Delayed justice is denied justice!

photo: Demokracija photo: Demokracija

»Horrifying and unbelievable until you see it with your own eyes« were the words of co-speaker Mrs. Darja Mihelcic, describing her findings, that in the court translations of the file, which will be used for the preparation of the expert opinion, she found 50 pages of rearranging of the content to her harm.

We are following the story of Mrs. Darja Mihelcic from the year 2017 on, when we introduced her Calvary after the operation of her spine in the year 2010 at the Department of Orthopaedic Surgery of the Ljubljana University Medical Centre. She got the answers about her unbearable low back pain only one and a half years after the surgery, with the SPECT/CT diagnostics in Switzerland. The revision operation in Germany followed, when the neurosurgeon removed the facet screws and completely stabilized the non-fused fifth lumbar vertebra (L5) and the first sacral vertebra (S1) with another system of screws. Because, by the evaluation of the German revision surgeon, Mrs. Mihelcic had realistic chances for the prevention of non-fusion, if the vertebrae had been additionally stabilized as soon as possible after the first operation, he blames her surgeon, that he did not propose the revision surgery by himself, when he observed the improper biomechanical handling. The German neurosurgeon also testified about the missing loading of her own bone into the intervertebral space of the spine. He explained the non-fusions of the lumbar spine are painful and that the young patient had been harmed for her whole life.

Letʼs remember

Mrs. Darja Mihelcic was retired, due to disability, at 39 years of age in the year 2013. In our first interview she said that she can calm her pain only with lying in bed and that this means hell for such a young, dynamic, hard-working and ambitious person. She also lost a great part of her income. In 2013, Mrs. Mihelcic filed a law suit against the University Clinical Centre in Ljubljana, for the compensation of the damage that arose from the treatment that was not performed in accordance with the rules of the medical profession and carefully. She also says that her medical records from Ljubljana show, that prof. Dr. Rok Vengust, dr. med., inserted into the intervertebral space an artificial material, which is contraindicated for this purpose of use. This means that the medical profession knows, that the risk from use of the medicine clearly overweights any possible therapeutic benefit and therefore must not be used.

Due to suspected criminal offence of taking of bribes, the Specialized State Prosecution filed charges against several medical doctors, among them was supposed to be also Dr. Rok Vengust, as already presented in magazine Demokracija. Regionalobala.si also reported in April this year, that the charges became legally binding and that Mr. Rok Vengust from the Ljubljana Orthopaedic clinic will also have to go in front of the judges.

The judge Vesna Ponikvar proceeds the case

The author of this article was present at the court proceeding that has been led by the district judge Vesna Ponikvar, in April 2018. An additional hearing of the already mentioned revision surgeon from Germany was taking place. Although being used to everything, I was still surprised by the happening at the court. That’s why we were asking ourselves a year ago, whose and which interests were being protected by the court, when our co-speaker was explaining, that her statement, that she did not give, was written into the record of the hearing by the judge. If not found out in time, that would prevented her from listening to the sound record of the hearing and blocked her from delivering the findings, that the court interpreter, that physically hugged with the representative of the University Clinical Centre Ljubljana, was discharging and changing the statements of the witness, that were not in favour of the University Clinical Centre Ljubljana.

»Horrifying and unbelievable until you see it with your own eyes« were the words of Mrs. Mihelcic, describing her findings, that in the court translations of the file, that will be used for the preparation of the expert opinion, she found 50 pages of rearranging of the content to her harm, where the original statements are changed in the way that they confirm the statements of the University Clinical Centre Ljubljana, show worse conditions of other parts of her spine, and improve her ability to move and to work. The court decided to reward the court interpreter for the translations that in a great range do not match with the original statements to the damage of Mrs. Mihelcic, with twelve thousand euros of her money. Mrs. Mihelcic filed an appeal to the higher court.

The lawsuit and the trial are by our assessment important from the points of protection of human rights of an individual as well as of the public interest in our biggest hospital and at the court, and are therefore being followed further. It is especially interesting from the point of publicly accessible statements of the judicature, that affirms procedural fairness and tries to draw the Slovenian judicial system nearer the parties and the general public, so that the people will feel to be heard, respected, treated neutrally, and the system will cause to be worthy of trust.

