FOURTH SECTION
DECISION
Application no. 67813/11
Zhana DZEBNIAURI
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 9 September 2014 as a Committee composed of:
Päivi Hirvelä, President,
Nona Tsotsoria,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 7 October 2011,
Having regard to the declaration submitted by the respondent Government on 29 May 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms Zhana Dzebniauri, is a Georgian national, who was born in 1951 and lives in Tbilisi. She was represented before the Court by Ms T. Dekanoidze and Ms T. Abazadze, lawyers practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is the mother of Mr Giorgi Dzebniauri who died on 9 April 2005 in a private hospital in Tbilisi (the medical establishment known under the common name of Lechkombinati). The cause of death was internal bleeding and sepsis caused by acute pancreatitis (sudden inflammation of the pancreas) and post-surgery pancreatic necrosis.
5. Mr Dzebniauri had been admitted to that hospital on 4 March 2005 for pains in the gallbladder. Immediately upon admission, the doctor in charge of the patient’s treatment, Mr A.Tch.-shvili, had diagnosed him with acute cholecystitis and pancreatitis. Without dispensing a conservative treatment for the diagnosed condition, the doctor had directly proceeded to a radical surgical intervention on the same day – the removal of the inflamed gallbladder and the drainage of the pancreatic duct through a tiny opening. Despite that medical intervention, post-surgery pancreatic necrosis had developed.
6. On 8 July 2005 a criminal investigation (case no. 07051275) was opened into possible medical error which had caused Mr Dzebniauri’s death. The applicant was granted victim status. All the medical practitioners who had been involved in the surgery of 4 March 2005 and the patient’s subsequent treatment were questioned as witnesses. In addition, two medical forensic examinations aimed at the assessment of the adequacy of the dispensed treatment were conducted at the request of the investigator and the applicant on 16 December 2005 and 6 October 2006.
7. When questioned on 14 and 22 July and 19 November 2007, Mr G.R.-shvili, the doctor who had assisted A.Tch.-shvili during the surgery of 4 March 2005, repeatedly stated that, in order to minimise the risk of the development of post-surgery pancreatic necrosis, certain specific pre‑surgery medical examinations and treatment of conservative nature were normally necessary. However, none of those preliminary measures had been undertaken by doctor A.Tch.-shvili. Instead, the doctor proceeded with an immediate and thus wholly unprepared surgery on the patient’s gallbladder and pancreas. Mr G.R.-shvili qualified such a premature decision to perform the surgery either as a negligence or lack of competence.
8. As regards the above-mentioned medical forensic examinations, which were conducted by the National Forensics Bureau (“the NFB”) on 16 December 2005 and 6 October 2006, their results were contradictory. Thus, whilst the results of the first one suggested that there had been no signs of a medical error on behalf of Dr A.Tch.-shvili, the second one suggested the contrary. Notably, the latter results, in line with Dr. G.R.-shvili’s opinion, stated that prior to conducting a surgical intervention, it would have been more appropriate for Dr A.Tch.-shvili to conduct a preliminary treatment of conservative nature in order to minimise the risk of development of post-surgery necrosis.
9. Given the controversy, the applicant requested, on 8 December 2010, the State Agency for Regulation of Medical Activities to conduct another assessment of the adequacy of her son’s preliminary treatment and surgery of 4 March 2005. The Agency issued its expert opinion on 3 June 2011, in which it mostly subscribed to the NFB’s report of 6 October 2006. The Agency reiterated that prior to performing the surgery, a preliminary treatment of conservative treatment for the duration of at least forty-eight hours should necessarily have been dispensed. The Agency further identified certain other shortcomings during the treatment of the applicant’s son in the hospital. The recommendation was to institute disciplinary proceedings against the chief surgeon who had been in charge of Mr Dzebniauri’s treatment. That recommendation was never implemented.
10. Despite the applicant’s regular complaints about its length, which were filed on various dates in 2008, 2009, 2010 and 2011, the criminal investigation was not moving any further. In reply to those complaints, the Chief Public Prosecutor’s Office, which authority was in charge of the investigation, would regularly advise the applicant, with its latest reply being dated 24 June 2011, that a final procedural decision concerning the investigation was imminent. The case file does not account for any other details concerning the progress of the investigation.
COMPLAINTS
11. Relying on Article 2 of the Convention, the applicant complained that the respondent State had failed to ensure a proper and risk-safe functioning of the relevant civilian hospital and that no meaningful investigation into the medical errors which had caused her son’s deaths had been conducted.
THE LAW
12. On 4 June 2013 the Court gave notice of the present application to the Government, inquiring whether the respondent State had complied with its relevant positive obligations under Article 2 of the Convention.
13. After the failure of attempts to reach a friendly settlement, by a letter of 29 May 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
14. The declaration provided as follows:
“With due regard to Mrs Zhana Dzebniauri’s complaints under the Convention, notably those communicated by the Court under Article 2 of the Convention regarding the positive obligation of the State;
Bearing in mind shortcomings acknowledged with regard to the inspection of the respective medical establishment concerning the compliance of medical licence conditions prior to the incident of Mr Dzebniauri’s death;
Acknowledging certain deficiencies identified in the course of the medical treatment dispensed to the applicant’s son in the private medical establishment known under the name of ‘Lechkombinati’;
Having regard to certain deficiencies observed in the course of the criminal investigation (case no. 07051275);
The Government acknowledge a breach of the State’s positive obligations under Article 2 of the Convention.
In the light of the foregoing, the Government undertake to pay 7,000 (seven thousand) Euros to cover any pecuniary or non-pecuniary damages and costs and expenses. This sum will be converted into ...”
15. By a letter of 13 June 2014, the applicant, welcoming the Government’s acknowledgment of a breach of the State’s relevant obligations under Article 2 of the Convention, indicated that she would be ready to accept the Government’s declaration on condition of removal of the clause of the payment of the amount of seven thousand euros. She submitted that no money could compensate for the suffering resulting from the death of her son, vehemently refusing, as a matter of principle, any monetary offers from the Government. The applicant stated that, since her aim was to hold those investigators and prosecutors responsible who had been in charge of the defective criminal investigation into the cause of her son’s death, the clear acknowledgement of a violation of Article 2 by the Government already constituted an adequate and sufficient redress for the purposes of her application.
16. Following the principle of ne ultra petitum, the Court, noting the applicant’s explicit position on the matter, first considers that the Government’s undertaking to pay the sum should indeed be discarded. Thus, no monetary payment whatsoever should be made to the applicant within the context of the settlement of the present application.
17. On the other hand, having due regard to the applicant’s express agreement with all the other terms made in the Government’s unilateral declaration, notably the Government’s unequivocal acknowledgement of a breach of the respondent State’s positive obligations under Article 2 of the Convention, the Court considers that the case can be treated as an implied friendly settlement between the parties.
18. Therefore, discarding the Government’s undertaking to pay the monetary compensation, the Court takes due note of the other terms of the friendly settlement reached between the parties. It is satisfied that this settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy