SEPARATE OPINION OF JUDGE KALAYDJIEVA

The present case concerns the particularly sensitive issue of whether or not there is a professional duty incumbent on medical doctors to inform patients about the potential (but not necessarily real and specific) risks which contemporary medicine is capable of identifying. Whether this duty is a matter of medical ethics as such or of positive legal obligations is an issue under current debate.

In the present case I voted with the majority in finding a violation of the applicant ’ s rights under Article 8 of the Convention, but only in so far as the national law clearly imposed a positive obligation on the doctors to inform the applicant on the availability of a test which could have given her an opportunity to opt for further examination of the risks involved in her pregnancy and ultimately to exercise her autonomous free will as to whether to discontinue it, on the basis of the results obtained. In so far as such a positive obligation existed, it corresponded to a right for the applicant to obtain the relevant information in time.

The issue in the present case is whether the exercise of this right was accompanied by sufficient safeguards. In this regard I agree with the majority that the domestic courts failed to address the applicant ’ s complaint alleging a failure by the authorities to meet their positive obligations, which was clearly reflected in the disciplinary sanction imposed. Nevertheless, the manner in which this complaint was examined was accompanied by a number of procedural inconsistencies, and appears to have remained outside the scope of the domestic courts ’ scrutiny.

My doubts concern the question of whether the identified shortcomings fell to be more appropriately examined in terms of their compatibility with Article 6 of the Convention, which guarantees to everyone a right to “determination of his civil rights and obligations ... by an independent and impartial tribunal”.

DISSENTING OPINION OF JUDGE MAHONEY

1. I regret that I have not been able to vote with my colleagues in favour of a violation of Article 8 in its procedural aspect. This is because I consider that the approach taken by the majority in evaluating the procedural treatment of the applicant ’ s case by the national courts, notably the latter ’ s assessment of the evidence, amounts to making this, international, Court act as a fourth-instance national court – to be precise, as a supplementary cassation-appeal court overruling a lower court ’ s decision on perceived procedural shortcomings. My difficulty is my inability to find justified on the facts my colleagues ’ conclusion that “the domestic courts ’ approach to the applicant ’ s claim discloses the appearance of arbitrariness” (see paragraph 94 of the judgment in the present case – “the present judgment”). The fact that the international judges in this Court may themselves disagree with the national judges or personally prefer that a different procedural treatment have been afforded to the case at national level does not carry the consequence of non-compliance with the procedural requirements inherent in Article 8 of the Convention and certainly not the consequence of arbitrariness on the part of the national courts.

2. To my mind, given the nature of the perceived procedural shortcomings relied on, the reasoning employed by the majority entails a dilution of the serious notion of arbitrariness and the substitution of this Court for the national courts as regards the responsibility for deciding on the appropriate procedural treatment of civil claims under national law. In my view, not only as a matter of principle does this kind of micro-management of the conduct of particular proceedings at national level by this international Court run counter to the effective functioning of the Convention system in accordance with the principle of subsidiarity, but the facts of the instant case do not support the conclusion arrived at by my colleagues. Consequently, although I believe that a re-assessment of the merits of the evidential and procedural facts is not the proper role of this Court, I will be obliged to say something in this connection since I cannot agree either with my colleagues ’ re-assessment.

3 . To begin with, the “factual discrepancies” invoked against the national courts (at paragraph 88 of the present judgment) are hardly indicative of arbitrariness or a failure to address sufficiently in terms of the right to respect for private life under Article 8 of the Convention the claims advanced by the applicant at national level. What is more, they are not wholly convincing. For example, the so-called failure of the first appeal court (the Civil Chamber of the Supreme Court) to answer the applicant ’ s arguments directed against the first-instance court ’ s (the Regional Court ’ s) finding of her not being in a risk category despite, inter alia , the provisions of Ordinance 324 turns out, on examination, to be more apparent than real. The applicant ’ s doctor had testified before the Civil Chamber that the fact that the applicant was 40 years of age was not as such an indicator that she ought to have the specific test for patients at risk of having a baby with Down ’ s syndrome (see paragraphs 34 and 50 of the present judgment); and the Civil Chamber ’ s judgment, apart from dealing with various other arguments pleaded by the applicant and also with the crucial point of causality, went into the question of the AFP test, which was required by Ordinance No. 324 for all patients aged over 35 years, that is to say, patients who could be considered to be in a risk category (see paragraphs 35-38 of the present judgment).

4. Secondly, the issue of the disappearance of the applicant ’ s medical record (mentioned in the reasoning of the present judgment at paragraph 89) and the allegations of falsification made by the applicant in that connection were addressed at all three levels of jurisdiction by the domestic courts (see paragraphs 32, 35, 38 and 41).

5. Generally speaking, the points made b y the majority in paragraphs 89 ‑ 90 of the present judgment amount to a re-judging of the evidence by this Court. The arguments adduced by the majority in these paragraphs were in substance also adduced by the applicant at national level, but rejected by the national courts for a variety of reasons which cannot be characterised as unreasonable or arbitrary.

6. As to the criticism made by the majority to the effect that the national courts did not examine, in addition to the claim for compensation on account of negligence, the issue whether the applicant was entitled to payment of non-pecuniary damages on account of her doctor ’ s alleged failure to comply with statutory obligations deriving from, notably, the patient ’ s right to information under the Medical Treatment Law (see paragraph 91 of the present draft), this would not appear to reflect the facts. Specifically in the latter connection, according to paragraph 42 of the present draft,

“the Senate [of the Supreme Court] concluded that, contrary to the applicant ’ s allegations, the appellate court had come to its conclusion about the referral for the [AFP] test and the applicant ’ s failure to attend the appointment with due regard for a patient ’ s right to receive information”.

In other words, as I understand it, the ruling of the national courts, albeit expressed tersely, was that there had, on the facts, been no infringement of the applicant ’ s right to information under the Medical Treatment Law. Evidently, where there is held to be no infringement, it is pointless for a court to start discussing any possible entitlement to compensation.

7 . On the same point of statutory obligations, the statement in paragraph 89 about the doctor ’ s inability to make her notes promptly being “arguably incompatible with the terms of Ordinance No. 393 on the keeping of medical records” amounts to speculation as to compliance with domestic law. Furthermore, as to the imposition of an administrative fine of 25 Latvian lati on the applicant ’ s doctor for having failed, contrary to Ordinance No. 324 concerning antenatal and prenatal care, to ensure that the AFP test was actually carried out (see paragraph 16 of the present judgment) – something that the present judgment (at paragraph 91) identifies as “noteworthy” –, the following summary of the Senate ’ s judgment is given in the present judgment (at paragraph 42):

“Section 23 of the Medical Treatment Law [on the conditions governing a patient ’ s refusal to receive medical treatment – see paragraph 46 of the present judgment] was not applicable to this case as the applicant had simply not shown up for the test. The Senate further noted that the applicant ’ s arguments were based on the premise that she had not been referred for the test, whereas the appellate court had found that a referral had been made.”

The Senate was thus well aware of the applicant ’ s contentions concerning her referral for and non-attendance at the AFP test, as was apparently also the Civil Chamber of the Supreme Court (see paragraph 37 of the present judgment). What is more, the first-instance court had expressly ruled that the imposition of the administrative fine on the applicant ’ s doctor for her failure to ensure that the applicant underwent the AFP test was insufficient to prove that the doctor had been at fault for the purposes of liability in negligence (see paragraph 32 in fine of the present judgment). Given this, it would need to be shown – but has not been shown – that on its own this single failure to comply with a strict statutory obligation would have been held by the succeeding appellate courts as being susceptible of grounding the award of any or, at least, any significant compensation.

8. Even on the assumption that the appeal courts could be taxed with not having expressly ruled on the (non-) award of compensation for non ‑ compliance with statutory obligations, this can be seen from the case ‑ file to have been an issue that was accessory to the main claim that was being made, as well as appearing extremely weak on its merits as regards the possibility of affording a ground for compensation.

9 . In sum, there is doubtless some scope on the facts for feeling, as my colleagues do, that the national courts could have proceeded in a better manner. Nonetheless, the national courts cannot, in my view, be said to have examined the main aspects of the applicant ’ s claim in an arbitrary, unreasonable or inadequate manner for the purposes of Article 8 of the Convention, even though the national courts may not have considered, in the depth the applicant was seeking, all the multiple points pleaded by her.

10 . The present judgment also relies on the fact that the first-instance court refused to hear the applicant as a witness (see paragraph 92 of the present judgment). However, the appeal before the Civil Chamber of the Supreme Court does appear to have entailed a re-hearing of the case enabling the taking of fresh evidence, since the Civil Chamber is recorded (at paragraph 34 of the present judgment) as having heard fresh evidence from a representative of the hospital and from the applicant ’ s doctor. The applicant, in the absence of her legal representatives, is herself recorded as having made submissions on her own behalf and answered questions posed by the Court. She would thus appear to have had the opportunity, subsequent to the hearing before the first-instance court, to put to the national courts her own version of the facts.

11 . The present judgment also passes over in silence the several not inconsequential considerations on which the national courts relied in their adjudication on and rejection of the applicant ’ s claim. There is no need to specify in detail these considerations, which may be said to be of some pertinence to the issue of compliance with t he procedural aspect of Article 8. Suffice it to say that the picture presented of the national courts ’ procedural and substantive treatment of the applicant ’ s claim appears somewhat one-sided. Even if my colleagues can be taken to have identified some factors showing that that treatment was less than ideal, to my mind those factors, even taken cumulatively, come nowhere near “disclos[ing] the appearance of arbitrariness” or grounding a conclusion that “the domestic courts did not examine the applicant ’ s claim ... in a manner sufficient to ensure the protection of her interests” for the purposes of Article 8 of the Convention (in the words of paragraph 94 of the present judgment). It is important to bear in mind that the procedural requirements of Article 8 of the Convention do not guarantee litigants, any more than does the fair-trial clause of the Convention (Article 6§1), the entitlement to have every single procedural request granted, or every single one of their arguments examined, by the national courts in the way or to the degree they would wish. As the present judgment itself observes (at paragraph 87), the procedural complaints the applicant submitted to this Court, notably as to alleged failings in the manner in which her claim had been examined, were raised by her before the national appellate c ourts (see paragraphs 33 and 40 ‑ 41 of the present judgment). While my colleagues do not agree with the conclusions of the national courts in regard to those complaints and evidently would have decided otherwise had they been in the place of the national courts, where I am sorry to part company with them is their conclusion of arbitrariness and of judicial treatment not sufficiently addressing the applicant ’ s interests from the standpoint of the requirements of Article 8 of the Convention.