FOURTH SECTION
\nDECISION<\/p>\n
Application no. 33502\/11
\nR.S.
\nagainst Romania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:<\/p>\n
Paulo Pinto de Albuquerque, President,
\nEgidijus K\u016bris,
\nIulia Motoc, judges,
\nand Andrea Tamietti, DeputySection Registrar,<\/p>\n
Having regard to the above application lodged on 23 May 2011,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms R. S., is a Romanian national, who was born in\u00a01965 and lives in Bucharest. The President granted the applicant\u2019s request for her identity not to be disclosed to the public (Rule 47 \u00a7 4). She was represented before the Court initially by Ms E. Bozai, a lawyer practising in Bucharest and subsequently by her father, Mr F. D. and by Ms L. Beleca, a lawyer practising in Bucharest.<\/p>\n 2.\u00a0\u00a0The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The applicant was employed at the rank of captain by the Romanian Intelligence Service (hereinafter \u201cthe RIS\u201d). She was assigned to a military unit in Bucharest.<\/p>\n 4.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0The background of the case<\/em><\/p>\n 5.\u00a0\u00a0According to the applicant\u2019s allegations, on 24 October 2003, at 9\u00a0a.m., while she was in her office, she felt serious discomfort, had headaches and violent vomiting episodes. She was accompanied by a colleague to the infirmary of the military unit. The nurse took her blood pressure, which was abnormally high, and tried, to no avail, to call the doctor on duty, M.C., who was not present at the infirmary. The applicant lost consciousness and during the time spent at the infirmary, her condition degraded visibly.<\/p>\n 6.\u00a0\u00a0Subsequently, at an unspecified time, the applicant was allegedly taken first to a clinic of the RIS, where she did not receive any care, and then to the Emergency Room (hereinafter, \u201cthe ER\u201d) of the Emergency Military Hospital of the RIS \u201cAgrippa Ionescu\u201d in Bucharest. The documents in the case-file, with the exception of the applicant\u2019s submissions, do not mention the initial visit to the RIS clinic.<\/p>\n 7.\u00a0\u00a0The parties\u2019 accounts as to who accompanied the applicant to the hospitals differ, the controversy being especially the presence of doctor M.C. in the vehicle which transported the applicant. The presence of a driver and of a nurse in the vehicle is not disputed.<\/p>\n 8.\u00a0\u00a0At the \u201cAgrippa Ionescu\u201d Hospital, the applicant was consulted by the doctor-colonel L.T., who suspected that she had undergone a stroke with cerebral hemorrhage. As the hospital did not have a neurosurgery department, he referred the applicant to the ER of the \u201cFloreasca\u201d Hospital in Bucharest. According to the applicant, the vehicle in which she was transported to the hospital did not have emergency care equipment. However, the documents in the case-file mention that the vehicle was an emergency ambulance.<\/p>\n 9.\u00a0\u00a0According to the medical record drawn up at the \u201cFloreasca\u201d Hospital, the applicant arrived at 12.43 p.m. in a state of deep coma. She was admitted to the operating block at 1.30 p.m. and the neurosurgical intervention started at 2.15 p.m. The operation lasted until 4 p.m. and consisted in evacuating the blood accumulated in the brain. Subsequent examinations made it possible to establish that the vascular accident was due to a congenital malformation of the blood vessels, which had ruptured and caused a massive bleeding.<\/p>\n 10.\u00a0\u00a0On 13 July 2004 a medical commission of the RIS declared the applicant unfit to pursue her military career. It found that the stroke had caused a partial loss of vision, as well as facial paralysis and the paralysis of the left side of the body. On 10 August 2004 she retired on account of this permanent disability.<\/p>\n 11.\u00a0\u00a0The applicant has undergone several surgeries aiming to provide relief from her permanent disability and intermittent pain.<\/p>\n 2.\u00a0\u00a0Criminal proceedings launched by the applicant\u2019s father, on her behalf<\/em><\/p>\n 12.\u00a0\u00a0On an unspecified date in 2004, the applicant\u2019s father asked the RIS to initiate an investigation into how his daughter\u2019s medical case had been handled by the RIS team both prior and after the surgery. The RIS replied on 16 August 2004 that its medical staff had not committed any errors and that the institution had ensured both moral and financial support to the applicant during her post-surgery recovery program.<\/p>\n 13.\u00a0\u00a0In 2006 the applicant\u2019s father filed a complaint with the Romanian President, asking him to request that further investigation be conducted in relation to the incident of 24 October 2003. This complaint was forwarded to the RIS, which replied on 17 October 2006, reiterating that the medical staff acted diligently and promptly in the applicant\u2019s case; the medical documents proved that the deterioration of the applicant\u2019s state was due to the severity and complexity of the stroke caused by a congenital malformation of the blood vessels. In such situations, a surgery was vital, and some sequelae\/side effects, such as those displayed by the applicant, could appear.<\/p>\n 14.