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Violations of Art. 6 par 1 - Page 8
Alleged violation of Article 6, par. 1
But who was supposed to conduct such operation? Who was responsible for the patient's state of health after 10:00 a.m.? The prosecutor knew very well that the first applicant was not responsible for the patient any more that was confirmed by the prosecutor Guram Ok. personally at the hearing at the Mtskheta Regional Court.
Namely, when the first applicant made a petition at the hearing at the Mtskheta Regional Court on 18 July 2006 seeking to examine as witnesses Jaba B. and Irma I., who were with him after 10:00 and could confirm his intention to make an operation and Dr. Tina Sv.'s refusal, the prosecutor did not support this petition for the following reasons: "There are no grounds for their examination, because after 10:00 o'clock in the morning he had no obligations and the prosecutor's office does not accuse him from this period onwards". The court supported this argumentation of prosecutor Guram Ok.. and the first applicant's above petition was rejected. (See the attached Annex A.. - protocol of the hearing of 18 July 2006).
In this regard, the first applicant emphasizes the testimony of the third accused on this case - manager of gynecology department Tina Sv., who stated several times to the Mtskheta Regional Court that the first applicant was not responsible for the patient after 10:00 o'clock and that he had no right to perform any operation at all. The first applicant submits some quotations from Dr. Tina Sv.'s above testimony:
"Since I took Guliko M. upon myself, Z. Oboladze was no longer responsible for anything", "I was supposed to conduct an operation, because Guliko M. was a patient of gynecology department", "Zviad Oboladze did not ask me to allow him to conduct an operation alone. Even if he did so, I would never permit him, because I was not sure of a degree of his qualification", "whatever the diagnosis of the patient was, Z. Oboladze had no right to conduct an operation", "nobody had a right to conduct an operation at the gynecology department except of me", "I did not allow Z. Oboladze to conduct an operation, he had no such right". (See the attached Annex A.. - protocol of the hearing of 6 July 2006).
In this regard the first applicant also submits to the Court the testimony of witness Dr. Merab M., manager of obstetrics department of the Mtskheta regional hospital, who testified to the Mtskheta Regional Court as follows: "Even if Z. Oboladze told me that the patient needed an operation and asked me to join him, I would not accept it because he had no such right". (See the attached Annex A.. - protocol of the hearing of 6 June 2006, p. 2).
It is extremely interesting what else proof the court needed in order to declare the first applicant not guilty. Though, this is impossible in Georgia for fear of prosecutors' office. The prosecutors' office perfectly knew from the very beginning that the first applicant was not responsible for the events that took place after 10:00 a.m.
Especially, he could not conduct an operation, because, nothing said about his enthusiasm and readiness to operate the patient, he just had no right to do it that is proved by testimony of physicians and anesthesiologists.
The prosecutors' office knew very well that from 2002 up to 2005, the operations at the Mtskheta regional hospital, except of very rare cases, were conducted by two physicians only. These were manager of gynecology department Dr. Tina Sv. and manager of obstetrics department Dr. Merab M. that is proved by the operation records seized form the hospital. (see the attached Annex A.. --).
As for the term offered by the prosecutors' office to the medical world - "could not make precise diagnosis without a reasonable excuse" - nobody will accept it, because such a term does not exist in medicine and especially in jurisprudence. At least, the Georgian legislation does not proscribe such a crime. This was also confirmed by witness Amiran K., who has been examined by the Mtskheta Regional Court. Namely, he testified: ">>failure of making a precise diagnosis without a reasonable excuse<< - such term does not exist in medicine". (See the attached Annex A.. - protocol of Amiran K's examination).
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