FIRST SECTION

DECISION

Application no . 55569/08 V.V.G . against the former Yugoslav Republic of Macedonia

The European Court of Human Rights ( First Section ), sitting on 20 January 2015 as a Chamber composed of:

Isabelle Berro , President , Elisabeth Steiner , Paulo Pinto de Albuquerque , Linos-Alexandre Sicilianos , Erik Møse , Ksenija Turković , Dmitry Dedov , judges, and Søren Nielsen , Section Registrar ,

Mirjana Lazarova Trajkovska , the judge elected in respect of the former Yugoslav Republic of Macedonia, was unable to sit in the case (Rule 28). On 12 September 2014 the President of the Chamber decided to appoint Elisabeth Steiner to sit as an ad hoc judge (Rule 29).

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 is a Macedonian national, who was born in 1966 and lives in Skopje . The President authorised , of her own motion, the non-disclosure of the applicant ’ s identity (Rule 47 § 3 of the Rules of Court).

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1 . Background to the case

4. On 27 August 2002 the applicant was admitted in a private hospital M.B. in Skopje (“the h ospital”) for an induced labour. On that day, she gave birth to her son with the assistance of doctor S.T.C . According to a discharge notice dated 1 September 2002 issued by company S.M. (a company which ran the h ospital) , the applicant had been diagnosed as having suffered, as a result of the childbirth, from ruptura perinei gradus I ( perineal tear ). The applicant received a general anaesthe tic so that doctor S.T.C. c ould repair the tear .

5. On 6 December 2002 the applicant was examined in the h ospital and diagnosed as suffering from ruptura perinei gradus II . She underwent surgery recorded as perineoplastica . On 7 December 2002 she was discharged from the h ospital. The discharge notice was signed by doctors S.T.C. and B.

6. Between 6 and 10 February 2003 the applicant was a patient in a gynaecological hospital in Skopje , where she had further surgery: colpoperineoplastica cum levatororraphia carried out by doctor N. On admission she was diagnosed as suffering from ruptura perinea cicatricialis gradus II .

7. Between March and December 2003 the applicant was examined in several hospitals in Skopje. Some noted that she was suffer ing from a prolapsed or descending uterus.

2 . Criminal p roceedings against doctor S.T.C.

8. On 21 January 2003 the applicant and her new - born son lodged a criminal complaint with the public prosecutor, accusing doctor S.T.C. of a serious offence against health and medical malpractice (see paragraphs 20 and 21 below) . The y alleged that doctor S.T.C. had failed to carry out an episiotomy and prevent rapid delivery, which had led to rupture of skin and muscles. Furthermore, doctor S.T.C. had failed to repair the damaged tissues , despite the fact that a general anaesthe tic had been administered to the applicant for that purpose. Doctor S.T.C. had left the wound to heal spontaneously, increasing the risk of sepsis. Because of those errors the complainants had sustained serious bodily injuries : notably the applicant had descending organs with an attend ant risk of prolapse. She had further been required to undergo plastic surgery , as a result of which she had been suffer ing from depression. The newborn child had acquired a large bulge on his head , and this had had negative consequences over his breastfeeding reflexes.

9. On 28 May 2003 the public prosecutor requested that an investigating judge of Skopje Court of First Instance (“the trial court”) take certain measures regarding the applicant ’ s criminal complaint . On 1 September 2003 the investigating judge requested that the Forensic Institute ( Институт за судска медицина и криминалистика ) dr a w up an expert report on whether standard childbirth procedures had been applied in the applicant ’ s case; whether wounds after delivery had been correctly treated , and whether the plastic surgery had been necessary. She further interviewed the applicant, doctors S.T.C. and B.

10. On 18 May 2004 the Forensic Institute drew up a report which stated ( 1) it was at the discretion of the doctor , depending on the circumstances of each case, whether to carry out an episiotomy; ( 2) a general anaesthe tic had been administered and the rupture caused after delivery had been repaired , and ( 3) the medical evidence suggested that a fresh rupture of a second degree had occurred, which had required further surgery. The latter had not been of a corrective nature. At the request of the public prosecutor, on 23 May 2005 the Forensic Institute drew up, on the basis of available medical evidence, an additional expert report according to which (1) there was no evidence that failure to carry out an episiotomy had caused prolapsed organs or that the baby had sustained any head injuries ; (2) t he subsequent medical treatment of the applicant had produced inconsistent evidence in this respect. In any event, any genital prolapse had occurred later; and ( 3) genital descen t or partial prolapse could cause minor health problems.

