CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mars 2011

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6D41D5D { width:368.55pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid }     FIRST SECTION Application no. 27860/07 by Yevgeniya ISMAYILOVA against Azerbaijan lodged on 6 June 2007   STATEMENT OF FACTS THE FACTS The applicant, Ms Yevgeniya Ismayilova, is an Azerbaijani national who was born in 1957 and lives in Baku. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1987, prior to the events giving rise to the present application, the applicant had been diagnosed with a cyst of the right ovary and had undergone surgery for the excision of her right ovary together with the cyst and for the resection of her left ovary. On 17 October 2003 the applicant was examined by a gynaecological surgeon, Dr A., of the Central Clinical Hospital and was diagnosed with a large cyst of 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 imminent complications. In addition, Dr A. stated that hysterectomy (surgical removal of the uterus) was also necessary and inevitable. On 20 October 2003 the applicant was admitted to the Central Clinical Hospital for surgery. The surgery was carried out on 21 October 2003. Following the surgery, the applicant was informed by Dr A. that, owing to complications arising from the adhesion of her uterus to her intestines, it had been impossible to remove the uterus. However, Dr A. 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. The applicant stayed in the hospital for four days after the surgery, during which time she received post-surgical treatment under the supervision of Dr A. Upon the applicant’s discharge from the hospital on 26 October 2003, the applicant was given a discharge summary signed by Dr A. and the Deputy Head Physician of the Central Clinical Hospital, Dr N. The discharge summary stated that on 21 October 2003 the applicant had undergone a “left-sided cyst-ovariectomy”. About three months later, in February 2004 the applicant experienced uterus flooding (profuse bleeding), despite the fact that she had been going through the menopause for more than a year. She contacted Dr A., who was now working at the L. Shikhlinskaya Clinic. The applicant underwent an ultrasonic examination at the L. Shikhlinskaya Clinic. According to the applicant, the examination showed that her left ovary had not been removed. At this time, Dr A. revealed to the applicant that the surgery of 21 October 2003 had not been conducted by her (as had been agreed with the applicant), but by another surgeon, Dr N., who had been assigned the task by the management of the Central Clinical Hospital at the last moment. On 14 June 2004 the applicant lodged an action against the Central Clinical Hospital with the Sabail District Court, asking for compensation for pecuniary and non-pecuniary damage caused by medical negligence. She complained that, despite having been led to believe that she would be operated on by Dr A., who had been familiar with her condition, the surgery 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. In her opinion, this had violated her rights as a consumer. Moreover, she argued that, although the purpose of the surgery had been to remove both the cyst and the left ovary, the ovary had not been removed for unexplained reasons. Although the left ovary had not been removed, after the surgery she had received post-operative treatment with hormonal medicines designed for patients missing both ovaries. As a result of this, her state of health had gradually deteriorated. Since the surgery, she had regularly suffered from profuse bleeding. The risk of getting cancer had increased owing to the incorrect treatment and the failure to remove the left ovary, on which new follicular cysts had developed since the surgery. Lastly, the applicant complained that the incorrect treatment had caused hormonal changes that had led to development of cataracts on both her eyes, as well as disorders of the thyroid gland and the gall bladder. The applicant claimed 20,000 euros in respect of pecuniary damage and 300,000,000 old Azerbaijani manats (60,000 new Azerbaijani manats) in respect of non ‑ pecuniary damage. In the meantime, while her court claim was pending before the Sabail District Court, the applicant sought a number of nuclear magnetic resonance imaging (NMRI) and ultrasonic examinations 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. The content of these reports can be summarised as follows. An NMRI report by the Central Clinical Hospital, dated 5 March 2004, stated, inter alia : “right ovary undetected (ovariectomy). Dimensions of the left ovary are approximately 2.2x1.0 cm, two small (with the biggest one measuring 2.0x1.0cm) homogenous liquid-structured cysts have been detected in the projection [of the left ovary]”. An ultrasonograpic report by the Diamed diagnostic clinic dated 25   August 2004 stated: “right ovary: undetected; left