FIRST SECTION

Application no. 55569/08 V.V.G. against the former Yugoslav Republic of Macedonia lodged on 6 November 2008

STATEMENT OF FACTS

The applicant, Ms V.V.G., is a Macedonian national, who was born in 1966 and lives in Skopje .

A. The circumstances of the case

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

1. Background of the case

On 27 August 2002 the applicant was admitted in the private hospital M.B. in Skopje (“the Hospital”) for an induced labour. On that day, she gave birth to her son with the assistance o f S.T.C., a gynaecologist. On 1 September 2002 the company S.M. from Skopje (a company which had capital control over the Hospital) issued a discharge notice according to which the applicant had been diagnosed as having suffered, as a result of the childbirth, from ruptura perinei gradus I (perineum rupture). The applicant received a general anaesthesia so that S.T.C. would sew the rupture.

On 6 December 2002 the applicant was admitted in the Hospital and diagnosed as suffering from ruptura perinei gradus II . She underwent a surgery recorded as perineoplastica . On 7 December 2002 she was discharged from the Hospital.

Between 6 and 10 February 2003 the applicant was admitted in Gynaecologist Clinic in Skopje where she underwent another surgery: colpoperineoplastica cum levatororraphia . At admission, she was diagnosed as suffering from ruptura perinea cicatricialis gradus II .

Between March and December 2003 the applicant was examined by several gynaecologists in various clinics in Skopje . Some noted that she suffered from prolapsed or descending uterus.

2. Criminal Proceedings against S.T.C.

On 21 January 2003 the applicant and her newborn son lodged with the public prosecutor a criminal complaint charging S.T.C. with serious crime against health and medical malpractice. The complainants alleged that S.T.C. had failed to do episiotomy and to prevent rapid delivery, which had led to rupture of skin and muscles. Furthermore, S.T.C. had failed to repair the rupture, despite the fact that general anaesthesia had been administered to the applicant for that purpose. S.T.C. had left the wound to heal spontaneously, increasing thus the risk of sepsis. Due to those omissions, the complainants had sustained serious bodily injuries, notably the applicant ’ s had descending genitals with an attending risk to prolapse. She had been further required to undergo a plastic surgery as a result of which she had suffered from depression. The newborn child had developed a big bulge on his head and had negative consequences over his breastfeeding reflexes.

On an unspecified date the public prosecutor had requested that an investigating judge of Skopje Court of First Instance (“the trial court”) open investigation concerning S.T.C. (who, in the meantime, had apparently changed her last name and became S.T.G.). In the course of the investigation, the investigating judge requested that the Forensic Institute ( Институт за судска медицина и криминалистика ) drew up an expert report as to whether standard childbirth procedures had been applied in the applicant ’ s case; whether wounds after delivery had been adequately treated and whether the plastic surgery that the applicant had underwent had been necessary. On 18 May 2004 the Forensic Institute drew up a report according to which ( 1) it was within the discretion of a gynaecologist, depending on the circumstances of each case, to perform episiotomy or not; ( 2) a general anaesthesia had been administered and the rupture caused after delivery had been sewed, and ( 3) the medical evidence had suggested that a fresh rupture of second degree had occurred, which had required further surgery. The latter had not been of corrective nature.

It appears that the investigating judge requested an alternative expert examination as to ( 1) whether the absence of episiotomy had caused head injuries on the baby and eventual genital prolapse regarding the applicant; ( 2) whether and if so, when, had occurred the genital prolapse, and (3) whether genital prolapse was health damaging. On 23 May 2005 the Forensic Institute drew up, on the basis of available medical evidence, an alternative expert report according to which ( 1) the baby had not sustained any head injuries nor had the applicant ’ s genitals prolapsed due to the absence of episiotomy; ( 2) there had been no evidence that the applicant had suffered from prolapsed genital while in the Hospital. The 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 descend or partial prolapse could cause minor health problems.

On 7 July 2006 the public prosecutor lodged an indictment with the trial court charging S.T.C. with serious crimes against health and medical malpractice punishable under sections 207 (3) and 217 (3) of the Criminal Code. The trial court fixed several hearings on which it heard oral evidence from the applicant, the accused, surgeons who had operated the applicant on 6 December 2002 and 6 February 2003 (see 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. According to the latter, it had been to the defendant ’ s discretion whether to do episiotomy. Furthermore, S.T.C. had timely and adequately repaired the rupture after the delivery.

On 28 March 2008 the trial court acquitted S.T.C. finding no evidence of a professional misconduct during and immediately after the applicant had given birth to her son on 27 August 2002. In view of that conclusion, the court considered irrelevant to establish whether the applicant ’ s health had seriously deteriorated, notably whether her genitals had prolapsed. In the absence of any evidence corroborating S.T.C. ’ s misconduct, there was no need to establish any causal link between eventual health problems of the applicant and the conduct of the accused.

The 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 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.

The applicant submitted copies of several submissions in which she complained before various domestic authorities of a lack of diligence in the proceedings and about the possibility that the prosecution of S.T.C. could become time-barred .

3. Compensation proceedings against the Hospital and the company S.M.

On 3 June 2003 the applicant and her newborn son lodged with the trial court a civil action seeking compensation of pecuniary and non-pecuniary loss sustained as a result of medical malpractice of S.T.C. On 14 October 2005 the applicant ’ s son withdrew from the case.

On 11 December 2006 the trial court stayed the proceedings pending the outcome of the criminal proceedings against S.T.C. On 12 November 2009 Skopje Court of Appeal confirmed that judgment rejecting the applicant ’ s arguments that the defendants ’ objective responsibility for the damage sustained had not depended on the courts ’ finding of criminal liability of S.T.C.

According to the applicant, she did not seek that the compensation proceedings continue alleging that medical experts would not testify against doctors, their colleagues.

B. Relevant domestic law

Under section 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. Section 108 (6) of the Criminal Code provides for absolute time-bar of prosecution which is twice the time-bar specified under law.

Section 207 (3) of the Criminal Code concerns medical malpractice and provides for a fine or imprisonment in case of medical negligence. Under section 217 (3) of the Code provides for a prison sentence between three months and three years when a person sustains serious bodily injuries or grave health deterioration due to medical negligence.

COMPLAINTS

The applicant complains under Article 3 of the Convention concerning medical and expert examinations to which she was subjected during the criminal proceedings against S.T.C. In this respect and also under Article 6, she complains about the inactivity and procedural delays attributable solely to the State authorities, as a result of which the prosecution became time-barred. That also affected her opportunity to obtain pecuniary compensation for the damage suffered. She also complains under Article 8 of the Convention since sensitive information regarding her private and family life was discussed in public.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, is the civil action of damages an effective remedy within the meaning of this provision in respect of the applicant ’ s allegations under Article 3 or 8 of the Convention that her health deteriorated severely due to medical negligence ? Can the applicant ’ s compensation claim against have any prospect of success given the outcome of the criminal proceedings against S.T.C. (see, mutatis mutandis , El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09 , § 261 , 13 December 2012 )?

2. Given the outcome of the criminal proceedings, does the final decision of the Skopje Court of Appeal of 3 September 2008 disclose a failure to protect the applicant ’ s right to respect for her private and family life, and therefore a breach of the respondent State ’ s positive obligations under Article 8 of the Convention? In the same context and h aving regard to the procedural protection from inhuman or degrading treatment ( Labita v. Italy [GC], no. 26772/95, § 131 , ECHR 2000 ‑ IV ), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?