11. During the investigation, the applicant contacted the public prosecutor on several occasions to provide additional evidence and relevant literature in support of her complaint.

12. On 7 July 2006 the public prosecutor lodged an indictment with the trial court charging doctor S.T.C. with serious offences against health and medical malpractice punishable under Articles 207 § 3 and 217 § 3 of the Criminal Code (see paragraphs 20 and 21 below) . The trial court held several hearings , at which it heard oral evidence from the applicant, the accused, and doctors B. and N. (see paragraphs 5 and 6 above), as well as the expert who had signed the expert reports of the Forensic Institute. It also requested a third expert opinion, which the Forensic Institute drew up on 8 January 2008. T h at report stated that it had been at the defendant ’ s discretion whether to carry out an episiotomy. Furthermore, the available evidence indicated that doctor S.T.C. had promptly and adequately repaired the rupture after the delivery.

13. On 28 March 2008 the trial court acquitted doctor S.T.C. , finding no evidence of professional misconduct at the time the applicant gave birth to her son on 27 August 2002 or immediately afterwards . In view of that conclusion, the court considered it irrelevant to establish whether the applicant ’ s health had seriously deteriorated, notably whether she had genital prolapse. In the absence of any evidence of misconduct on the part of doctor S.T.C. , there was no need to establish any causal link between any of the applicant ’ s health problems and the conduct of the accused.

14. On 14 May 2008 t he public prosecutor appealed. At a public hearing held on 3 September 2008 Skopje Court of Appeal overturned the trial court ’ s judgment and dismissed the indictment against doctor S.T.C. ( се одбива обвинението ) finding that the absolute time-bar of six years (calculated from the date of commission of the alleged crime) had expired.

3 . Compensation (civil) proceedings against the h ospital and the company S.M.

15. On an unspecified date, insolvency proceedings were opened against the company S.M. In the course of those proceedings, on 23 January 2003 the applicant and her son sought recognition of their compensation claim regarding the alleged medical malpractice of doctor S.T.C. On 14 May 2003 an insolvency trustee ( стечаен управник ) disputed the claim and advised the claimants to pursue it by means of a separate civil action.

16. On 3 June 2003 the applicant and her son instituted separate civil proceedings before the Skopje Court of First Instance in which they claimed, under section 55 of the Medical Protection Act and section 157 of the Obligations Act (see paragraphs 24 and 25 below), compensation from the h ospital and the company S.M. in respect of the alleged damage sustained during the birth on 27 August 2002. On 14 October 2005 the applicant ’ s son withdrew from the case. During the hearing before the civil court, the applicant argued, inter alia , that the defendants should be held objectively responsible for the damage sustained and that the criminal proceedings against doctor S.T.C. had no bearing on the outcome of the civil proceedings. Those proceedings (criminal) could only be relevant for the defendants ’ right to claim reimbursement of the compensation awarded for doctor S.T.C. ’ s negligence (see paragraph 26 below).

17. O n 11 December 2006 the Skopje Court of First Instance, sitting as a civil court, relying on sections 11(3) and 201(2) of the Civil Proceedings Act 2005 (see paragraphs 27 and 28 below) stayed the proceedings pending the outcome of the criminal proceedings against doctor S.T.C. On 15 March 2007 t he applicant appealed against this judgment, reiterating that the defendants ’ objective responsibility for the damage sustained had not depended on the courts ’ finding of criminal liability on the part of doctor S.T.C. Furthermore, she alleged that section 11(3) of the Civil Proceedings Act had been inapplicable to her case, given the fact that the civil and criminal proceedings concerned different defendants. On 12 November 2009 Skopj e Court of Appeal confirmed the lower court ’ s judgment , reiterating that the finding of criminal liability on the part of doctor S.T.C. was a preliminary issue ( претходно прашање ) relevant for the outcome of the civil case.

18. T he applicant did not seek resumption of the compensation proceedings , since, according to her, that would offer no prospect of success. In this connection she submitted copies of documents regarding organisational, capital and other changes in the company S.M. that happened over the years.

B. Relevant domestic law and practice

1. Criminal Code

19 . Under Article 107 § 5 of the Criminal Code , prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed. Article 108 § 6 of the Criminal Code provides for an absolute time-bar o n prosecution s which is twice the time-bar specified under law.

