FIRST SECTION
Application no. 58428/10
Veronika Viktorovna MATYTSINA
against Russia
lodged on 22 September 2010
STATEMENT OF FACTS
THE FACTS
The applicant, Ms Veronika Viktorovna Matytsina, is a Russian national who was born in 1971 and lives in Khabarovsk. She was represented before the Court by Ms Ye. Karpova, a lawyer practising in Khabarovsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Factual background
In 1997 the Department of Justice of the Irkutsk Region registered a non-for-profit non-governmental association “The Art of Living” (hereinafter “the association”). The officially proclaimed goals of the association were, according to its charter, promotion of social adaptation, popularisation of a healthy lifestyle, helping people in stress situations, improving social and family relations, etc. In practical terms, the activity of the association consisted of trainings, lectures, personal consultations, and alike. Participation in the “programs” of the association was offered to everyone interested and was free of charge, although the participants were encouraged to make voluntary contributions to support the activities of the association. The association also issued a number of brochures which explained its goals and basic principles. As follows from those brochures, the association was inspired by the teachings of SriSri Ravi Shankar, a modern Indian spiritual leader. According to one of the brochures, participation in the programmes of the association was supposed to help its participants to fight insomnia, depression, strengthen cardio-vascular system, control emotions and boost defence mechanisms of the body.
The association was operating without any licence. In February 2001 the Committee on sports and recreations of the administration of the Khabarovsk Region confirmed to the association that it did not require a licence to operate its programs.
In the spring of 2002 Ms S.D., who was at the time a third-year student at the Institute of Pedagogy in Irkutsk, enrolled to the basic program of the association, “The Healing Breath Workshop”. She enrolled together with her twin sister, Ms N.D. The applicant was one of the “instructors” of the association, responsible for that program. The program included elements of yoga, special breathing techniques, mantra singing, meditation, listening to the music, aroma therapy and other similar practices. People enrolled in the program were recommended to follow certain diet and exercise at home. The applicant claimed that she herself had been regularly doing the exercises since 1994.
In April 2002 Ms S.D. and her sister started to attend daily trainings in the premises of the associations. Upon the completion of the program Ms S.D. was recommended to enrol to an advanced program called “Eternity”, which was conducted by a different instructor, Ms. M.S.
At a certain point Ms S.D. started experiencing serious psychological problems. Ms S.D.’s mother called the association and blamed the instructors for them having turned Ms S.D. into a zombie. According to the applicant, Ms S.D.’s mother was a fervent Orthodox Christian and did not approve her daughters’ interest in a group which she described as a “sect”.
In the words of Ms S.D.’s mother, after the trainings Ms. S.D. started having hallucinations and delusions, lost contact with her family, skipped classes at the institute, and almost completely stopped eating. On 27 June 2002 Ms S.D.’s mother called a psychiatric ambulance to her daughter; a doctor made an injection but it did not help. Shortly thereafter Ms S.D. collapsed and was hospitalised.
In the following months Ms S.D. was hospitalised several times. Her initial diagnosis was formulated as “reactive psychosis”. Later the doctors described her mental condition as “schizoid disorder related to the stress”. According to the doctors, mental condition of Ms S. D. was related to her participation in the programs of the association which was referred to in the medical record of 2 July 2002 as a “sect”. The following entries in her medical record also mentioned the “religious” character of her delusions. Following the admission of Ms S.D. to the hospital an internal inquiry was conducted which concluded that her medical condition was of “religious and occult character” and had been caused by her participation in the programs of the association.
In 2003 the association was auto-liquidated, for want of financing.
In the following years the diagnosis of Ms S.D. was re-formulated several times; in 2009 the doctors concluded that Ms S.D. suffered from schizophrenia.
2. Criminal investigation; expert examination of the activities of the association
On 30 July 2003 the applicant and another instructor of the centre, Ms M.S., were charged by the prosecutor’s office under Article 235 of the Criminal Code (“Illegal medical practice”). The investigative authorities suspected them of having dispensed medical services to Ms S.D. (“the alleged victim”) without necessary licences and training. Both the applicant and Ms M.S. pleaded not guilty as from the first questioning.
On 17 September 2003 the investigative authorities searched the house of the applicant and seized documents and literature related to the activities of the association.
