Communicated on 22 November 2017
THIRD SECTION
Application no. 72109/14
Natalya Gennadyevna AKULOVA
against Russia
lodged on 30 October 2014
STATEMENT OF FACTS
The applicant, Ms Natalya Gennadyevna Akulova, is a Russian national, who was born in 1976 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 June 2008 the applicant was admitted to a private hospital, the European Medical Centre (hereinafter “the Hospital”), for a rhinoplasty procedure. After surgery the applicant had headaches, bone aches, rhinitis, and a blocked nose. She lodged a complaint against the hospital with the Presnenskiy District Court of Moscow, claiming that she had side effects from the surgery because the doctors had been incompetent.
On 3 October 2013 the Presnenskiy District Court ordered a medical expert report. The examination was carried out in the applicant’s absence by Dr V., Dr S. and Dr Ch., experts from the Forensic Examination Office of the Moscow Public Health Department, and Dr R., senior doctor of a St Petersburg plastic-surgery clinic.
On 3 February 2014 the experts completed the examination of the applicant’s medical documents and found that she had been provided with high quality medical assistance.
In the meantime, the applicant had a medical expert examination in a private institution.
On 11 March 2014 the applicant lodged a challenge against the experts appointed by the District Court and their opinion, stating, in particular, that V., S. and Ch. were subordinates of P., who was senior doctor at and a shareholder of the Hospital. He had also been appointed as the head of the Moscow Public Health Department and, subsequently, a deputy head of the Moscow Government, the body charged with supervising the Moscow Public Health Department. The court dismissed her challenge.
On 26 March 2014 the private expert institution issued its expert report, finding that the applicant needed post-surgery treatment.
On 14 April 2014 the Presnenskiy District Court dismissed the applicant’s claim and application by her to join the expert opinion of 26 March 2014 to the case. The court based its decision on the expert opinion of 3 February 2014; it did not explain why the opinion of 26 March 2014 was inadmissible and did not refer to it in its judgment. Ms Akulova lodged an appeal, stating, inter alia, that the Presnenskiy District Court had failed to properly address her arguments relating to forensic examination.
On 20 August 2014 the Moscow City Court upheld the decision of 14 April 2014 on appeal.
B. Relevant domestic law and practice
1. Expert examination
If a question requiring knowledge in a specific area of science, technology, arts or crafts arises, the court may order and charge an expert institution, a particular expert or experts to conduct an expert examination.
The parties to the proceedings may submit to the court questions for the experts. They may ask the court to charge a particular expert institution or expert to conduct an expert examination, to lodge a challenge against the experts, ask them questions, to study the court’s decision on the expert examination and the expert report, and ask the court to conduct an expert re‑examination or an additional expert examination.
If one of the parties refuses to participate in the expert examination (provide material and documents for examination and so forth), and if in such a case the expert examination is impossible, the court may acknowledge or refute the facts to be established by the expert (Article 79 of the Code of Civil Procedure (“the CCP”)).
The court is not bound by the expert report and must assess its contents in accordance with the rules established for examination of evidence. If the court does not agree with the report, it shall provide reasons in its decision (Article 86 of the CCP).
In a case where the expert report does not provide clear results, the court may ask the same or another expert to conduct an additional expert examination.
In a case of doubt as to accuracy or reasoning of the expert report, discrepancies in expert reports prepared by several experts, the court may ask another expert or experts to carry out a re-examination of the same issues (Article 87 of CCP).
2. Reasoning of judgments
Courts’ judgments must be in line with the law and must be reasoned. A court must base its decision only on the evidence which it has examined at the hearing (Article 195 of CCP).
A judgment must state the circumstances of the case established by the court, evidence supporting the court’s conclusions, reasons for rejecting evidence, and the legal acts referred to by the court (Article 198 of CCP).
COMPLAINTS
The applicant complains under Article 6 of the Convention that the civil proceedings in respect of her rhinoplasty were unfair because the expert examination procedure was defective, and the domestic courts grounded their decisions on a deficient expert report and failed to provide adequate reasoning.
QUESTION 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?
2. As regards the equality of arms, were the experts in the present case appointed according to a fair procedure? Were they independent? Did the applicant have the possibility to take part in the expert examination, comment on the expert report and provide alternative reports (see Mantovanelli v. France, 18 March 1997, §§ 30-36, Reports of Judgments and Decisions 1997 II, and Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, §§ 28-53, 5 July 2007)?
3. As regards the reasoning of the courts’ judgments, did the judgments of 14 April and 20 August 2014 adequately state the reasons on which they were based (see Ruiz Torija v. Spain, 9 December 1994, §§ 25‑30, Series A no. 303-A, and Hiro Balani v. Spain, 9 December 1994, §§ 24-28, Series A no. 303‑B)?
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