Last Updated on June 27, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 27860/07
YevgeniyaGennadiyevna ISMAYILOVA
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 26 June 2018 as a Committee composed of:
Erik Møse, President,
Síofra O’Leary,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 June 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms YevgeniyaGennadiyevnaIsmayilova, is an Azerbaijani national, who was born in 1957 and lives in Montreal.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. According to the applicant, in 1987, prior to the events giving rise to the present application, she had been diagnosed as having a cyst on the right ovary. She had undergone surgery to excise the ovary and the cyst and to have a resection of her left ovary.
5. On 17 October 2003 the applicant was examined by a gynaecological surgeon, Dr A., of the Central Clinical Hospital (MərkəziKlinikXəstəxana – hereinafter “the MKX”) and was diagnosed as having a large cyst on the left ovary measuring 11 cm. Dr A. advised the applicant that the cyst and the ovary had to be completely removed as soon as possible in order to avoid complications. In addition, Dr A. stated that a hysterectomy (surgical removal of the uterus) was also necessary and inevitable.
6. On 20 October 2003 the applicant was admitted to the MKX for surgery. The procedure was carried out on 21 October 2003. Dr A. informed the applicant afterwards that owing to complications arising from the adhesion of her uterus to her intestines, it had been impossible to remove the uterus. However, she assured her that after the removal of the only remaining ovary, the uterus, which was in any event of a very small size, would stop functioning. Subsequently, the applicant signed a release form stating that she had agreed to the risks and possible harmful outcome involved.
7. The applicant stayed in hospital for four days and received post-surgical treatment under the supervision of Dr A.
8. Upon her discharge from hospital on 26 October 2003, the applicant was given discharge papers signed by Dr A. and the deputy head physician of the Central Clinical Hospital, Dr N. The discharge documents stated that the applicant had undergone a “left-sided cyst-ovariectomy” on 21 October 2003.
9. About three months later, in February 2004, the applicant experienced flooding of the uterus (profuse bleeding), despite the fact that she had been going through the menopause for more than a year. She contacted Dr A., who was then working at the L. Shikhlinskaya Clinic, and she had an ultrasound examination there. According to the applicant, the examination showed that her left ovary had not been removed. Dr A. then revealed to the applicant that contrary to what had been agreed, she had not performed the operation on 21 October 2003. Instead, another surgeon, Dr N., had been assigned the task by the management of the MKX at the last minute.
10. On 14 June 2004 the applicant, represented by counsel, brought an action with the Sabail District Court (Səbail Rayon Məhkəməsi) against the MKX, claiming compensation in respect of pecuniary and non-pecuniary damage caused by medical negligence. In particular, she complained that despite being led to believe that she would be operated on by Dr A., who had been familiar with her condition, the operation had been performed by another doctor whom she had not known and who had not treated her before, and that this information had not been disclosed to her. Moreover, she argued that although the purpose of the surgery performed on 21 October 2003 had been to remove both the cyst and the left ovary (her right ovary had been completely removed at an earlier stage), the ovary had not been removed for unexplained reasons. The failure to remove the left ovary had led to deterioration in her state of health, profuse uterine bleeding and problems with her thyroid gland. The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage and 300,000,000 old Azerbaijani manats (AZM – approximately 51,000 euros (EUR) at the time) in respect of non‑pecuniary damage.
11. While her claim was pending before the Sabail District Court, the applicant went for magnetic resonance imaging (MRI) and ultrasound scans at various medical establishments in order to collect medical evidence in support of her claim. According to the applicant, the relevant medical reports, proving that her left ovary had not been removed, were duly submitted to the court.
12. After accepting requests from the applicant’s counsel and the MKX’s representative, the Sabail District Court decided on 24 August 2004 to obtain an expert opinion. The expert was requested to reply to a long list of questions concerning the applicant’s claim. The expert was also requested to conduct an ultrasound assessment of the condition and size of the applicant’s internal reproductive organs.
13. The expert opinion, dated 15 October 2004, confirmed, inter alia, that the uterine bleeding might be caused by other factors, namely hormonal problems and that an operation on ovarian cysts increased the risk of thyroid diseases. However, the expert provisionally stated that the answers provided were outside the range of knowledge that an ordinary doctor specializing in diagnostics would have.