(a) Psychiatric examination of Ms S.D. (25 July 2003, No. 1170)
On 25 July 2003 the alleged victim (Ms S.D.) was examined, at the request of the investigator, by a group of psychiatrists who concluded that she had developed an “acute schizoid psychotic disorder” which was related to her participation in the programs of the association.
(b) First expert report by the Medical Forensic Bureau (19 November 2003, no. 197)
On 11 August 2003 the investigator commissioned expert examination of the activities of the association. In particular, the investigator sought to establish whether the association had been dispensing medical services to the participants of the programs, and whether the alleged victim suffered any health damage as a result of her participation in those programs. The examination was entrusted to the Medical Forensic Bureau (MFB) of the regional Public Health Department. On 19 November 2003 the MFB delivered the first report.
The report noted that the techniques used by the association in its programmes were known both in the ordinary (scientific) and in the alternative of “folk” medicine. However, it did not answer whether those techniques were medical. It also concluded that, “most probably”, the medical condition of the alleged victim was related to her participation in the programmes of the association.
(c) Second expert report by the Medical Forensic Bureau (9 April 2004, no. 36)
On 10 December 2003 the investigator commissioned from the MFB additional expert examination of the activities of the association. On 9 March 2004 the MFB delivered a second report.
The MFB again did not give a definite answer to the question to whether the association had been dispensing medical services. It noted that the charter of incorporation and other documents of the association did not contain any indication to the medical nature of its programmes. In the opinion of the experts, it was important to distinguish between the “Eternity” program and other programs of the association. In the particular case of the alleged victim the techniques used by the association were at the origin of her mental disorder. The base program “The Art of Living” (sic) weakened the alleged victim physically. Her following involvement in the “Eternity” program aggravated her somatic condition with a psychiatric disorder.
(d) Expert examination by Dr A. (5 May 2004)
On 23 April 2004 the investigator commissioned a new expert examination of the activities of the association. The examination was entrusted to Dr A., a chief psychotherapist of the Khabarovsk Health Department. The report was prepared on 5 May 2004. The question formulated to the expert concerned licensing requirements for alternative medicine. The expert replied that licensing of alternative medicine was regulated by the Governmental Decree of 26 July 2002 No. 238.
The investigator further asked whether certain practices (such as “breath gymnastics”, “hypnotic infusion“, “physical exercises on the basis of yoga postures”, and “entrancement”) belonged to the methods of alternative medicine and required a medical licence. As to the “yoga postures”, the expert concluded that they were not “medical activities” and did not require any licence. Concerning the “breath gymnastics” and “hypnotic infusion”, the expert confirmed that these were known psychotherapeutic methods, but they had not been used by the association. The “Art of Living” programs, according to the expert, did not have any medical goal, were not aimed at curing ailments and, therefore, were not “medical”. Elements of those programs could have been used by medical doctors as supplementary methods of psychotherapeutic treatment.
(e) First forensic and legal expert examination by Dr. Iv. (23 November 2004)
On 12 August 2004 the investigator commissioned a “forensic and legal examination” of the activities of the association. It was entrusted to the Ministry of Public Health of the Khabarovsk Region.
On 23 November 2004 Dr Iv. a doctor in psychiatry and the chief psychiatrist of the Health Department of the Jewish Autonomous Region, prepared a report in which he concluded that activities of the association had been “medical” in nature and thus had required a licence.
(f) Second forensic and legal expert examination by Dr Iv. (1 April 2005)
On 5 March 2005 the investigator commissioned a new expert examination, which was again entrusted to Mr Iv. The report was produced on 1 April 2005.
Dr Iv. started with analysing the applicable legislation. Section 57 of the Public Health Act of 1993 provided that practicing of alternative medicine (also referred to in the law as “folk medicine”, “traditional medicine” or “healing”) required a “healer’s diploma”. Section 56 of the Public Health Act required from a private practitioner to have a doctor’s or paramedic’s degree, a “specialist certificate” and a licence (for example, for practising “alternative medicine”). The Decree of the Ministry of Health of 29 April 1998 No. 142 provided that alternative medicine was subject to the licensing requirement.
The Licensing Act of 8 August 2001 (No. 128-FZ) and the Government Decree of 11 February 202 (No. 135) included alternative medicine in the list of activities subject to the licensing requirement.