ovary: 26x19 mm; [left ovary] structure: cystic; ... follicular cysts of the following sizes were detected in the structure of the left ovary: (1) 21.9x19.4 mm, (2)   14.9x13.8   mm, (3) 13.6x10.8 mm”. An ultrasonographic report by Clinical Maternity Hospital no. 5 dated 25   August 2004 stated that the applicant’s right ovary had been surgically removed, while her left ovary measured 23x18mm and had “follicles of various sizes”. An additional ultrasonographic report by Clinical Hospital no. 5 dated 26   August 2004 stated that the right ovary had been surgically removed and confirmed the presence of the left ovary, with a “diminished size” of 24x17   mm and a structure containing small follicles. An ultrasonographic report by City Clinical Hospital no. 1 (“Semashko”) dated 26 August 2004 stated that the right ovary was absent but that the left ovary measured 33x25 mm and had a structure containing small follicles. An ultrasonographic report by the Obstetrics and Gynaecology Research Institute of the Ministry of Health dated 26 August 2004 confirmed the absence of the right ovary and stated that the left ovary measured 26x23   mm. In addition to the above, on 25 and 26 August 2004 the applicant underwent ultrasonic examinations at a number of other medical institutions, including Clinical Maternity Hospital no. 1, the Gynaecology Department of City Clinical Hospital no. 3 in the Sabunchu District, the A.T.   Abbasov Oncologic Dispensary, and the Female Health Centre of the Republic Clinical Hospital. Ultrasonographic reports given by those institutions contained conclusions similar to those in the reports described above. On 24 September 2004 the applicant underwent another ultrasonic examination at the L. Shikhlinskaya Clinic. The ultrasonographic report stated that the left ovary was “pulled close to the uterine rib” and measured 21x16 mm. On 15 October 2004 the applicant underwent one more ultrasonic examination, this time at the Inam Medical Centre. The report confirmed the presence of only the left ovary, measuring 26x18 mm, with a structure containing small follicles. On 19 April 2005 the applicant underwent an NMRI at the Nuclear Magnetic Resonance Centre of the Ministry of Health. The NMRI report stated, inter alia : “The right ovary cannot be detected (has been removed). The size of the left ovary has diminished (23.0x18.0 mm). [The left ovary contains] an image which can be considered as a small follicle and a follicular cyst (4.0x3.0 mm)”. It appears that, in the meantime, in December 2005 a judge of the Sabail District Court requested a forensic expert report from the Forensic Science and Pathologic Anatomy Department of the Ministry of Health, with specific questions on whether the applicant’s left ovary had been removed and on the implications of the surgery on her subsequent state of health. The relevant expert report was issued on 15 February 2005. It appears that the report was based only on the medical documents available and that the experts had not examined the applicant. The report contained, inter alia , the following answers to the questions asked by the judge: “1.     [A left-sided cyst-ovariectomy was performed on the applicant on 21 October 2003.] 2.     [The NMRI of 5 March 2004 stated that the left ovary measured 2x1 cm and contained two small homogenous liquid-structured cysts in its projection.] Numerous ultrasonic examinations subsequently conducted at various medical establishments did not detect the right ovary and determined various measurements for the left ovary (in several reports a follicular cyst was detected). 3.     The NMRI examination [conducted] at the Nuclear Magnetic Resonance Centre on 19 April 2005 shows that the diminishment in size of the left ovary may be understood as a partial resection of the ovary or as a residual element remaining after the surgery; in order to define more precisely the morphological structure of the [NMRI] image obtained, a laparoscopic biopsy is recommended. 4.     Having regard to the above, it is impossible to opine whether during the surgery of 21 October 2003 the left ovary [of the applicant] was fully or partially removed. 5.     In the absence of both ovaries, the flow of menses is impossible. 6.     The recommencement of menses in the post-menopause period cannot be considered normal. 7.     Serous cysts may develop into malignant tumours, [or] may burst ... 8.     The removal of a serous cyst without the removal of the ovary may sometimes result in the formation of a new cyst. 9.     If a patient has previously had an ovarian serous cyst, the risk of her having a recurring cyst (or cysts) increases. 10.     The risk of cancer increases if there is a family history of such disease on the maternal side. ... 12.     There is no confirmed correlation between hormonal disorders and ovary dysfunctions [on one hand] and the eyesight or development of a cataract [on the other hand]. 13.     