CASE OF JURICA v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1953 and lives in Zagreb. 6. In the period between 1987 and 1989 the applicant underwent several operations in the Zagreb Clinical Hospital Centre “Sestre Milosrdnice” (Klinički bolnički centar Sestre Milosrdnice – hereinafter “the hospital”), a public health-care institution, for a middle-ear dysfunction. 7. Following surgery in October 1989 the applicant’s condition deteriorated, resulting in paralysis of the left side of her face. In this connection, she underwent further treatment until July 1997, when it was found that her condition was such that she would not recover. The applicant took early retirement on grounds of disability. 8. On 29 January 1998 the applicant lodged a civil action against the hospital and the relevant insurance company with the Zagreb Municipal Civil Court (Općinski (građanski sud) u Zagrebu), claiming damages for alleged medical malpractice. 9. In September 1998 the applicant urged the Zagreb Municipal Civil Court to schedule a hearing in her case. 10. The parties exchanged further submissions in February and March 1999. The applicant submitted an expert report drafted by V.F., according to which her medical condition had notably deteriorated in January 1997. 11. The first hearing before the Zagreb Municipal Civil Court was held on 17 September 1999. Following questioning of the applicant, the hearing was adjourned until further notice. 12. In October 1999 and May 2000 the applicant urged the Zagreb Municipal Civil Court to speed up the proceedings. 13. On 27 September 2000 a hearing was held at which the Zagreb Municipal Civil Court decided to commission an expert report concerning the circumstances of the applicant’s treatment. 14. On 14 November 2000 experts R.T. and P.S. were commissioned to write the report. 15. In December 2000 P.S. produced a report in which he stated that he had found no indications of medical malpractice in the applicant’s treatment. 16. R.T. asked to be excluded from the proceedings on the grounds that he was employed in the hospital and that therefore an issue as to his impartiality could arise. As a result of his withdrawal, on 16 January 2001 the Zagreb Municipal Civil Court commissioned a report from another expert, J.G. 17. In her report of 5 February 2001, J.G. found that the applicant’s condition was irreversible, but did not provide any conclusive findings as to the alleged medical negligence. 18. On the basis of an objection by the applicant to J.G.’s findings, on 8 March 2001 the Zagreb Municipal Civil Court invited the expert to supplement her report with findings concerning the applicant’s allegations of medical malpractice. 19. On 9 April 2001 J.G. submitted a supplement to her report, finding that there were no indications of medical negligence in the applicant’s treatment. 20. In April 2001 the applicant challenged J.G.’s findings and asked the Zagreb Municipal Civil Court to question the experts at a hearing. 21. On 8 November 2001 a hearing was held for the questioning of the experts, who reiterated their findings. The Zagreb Municipal Civil Court found that it was necessary to commission another expert report from the University of Zagreb Medical Faculty (Medicinski fakultet Sveučilišta u Zagrebu) concerning the question whether the applicant’s condition was a result of medical negligence. 22. An expert report was commissioned from the University of Zagreb Medical Faculty on 14 January 2002. 23. The University of Zagreb Medical Faculty produced a report on 28 April 2005. It found that the applicant’s facial paralysis was a result of complications during surgery and not medical malpractice. 24. In response to the expert report of the University of Zagreb Medical Faculty, the applicant specified her claim, arguing that the report established a causal connection between the surgery and the deterioration of her health. She also considered that according to the principle of objective liability, the hospital was responsible. The applicant did not express any objections concerning the report. 25. In September and December 2006 the applicant urged the Zagreb Municipal Civil Court to schedule a hearing. 26. At a hearing held on 2 February 2007 the Zagreb Municipal Civil Court questioned the applicant and ordered that the experts from the University of Zagreb Medical Faculty, N.Šp. and J.Šk., be questioned at the next hearing. 27. On 24 May 2007 the Zagreb Municipal Civil Court heard evidence from N.Šp. and J.Šk. They reiterated their findings, according to which the deterioration of the applicant’s condition had been a result of complications during surgery. 28. A further hearing was held on 16 May 2008 at which the Zagreb Municipal Civil Court decided that K.R., the doctor who had treated the applicant, would be questioned as a witness. 29. A hearing on 17 October 2008 was adjourned because K.R., who at the time lived in Serbia, had not been properly summoned to appear as a witness. 30. At a hearing on 4 December 2008 the Zagreb Municipal Civil Court questioned the applicant. It also found that K.R. had not been properly summoned. 31. On 22 April 2009 a hearing was held at which the Zagreb Municipal Civil Court questioned K.R., who explained the circumstances of the applicant’s operations and further treatment. 32. On 7 May 2009 the Zagreb Municipal Civil Court commissioned another expert report from D.V. with regard to the question of a causal link between the applicant’s condition and her disability pension. In a report of 8 July 2009 the expert found that there was a direct causal link between the applicant’s condition and her retirement on grounds of disability. 33. At a hearing on 20 January 2010 the applicant asked that experts from another European Union State be appointed as expert witnesses in her case. The Zagreb Municipal Civil Court dismissed that request and concluded the hearing. 34. In a further submission of the same date the applicant challenged the impartiality of the expert witnesses from Croatia, arguing that it was clear from the negligible number of cases where medical malpractice had been established that they were biased in favour of the defendants. 35. On 29 January 2010 the Zagreb Municipal Civil Court dismissed the applicant’s civil action, holding that in the case at issue the principle of presumed fault (presumirane krivnje) should be applied. That meant that it was for the defendants to show that the hospital had acted in accordance with professional standards and that the damage was not the result of a lack of diligence on the part of the doctor who had performed the surgery. Relying on a detailed assessment of the expert reports obtained during the proceedings, the court found that on the facts of the case, the deterioration of the applicant’s health had been a result of complications in the treatment and not of medical malpractice. It also pointed out that there was nothing putting into doubt the quality of the expert reports commissioned during the proceedings and that the applicant’s request that another expert report be commissioned from abroad would unnecessarily further prolong the proceedings and generate further expense. 36. On 17 March 2010 the applicant appealed against that judgment before the Zagreb County Court (Županijski sud u Zagrebu) alleging, inter alia, that the medical experts who had drafted the reports had a personal and professional conflict of interest in the proceedings, as they involved allegations of malpractice against their colleagues and the experts were financially dependent on the hospital system. 37. On 14 September 2010 the Zagreb County Court dismissed the applicant’s appeal as unfounded on the grounds that there was no reason to doubt the quality and findings of the expert reports. 38. On 11 November 2010 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating her previous arguments concerning lack of impartiality on the part of the experts and the quality of the expert reports commissioned during the proceedings. 39. On 31 August 2011 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded, endorsing the reasoning of the lower courts. 40. On 2 June 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining of lack of an effective procedure before the competent civil courts to deal with her allegations of medical negligence. She also reiterated her complaints as to the lack of impartiality of the medical experts, arguing that the relevant statistics showed that it had been impossible to establish her allegations of medical negligence on the basis of the expert reports commissioned from the domestic experts. 41. On 26 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant on 12 October 2012. 42. On 7 January 2008 the applicant complained to the Zagreb County Court about the excessive length of the proceedings before the Zagreb Municipal Civil Court. 43. On 26 August 2008 the Zagreb County Court found a violation of the applicant’s right to a trial within a reasonable time and awarded her 11,000 Croatian kunas (HRK – approximately 1,530 euros (EUR)) in compensation. It also ordered the Zagreb Municipal Civil Court to terminate the proceedings within a further period of eight months following the service of its decision. 44. The decision of the Zagreb County Court was served on the Zagreb Municipal Civil Court on 22 October 2008.