14. On application by the applicant’s lawyer, the Sabail District Court decided on 13 December 2005 to obtain a further expert opinion. A commission was ordered to assess all the evidence provided by the applicant and to reply to an amended list of questions clarifying the previous expert’s findings.
15. A panel of experts at the Forensic Medical Expertise and Pathologic Anatomy Department of the Ministry of Health concluded, inter alia, that an examination of an MRI scan showed that a diminished left ovary could be understood as being a partial resection of the ovary or as a residual stump remaining after surgery. A laparoscopic biopsy was recommended in order to define more precisely the morphological structure of the image that had been obtained. The panel concluded that it was not possible to say whether the applicant’s left ovary had been fully or only partially removed during surgery; that there was no reported evidence that a small amount of fluid appearing at the same projection where the ovary had been taken out might cause thyroid gland dysfunction; and that uterine bleeding could be caused by a disease of the walls of the uterus.
16. The experts’ opinion was based upon the evidence submitted by the applicant to the Sabail District Court (see para. 10 above) and a re-examination of the MRI scan of 19 April 2005.
17. On 18 January 2006 the District Court dismissed the applicant’s claims following an oral hearing. The court found that the applicant had failed to prove beyond a reasonable doubt that the alleged failure to remove her left ovary had caused hormonal disorders leading to the various negative consequences defined in her claim.
18. In its reasoning, the court considered that the applicant had been informed about the reasons, possible risks, dangers and potential harmful consequences of the surgical procedure in question. By signing a release form, she had accepted the possible negative consequences of the proposed treatment by the doctors and service personnel of the MKX. The court further considered that the applicant had failed to present any evidence showing that she had only consented to surgery on the condition that it be performed by Dr A., meaning any surgeon at MKX had been able to carry out the operation, including the one who had actually performed the task. Having regard to the opinion prepared by the panel of experts, the court also considered that the experts had not confirmed that the applicant’s left ovary was still in place. It also found that the report did not support the applicant’s claims concerning the negative impact of a lack of hormonal balance and a poorly functioning ovary on her eyesight, the development of cataracts and her thyroid function.
19. On 27 February 2006 the applicant lodged an appeal against the decision of the first-instance court. The applicant argued that the MKX had failed to fulfill its contractual obligation to remove both ovaries, consequently violating her consumer rights. Moreover, she had only consented to surgery on the condition that it be performed by Dr A., but it had been carried out by a different surgeon, which had then led to a poor level of medical service and damage to her health.
20. On 13 June 2006 the Baku Court of Appeal (BakıApellyasiyaMəhkəməsi) dismissed the applicant’s appeal. The court found that the applicant had failed to submit enough evidence to prove her allegations that failure by the MKX to provide her a sufficient level of treatment had resulted in damage to her health. The first-instance court’s examination of the evidence had not found an immediate causal link between the treatment she had been given and the damage she had claimed.
21. On 6 September 2006 the applicant lodged a cassation appeal against the decision of the Baku Court of Appeal. The applicant reiterated her previous submissions and further argued that the appellate court had failed to properly examine the evidence.
22. On 7 November 2006 the Supreme Court (Ali Məhkəmə) dismissed the cassation appeal and upheld the appeal court’s decision. It found that the documents in the case file showed that the applicant had signed a written consent form, whereby she had acknowledged that the reason for further treatment and surgery had been explained to her and that she had agreed to the risks and possible harmful outcome involved. Furthermore, the written consent had no clause stating that only Dr A. could perform the operation. The court further found that the expert panel’s opinion had noted that the MRI report did not state unequivocally that the applicant’s left ovary was in place and observed that an image at the place of the left ovary could be understood as being a partial projection of the ovary or a residual stump remaining after surgery. In addition, uterine bleeding could be caused by a disease of the walls of the uterus. The court also considered that the panel of experts had not confirmed the applicant’s allegations that her eyesight disorders, cataract problems and malfunctioning thyroid glands might have been caused by a lack of hormonal balance and a poorly functioning ovary resulting from the fact that her left ovary had not been taken out or a residual stump had formed in its place.
B. Relevant domestic law
23. The relevant provisions of the Code of Civil Procedure (AzərbaycanRespublikasınınMülki-ProsessualMəcəlləsi – hereinafter the “CCiP”), adopted on 28 December 1999 and published in the Official Gazette (AzərbaycanRespublikasınınqanunvericiliktoplusu), 2000, No. 1, Article 17, provided as follows:
Article 53
Changing a claim
“Claimants shall have the right to change the grounds of a claim or its subject, to extend or to reduce the scope of a claim until a judgment has been delivered by the court.”