\u00a0\u00a0Sometime at the beginning of 2007, the applicant\u2019s father lodged, on her behalf, a criminal complaint with the prosecutor\u2019s office attached to the High Court of Cassation and Justice. This complaint was registered with the prosecutor\u2019s office on 27 March 2007. Relying on certain statements made by the driver, who had accompanied the applicant to the hospitals (see paragraph\u00a07 above), the applicant\u2019s father submitted that the critical state in which his daughter had arrived at the \u201cFloreasca\u201d Hospital around 2\u00a0p.m., namely, in a deep coma, would have been different if she had not been kept waiting at the infirmary (see paragraph 5 above) and then sent unnecessarily to two medical units of the RIS before being properly taken care of (see paragraph\u00a06 above). He accused the RIS and in particular its medical staff of negligence, mainly concerning their failure to call an ambulance without delay. The ambulance could have brought his daughter quickly to the \u201cFloreasca\u201d Hospital, which was only fifteen minutes away from where she worked. Such a timely reaction would have preserved his daughter\u2019s chances for much better recovery after the surgery.<\/p>\n 15.\u00a0\u00a0The applicant\u2019s father gave two statements before the prosecutor\u2019s office, one on 10 April 2007 and the second one on 22 May 2007. In both of them he gave details as to the circumstances in which the stroke occurred. Throughout the procedure, he filed several extensive written submissions, reiterating the detailed complaints already lodged with the criminal investigation authorities.<\/p>\n 16.\u00a0\u00a0In his written submissions of 19 July, 5 November and 27\u00a0December\u00a02007, the applicant\u2019s father requested that the investigation be stopped. He informed the authorities of his intention to withdraw the criminal complaint, in view of the fact that the RIS had promised to provide financial support to the applicant so that she could get specific post-surgery treatment and recovery. The criminal investigation was nevertheless pursued.<\/p>\n 17.\u00a0\u00a0On 6 December 2007 the doctor-colonel L.T. (see paragraph\u00a08 above) was heard by the public prosecutor\u2019s office. He stated that the applicant had arrived at the \u201cAgrippa Ionescu\u201d Hospital at approximately 11.30\/12.00 a.m., accompanied by a doctor and a nurse from the military unit. Suspecting that the patient had had a vascular accident with cerebral hemorrhage requiring urgent neurosurgical intervention, he administered a perfusion and sent the applicant in an ambulance to the ER of the \u201cFloreasca\u201d Hospital.<\/p>\n 18.\u00a0\u00a0Copies of medical documents from the \u201cAgrippa Ionescu\u201d Hospital and from the \u201cFloreasca\u201d Hospital were included in the criminal file.<\/p>\n 19.\u00a0\u00a0On 13 November 2008 the military prosecutor\u2019s office decided not to start criminal investigations against the medical staff involved in the applicant\u2019s case. It held that the measures taken by the RIS officials and medical staff to limit the consequences of the stroke and to ensure the recovery of the applicant were lawful and adapted to the level of emergency of the situation.<\/p>\n 20.\u00a0\u00a0On 13 January 2009 the Chief Military Prosecutor rejected the complaint brought by the applicant\u2019s father against decision of the prosecutor\u2019s office not to start criminal investigations. The decision noted that even if the investigation had disclosed the existence of criminal acts committed by any of those mentioned by the applicant\u2019s father in his complaint, the criminal liability for those acts had in any event become time-barred, as more than five years had passed since the events.<\/p>\n 21.\u00a0\u00a0On 4 February 2009 the applicant\u2019s father challenged this decision before the Bucharest Military Court of Appeal. He complained about the lack of forensic and medical reports concerning the care provided to his daughter, as well as about the omission to interrogate all those who were involved in the handling of the accident.<\/p>\n 22.\u00a0\u00a0In his written submissions of 9 April 2009 the applicant\u2019s father reiterated the complaints mentioned above. He further indicated succinctly that his daughter also sought compensation for the material and moral damage incurred.<\/p>\n 23.\u00a0\u00a0On the same day the Military Court referred the complaint to the High Court of Cassation and Justice on account of the capacity of certain persons involved in the complaint.<\/p>\n 24.\u00a0\u00a0By a judgment of 27 November 2009, the High Court held that the applicant\u2019s father had legal standing to bring criminal proceedings on her behalf. It, however, rejected the complaint in view of the lack of any evidence that criminal acts had been committed in the applicant\u2019s case. The High Court further held that, in any event, the alleged offences had become time-barred.<\/p>\n 25.\u00a0\u00a0The applicant lodged an appeal reiterating the aspects previously complained of by her father. By a final judgment of 22\u00a0November\u00a02010, drafted on 22 February 2011, the High Court of Cassation and Justice, in a panel of nine judges, dismissed the applicant\u2019s complaints as ill-founded.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 26.\u00a0\u00a0The relevant legislation concerning medical liability regulations, in force at the material time, as well as the related practice of the courts are described in the following cases: Eugenia Laz\u0103r v. Romania, no.\u00a032146\/05, \u00a7\u00a7\u00a052-54, 16 February 2010; Csoma v. Romania, no. 8759\/05, \u00a7\u00a7\u00a022-26, 15\u00a0January\u00a02013; and S.B.v. Romania, no. 24453\/04, \u00a7\u00a7\u00a037-42, 23\u00a0September\u00a02014.<\/p>\n COMPLAINTS<\/strong><\/p>\n 27.