FIRST SECTION
CASE OF DOLENC v. SLOVENIA
(Application no. 20256/20)
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Fair hearing • Recognition by Slovenian courts of judgments delivered in Israel, finding applicant liable for significant medical damages, without duly satisfying themselves of the trial’s fairness • Insufficient weight attached to consequences of non-examination of witnesses and exclusion of their statements on applicant’s right to present evidence
 
STRASBOURG
20 October 2022
FINAL
 
20/01/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dolenc v. Slovenia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Krzysztof Wojtyczek, Acting President,
 Marko Bošnjak,
 Alena Poláčková,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 20256/20) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Vincenc Vinko Dolenc (“the applicant”), on 30 April 2020;
the decision to give notice of the complaints under Article 6 § 1 of the Convention concerning the Slovenian courts’ recognition of Israeli district court judgments rendered in proceedings in which the applicant’s witnesses had not been examined, his evidence and submissions had been excluded from the case file and the Israeli district court’s documents had been served on his former representative, to the Slovenian Government (“the Government”), represented by their Agent, Mrs A. Vran, Senior State Attorney, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 20 September 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns recognition by the Slovenian courts of judgments issued by an Israeli district court in civil proceedings against the applicant. THE FACTS
2. In May 1992 the applicant, an internationally renowned neurosurgeon, performed surgery on an Israeli citizen, E.M., at Ljubljana University Hospital. Following the surgery and/or postoperative care, E.M. was left severely disabled. PROCEEDINGS IN ISRAEL
3. In May 1995 E.M.’s lawsuit, in which he sought damages for medical negligence from the applicant, was served on the latter during his visit to the State of Israel (hereinafter “Israel”). The proceedings were subsequently conducted before the Tel Aviv District Court (hereinafter “the Israeli district court”). The applicant submitted his defence statement, a medical opinion by neurosurgeon R., statements of eleven witnesses who worked at Ljubljana University Hospital and an opinion by a Slovenian legal expert who was to testify about the applicability of Slovenian law to the dispute. It seems that the applicant never appeared before the Israeli district court himself but was represented in the proceedings by an Israeli lawyer (until he cancelled his representation – see paragraph 14 below). 4. Following an objection by the applicant, which had initially been upheld by the Israeli district court, the Israeli Supreme Court on 10 March 1998 decided that the suitable forum for deciding the case was the court in Israel. Subsequently, the applicant requested a summary dismissal of the action, arguing that the law applicable to the dispute originating in the surgery which had taken place in Slovenia was Slovenian law. He submitted that under Slovenian law an action could only be brought against the hospital and was in any event time-barred. This had been rejected by the Israeli district court. On appeal, the Israeli Supreme Court quashed that decision and ordered that the trial court examine both the evidence on the applicable law and that concerning liability. 5. On 1 January 1999 a trial started. At the beginning of the trial, the plaintiff’s relatives and expert neurosurgeon N. testified before the Israeli district court. The applicant submitted an expert opinion by R., who was a neurosurgeon, statements by eleven witnesses, all of them employees at Ljubljana University Hospital, including doctors and nurses who had treated E., his own written statement and the opinion of an expert on Slovenian law. Expert R. testified in court on 6 July 1999, following which expert N. (for the plaintiff) submitted written comments. In the meantime, the applicant, via his representative, requested that a video examination, presumably by a Slovenian court, of his witnesses be accepted as evidence. He argued that the witnesses had declined to travel to Israel and that he likewise did not want to come and risk having another lawsuit served on him. He proposed that he too be examined in Slovenia. On 7 July 1999 the Israeli district court decided that the applicant and the witnesses would be examined by video link. 6. On 7 September 1999 the Slovenian Ministry of Justice explained in writing to the applicant that there was no bilateral agreement between Slovenia and Israel regarding legal assistance in civil matters, but that such assistance could be requested under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“the Hague Evidence Convention”). It also stated that neither the Hague Evidence Convention nor Slovenian legislation provided for the possibility of directly examining witnesses from a foreign country through a video link and explained that every State had its own laws regulating court proceedings, including those with a foreign element. 