Article 77
Obligation of proof
“1. Each party [to the proceedings] shall prove the circumstances underlying his [or her] claims or objections.
…”
Article 78
Presentation of and request for evidence
“1. Evidence shall be presented by the parties [to the proceedings] to the court of first instance.
…”
Article 97
Appointment of experts by the court
“1. During proceedings a court on its own initiative or at the request of a party [to the proceedings] may appoint an expert in order to explain questions requiring special knowledge.
…”
Article 217
Lawfulness and reasonableness of judgments
“1. The court (judge) shall provide reasons for its (his or her) judgment only with reference to evidence examined during the proceedings.
…”
Article 218
Issues to be decided upon when delivering a judgment
…
“3. The judge shall deliver a judgment only with regard to the claims lodged by the parties to the proceedings.
…”
COMPLAINTS
24. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had failed to properly assess available evidence and delivered judgments that lacked proper reasoning.
25. She further complained that the length of the proceedings in the first-instance court had affected the fairness of her trial.
26. The applicant also complained that although she was not fluent in the Azerbaijani language, the domestic courts had not provided her with an interpreter.
THE LAW
A. Assessment of the evidence and the reasonableness of the judgment
27. The applicant complained that the domestic courts had failed to take into account the vast amount of medical evidence that she had produced in support of her claim, which had resulted in the delivery of a judgment that did not have proper reasoning. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal …”
1. The parties’ arguments
(a) The Government
28. The Government submitted that the domestic courts had examined all the evidence provided by the applicant and the opinion of the expert panel, which had been obtained at the request of the applicant’s lawyer, and were in a better position to assess the evidence and to decide whether it had been sufficient for the delivery of the judgment. The Government also submitted that the national legislation had allowed the applicant herself to obtain the laparoscopic biopsy recommended by the panel of experts and submit it to the court.
(b) The applicant
29. The applicant maintained her complaint, arguing that the panel of experts had only recommended a biopsy but had not suggested she have one at their establishment and had not given her referral to another medical establishment.
2. The Court’s assessment
(a) General principles
30. In so far as the applicant’s complaint may be understood to concern the assessment of evidence and the result of the proceedings before the domestic courts, the Court refers to the principles summarised and refined in the Grand Chamber judgment of 5 February 2015 in Bochan v. Ukraine (No. 2) (Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).
(b) Application to the present case
31. The material in the Court’s possession reveals that the applicant’s action encompassed a claim for compensation. Notably, she sought damages for the deterioration in her health resulting from the alleged wrong treatment and an award in respect of non-pecuniary damage (see paragraph 10 above). The Sabail District Court ordered an expert opinion to assess the medical evidence submitted by the applicant and then concluded that the panel of experts had clearly denied a causal link between alleged malpractice and the alleged health issues. In that regard, the District Court considered two points, namely, the lack of a clear finding that the applicant’s treatment had been wrong and the exclusion of the possibility that particular health issues had resulted from the alleged failings in the treatment. The Court of Appeal endorsed the second aspect of the District Court’s reasoning and concluded that the applicant had failed to prove that she had suffered the alleged deterioration in her health as a consequence of the alleged failings in the treatment. That decision was upheld by the Supreme Court.
32. The Court observes that the applicant complained of the domestic courts’ alleged failure to examine the extensive evidence she had submitted and of arbitrary findings as regards her claims for compensation. It will proceed to examine the issues raised by the applicant.
33. Bearing in mind the complexity of assessing the medical evidence submitted by the applicant, the Court finds that the District Court rightly decided to obtain an expert medical opinion on the list of questions it drew up.
34. Being aware of its limited power to interpret national law, the Court observes, nevertheless, that under the domestic civil procedural rules the courts have limited authority to conduct an independent investigation. They are bound to deliver decisions only in respect of claims actually brought and it is the duty of claimants to provide the courts with the evidence needed to prove their claims. On the other hand, claimants have a right to expand or reduce the scope of their original claim following the acquisition of new evidence during the proceedings (see paragraph 23 above).