After the removal of an ovary, small liquid accumulations may appear in its projection; whether they are of a cancerous nature may be determined by means of a pathohistological test. 14.     There is no information that, after the removal of an ovary, the small liquid accumulations in its projection may affect the thyroid gland or eyesight. 15.     Uterus flooding may occur as a result of a disease of the internal walls of the uterus.” During the trial, the defendant’s representative denied the applicant’s claims and argued that the surgery had been conducted successfully and that the left ovary had been removed together with the cyst. He admitted that it was possible that new cysts had appeared in the cavity remaining after the removal of the ovary. He argued that, according to the reports containing the analysis of the NMRI image of March 2004, the image depicted a “projection” (a cavity) of the left ovary, which did not mean that the left ovary was intact. He submitted that the cavity contained serous liquid accumulations, but not an ovary. By a judgment of 18 January 2006, the Sabail District Court rejected the applicant’s claim against the Central Clinical Hospital. It found that on 20   October 2003 the applicant had signed a release form, agreeing to the proposed treatment and accepting the possible negative consequences of the surgery. The court further found that the applicant had failed to present any evidence showing that she had consented to the surgery only on the condition that it be performed by Dr A. The court found that, in such circumstances, the applicant had consented to the surgery being performed by any surgeon of the Central Clinical Hospital whom the hospital deemed appropriate to appoint for the task. As for the applicant’s claim that the surgery had been botched and that the left ovary had not been removed, the Sabail District Court, relying solely on the forensic report of 15 February 2005, found that the experts “did not confirm that the left ovary was still in place”. Moreover, relying on the same report, the court found that the report did not support the applicant’s claims concerning the negative impact of the surgery on her eyesight, thyroid gland and gall bladder. The court concluded that the applicant had failed to prove her claim that her left ovary was still intact or that the alleged failure to remove it had caused hormonal disorders leading to various negative consequences including the deterioration of her health. The applicant appealed against the Sabail District Court’s judgment of 18   January 2006. On 13 June 2006 and 7 November 2006, respectively, the Court of Appeal and the Supreme Court upheld the first-instance court’s judgment, reiterating the latter’s reasoning in their respective decisions. COMPLAINTS The applicant complains under Article 6 of the Convention that, despite the fact that she produced a vast amount of medical evidence in support of her claim, the domestic courts failed to take all of that evidence into account. The applicant further complains that the domestic proceedings did not comply with the “reasonable time” requirement, because the first ‑ instance court took more than eighteen months to decide on her claim. Lastly, she complains that, despite the fact that she was of Russian ethnic origin and was not fluent in the Azerbaijani language, she was not provided with an interpreter during the court proceedings, which were conducted in the official language. As a result of this, she was not able to participate effectively in the proceedings. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the manner in which the evidence was admitted and examined by the domestic courts compatible with the requirements of this Convention provision? Was the laparoscopic biopsy recommended by the forensic report of 15 February 2005 carried out in the present case? If not, why not? Was the applicant’s right to obtain a “reasoned decision” respected by the domestic courts?   2.     Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   3.     Was applicant represented by a lawyer fluent in the Azerbaijani language at the hearings before each judicial instance? Did she require the free assistance of an interpreter? If yes, was she afforded such assistance? If not, was this compatible with the requirements of Article 6 §   1 of the Convention?   4.     The parties are requested to submit: (a) copies of all the claims, appeals and applications submitted by the applicant to the domestic courts at all three judicial instances; (b) a list of all the documentary evidence (and copies of such evidence, if not yet in the case file) submitted by the applicant to the domestic courts, whether enclosed with her claims, appeals or applications, or submitted separately; and (c) copies of any medical documents relating to the surgery of 21 October 2003 and any subsequent medical reports concerning the applicant, with the exception of those which are already in the case file.