CEDH · CASELAW;COMMUNICATEDCASES;ENG — 8 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sDF520BAF { margin-top:0pt; margin-bottom:0pt; text-indent:21.55pt }   Communicated on 8 September 2016   FOURTH SECTION Application no. 37809/08 Tina SVANIDZE against Georgia lodged on 1 July 2008 STATEMENT OF FACTS 1.     The applicant, Ms Tina Svanidze, is a Georgian national who was born in 1935 and lives in Tbilisi. She is represented before the Court by Mr   I. Kandashvili, a lawyer practising in Tbilisi. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The circumstances of the case 3.     At the material time, the applicant was the head of the gynaecological department at Mtskheta Hospital. 4.     In the early morning of 22 September 2005 a patient, G.M., who had severe abdominal pain, was brought to Mtskheta Hospital. She was diagnosed by two doctors who were on duty with post-abortion acute endometriosis and pelvic peritonitis. The applicant came to the hospital at 10 a.m. She re-examined G.M., whose medical condition had deteriorated in the meantime, and decided to move her to an intensive care unit. Subsequently, G.M. had two ultrasounds, following which it was decided to perform an urgent operation. 5.     At 3.50 p.m. on 22 September 2005, before the operation started, G.M. died. According to the post-mortem forensic examination, the cause of her death was acute anaemia, which had developed as a result of a ruptured fallopian tube caused by an ectopic pregnancy. 6.     On the same day a preliminary investigation into G.M.’s death was initiated to assess whether her death had been caused by medical negligence under Article 130 § 2 of the Criminal Code of Georgia (abandoning a patient in danger and thereby causing death). 7.     On 22 December 2005 experts from the National Forensic Bureau confirmed the results of the post-mortem forensic examination. The experts further concluded that, owing to a diagnostic error, G.M. had not been provided with urgently required surgical intervention, and had died as a result. 8.     According to the bill of indictment drawn up on 16 February 2006, the applicant and her two colleagues had been complicit in failing to provide a patient with a life-threatening condition with urgent medical treatment for no good reason, which had caused her death (Article 130 § 2 of the Criminal Code). 9.     The trial at the first-instance court started on 6 March 2006. On 7 August 2006, after the examination of the evidence had finished, the applicant’s case was separated from that of her colleagues. Her poor state of health and her inability to participate in the trial formed the basis for that decision. 10.     On 8 November 2006 the trial against the applicant resumed with a new judge, P.S. On 1 March 2007 the applicant was convicted as charged. She was sentenced to three years’ imprisonment, to be served after her recovery, and was given a fine in the amount of 15,000 Georgian laris (GEL). 11.     The applicant appealed. She complained that the judge who had convicted her had become involved in her trial only at the last stage of the proceedings, after the examination of the evidence had finished; hence, he had not participated in the examination of the witnesses and consideration of the expert and other evidence. Moreover, according to the relevant order of the President of Georgia, P.S. had only been appointed as a judge at the Mtskheta District Court on 29 August 2006. Consequently, he could not have served as a substitute judge in her trial, which started in March 2006. 12.     As to the substance of her conviction, among other things, the applicant’s grounds of appeal were: the first-instance court had overlooked her argument that there had been no anesthesiologist available to start the operation at the moment it had become obvious that surgical intervention was necessary. Thus, the constituent element of the offence of medical negligence – “without good reason” – was not satisfied. 13. By a decision of 14 May 2007 the Tbilisi Court of Appeal upheld the applicant’s conviction. The appeal court left unanswered the applicant’s argument that she could not have started surgical intervention without an anesthesiologist. As to the procedural aspects of the trial, it concluded that P.S. had been assigned to the applicant’s case as a substitute judge and that, in accordance with Article 436 § 2 of the Code of Criminal Procedure, he had not been required to restart the examination of the evidence. 14. On 3 January 2008 the Supreme Court of Georgia, while confirming the applicant’s guilt, amended her sentence. In particular, she was discharged on the basis of the Amnesty Act of 2007 from serving her prison sentence. B.     Relevant domestic law 1. The 1998 Code of Criminal Procedure (as in force at the material time) Article 435. The immutability of court composition “1. A court shall examine a case in one and the same composition. If one of the judges cannot take part in the proceedings, he or she shall be replaced by another judge and the examination of the case shall restart, except in cases provided for by Article 436. ...” Article 436. Substitute judges “1. By a decision of the chairperson of a court, a seconded judge may be assigned to a case ... [He or she] replaces a judge who withdraws from the court composition and the examination of the case shall continue. 2. If a substitute judge considers that there is a need for various court procedures in order to form his own personal view of the case, it is possible that certain pieces of evidence may be re-examined ...” 2. The Criminal Code (as in force at the material time) Article 130. Abandoning a sick person in distress “1. A failure on the part of a medical worker to provide urgent medical assistance to a sick person with a life-threatening condition without good reason shall be punished ... 2. The same act which caused either serious damage to the patient’s health or the patient’s death shall be punished ...” COMPLAINTS 15.     The applicant complains under Article 6 of the Convention that her conviction lacked sufficient reasoning. She also claims that the involvement of the so-called substitute judge in her trial rendered it unlawful and that the substitute judge convicted her without participating in the oral examination of the expert and witness evidence.   QUESTIONS TO THE PARTIES 1.     Was the Mtskheta District Court, which convicted the applicant, a “tribunal established by law”, as required by Article 6 § 1 of the Convention, having regard to the applicant’s submission concerning the   allegedly unlawful composition of that court? In this connection, did the appointment of P.S. as a substitute judge in the applicant’s trial comply with the relevant legislation? The parties are requested to refer to the relevant provisions of the Code of Criminal Procedure and any other legislation if necessary.   2.     Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 of the Convention, in so far as the first-instance judge who convicted her did not hear her or the witnesses directly and did not participate in the oral examination of the expert and other evidence?   3.     Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, in view of the absence of a reply to the applicant’s argument that she could not have started the operation earlier in the absence of an anesthesiologist, were the decisions of the domestic courts sufficiently reasoned?