35. The Court notes in that regard that the first expert opinion and that of the panel were obtained at the request of the applicant’s lawyer. The burden was then on the applicant to provide or seek further evidence or to modify her claim to suit the findings of the opinions. In the absence of any procedural steps by the applicant following the delivery of the panel’s opinion, the Court sees no reason to conclude that the domestic courts should have sought further examination of the evidence.
36. Likewise, sufficient reasoning was provided by the domestic courts with regard to the applicant’s allegations that her operation should have been performed by one doctor in particular.
37. In view of the above-mentioned considerations, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of the proceedings she was able to submit the arguments and requests she considered relevant to her case. The evaluation of the evidence submitted by the applicant by way of obtaining medical opinions and the further assessment by the first-instance court was reasonable; the first-instance court set out its factual and legal reasons for dismissing her claim, albeit not at length. The judgments at the appeal and cassation stages endorsed the statement of facts and legal reasoning set out in the judgment at first instance. The applicant may not therefore validly argue that that judgment lacked reasons.
(c) Conclusion
38. Having regard to the foregoing and the documents in the case file, the Court does not find anything arbitrary in the domestic court’s decisions rejecting the applicant’s claim on the grounds that she had failed to sufficiently establish a causal link between the alleged inadequate treatment and alleged resulting damage to health. It therefore considers that this complaint must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Length of proceedings
39. The applicant complained that the length of the proceedings in the first-instance court, which had begun on 14 June 2004 and ended on 18 January 2006, had affected the fairness of her trial. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing within a reasonable time … by [a] … tribunal …”
1. The parties’ arguments
(a) The Government
40. The Government submitted that the applicant could have raised the “reasonable time” issue in her application to the Court of Appeal or the Supreme Court. For that reason, the complaint was inadmissible for non-exhaustion of domestic remedies.
(b) The applicant
41. The applicant contested the Government’s objection and reiterated her complaint. In particular, she argued that she had submitted a complaint regarding the length of the proceedings at the first-instance court to the Office of the President of Azerbaijan. Receiving no response to her complaint, she had felt frustrated and had not applied to the higher domestic courts.
2. The Court’s assessment
42. The Court holds that it is not necessary to decide whether the applicant can be considered to have exhausted domestic remedies or whether there existed such special circumstances in the present case which would dispense her from the obligation to pursue further remedies in domestic law, as the complaint is anyway inadmissible for another reason.
43. The Court observes that the period under consideration in the present case started on 14 June 2004 and ended on 18 January 2006, and lasted approximately one year and seven months.
44. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 209, ECHR 2017 (extracts)).
45. As regards the nature of the case, the Court observes that it was of a certain complexity, given that the determination of the claim involved the need to obtain several expert opinions.
46. As regards the conduct of the applicant, the Court observes that the second expert opinion had been sought by the first-instance court in response to the applicant’s request to order an examination of the extended list of questions and additionally submitted evidence by the panel of experts.
47. As regards the conduct of the judicial authorities, the Court observes that during the period under consideration, the first-instance court examined the case file regularly and there was no inordinate delay in the proceedings in connection with the taking of expert opinions. Consequently, the Court considers that the authorities displayed due diligence in handling the applicant’s case.
48. It follows that that this complaint must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Failure to provide the applicant with the assistance of an interpreter
49. The applicant also complained that despite the fact that she was of Russian ethnic origin and was not fluent in the Azerbaijani language, she had not been provided with an interpreter during the court proceedings, which had been conducted in the official language of the State. She relied on Article 6 § 1 of the Convention.
1. The parties’ arguments
(a) The Government
50. The Government submitted that the applicant had been represented by a practising lawyer who was a native speaker and that she had never requested that the domestic courts appoint an interpreter for her.
(b) The applicant
51. The applicant contested the Government’s objection and contended that she had requested an interpreter during the first-instance proceedings: her request had been dismissed on the grounds that such a service was only provided to foreign citizens whereas nationals were obliged to know the country’s official language.
2. The Court’s assessment
52. The Court observes at the outset that the applicant has not provided any convincing evidence that she applied to the domestic courts in order to determine her need for an interpreter. The Court further notes that she failed to submit concrete evidence dispensing her from the obligation to apply to the appropriate domestic body, at least in substance, before her complaint was made subsequently to this Court. In addition, the Court takes into consideration the fact that the applicant had legal representation.
53. It follows that that this complaint must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Claudia Westerdiek Erik Møse
Registrar President
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