKHSTAN, MOLDOVA, UKRAINE)

Introduction: Infliction of harm to life and health due to medical errors is common for the whole world and post-Soviet countries, in particular. The problem of these errors is one of the most important in medical law, although there is no unified concept of it. A small number of sentences in cases of criminal negligence of medical professionals indicates a high latency and often unprovability of this crime in a number of post-Soviet countries. The aim: To disclose the objective and subjective prerequisites of a medical error, reasons for its occurrence, to establish the grounds for criminal liability of medical professionals in case they commit an error and to examine the judicial practice in this regard. Also, to define the concept and types of circumstances exempting criminal liability and their impact on criminal liability issues concerning medical professionals. Materials and methods: The study is based on the Belarusian, Kazakh, Moldavian and Ukrainian statutory acts as well as international acts, the European Convention for the Protection of Human Rights and Fundamental Freedoms, case law of the European Court of Human Rights (ECHR), national court judgments. Such methods as dialectical, comparative, analytic, synthetic and comprehensive have been used in the paper. Review: On the basis of the study, it has been established that there is no unified concept of a medical error, medical personnel are fairly brought to criminal liability only if they commit an unjustifiable error in the presence of all the mandatory elements of a crime provided for in the relevant article of the Criminal Code. At the same time, it is extremely difficult to prove existence of such an error. Besides, at the state levels, causes and mechanisms of occurring errors have not been revealed, they are not even discussed, which makes it impossible to outline measures to prevent them or reduce their frequency and degree of danger. Conclusions: The struggle against medical errors should encompass a number of such activities as standardization of clinical treatment protocols, further education of medical professionals and lawyers in regard to patient safety, thorough investigation of each incident in order to exclude a justifiable error or circumstances exempting criminal liability. Equitable, severe and uncompromising punishments for perpetrators should be an effective means preventing commission of crimes in medicine.

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Functions of compensation for human rights violation in international and national judicial decisions

Meždunarodnoe pravosudie ◽

10.21128/2226-2059-2021-1-81-101 ◽

2021 ◽

Vol 11 (1) ◽

pp. 81-101

Author(s):

Dmitry Kuznetsov

Keyword(s):

Human Rights ◽

Effective Means ◽

National Court ◽

Case Law ◽

The State ◽

Customary Law ◽

Human Rights Violations ◽

Complex Nature ◽

European Court ◽

International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

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When Are National Courts Obliged to Refer Questions?

Broberg and Fenger on Preliminary References to the European Court of Justice ◽

10.1093/oso/9780198843580.003.0006 ◽

2021 ◽

pp. 201-248

Author(s):

Morten Broberg ◽

Niels Fenger

Keyword(s):

Human Rights ◽

National Court ◽

European Convention ◽

Preliminary Ruling ◽

Eu Law ◽

Case File ◽

National Courts ◽

Legal Consequences

Chapter 6 defines when a national court must make a preliminary reference. In principle, a national court whose decision cannot be appealed against (a court of last instance) is obligated to make a reference for a preliminary ruling if the main proceedings give rise to a question about the interpretation or validity of EU law. The chapter analyses when a national court is regarded as being a court of last instance and it analyses when a court of last instance is exempt from the obligation to make a reference. Particular focus is upon the acte éclairé and acte clair doctrines. Chapter 6 also examines when national courts, other than those of last instance, have a duty to make a reference. The chapter also considers the legal consequences of a national court failing to comply with its obligation to make a reference; in this respect it considers the question of how a failure to make a preliminary reference may affect the validity of a national judgment, the duty to reopen the case file, the obligation to pay damages, the possibility that the Commission will initiate infringement proceedings, and the possibility that such failure will constitute an infringement of the European Convention on Human Rights.

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4. Negligence and strict liability

10.1093/he/9780198869931.003.0004 ◽

2021 ◽

pp. 126-150

Author(s):

Michael J. Allen ◽

Ian Edwards

Keyword(s):

Human Rights ◽

Criminal Law ◽

Criminal Liability ◽

Strict Liability ◽

European Convention ◽

Mens Rea ◽

The Law ◽

Sexual Services

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of and justifications for strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. The feaeture ‘The law in context’ examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.