The Order of the Ministry of Public Health of 10 April 2001 (No. 113) contained a glossary of “Simple medical services”, which included, amongst other activities, positions nos. 13.30.005 (“Psychotherapy”) and 13.30.006 (“Hypnotherapy”). The expert concluded that such services were covered by the licensing requirement and should have been provided by specialists in the relevant spheres.
Further, referring to the Government’s Decree of 4 April 2002 No. 499 (“On licensing of medical services”), the expert indicated that a person providing medical services was under the law required to have, in addition to a special degree or training, a certain work experience in the specific field of medicine. The Decree of the Ministry of Public Health of 26 July 2002 No. 238 established the list of medical services, which included a rubric on alternative medicine. The Decree required obtaining a licence for practicing alternative medicine. On 14 November 2003 the First Deputy Minister of Public Health issued a “Methodological Directive on Licensing of Alternative Medicine”, which described certain activities as falling within the ambit of alternative medicine; the list included “traditional systems of invigoration”.
Next, the expert studied special medical literature. He concluded that the applicant used psychotherapeutic methods, described in the medical literature, such as “trance inducement”, “breath control”, and “therapeutic gymnastic”. The latter, according to the recommendations of the Ministry of Public Health No. 2001/13 of 14 March 2001 might have included elements of yoga. The expert concluded that the use of such methods placed the applicant’s activity within the scope of the private medical practice which needed a licence under the heads of “psychotherapy” and “therapeutic gymnastics”.
The expert referred to the Methodical Directive of the Ministry of Health of 26 February 2002 which characterised yoga as a “traditional method of healing”. The same Directive noted that “traditional methods of healing”, including yoga, are not officially recommended by the Ministry of Health for application in medical practice, and, therefore, were not covered by a licensing regime. From that the expert inferred that in Russia “official application of traditional methods of healing” was not allowed. The expert further referred to the Decree of the Ministry of Health of 13 June 1996 which warned against the use of “occult practices” and other non-recommended healing techniques.
The expert noted that the charter of incorporation of the association did not mention that it had been created to dispense medical services. However, the brochures issued by the association described the effects of its “programs” in medical terms, for example: “a complex of detoxinating dynamic exercises”, “improved functioning of all internal organs”, “harmonisation of all levels of personality”, “controlled meditations and certain other techniques which guarantee deep relaxation, appeasement of emotions, and help to overcome stress”, etc. The brochures referred to cases where seriously ill persons suffering from, inter alia, insomnia and depression, were cured following the completion of the programs of the association. The techniques used in the programs were described as a “synthesis of old wisdom and modern science”. On 10 May 2003 SriSri Ravi Shankar obtained patent No. 2203645 “On the breathing technique” which specified that this technique could be used for medical purposes.
The expert further studied witness evidence from former participants of the programs of the association. According to the participant, the instructors told them that they had medical diplomas, and that the programmes were supposed to have healing effects. The participants were required by the instructors to fill in the forms which contained questions about their health condition. The expert also analysed their description of the techniques used in the programs, such as relaxation techniques, physical exercises, breathing techniques, meditation etc.
To describe the activities of the association its brochures used such terms as “psychological adaptation”, “autogenic training” and “relaxation” which could be found in special medical literature and were in fact techniques of the psychotherapy and psychiatric treatment. The expert compared the techniques used by the instructors of the association with the “holotropic therapy”, which is a method known in the psychotherapy, and found many similarities.
On the strength of that evidence the expert concluded that the activities of the association could be characterised as alternative medicine which required a license. The activities of the association, in the opinion of the expert, where medical in their nature.
(g) Expert opinion of the State Medical Academy of Krasnoyarsk
On 16 December 2004 the defence obtained an expert opinion of four doctors of the State Medical Academy of Krasnoyarsk (including one professor of medicine). The expert team of the State Medical Academy examined 118 followers of the “Art of Living” programs who participated in the programmes for at least three months. The expert team concluded that most of the persons in the test group observed various positive effects of the programmes, including easing of their chronic diseases, restoration of psychological balance and increase in their working efficiency. The report emphasised that “moderate and consistent practice of yoga within the “Art of Living” program is not incompatible with chronic diseases or old age and can be recommended for rehabilitation after traumas, surgical operations and general diseases”.
