Armenko: Monitoring the session of the Grand Chamber of the ECHR is extremely important for the Constitutional Court

Monitoring the session of the Grand Chamber of the European Court of Human Rights (ECHR), which deals with complex legal and medical issues, is extremely important for the Constitutional Court of Montenegro, said the President of that court, Snežana Armenko.

As announced by the Constitutional Court, Armenko and the court's judge Jovan Jovanović attended the session of the Grand Chamber of the ECHR, which was deciding in the case of SO v. Spain - whether the justification of medical intervention can replace the patient's consent, or their right to full information.

The statement states that the applicant was diagnosed with right breast cancer in 2016, and had previously been treated for left breast cancer.

"After examining and considering her case, doctors in Madrid suggested breast surgery to remove the tumor and some of the surrounding healthy tissue, while preserving most of the breast," the statement said.

It is added that the doctors stated on the form that they would perform a surgical procedure to remove lymph nodes from the armpit, and the part of the form intended for entering specific risks or complications in the patient's particular situation was left blank.

"The medical record only recorded that "dilemmas were clarified", but did not record what information was given verbally, what questions the patient asked, or what answers she received," the statement added.

It is noted that during the operation, doctors expanded its scope and removed the nipple and areola, stating that the tumor was too close, but subsequent reports did not show that the nipple and areola themselves were affected by the tumor.

"The applicant claims to the European Court that she was not informed in advance that the so-called "sparing" operation could also lead to the removal of the nipple and areola. She considered that the "surgical margin" technique was not explained to her, and that she could therefore not give valid consent to such an extension of the procedure," the statement said.

As it is added, Spanish courts, including the Supreme and Constitutional Courts, rejected her lawsuit, holding that there was no violation of medical professional rules and that the consent form was sufficient, as the main goal of the surgery was to remove the tumor.

"Before the European Court, the key legal question was not whether the medical intervention itself was professionally justified, but whether the applicant had given valid and sufficiently informed consent to expand the scope of the surgery, namely to remove the nipple and areola," the statement reads.

It is stated that the court considered the issue under Article 8 of the European Convention, which protects the right to respect for private life, including the physical and psychological integrity of a person and their autonomy in deciding on medical interventions.

The Constitutional Court said that the small chamber of the European Court of Justice accepted the application, but the final decision in the case will be made by the Grand Chamber, which consists of 17 judges.

Armenko said that monitoring the session of the Grand Chamber, which deals with such a complex legal and medical topic, is of exceptional importance for the Constitutional Court.

"Last year, the Constitutional Court found violations of the right to respect for private life in several cases. However, the Constitutional Court is paying special attention to the issue of the justification of medical intervention on the one hand, and the patient's right to full information on the other, as it itself has cases related to this matter in its work," said Armenko.

The Constitutional Court stated that Armenko and Jovanović are in Strasbourg at the invitation of the President of the ECHR, Mathias Guillemard, and the visit is being carried out in cooperation with the Council of Europe and the office of the Representative of Montenegro before the ECHR.

"At the beginning of the session of the Grand Chamber, Guiljomar specially welcomed the delegation of the Constitutional Court led by President Armenko," the Constitutional Court said.