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Free Life after Life Imprisonment as a Human Right under the European Convention: European Court of Human Rights, Grand Chamber, Judgment of 9 July 2013, Vinter and Others v. The United Kingdom

European Constitutional Law Review ◽

10.1017/s1574019612001265 ◽

2013 ◽

Vol 9 (3) ◽

pp. 501-512 ◽

Cited By ~ 2

Author(s):

Marek Szydło

Keyword(s):

Human Rights ◽

National Court ◽

European Convention ◽

Human Right ◽

National Courts ◽

European Court ◽

Life Sentence ◽

The Moment ◽

Grand Chamber ◽

Life Sentences

The recent judgment of the Grand Chamber of the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) in Vinter and Others reflects a very significant change in the Court's attitude to those actions of the states parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’ or ‘the ECHR’) that consist in the imposition and further execution of whole life sentences. In this judgment, the Court concluded that Article 3 of the Convention – which prohibits torture, inhuman or degrading punishment – requires the reducibility of all whole life sentences as imposed by national courts, in the sense of a review mechanism which allows domestic authorities to conclude whether in the course of a life sentence the legitimate peno-logical grounds justifying the further incarceration of a life prisoner still exist. Moreover, such a mechanism or possibility for review of a whole life sentence must be provided for by a national law and, consequently, must be known to a life prisoner already at the moment of imposition of the whole life sentence. What is also important, a life prisoner, at the outset of his/her sentence, must know when (i.e. after how many years) and under what conditions a review of his/her sentence will take place or may be sought, and what he/she must do to be considered for release. Otherwise, the very imposition of a life sentence by a national court infringes Article 3 of the Convention.

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4. Negligence and strict liability

Criminal Law ◽

10.1093/he/9780198831938.003.0004 ◽

2019 ◽

pp. 123-146

Author(s):

Michael J. Allen ◽

Ian Edwards

Keyword(s):

Human Rights ◽

Criminal Liability ◽

Strict Liability ◽

European Convention ◽

Mens Rea ◽

The Law ◽

Sexual Services

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of strict liability, justifications for strict liability, identifying offences of strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. A Law in Context feature examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.

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Court Decision Contra Legem or an Application of the Principle of Proportionality in Concreto?

Teisė ◽

10.15388/teise.2021.121.2 ◽

2021 ◽

Vol 121 ◽

pp. 27-44

Author(s):

Asta Dambrauskaitė

Keyword(s):

Human Rights ◽

Supreme Court ◽

National Court ◽

Case Law ◽

Legal Rule ◽

Court Decision ◽

European Convention ◽

Court Decisions ◽

Principle Of Proportionality

The article analyses cases of non-application of a national legal rule by cassation court judges hearing civil cases where, based on the analysis of concrete circumstances, the application of such a rule, in the opinion of judges, would lead to an infringement of the principle of proportionality and the European Convention on Human Rights. Decisions of two courts of cassation belonging to the continental law tradition (the Lithuanian Supreme Court and the French Court of Cassation) illustrate such a control of the application of the principle of proportionality in concreto. While national law is subject to an increasing impact of the case law of supranational courts, the legitimacy of such national court decisions is discussed also in the context of the transformations taking place in regard to the role of a judge.

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7 Immunity, 7.7 Entico Corporation Ltd v UNESCO , 18 March 2008, [2008] EWHC 531 (Comm), [2008] 2 All ER (Comm) 97

10.1093/law/9780198743620.003.0046 ◽

2016 ◽

Cited By ~ 25

Author(s):

Wickremasinghe Chanaka

Keyword(s):

Human Rights ◽

National Court ◽

Detailed Examination ◽

European Convention ◽

European Court ◽

Legal Context ◽

The Uk ◽

The Right ◽

Right Of Access ◽

The Relationship

Entico v UNESCO provides the most detailed examination to date by a court in the UK of the relationship between the immunity of an international organization, UNESCO, and the right of access to a court, as it is implied in the interpretation of art. 6 of the European Convention on Human Rights. It raises an interesting question about the applicability of the much-cited judgment of the European Court of Human Rights in Waite and Kennedy in the context of a UN Specialised Agency. The case teaches us that the huge variety of international organizations means that the extent of their immunities must be fashioned in the case of each organization to meet their particular functional needs. This suggests that the national court needs to approach generalizations with care, and a full appreciation of the international legal context that governs the organization in question.

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Position of the European Court on the Implementation of Decisions by National Courts in Latvia and in Finland which are in Legal Force

SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / SOCRATES. Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law ◽

10.25143/socr.06.2016.3.69-77 ◽

2016 ◽

Vol 3 (6) ◽

pp. 69-77

Author(s):

Vladimir Jilkine

Keyword(s):

Human Rights ◽

Comparative Study ◽

Supreme Court ◽

National Court ◽

Doctoral Degree ◽

European Convention ◽

Legal Scholar ◽

Legal Norms ◽

National Courts ◽

European Court

Legal scholar and practising lawyer from Finland Vladimir Jilkine, who recently defended his thesis with confidence, acquiring the doctoral degree in Law, in a comparative study describes European Court of Human Rights judgments and the conclusions on the implementation of national court rulings having come into force in Latvia and Finland. European Court of Human Rights judgements prove that both in Latvia, as well as in the country recognised for its democratic values, legal norm interpretations which are contrary to the international legal norms still exist. The Latvian Supreme Court and Finnish Republic Supreme Court jurisdiction state that the European Convention is recognised as essential and important legal instrument to be taken into account when dealing with specific cases. Tiesību zinātnieks un praktizējošs jurists no Somijas Vladimirs Žilkins, kurš nesen pārliecinoši aizstāvēja promocijas darbu, iegūstot tiesību zinātņu doktora grādu, salīdzinošā pētījumā apskata Eiropas Cilvēktiesību tiesas spriedumus un atziņas par spēkā stājušos nacionālo tiesu nolēmumu izpildi Latvijā un Somijā. Eiropas Cilvēktiesību tiesas spriedumi liecina, ka gan Latvijā, gan arī valstī ar atzītām demokrātiskām vērtībām – Somijā – ir tiesisko normu interpretācijas, kuras ir pretrunā ar starptautisko tiesisko regulējumu. Latvijas Republikas Augstākās tiesas un Somijas Republikas Augstākās tiesas judikatūra liecina, ka Eiropas Konvencija uzskatāma par būtisku un nozīmīgu juridisku instrumentu, kas jāņem vērā, izskatot konkrētās lietas.

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4. Negligence and strict liability

Criminal Law ◽

10.1093/he/9780198788676.003.0004 ◽

2017 ◽

Author(s):

Michael J. Allen ◽

Ian Edwards

Keyword(s):

Human Rights ◽

Criminal Liability ◽

Strict Liability ◽

European Convention ◽

The Law

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Should doctors who make clinical errors be charged with manslaughter? A survey of medical professionals and members of the public

Medicine Science and the Law ◽

10.1258/rsmmsl.48.4.317 ◽

2008 ◽

Vol 48 (4) ◽

pp. 317-324 ◽

Cited By ~ 2

Author(s):

Natasha Kay ◽

Alexis Green ◽

Sarah E. McDowell ◽

R.E. Ferner

Keyword(s):

Medical Errors ◽

Medical Error ◽

Real Life ◽

Medical Professionals ◽

The Public ◽

Independent Review ◽

Criminal Charges ◽

The Difference ◽

Individual Accountability

If a doctor is grossly negligent and the patient dies as a result, the doctor can be charged with manslaughter. We have investigated the difference in opinion between medical professionals and the public on whether doctors should face criminal charges following different fatal medical errors. We conducted a survey of 40 medical professionals and 40 members of public, using a set of questions about negligence and manslaughter relating to four real-life cases of doctors charged with manslaughter where eventual outcomes were known. Medical professionals and the public agreed that lessons could be learnt from all four cases and that an independent review of each case should be carried out. However, across all cases, the public were more likely to respond that the doctor should be charged with manslaughter (OR=2.1; 95% CI=1.3-3.2). The public and, to a lesser extent, medical professionals still hold individuals responsible following a death due to medical error. This has implications for those who advocate a systems-based approach for assessing the root causes of medical errors, where there is a limited focus on individual accountability.

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