(h) Expert opinion of the Far East State Medical University (1 July 2007)
On 1 July 2007 Professor Z. from the Far East State Medical University delivered an expert opinion at the request of the applicant’s lawyer. Prof. Z. criticised earlier expert assessments which had characterised the activities of the association as “medical”. Prof. Z. asserted that elements of the programs of the association could be found in many traditional practices, such as Yoga, Qigong and different martial arts. He also caused doubt into the conclusions of the earlier expert reports that the mental condition of Ms S.D. was caused by her participation in the programs of the association. He supposed that her interest in the activities and ideas practiced within the association could have been caused by her mental condition.
(i) Expert opinion by the Independent Association of Psychiatrists of Russia
On un unspecified date the applicant’s lawyer solicited an opinion of the Independent Association of Psychiatrists of Russia (IAPR) in respect of the expert opinion of 25 July 2003. It appears that IAPR criticised conclusions of the report of 25 July 2003.
3. Trial
(a) First round of the court proceedings
(i) Position of the defence
The applicant’s case was heard by Judge Sh.
At the trial the applicant and her co-defendant, Ms M.S. pleaded not guilty. They acknowledged that neither they, nor other instructors of the association had medical degrees. They also acknowledged that the alleged victim had been their apprentice and that she had had health problems after the completion of the two programs. However, they denied having caused any harm to the alleged victim and insisted that her mental disorder was related to some pre-existing condition or to other circumstances of her life.
In particular, they claimed that the both the alleged victim and her sister had been born and raised in a very religious family, that they both had had problems of socialisation in school, and that they had difficult relations with their mother. Several members of the alleged victim’s family had a history of mental disorders, so her own problems could have been explained by genetic predisposition. She started attending the programs of the association because of her social and psychological problems.
Further, the applicant asserted that the “programs” of the association could not be described as “medical treatment”. Since its creation the association was repeatedly inspected by the Department of Justice, which did not detect anything illegal in the activities of the association.
The defence also claimed that the programs of the association were not “medical” in nature, and thus did not require any special education or licence. The purpose of their programs was to help people to attain social and psychological harmony, discover the true sense of life, etc. The instructors did not receive any remuneration of their work, their participation in the programs was voluntary.
ii. Evidence submitted by the prosecution
In the first round of the proceedings the court questioned several witnesses, including Ms S.D. (the alleged victim), her mother (Ms Z.D.), her sister (Ms N.D.) and her brother (Mr E.D.). They gave evidence about mental and physical condition of the alleged victim before, during and after her participation in the programmes of the association. They all associated Ms S.D.’s health problems with her participation in the programs.
The court also heard several other witnesses, called at the request of the prosecution, namely Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at the institute, Ms E.B., a member of the association who had attended the program together with Ms S.D. (the alleged victim), Ms S. Ch. and V.Z. Testimony of those witnesses was generally consonant with the case of the defence.
The court heard experts, namely Dr V.Ig., and Dr O.N., who had participated in the expert teams which had earlier assessed the materials of the case. Dr V. Ig. asserted that the mental condition of Ms S.D. was directly linked with her participation in the programmes. Dr O.N. was less categorical and testified that she had not been given information or materials about the alleged victims’ character, social and family life and her medical history, and that her conclusion about the link between the program and the ailments of Ms S.D. were assumptive.
The court examined written evidence in the case-file, in particular records of questioning of Ms I.G., the former teacher and the tutor of Ms S.D. at school, other documentary evidence and official correspondence. Thus, the court examined a letter of 17 June 2003 from the acting chief of the Public Health Department of the Khabarovsk. In that letter Ms S.D.’s problems were associated with the activities of the association which had been characterised as a “sect”. The court examined search records and items seized during the searches, including brochures, books and audio-cassettes released by the association for its members. The court examined Ms S.D.’s medical history, expert reports by the MFB of 19 November 2003, expert report of 23 November 2004, expert report by Dr Iv. of 1 April 2005.
The court heard other witnesses, who gave circumstantial evidence about the case.
(iii) Evidence proposed by the defence
The court questioned a number of witnesses proposed by the defence, namely Ms D., a former member of the association and an acquaintance of Ms S.D., Ms K., the lawyer of the association, and Dr L., who had been contacted by Ms S.D.’s mother in connection with mental condition of the former. They all testified that mental condition of Ms S.D. had been caused by pre-existing factors. A testimony in similar terms was given by Dr A., who had earlier prepared a written expert report on Ms S.D.’s case on 5 May 2004. The court also examined expert opinion of Prof. Z.
