AFFAIRE GARRIDO HERRERO c. ESPAGNE

• Judgment Date: 11 October 2022
• ECLI: ECLI:CE:ECHR:2022:1011JUD006101919
• Counsel: GARCÍA ESPINAR J.
• Date: 11 October 2022
• Application Number: 61019/19
• Court: Third Section (European Court of Human Rights)
• Respondent State: España
• Applied Rules: 2;2-1

THIRD SECTION

CASE OF GARRIDO HERRERO v. SPAIN

(Application no. 61019/19)

JUDGMENT

Art 2 (procedural) • Ineffective investigation into cause of applicant’s child’s death following alleged failure in ventilator sustaining life after road traffic accident • Criminal investigation excessively long and too narrow in scope • Failure to obtain necessary expert evidence

STRASBOURG

11 October 2022

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Garrido Herrero v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Georges Ravarani, President,

Georgios A. Serghides,

María Elósegui,

Anja Seibert-Fohr,

Peeter Roosma,

Frédéric Krenc,

Mikhail Lobov, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 61019/19) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms María Isabel Garrido Herrero (“the applicant”), on 12 November 2019;

the decision to give notice to the Spanish Government (“the Government”) of the complaints concerning Articles 2 and 6 of the Convention;

the parties’ observations;

Having deliberated in private on 13 September 2022,

Delivers the following judgment, which was adopted on that date:

THE FACTS

1. The applicant was born in 1960 and lives in Orihuela. She was represented by Mr J. García Espinar, a lawyer practising in Madrid.

2. The Government were represented by Mr A. Brezmes Martínez de Villarreal and Mr L. Vacas Chalfoun, Agents of the Kingdom of Spain to the European Court of Human Rights.

3. The facts of the case may be summarised as follows.

4. The applicant’s daughter was born on 29 July 2005. She was involved in a traffic accident in March 2010. She was initially admitted to the La Arrixaca de Murcia Hospital for three months, and was later transferred to the Guttmann Institute of Badalona. On 15 March 2011 she was discharged from the hospital and transferred to her home. As a result of the accident, the child was left in need of assisted ventilation (she was permanently connected to a ventilator to sustain life). After being discharged from hospital, she was assisted by the applicant, who was herself a doctor. The company that distributed and maintained the ventilator which was provided to the child (hereinafter, “the distributor” or “the company”), was also responsible for sending technicians to the applicant’s home, in order to service the ventilator and supply the necessary disposable medical equipment.

5. On 4 March 2012 the child fell into a coma following an alleged fault in her ventilator, which ultimately led to her death the following year (see paragraph 14 below). This resulted in the child having to be hospitalised again.

6. On 4 May 2012, following a diagnosis of the child’s brain death, the applicant requested a voluntary discharge from hospital and took the child home under her care.

7. On 19 July 2012, the manufacturer sent a notice (“Urgent Field Safety Notice”) where it informed the distributor that a malfunction could occur in the operation of that particular model of ventilators. That potential malfunction was related to the possible failure of a component called condenser C53. The possible malfunction of this component could result, according to the notice, in ventilator failure due to the ventilator’s inability to automatically switch from AC power to internal battery operation when the ventilator is disconnected from the electrical network or when there is a power failure during use. In that case, an audible alarm would sound for a minimum of 10 seconds. The ventilator would restart by connecting it to the mains or external battery. The manufacturer and the distributor had agreed in principle to replace all affected components of all the ventilators. Their technical repair solution implied a concrete plan for the delivery of the necessary spare parts which would be developed by the manufacturer, as the legally responsible company for the equipment, and the distributor would replace the affected components as a matter of urgency as soon as the new spare parts were received from the manufacturer. In addition, they committed to use stock equipment of the same model of the ventilator and without this problem in order to speed up the replacement as much as possible. According to the manufacturer, no failures had occurred so far for that reason but the company had nevertheless decided to take that preventive action to avoid any future failures due to this degradation of the condenser.

8. On 31 August 2012 the applicant lodged a criminal complaint for bodily harm caused by serious negligence against the distributor, against the manufacturer of the ventilator, and against their respective insurance companies. She considered that they were both responsible for the child’s condition because (i) the ventilator had not been appropriate for a child, since one of the...