20. Article 207 §§ 1 and 2 of the Criminal Code concern medical malpractice ( несовесно лекување болни ) and provide for a fine or a maximum prison sentence of three years in case of medical negligence. In case of unintentional medical negligence, the law provides for a fine or a prison sentence of a maximum of one year (sub-paragraph 3).

21. Article 217 § 3 of the Code concerns serious offences against health ( тешки дела против здравјето на луѓето ) and provides for a prison sentence of between three months and three years in case of serious bodily harm or grave deterioration of the health due to medical negligence (in relation to Article 207 § 3) .

2. Criminal Proceedings Act 1997

22. Section 101 provided that the (criminal) court was responsible for deciding on a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation (section 101(2)).

23. In case of an acquittal or dismissal of the prosecution, if the proceedings were stayed or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)).

3. Medical Protection Act (consolidated version of 1997)

24. Section 55 provided for compensation for damage sustained due to errors or medical malpractice in accordance with tort rules.

4. Obligations Act 2001

25. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently.

26. Section 189 provides for the right to claim just satisfaction in respect of physical or mental pain; disfigurement; damage to reputation , honour , rights and freedoms; and fear.

5. Civil Proceedings Act 2005

27. Under section 11 (3) of the Civil Proceedings Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict ’ s criminal liability.

28. Under section 201(2), a civil court may stay proceedings if the decision depended on whether a n offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty.

29. If the proceedings are stayed for the reasons specified in section 201(1) and (2) of this Act, the proceedings will resume after final conclusion of the proceedings whose the outcome was relevant for the civil proceedings, or if the court finds no reasons to await their termination (section 203(3)).

6. Relevant domestic practice

31. Lastly, they provided a copy of a final judgment in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant ’ s action for damages ( П1.бр.5466/10 ).

COMPLAINTS

32. The applicant complained that due to the ineffectiveness of the domestic proceedings, she had not been able to prove the guilt of the defendant in the criminal proceedings and to obtain monetary award for the damage suffered due to the alleged medical negligence.

33. She also complained of a violation of her right to respect for her private life since sensitive information regarding her private and family life was discussed in public in the domestic proceedings.

34. The applicant complained finally of the medical and expert examinations to which she had been subjected during the criminal proceedings .

35. The applicant invoked Article s 3, 6 and 8 of the Convention .

THE LAW

36. The applicant complained of the ineffectiveness of the domestic proceedings to establish the relevant facts of the case and provide redress. The Court, being master of the characterisation to be given in law to the facts of the case, considers that , rather than regarding this as an issue of exhausting domestic remedies as suggested by the Government, this complaint is to be examined in view of the State ’ s obligation to provide the applicant with an effective remedy to protect her rights under Article 8 of the Convention (see Spyra and Kranczkowski v. Poland , no. 19764/07, § 67, 25 September 2012; and the references cited therein) , 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.”

A. The parties ’ submissions

37. The Government objected that the applicant had not exhausted all effective remedies. In particular, s he had not requested that the compensation proceedings resume a fter the criminal proceedings against doctor S.T.C. had ended, notwithstanding that the law provided for such an opportunity . Whereas the law provided for two avenues of redress, criminal and civil , the latter was the more appropriate remedy for an alleged violation of someone ’ s physical integrity owing to a medical error. That was confirmed by the domestic practice according to which the protection of someone ’ s rights under Article 8 of the Convention was ensured in compensation proceedings before civil courts (see paragraph 30 above). That jurisprudence further confirmed that the outcome of compensation proceedings had not depended on the outcome of criminal proceedings (see paragraph 31 above).

38. The applicant contested the Government ’ s objection. She accepted that the finding of guilt in criminal proceedings, in principle, was not indispensable for compensation to be awarded in civil proceedings. However, in the present case, the trial court had stayed the compensation proceedings despite the fact that she had challenged the applicability of section 11(3) of the Civil Proceedings Act to her case (see paragraph 16 above) . Given the outcome of the criminal proceedings, she had been prevented from obtaining any compensation from the hospital. While the impugned proceedings were pending, company S.M. had been the subject of several sets of insolvency proceedings. Furthermore, there had been organisational and capital changes that had led to the creation of new companies, which could not be held responsible for the damage to her health. Company S.M. was no longer in existence, and a ccordingly she was unable to obtain any compensation.