(iv) The first judgment and the appeal proceedings
On 23 July 2007 the Centralniy District Court of Khabarovsk fully acquitted the applicant and Ms M.S. In particular, the court concluded that the applicant and Ms M.S. had not realised that their activities fell within the ambit of medical practice, and that they could have been harmful for the health of others. The court also found that the programmes of the association did not amount to medical practice.
The court excluded from evidence expert reports of 25 July 2003, 19 November 2003, 9 March 2004[1] and 1 April 2004 as incomplete, self-contradictory and unreliable. The court also detected various informalities in how the expert examinations had been commissioned and conducted. As to the expert opinion by Dr Iv. (reports of 23 November 2011 and 1 April 2004) the court noted inter alia that it had been based on legislation which had entered into force after the events imputed to the applicant and to Ms M.S. The court also refused to admit in evidence report by Prof Z. as obtained in breach of the domestic law.
The prosecution appealed.
On 20 December 2007 the acquittal was quashed by the Regional Court and the case was referred back to the trial court. The Regional Court disagreed with the assessment of evidence by the trial court, and with its decision to declare inadmissible some evidence, namely expert reports. The Regional Court also pointed at various procedural shortcomings in the trial proceedings. The Regional Court noted that Dr A. must not have been questioned since he had earlier participated in the proceedings in the capacity of an expert. Amongst other things, the Regional Court recommended the trial court to conduct new psychiatric examinations of Ms S.D., the alleged victim.
(b Second round of the court proceedings
In the second round of the trial proceedings the case was heard by Judge M.
(i) Examination of evidence
At the trial both the prosecution and the defence submitted their evidence. The prosecution submitted expert opinions, written witness testimony, items of documentary evidence and exhibits obtained at the previous trial or at the investigation stage. The prosecution also submitted to the court medical certificates of 19 January 2006 and 22 March 2007 whereby the doctors recommended the alleged victim not to attend court hearings in order to avoid a relapse.
The court read out the records of the questioning of the alleged victim, Ms S.D., as well as the testimony of her mother, brother, and sister, given earlier, during the first round of the proceedings and before the investigative authorities. It appears that the defence did not object against their testimony having been read out. According to the applicant, he defence sought to question those witnesses in person. However, personal questioning of those witnesses was refused.
Witness Ms E.K., proposed by the defence, appeared in person and testified before the court. The court also heard several other witnesses, namely Ms E. D. and Ms E.Iv. They had been both witness for the defence and gave testimony consonant with the position of the defence.
The court questioned expert Ms N., who had participated in the expert examination of 25 July 2003. The court also questioned in person expert Mr Ch., who had participated in the expert examinations of 19 November 2003 and 9 April 2004). They confirmed the conclusions of the expert reports and gave further explanations on the case.
The defence sought to produce in evidence several expert opinions, official letters and witness statements, but they were excluded by the court as inadmissible evidence. Thus, the court excluded the following items of evidence: (1) expert opinion of Dr A. of 5 May 2004; (2) written testimony of Dr A. questioned in the capacity of a specialist; (3) expert opinion of Prof Z. of 1 July 2007; (4) expert opinion by IAPR; (5) letter of the acting Minister of Public Health of the Khabarovsk Region of 22 April 2004 which certified that spiritual trainings, meditation and yoga classes did not require a licence; (6) letter of February 2001 from the Committee on Sports and Recreations of the Administration of the Khabarovsk Region which confirmed that the “Art of Living” programs did not require a licence; (7) witness testimony of 30 April 2004 by Ms K., the leading expert of the Licensing Service of the Ministry of Public Health, who testified that spiritual practices and physical exercises based on yoga did not require a licence.
As to the expert opinions of Prof. Z. and IAPR, they were excluded as inadmissible evidence on the ground that they had been obtained in breach of Articles 58, 251 and 270 of the Code of Criminal Proceedings. The court explained that under the law “a party cannot, on its own initiative and outside of the court proceedings, solicit and obtain an opinion of an expert” (page 25 – 26 of the judgment). The written testimony of Dr A. was excluded on the ground that Dr A. had earlier produced an expert report on the case. Consequently, under the Article 72 p. 2 of the CCrP he was precluded from being questioned in the capacity of a “specialist”.