7. On 22 September 1999 the applicant declined to participate via video link and again requested that he and his witnesses be examined before a Slovenian court, in accordance with the Hague Evidence Convention. He pointed out that Israel and Slovenia had both signed the Hague Evidence Convention and that pursuant to Slovenian law witnesses would receive a court summons to appear. He repeated this request on 6 December 2000. 8. On 27 August 2001 the Israeli district court, after a hearing, rejected the applicant’s request, finding that the decision to examine him and the witnesses via video link struck an adequate balance between the interests of the parties. This was upheld on 18 July 2002 by the Israeli Supreme Court, which held that the position could be reconsidered by the district court if there were practical obstacles to organising an examination via video link. 9. In the meantime, the Israeli district court decided to hear the witness concerning foreign law, but the applicant made an application to postpone this until the Supreme Court reached its decision (see paragraph 8 above), arguing that his witness on this issue would not come to court because of the difficult security situation in Israel. 10. The applicant made another (his fourth) request for his witnesses to be examined by a Slovenian court, claiming that it was practically impossible to hold the examination via video link. On 26 December 2002 the Israeli district court rejected this request, holding that it was technically possible to examine witnesses that way. The applicant then asked that his scheduled examination via video link be cancelled and for the court to decide how his witnesses would be examined. 11. On 6 February 2003 the Israeli district court upheld its decision of 26 December 2002, finding that the applicant’s refusal to be examined via video link did not arise from the lack of practical possibility of conducting such an examination. The court then asked the applicant to reconsider his position and warned him that his main statement would otherwise have to be excluded from the case file. Since the applicant maintained his position, on 4 June 2003 the court excluded his main statement from the case file. Finding it impossible to examine witnesses via video link without the applicant’s cooperation, it ordered that his witnesses be examined before the Slovenian courts pursuant to the procedure regulated by the Hague Evidence Convention. In this connection, it instructed the parties to contact a specific official at the Israeli Directorate of Courts, B.Z. As regards the witness on Slovenian law, the court decided that he would be examined in Israel once the security situation improved. 12. On 16 September 2003 the Israeli authorities submitted a request under the Hague Evidence Convention to the Slovenian authorities. On 23 January 2004 the Ljubljana District Court raised certain issues with respect to execution of the request for evidence-gathering, such as translation and interpretation of the witnesses’ examination and related costs, the lack of possibility of cross-examining witnesses under Slovenian law (which was apparently requested by the Israeli district court or the plaintiff), and the participation of a foreign lawyer, which was not provided for by domestic law either. On 10 February 2004 the Ministry of Justice forwarded these concerns to the Israeli authorities with a request for a reply to the issues raised. The Israeli authorities subsequently urged the Slovenian Ministry of Justice to organise the witnesses’ examination as soon as possible. On 12 July 2004 the latter replied that no answer had been received to its query of 10 February 2004. Several months later, the Ljubljana District Court considered that the matter was no longer pertinent and that the procedure under the Hague Evidence Convention had been terminated. 13. It would appear that on 11 March 2004 E.M. (see the dispute on the facts considered in paragraphs 38 to 40 below) requested that the procedure under the Hague Evidence Convention be discontinued because of the difficulties encountered in the process, as demonstrated by the Slovenian Ministry of Justice’s letter of 10 February 2004 and the delays. 14. On 19 April 2004 the applicant’s representative informed the Israeli district court of the applicant’s wish to not have a representative in the proceedings and his decision to cancel his power of attorney. The Israeli district court ordered that the former representative’s office continue to be used for serving documents on the applicant and notifying him of any matters at its request. The applicant disputed in the proceedings before the Court that he had been informed of this and any subsequent Israeli court decisions in this matter. 15. The Israeli district court then requested B.Z. to inform it of the possibilities and expected time frame for the examination of witnesses that was to take place in Slovenia pursuant to the Hague Evidence Convention. No response was received. 