39. She further submitted that the domestic practice concerned compensation claims against public hospitals, unlike private hospitals, as in the present case. The case П1.бр.5466/10 to which the Government referred (see paragraph 31 above) was of no relevance, since it concerned allegations of defamation, which was subject to private prosecution, unlike “serious offences against health”, as in her case, which were prosecutable ex officio by the State.

B. The Court ’ s assessment

40 . The Court has held, in connection with the right to life enshrined in Article 2, that the positive obligations of States in the field of medical care require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession , whether in the public or the private sector, is determined and those responsible are held accountable. There has to be an adequate procedural response on the part of the State to any alleged infringement of the right to life (see Bajić v. Croatia , no. 41108/10, §§ 88 and 89, 13 November 2 012 ). These principles are undoubtedly also applicable in the same context to an interference with the right to physical integrity , as in the present case, that fall s within the scope of Article 8 of the Convention (see Trocel l ier v. France , no. 75725/01, 5 October 2006).

42. The Court notes that , as submitted b y the Government (see paragraph 34 ab ove), domestic legislation concerning medical negligence provides two avenues of redress, criminal and civil. The criminal avenue of redress concern s criminal charges that can be brought against the physician responsible under Articles 207 and 217 of the Criminal Code (see paragraphs 20 and 21 above). The civil avenue of redress concern s a civil action for damages, which can be pursued in the civil courts (see paragraphs 24-36 above). Both avenues may be used either alone or in conjunction with each other. The law also provide s for the simultaneous use of both remedies.

44. As to the civil avenue of redress, the Court notes that in separate civil proceedings the applicant claimed, almost simultaneously with the criminal proceedings, compensation from the hospital and company S.M., the employers of doctor S.T.C. On 11 December 2006 the civil court of first instance stayed the proceedings in order to wait for the outcome of the criminal proceedings against doctor S.T.C. This ruling was finally upheld on appeal, with a judgment that the Skopje Court of Appeal delivered on 12 November 2009. Notwithstanding its limited jurisdiction as to the interpretation and application of domestic law (see E d ificaciones March Gallego S.A. v. Spain , 19 February 1998, § 33, Reports of Judgments and Decisions 1998-I ), the Court considers that such a decision had a statutory basis in section 201(2) of the Civil Proceedings Act 2005 (see paragraph 28 above).

45 . It is not disputed between the parties that it was open to the applicant to seek resumption of the civil proceedings. The Court also considers that the applicant could avail herself of such a request as soon as the decision with which the criminal proceedings had been stayed became final. Such an opportunity had a basis in section 203(3) of the Civil Proceedings Act 2005 (see paragraph 29 above). That the criminal proceedings ended with no decision on the merits did not imply that the civil proceedings, if resumed, would have been ineffective, i.e. that they could not provide the applicant with redress for the alleged violation of her right to physical integrity. The domestic jurisprudence confirms that victims of medical malpractice are awarded monetary redress in the absence of any criminal proceedings against responsible doctors and in cases where the criminal proceedings were terminated (see paragraphs 30 and 31 above). That the defendants in the compensation proceedings were privately-owned companies is of no relevance. Furthermore, the Court cannot speculate whether, and if so, how, the organisational and capital changes on the part of the defendants in the compensation proceedings (see paragraph 34 above) would affect the outcome of these proceedings had the applicant sought that they were resumed. In this connection the Court notes that the existence of mere doubts as to the prospects of success of that remedy (see paragraph 18 above) was not a valid reason for failing to exhaust it (see Csoma v . Romania , no. 8759/05, § 59, 15 January 2013).

47. The applicant also complained of a violation of her right to respect for her private life in that sensitive information concerning her was discussed during the domestic proceedings.

48. In respect of this part of the application, the Court notes that the applicant did not at any stage of the domestic proceedings raise this issue nor did she seek exclusion of the public from the court proceedings. In such circumstances, the Court finds that the applicant did not exhaust the possibilities open to her under domestic law and that therefore this part of the application should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

49 . T he applicant finally complained under Article 3 of the Convention that the medical and expert examinations to which she had been subjected during the criminal proceedings against doctor S.T.C. amounted to treatment contrary to this provision, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

50. Whereas t he Court cannot exclude that such medical examinations arose negative feelings on the part of the applicant , it does not consider that they attained the minimum level of severity required under this Article .

51. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 12 February 2015 .

Søren Nielsen Isabelle Berro Registrar President