The defence sought to exclude expert opinions produced by the prosecution on the ground that Ms M.S. (the co-defendant) had not been aware of the decision of the investigator to conduct the expert examination. However, the court refused to exclude those opinions on the ground that the defence had had a possibility to challenge experts and their conclusions after the completion of the reports or seek additional expert examinations in the court proceedings.
On 7 December 2009 the defence requested the court to commission an additional expert examination of the materials of the case; however, that request was refused.
(ii) The second judgment and the appeal proceedings
On 25 December 2009 the Central District Court of Khabarovsk found the applicant and Ms M.S. guilty under Article 235 § 1 of the Criminal Code.
The District Court found that between 24 April and 23 June 2002 in the guise of “programs” and “trainings” the applicant and Ms M.S. had dispensed to Ms S.D. the following medical services: “psychological adaptation”; “autogenic training”, “dietetic therapy”, “medicinal gymnastics”, and “psychotherapeutic treatment”. All those activities belonged to various fields of medicine (such as psychotherapy, psychiatry, narcology, etc.). The character of the activities of the accused was by itself indicative of the deliberate and conscious character of their actions. To dispense such services a special education and a licence were required. The defendants operated without any licence and did not have any medical training. There was a direct causal link between Ms M.S.’s participation in the program and her health problems in 2003. Thus, unlawful and careless behaviour of the applicant and Ms M.S. caused the alleged victim (Ms S.D.) health damage of medium gravity.
In support of its conclusions the court referred to the following evidence: written testimony of Ms S.D. (given on 24 March 2003 at the pre-trial investigation stage) and on 22 April 2004, written testimony of Ms N.D. (the sister of the alleged victim, given at the pre-trial investigation on 9 September 2003), written testimony of Ms Z.D. (the mother of the alleged victim), and of Mr E. D. (her brother) given at the first trial.
The court further referred to expert opinions, namely to the report of 27 July 2003 (no. 1170), the written testimony of expert Mr Ign. and oral testimony of expert Ms N; the report of 19 November 2003 (no. 197), of 9 April 2004 (no. 36), and oral testimony of expert Mr Ch., and the expert report of 1 April 2005, and to the medical history of Ms S.D.
The court also referred to other evidence, namely written testimonies of Ms E. K., Ms O.L., Ms E.B., Ms. I.G. and others, given either to the investigator or at the first trial. From the judgment it is unclear, however, how the testimony of those witness supported the accusation.
The court dismissed as inconclusive witness statements by Ms K. (defence witness), Ms D. (defence witness), and did not analyse the testimony of Dr L. The court also discarded testimony of those witnesses who had themselves participated in the programs of the association on the ground that their opinion about the nature and effects of those programs had been “subjective”. Expert opinions proposed by the defence were declared inadmissible (see above).
As to the references in the report of Dr Iv. of 1 April 2003 to the legal acts adopted after the events imputed to the applicant, the court noted that these references did not contradict the conclusions of Dr Iv. but only strengthened them, and that Dr Iv. also referred to the legal acts contemporary to the events at issue (page 27 of the judgment).
In the concluding paragraphs of the judgment the court noted as follows: “The court considers that evidence [submitted by the parties] is admissible, relevant and reliable to the extent that it does not contradict factual circumstances of the case, as established by the court”.
The District Court sentenced the applicant to two years of imprisonment; however, the sentence was not to be executed due to the expiration of the statutory time-limit for the punishment. Mr M.S. was sentenced to 1,5 year’s imprisonment.
On 25 March 2010 the Khabarovsk Regional Court confirmed the conviction. The court of appeal did not found any breach of the domestic substantive or procedural law in the proceedings before the trial court. The Regional Court ruled inter alia that the defence had conceded to the reading of the written testimony of the alleged victim and her relatives.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the courts wrongly assimilated the activities of the association with medical practice. The court disregarded other evidence, namely opinions of those experts and witnesses who testified that the activities of the association had not been “medical” and had not thus required a licence. The conviction was to a large extent based on the expert of opinion of Dr Iv., who had also proposed his view on the legal aspects of the situation. It was not the expert’s task to analyse the law, but the court nevertheless accepted his conclusions. The applicant further criticises incriminating evidence as unreliable and unlawfully obtained. She challenges professional competence of experts who had taken part in the examination of her case and whose opinions were relied on in the judgment, as well as the methods those experts had used. The applicant also argues that her involvement in the program was not distinguished from that of another instructor, Ms. M.S. The court’s conclusion that Ms S.D.’s health problems were caused by her participation in the programs was based on medical opinions which were inconsistent amongst themselves and contrary to other medical evidence in the case-file. Participation in the programs was free of charge and therefore, the instructors were not selling their “services” to the participants.