16. At the hearing scheduled for 5 September 2004, nobody appeared for the applicant. On 21 September 2004 the Israeli district court cancelled its decision regarding the examination of witnesses in Slovenia. It noted that fifteen months had passed without any progress being made and nine years since the lawsuit had been filed. The court found that it was left with no other option but to conduct the evidence-taking procedure in Israel, where the applicant would be given an opportunity to present his evidence. 17. At the hearing on 7 November 2004, no one appeared on behalf of the applicant. He was then given several additional deadlines to submit his concluding statement. He disputed that he had ever been informed of these additional opportunities. 18. In the absence of any response from the applicant, the Israeli district court reached its decision on the basis of the evidence submitted, but excluded his witnesses’ statements and the opinion of the Slovenian legal expert in line with Israeli law, finding that these witnesses had not been directly examined owing to the applicant’s conduct. 19. On 9 June 2005 the applicant was found fully liable for the damage caused to E.M. The Israeli district court in its judgment set out the applicant’s arguments, namely that Slovenian law should have applied to the dispute, that the opinion of expert E. was not valid, that he had performed the surgery in his capacity as an employee of the hospital, that he had acted with the requisite diligence and that the damage to E.M. had been unforeseeable and unavoidable, and that, in any event, it was the hospital which should bear liability for the actions of the medical team. The court further held that the applicant’s written statement in lieu of his direct examination had been excluded from the case file. His witnesses’ statements in lieu of direct examination had likewise been excluded pursuant to the Israeli rules of civil procedure and in view of the fact that E.M. had not waived his right to examine the witnesses. The Israeli district court held that the applicant had done everything he could to prevent the examination and had thereby prevented it from discerning the truth and E.M. from proving his own allegations. 20. As regards the applicant’s liability for damages, the Israeli district court made the following findings (official English translation from the domestic case file):
“...
20.  ... The Defendant has an interest in relying on the rules of Slovenian law, in accordance to which he claims, liability for medical negligence towards patients does not rest on the doctor but on the hospital, and in any case, the claim is time-barred. The difficulty is that the foreign law is a factual question and the applicant seeking to apply foreign law must prove that law before the court by submitting evidence ... Because the opinion of the expert witness for Slovenian law for the Defendant was removed from the court file, neither the general rules of Slovenian law were proven nor was the specific rule for liability for medical negligence. In such circumstances, the court must apply the ‘equality of laws’ rule, on the basis of which it is necessary to refer to the Israeli law and apply it in these proceedings.
...
21.  ... I will say at the outset that from the totality of the evidence before me, which was presented by the Claimant, and which the Defendant did not contest by evidence, it is clear that the Claimant expressly selected the Defendant to perform the surgery and after an offer was made and acceptance, a contract was concluded between the parties for the performance of the surgery.
...
22.  ... I have not neglected the fact that the confirmation of the payment for the surgery was issued to the Claimant by the hospital and not by the Defendant personally. However, the confirmation of the hospital is in the amount of USD 20,000, while the Claimant paid USD 24,000, as a result of which there is a likelihood that the difference represented a profit for the Defendant for performing the surgery. On the basis of all stated, I conclude that the Defendant is responsible for the operation, as well as for the care the claimant received before and after the surgery, even though, that care was actually predominantly provided by medical team members at the hospital.
... 23. In accordance with the Expert Medical Opinion of Dr. [E.] as well as of Prof. [R.], difficulties in Claimant’s breathing and paralysis of all four limbs arose in the early stages after the surgery, which points to serious post-surgery complications. There is a disagreement about when these indicators were discovered - the opinion of Prof. [R.] is based on the report prepared by the doctor anaesthetist at the hospital after the patient was awakened after the surgery, while the opinion of Dr. [E.] rests on the information received by the Claimant’s two brothers, which is also consistent with their testimony. The difficulty is that the anaesthetist’s report was removed from the court file together with the statements of the medical team members and for this reason my decision cannot rest on that opinion. Despite this, the testimony of [the defendant’s brothers] is reliable on its face, without internal contradictions, as a result of which I accept the allegations of Dr. [E.].