What is happening with the translations?

Mrs. Mihelcic warned the court several times, that these are not translations, but rearrangements, done outside of the given job and outside of the authority of the court interpreters. The higher court agreed that the data in the file demonstrate a vast contradiction to the work of the interpreters and specific blaming’s of numerous errors and incorrectness of the translations. It also agreed that the court interpreter must carry his/her duty out conscientiously, thoroughly and by his/her best knowledge, as well that in this case, due to extreme sensitivity of the contents, the correctness of the translations of the file and of the testimonies are of decisive meaning, because they will serve to the foreign expert for the preparation of the expert opinion. This will be the base for the judgement. More than a year after the findings of catastrophic translations for the harm of the patient and for the good of the University Clinical Centre Ljubljana, the judge still has not ensured adequate translations, matching original statements and documents.

Enormous court costs, some translations lacking

After the summary of the statements of the University Clinical Centre Ljubljana was already correctly translated, and while the questions of the University Clinical Centre Ljubljana for the experts were already in translation, the court, on the demand of the University Clinical Centre Ljubljana, ordered translation of all their court applications. This, with twofold translations of the summary and of the questions for the expert, means threefold translations of the content of the applications of the University Clinical Centre Ljubljana. This leads to increased trial costs  due to multiple translations and increasing the work of the experts, that will  obviously have to read the applications of the University Clinical Centre Ljubljana three times.

Despite several warnings that the translations show as that the experts will not receive the medical documentation from the court, the file lacks translations of the majority of the medical documentation, regarding the operation in Ljubljana, for several months. It is not clear, whether the court interpreter delivered them to the court, or what happened with them. The judge, knowing about the missing translations, appealed the court interpreter to issue a bill in 8 days and, in the same appeal, to explain the missing translations in 15 days, what is a specific course of this trial.

Importance of adherence to procedural obligations

When the decision of the judge depends on the finding of the legally relevant facts, the court must provide such proceeding that enables the establishment of the material truth. When medical errors and health condition are in evaluation, the court leans on the opinion of the medical expert. Because the translations will serve the foreign expert for the preparation of the expert opinion, correctness of the translations of the documents and of the testimonies are of decisive meaning. By the law, the court interpreter has the duty to conscientiously and thoroughly prepare translations that match original statements and original documents. It is logically, that the expert opinion, prepared on the base of such legally relevant rearrangements, will contain and refer to the statements that are in the original documents absent or completely different, and will not be able to refer to the statements, that are included in the original documents, but lacking in the translations. The entire mentioned incorrectness disable the establishment of the material truth, lead to established false real state and rule out the damage.

Public interest

Because responsibility and good management of the public sector is not only in the interest of an individual, but also of the society, we are following this trial also from the point of the public interest. It is important, that individuals understand the consequences of the decisions of the public authorities, and if needed, express their thoughts about such decisions. Some decisions can affect their personal lives. Understanding such contents and the ability of public discussion from a public interest standpoint, lead in the credibility and in responsible discussion of target public with the authorities. Overview of the work of the authorities improves its responsibility and quality. It also leads in improved legal safety and in improved adherence to basic human rights.

The judgement »Šilih vs. Slovenija«

In the judgement »Šilih vs. Slovenija« (9th April, 2009), the European Court of Human Rights stressed out, that the procedural obligation regarding Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that regulates the right to life, obligates the states to set up an effective and independent judicial system, so that the cause of death of the patients in the care of healthcare professionals can be determined and those responsible made accountable.

A prompt response by the authorities is essential to maintain public confidence in their adherence to the rule of law, and to prevent an appearance of collusion in or tolerance of unlawful acts. The state’s obligation will not be satisfied if the protection afforded by domestic law, exists only in theory, above all it must effectively operate in practice. Apart from the concern for the respect of the rights, knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and to prevent similar errors.  The prompt examination of such cases is therefore important for the safety of users of healthcare services and for the safety of the health care of other patients.