2. Under Article 6 §§ 1 and 3 (d) the applicant further complains about unfair administration of evidence during the second round of the court proceedings. In particular, the applicant complains about the refusal of the court to admit in evidence expert opinions, documents and witness statements proposed by the defence, about the refusal of the court to call witnesses for the prosecution, in particular expert witnesses who had prepared the reports at the request of the prosecution, and about the court’s failure to consider and even mention certain exculpating evidence. Under the law the defence was unable to commission expert examinations, whereas the accusation had such a possibility. The opinion of the IAPR was not accepted by the court in evidence on the ground that it had not been obtained in accordance with the law, but the law only entitles an investigator, not a defendant, to seek expert opinions. At the same time, the court refused to commission an expert examination on the request of the defence.
3. Under Article 7 of the Convention the applicant further complains that the conviction was based on a number of legal instruments which had been adopted after the events imputed to the applicant, in particular, on the Governmental Decree of 2 July 2002 (no. 238), and on the Directions of the Ministry of Public Health of 23 November 2004, whereas the acts incriminated to the applicant had taken place before 23 June 2002. Furthermore, there was no clarity in the understanding of what constituted “medical practice” under the law, so the applicant’s conviction was totally unforeseeable.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, were the principles of equality of arms and adversarial proceedings respected as regards taking, exclusion, and examination of evidence proposed by the parties? Was the applicant able to examine witnesses against her and to obtain the attendance of witnesses on her behalf, as required by Article 6 § 3 (d) of the Convention? In particular:
(a) Was Ms S.D. (the alleged victim) questioned by the court at any moment in the proceedings (including the first trial)? Was the defence able to question her in person during the investigation?
(b) What was the reason for non-appearance of Ms S.D. and the members of her family before the court in the second trial?
(c) Did the defence request the personal questioning of those witnesses before the court in the second trial? Did the defence agree to the reading of the written testimony of those witnesses, and can it be interpreted as a waiver of the right to obtain their personal attendance?
(d) If those witnesses were not heard in person by the court in the second trial, did it prejudice the fairness of the proceedings?
(e) Were the applicant or her lawyers capable of participating in the process of expert examination of Ms S.D.’s case at the stage of the investigation, in particular to put questions to the expert, propose experts to be included in the team, or otherwise?
(f) Under the law, was the defence entitled to propose alternative expert reports or request additional expert examinations, or solicit expert opinions otherwise in the course of the trial? More generally, under the law was the defence capable of collecting evidence (namely, expert reports) on the same conditions as the prosecution, and what were the legal requirements for such evidence to be admitted by the court for examination?
(g) Why, on 7 December 2009, did the court refuse to conduct an additional expert examination of the case?
(h) Why, in the second trial, did the court refuse to admit in evidence expert reports and opinions (both written and oral), proposed by the defence?
2. Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention? What legal documents defined the notion of “medical services” at the time when the acts imputed to the applicant were committed? The Government are invited to refer to the parts of the judgment which refer to the acts contemporary to the facts of the criminal case which defined the techniques applied by the applicant, as “medical” services. Why did the court, in the judgment of 25 December 2009, referred to the acts adopted after that time? Was the criminal law, applied in the applicant’s case, sufficiently clear and specific?
3. The parties are invited to produce the following materials: the transcript of the hearing before the court in the second trial; a copy of the applicant’s points of appeal and the points of appeal of her co-defendant; a transcript of the defence oral pleadings before the court of appeal, motions by the defence and procedural rulings of the court in the second trial (if any). In answering factual questions, the parties are asked to refer to the pages of the trial record or to other documents in the case-file which confirm their position.
[1] The date in the judgment indicated as 8 April 2004
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