... In accordance with the described situation in which the Claimant was found, the immediate medical assistance of the Defendant, as provided to the Claimant, was deficient in two elements as follows ...
24.  ... First, [the] two medical experts actually confirmed that omitting a CT scan immediately when breathing difficulties and paralysis occurred, especially considering the fact that these two complications occurred concurrently, amounts to a serious mistake.
... Prof. [R.], the medical expert for the Defendant, himself testified about the well‑known exceptional importance of a CT scan after a surgery like that undergone by the Claimant;
... 25. Second, Dr. [E.] is of the opinion that the actual surgical interventions in the skull area which, from a neurological perspective, is extremely sensitive, itself required careful, constant observation at the department for intensive care, especially when the person that was operated has difficulties in breathing already after the surgery. Prof. [R.] is of the opinion that the Claimant was not taken to the general intensive care department but was hospitalised at the intensive care unit at the neurosurgical department where he received the care he required. As already explained above, it is clear that medical care received by the Claimant at the intensive care unit at the neurosurgical department was completely inadequate: the team of medical male nurses at the department considered breathing difficulties of the Claimant as a normal phase of recovery after the surgery and therefore did not pay sufficiently reasonable attention to its occurrence and did not call the duty doctor. Only the next day, after [one of the defendant’s brothers’] intervention and on his demand, did they call a doctor immediately and the Claimant was moved to the general department for intensive care. Causal Connection between errors of the Defendant and the injury of the Claimant
27.  ... From all this, the most important point to make is that it is clear that vasospasm is a rare occurrence which can be diagnosed only after excluding more frequent complication of bleeding and edema, which is done by a CT scan. On this basis, Prof. [R.] is wrong in his diagnosis on the basis of which the injury of the Claimant is alleged to have occurred because of vasospasm, a conclusion reached on the basis of CT and MRI scans which were performed long time after the Claimant left the hospital. 28. In light of all said, I am sure there is a causal link between failure to perform the CT scan and the injury suffered by the Claimant because the CT scan was not performed. To clarify:
A CT scan is necessary, first of all, to diagnose a cause of neurological degradation of a patient’s condition after cranial surgery when signs, such as difficulties in breathing and paralysis of limbs, occur. The Defendant did not perform a scan of the Claimant which without a doubt was clearly shown to have been necessary, and consequently, the Defendant caused the Claimant evident injury, concerning which it cannot be known with certainty if bleeding, edema or vasospasm occurred or if there was an injury of some nerve during the surgery that caused the paralysis of all four limbs of the Claimant. More than anything the evident injury is proven because it cannot be known if the Defendant could have prevented it and how. Relativity of the doctrine of proven damage means that there was a transfer of the burden of proof from the Claimant onto the Defendant that the Defendant is not responsible for this damage ...
... Note: I have not overlooked the possibility that even if bleeding or edema were discovered this would not necessarily mean that it would have been possible to prevent the occurrence of the Claimant’s damage, or the possibility that bleeding or edema would not be discovered, or that a treatment for vasospasm would have succeeded, should the Claimant have had it. All this is not sufficient to break the chain of causation between non-diagnoses and lack of care for the Claimant, to whom the damage was caused ... 29. Also in a situation where the ‘res ipsa loquitur’ rule applies, as set out in Article 41 of the Act on Damages, the burden passes from the Claimant onto the Defendant to prove that the damage suffered by a patient because of a doctor could not have be [sic] prevented ...
...

Article of the Convention at issue: Article 6
Outcome: violation