Alleged violation of Article 7, par. 1, of the Convention

Article 7: No punishment without law

par. 1:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

The applicants submit that Article 7, par. 1, of the Convention was violated with regard to them.

The legal principle “nullum crimen, nulla poena sine lege” is not only a protection from persecution, conviction and punishment with retroactive effect, but also an effective guarantee against arbitrary persecution, conviction and punishment. Only the law can define a criminal offence and prescribe a penalty. Excessive and exaggerated interpretation of the law to the detriment of defendant as well as the use of analogical interpretations of the laws are under Article 7 (ECHR 42758/98 No. 51 - K.A. and A.D. v. Belgium).

The applicants maintain that their actions on 22 September 2005 were not criminalized by any Georgian law then in existence. They were charged under Article 130, par. 2, of the criminal code of Georgia because this is the only Article in Georgian criminal law applicable to the punishment of improper medical care by a physician and, therefore, the only way that the prosecutors' office could conceivably punish the applicants criminally.

All accusations against the applicants were arbitrary contrived and do not in the least comprise a criminal offence under Article 130 of the Georgian criminal code. In order to avoid further repetition, the applicants reference the previous submissions.

Taking into account the elements of Article 130, par. 2, of the criminal code of Georgia, in order for a physician to violate this Article the following conditions must be satisfied:

A person must absolutely be under a life-threatening condition
The person's death must be caused by the failure of a physician to provide him or her with emergency medical care
The failure of the physician to provide emergency medical care must be without reasonable excuse.

The applicants will avoid repeating the merits of case that they have discussed in details in the preceding parts of this application (See under statement of facts, alleged violation of Article 5 and 6 of the Convention). They simply state that none of the circumstances listed above were involved in their actions.

The first applicant stresses that all the experts and witnesses examined in this case proved unanimously that the patient, Guliko M., was not under a life-threatening condition during his working hours, i.e., before 10:00 a.m. (See under alleged violation of Article 5 and 6). As for the accusation that he has failed to provide the patient with emergency medical care, it is clearly untrue and the prosecutor and the judges themselves effectively admitted as much when in the bill of indictment and the judgments they detailed the measures the first applicant took to provide care from when the patient first became his responsibility until his duty ended at 10:00 a.m.

These measures were: he received the patient, conducted an anamnesis, made a preliminary diagnosis of the patient (i.e., it was not a final one and was open to being changed), ordered her moved to the genecology department, twice had her blood tested (once upon first seeing her at 5:00 a.m. and a second one at 7:00 p.m.), performed a curettage of her with attention to the results, started the patient on antibiotics, and kept the patient under observation during his working hours (See under statement of facts). All of these actions show that the first applicant provided medical care to the patient continuously throughout the entire period he was in charge of her. Article 130, par. 2, only criminalizes a physician's failure to provide medical care to a patient in an emergency condition, and then only when the failure is without reasonable excuse.

Here the first applicant was providing medical care to the patient. Therefore, he cannot be found to have violated the statute. The prosecutor and court perhaps read Article 130, par. 2, as requiring a physician to provide non-negligent care to a person in an emergency condition. But such an interpretation violates Article 7's principle of legality because Article 130, par. 2, contains no language putting a physician on notice that the emergency care the physician provides must be non-negligent care. That is, by its plain language Article 130, par. 2, criminalizes only an intentional failure to provide care, not a negligent failure to provide care. It is unforeseeable that Article 130, par. 2, can be interpreted as providing for the imprisonment of physicians for medical malpractice that occurs while a physician is fulfilling his or her duty to provide emergency medical care.

The point of Article 130, par. 2, is simply to require physicians to render aid and not to walk away from those in an emergency condition, and no more. Thus, the first applicant provided extensive care to the patient. Therefore, he did not violate Article 130, par. 2, and any interpretation of this article that would make the care the first applicant provided a crime is an interpretation that violates Article 7. And, of course, after the first applicant's duty ended at 10:00 a.m. he had reasonable excuses not to provide care to the patient. Those excuses were that another physician, Dr. Tina Sv., was in charge of the patient's care and that he was not permitted by Dr. Tina Sv. to operate on the patient even though he was willing to do so.

In conclusion, the first applicant did his best in order to provide the patient with treatment. As to the prosecutor's and court's allegation that the preliminary diagnosis made by the first applicant was wrong, even if such is the case he should not be charged with or found guilty of a crime because committing a medical error is not a crime according to Georgian legislation.

Furthermore, under Article 130, par. 2, for there to be a crime there must be a causal connection between a physician's failure to provide emergency medical care without reasonable excuse and the patient's death. The case material clearly shows that during his duty hours while the first applicant provided emergency medical care to the patient she was never in critical condition. The case material also shows that after the first applicant's duty ended and Dr. Tina Sv. took over, the patient's medical condition worsened and the second ultrasound revealed free liquid, almost certainly blood, in the patient's abdomen. This was the point at which the patient required an emergency operation. It was the failure to provide this operation that caused her death. Since the first applicant was not in charge of the patient at this time, and was not permitted to perform the operation anyway, there was no causal connection between the first applicant's provision of care and the patient's death.

As to the second applicant, she submits that she, too, was not at all a subject to the crime proscribed by Article 130, par. 2, of the criminal code of Georgia. A subject to this crime is a physician, who is responsible for providing a patient with emergency medical care, i.e., the doctor in charge of the patient, if applicable or any other physician, who has been asked by the doctor in charge for such assistance.

Furthermore, as the case materials demonstrate, on 22 September 2005 the second applicant was responsible for another patient and when the necessity for Guliko M's surgical treatment became apparent, the second applicant was conducting a caesarean section of patient Gudashvili from 13:00 until 14:30 and then she was near patient Shehraza ready to confine, for whom she was responsible under a contractual agreement (See under statement of facts).

An important issue in this case the Georgian courts have excessively interpreted a criminal statute that requires an intentional act as including medical negligence, an unintentional act. The Georgian courts are reading “failure to provide medical care” in the statute as if it said “failure to provide competent medical care.” It seems highly improper for the courts to add a word like “competent” or something similar to this statute.

In other words, either the Georgian Legislature needs to write a statute that clearly criminalizes medical negligence and then apply it only to future cases, or Georgia needs to set up a system to punish medical negligence that is not criminal (which is what the West, and probably the rest of the world, does).

The Georgian courts' interpretation of its statute is so wild and excessively that it violates Georgian law and Human rights. The Georgian courts' wild interpretation of the statute is equivalent to passing an ex post facto law which is inconsistent with Article 7 of the Convention and a violation of it, which Georgia has agreed too. It is said that a judicial interpretation of a law as wild as this interpretation violated obviously due process of law.

But because it was not an offence, then the whole criminal punishment should be eliminated. If the prosecutors can be made to understand that medical negligence is not a criminal act, then they will not institute criminal proceedings in such cases, let alone seek pre-trial detention.

More is so that when one considers the merits of this case, it becomes obvious that the applicants have not committed even a medical negligence.

Considering the foregoing the applicants submit that Article 7, par. 1 of the Convention was obviously violated.

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