Benefit for the University Clinical Centre Ljubljana and for the society

The constitution and the legislation show, that the protection of human lives and health, as well as protection of patients from the breach of professional standards, are in the highest public interest. Least but not last, quality and safety of medical care are supposed to be in the interest of the University Clinical Centre Ljubljana, if we read about its mission, vision and goals at its web site. I believe that every life, protected from harm due to the breach of professional standards, is priceless for the individual, for his/her family and for wider community that the person lives in, as well as beneficial, including financially, for the whole society.

Become an active citizen!

This article does not mean interference into the independency of the judicial system, but is actualizing active citizenship and public interest. The judge is legally bound to law and to the constitution. Functional independency of the judicature is limited with the principles of constitutionality and lawfulness. This means that the judicature does not determine its authority by itself and that the judges have to adhere to the valid constitutional and statutory law as well as to generally accepted principles of fairness and humanity. These represent mandatory normative boundaries that every judge must adhere to. Judicial independency is and cannot be absolute, because the judge is not authorised to judge the way he/she likes in the name of independency. The principles of the judge’s internal independency cannot be understood in the way of the distorted use of law to inadequately treat participants in judicial proceedings or to establish decisions that unjustifiably benefit, harm or advance them in the proceeding. The latest can be read in the commentary on the Code of the judicial ethics.

»In a system, in which justice cannot be reached promptly and case solving lasts for more than a decade, the inflicted person – although waiting patiently for justice – becomes a victim of the opposite part of the conflict for this in-between time. In a specific case, delayed justice is considered to be denied justice«, wrote prof. dr. Bostjan M. Zupancic, the former constitutional judge and the former judge of the European Court of Human Rights in Strasbourg, in the article »About the basis of human rights« (magazine “Odvetnik”, December 2013), who also pointed out, that »the legal state, respectively the rule of law, and the constitutionality of the state are not based on abstract norms – these are meant for the person’s orientation – but are founded on personal structure of judicature, constitutional court and of prosecution etc.« last year for magazine Demokracija.

About protection of the body integrity

Dr. Jernej Letnar Cernic is convinced, that »the Slovenian public space needs plural, wide-hearted, European tolerant, free, democratic and responsible society, where the holders of public functions as well as private sector will operate for the public benefit  and hold responsibilities for breaching the human rights«. »For the protection of human rights to be efficient, the following measures must be taken inter alia: equal, actual, responsible and efficient realizing of all human rights, management of the most horrendous breach of human rights, plurality, tolerance, free-thinking, broadminded in public discussion; consistent realization of the judgements of the European Court of Human Rights in the Slovenian judicial rules, as well as holding accountability for false realization of human rights«, warns dr. Letnar Cernic (https://www.delo.si/mnenja/gostujoce-pero/nezaupanje-in-strah-v-podzavesti-druzbe.html). Dr. Letnar Cernic, the associate professor of the human rights law, the constitutional law and the administrative law at the Graduate School of Government and European studies at the Catholic Institute, also emphasizes, that »lawfulness, legal safety, prohibition of arbitrariness (autocracy), access to the judicial protection before an independent and impartial court, compliance with human rights, non-discrimination and equality before the law are among the elements of the legal state, listed by the Venice Commission. Body integrity, as part of human dignity, demands from the countries to unconditionally guard human life and body« (Human dignity as a foundation for the rule of law in the Slovenian society. (Magazine “Bogoslovni vestnik” 78 (2018) 1147-157)

Who is making fun?

We could read not long ago, that the ministry of justice complimented itself, that the supreme court’s project »Improvement of the quality of judicature« was nominated for the biennale prize of the »Crystal Scales of Justice« among four finalists by the Council of Europe and the European Commission, due to actions of the Slovenian judicature in the past several years, directing to procedural fairness, improving the status of the parties in judicial proceedings. However, the experiences of our co-speaker as well as some other publicly known cases (Novic, Kangler, Patria) show different experiences with the storied »procedural fairness«, that the Council of Europe and the European Commission probably do not know.

The article was first presented in printed version of the magazine Demokracija on 08th August 2019.

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