Slovenian courts’ recognition of Israeli judgments against renowned neurosurgeon for operation in Ljubljana breached his rights
JUDGMENT
Dolenc v. Slovenia 20.10.2022 (app. no. 20256/20)
SUMMARY
The case concerned an Israeli citizen who had been left paralysed after being operated on by the
applicant, a well-known neurosurgeon, in a Ljubljana hospital and the ensuing proceedings in both
Israel and Slovenia.
The Court found in particular that, before recognising the Israeli judgments awarding the applicant’s
former patient more than 2 million euros, the Slovenian courts had failed to duly satisfy themselves
that the trial in Israel had been fair.
There had in particular been issues concerning evidence-gathering. The court in Israel did not hear
such crucial witnesses as the hospital staff and a Slovenian law expert, and excluded their
statements from the case file.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Vincenc Vinko Dolenc, is a Slovenian national who was born in 1940 and lives in
Ljubljana.
An Israeli citizen was left severely disabled after he had been operated on by Mr Dolenc in May 1992
at Ljubljana University Hospital.
The patient brought proceedings in Israel against Mr Dolenc seeking damages for medical
negligence. Mr Dolenc was served with the lawsuit while on a visit to Israel in 1995. He was
eventually found fully liable in 2005 for the damage caused to his former patient. The Tel Aviv
District Court found in particular that he had been negligent for not ordering a CT scan in the early
stages after the surgery when the patient had shown signs of difficulty in breathing and paralysis. He
was ordered to pay approximately 2.3 million euros (EUR) in damages.
Mr Dolenc had refused to attend the trial in Israel or be examined via video link, insisting from the
beginning that Slovenian law should apply in the dispute and that he and his witnesses be examined
by the Slovenian courts via the Hague Evidence Convention procedure.
In 2003 the Israeli District Court had submitted a request under this procedure to the Slovenian
authorities for the examination of witnesses. A year later, however, it had cancelled that request,
citing the lack of progress in the proceedings and the claimant’s right to a trial within a reasonable
time.
In parallel, in April 2004, Mr Dolenc had cancelled the power of attorney of his Israeli legal
representative.
The Israeli District Court reached its decision on the basis of testimony from the plaintiff’s brothers
and expert opinions given by two neurosurgeons, one commissioned by the plaintiff and one by
Mr Dolenc. Mr Dolenc’s statement was excluded, as were statements by witnesses for the defence,
specifically medical staff who had cared for the plaintiff at the Ljubljana hospital and a Slovenian
legal expert. The district court considered that that situation had arisen owing to the conduct of Mr
Dolenc, who had done everything he could to avoid the proceedings in Israel.
In 2011 the patient applied to have the Slovenian courts recognise the Israeli court decisions and in
2018 the Supreme Court found in his favour. A constitutional complaint by Mr Dolenc was
subsequently rejected in 2019.
In those proceedings, the Slovenian courts reviewed Mr Dolenc’s complaints that the guarantees of
a fair trial had not been respected by the Israeli courts. They dismissed them essentially because
they considered, on the one hand, that Mr Dolenc had been given sufficient opportunities to present
the evidence and defend himself in Israel and, on the other hand, that he had effectively waived his
right to defend himself after he had cancelled the power of attorney of his legal representative
without appointing a new one. They also accepted the Israeli District court’s justification for deciding
to discontinue the Hague Evidence Convention procedure with regard to the witnesses.
THE DECISION OF THE COURT…
Firstly, the Court noted that the Israeli judgments had been of paramount importance for Mr Dolenc,
given the consequences for his reputation and the damages involved, amounting to over EUR 2
million. Before enforcing such a decision from a foreign court, the Slovenian authorities had
therefore been under an obligation to conduct some measure of review, and in the present case in
particular to be satisfied that the relevant proceedings had complied with the guarantees of a fair
trial under the Convention.
As concerned the applicant’s right to make his case before the Israeli District Court, the Court agreed
with the Slovenian courts’ finding that Mr Dolenc had been notified of the trial in Israel but had not
provided sufficient reasons for his refusal to attend in person. The decision by the Israeli courts not
to hear the applicant via the Hague Evidence Convention procedure had therefore been justified.
As regards the examination of witnesses, the Court considered it reasonable in the particular
circumstances of the case that the evidence should be gathered in Slovenia using the procedure
provided for under the Hague Evidence Convention. Moreover, the grounds on which the Slovenian
courts relied had not justified the Israeli District Court’s discontinuation of this procedure. Even
though the patient’s right to a trial within a reasonable time had been an important consideration,
there was no reason to believe that the Hague Convention procedure would have per se caused
significant delays and the lack of progress cited had mostly been the result of insufficient efforts by
the Israeli District Court to clarify to the Slovenian authorities issues concerning evidence-gathering.
Furthermore, as regards the possibility of examining witnesses by video-link, which had been offered
to the applicant prior to the request under the Hague Evidence Convention, the Court noted that the
Slovenian courts had made no mention of the practical and technical considerations, or of the legal
basis, for examining the witnesses in that way.
Lastly, the Court referred to the Slovenian courts’ observation that the rejection of the request to
use the Hague Evidence Convention procedure could be considered “equal to rejecting the proposed
evidence”, but that the decision to hear the witnesses in Israel had nevertheless been justified
because the applicant had waived his right to continue to participate in the proceedings after he had
cancelled his Israeli lawyer’s power of attorney.
The Court found, to the contrary, that the applicant had never explicitly waived his right to
participation in the proceedings in Israel. Nor had there been anything in the case file to support the
conclusion that the applicant had been apprised of any of the events in the proceedings in Israel
following the cancellation of his Israeli lawyer’s power of attorney. The fact that the applicant had
not appointed a new lawyer did not mean that there was no requirement to conduct the
proceedings in accordance with the fundamental principles of a fair trial.
Overall therefore, the Slovenian courts had failed to attach sufficient weight to the consequences
that the non-examination of the witnesses (including the expert on Slovenian law) via the Hague
Evidence Convention procedure and the ensuing exclusion of their statements had had for the
applicant’s right to present evidence. That right was a fundamental component of the principle of a
fair hearing and the Slovenian courts should have satisfied themselves that it had been respected in
the proceedings in Israel before recognising the Israeli judgments. There had accordingly been a
violation of Article 6 § 1 of the Convention.
Just satisfaction (Article 41)
The Court held that Slovenia was to pay the applicant 9,600 euros (EUR) in respect of non-pecuniary
damage, and EUR 6,000 in respect of costs and expenses. It also held that that the question of
pecuniary damage was not ready for decision and reserved it for a later date.