\u00a0\u00a0Relying on Articles 2, 6, 8 and 13 of the Convention, the applicant complained about the lack of adequate medical care required by her condition following the stroke she had while at the office. In this respect, she submitted that the errors and the negligence of RIS staff, as well as their lack of timely reaction to her state, had caused her a serious permanent handicap. She complained also about the way in which the authorities conducted the investigation into her complaints.<\/p>\n THE LAW<\/strong><\/p>\n 28.\u00a0\u00a0The applicant complained that the medical authorities had failed to provide timely medical care, and that the ensuing investigation of her complaints related thereto had not been effective. The Court communicated the case under Article 8 of the Convention, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 29.\u00a0\u00a0The Government submitted that the applicant had at her disposal several remedies which could have offered redress for the matters evoked. Firstly, the applicant could have lodged a civil action against the medical staff and the corresponding hospitals she considered responsible for the infringements of her right to physical integrity.<\/p>\n Secondly, the applicant should have seized the relevant department of the College of Doctors, pursuant to the Law no. 74\/1995 on the medical practice (see paragraph 26 above); thirdly, she had the possibility to lodge civil claims when filing her criminal complaint.<\/p>\n The Government relied on the Court\u2019s case-law in similar cases, such as E.M. and Others v. Romania, ((dec.), no. 20192\/07, 3 June 2014); Istr\u0103\u0163oiu v\u00a0Romania, ((dec.), no. 56556\/10, 27 January 2015) and Stihi Boos v.\u00a0Romania ((dec.), no. 7823\/06, 11 October 2011), confirming that the three above-mentioned avenues represented effective remedies for complaints such as those raised by the applicant.<\/p>\n 30.\u00a0\u00a0The Government maintained also that the investigation into the alleged events had been as prompt and effective as possible, taking into consideration that the criminal liability for the offences complained of had already become time-barred.<\/p>\n 31.\u00a0\u00a0The applicant argued that the remedies invoked by the Government had never proved to be effective. She claimed that she had not been seeking disciplinary sanction for the medical team responsible, in so far as she considered that those responsible were criminally liable. She argued that the inefficiency of the criminal investigation rendered inefficient any subsequent civil claim, in so far as the factual circumstances or the negligent involvement of the medical personnel had not been sufficiently clarified. She reiterated that a prompt intervention in her case, in the immediate aftermath of her stroke, would have changed her current state of health.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 32.\u00a0\u00a0It is now well established that although the right to health is not as such among the rights guaranteed under the Convention or its Protocols (see for instance Dossi and Others v. Italy (dec.), no.\u00a026053\/07, 12\u00a0October\u00a02010), the High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under its Article 8, firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients\u2019 physical integrity and, secondly, to provide victims of medical negligence with access to proceedings in which they could, where appropriate, obtain compensation for damage (see, among many others, Trocellier v. France (dec.), no. 75725\/01, ECHR 2006-XIV; Codarcea v.\u00a0Romania, no. 31675\/04, \u00a7 103, 2 June 2009; and Jurica v.\u00a0Croatia, no.\u00a030376\/13, \u00a7 84, 2 May 2017).<\/p>\n 33.\u00a0\u00a0At the same time, the High Contracting Parties have a margin of appreciation in choosing how to comply with their positive obligations under the Convention (see, as a recent authority, Lambert and Others v.\u00a0France [GC], no. 46043\/14, \u00a7 144, ECHR 2015 (extracts)), and enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems meet its requirements. Also, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see Jurica, cited above, \u00a7\u00a7 87-88).<\/p>\n 34.\u00a0\u00a0Turning to the present case, the Court notes that the applicant alleged that she had sustained serious health impairment as a result of medical negligence, in particular concerning the lack of timely appropriate care.<\/p>\n 35.\u00a0\u00a0At the outset, the Court notes that according to the Government\u2019s submissions, compensation for medical malpractice could be claimed under the Romanian law of tort. It was also open to the applicant to institute disciplinary proceedings against the doctors involved. These submissions are supported by relevant case-law of the Court in respect of Romania (see paragraphs 26 and 29 above). Furthermore, such remedies may be generally sufficient, for the purposes of the relevant Convention complaints, as already stated above (see paragraphs 32-33 above).<\/p>\n 36.\u00a0\u00a0The Court however notes that the applicant had not pursued either of the two avenues mentioned above.<\/p>\n 37.\u00a0\u00a0In this connection, the Court notes that the applicant, acting through her father, has instituted criminal proceedings in which she sought to establish the medical staff\u2019s liability for the alleged medical negligence resulting in damage to her health (see paragraph 14 above). The civil claims seeking to obtain compensation had been vaguely formulated at a much later stage of the procedure, namely before the Bucharest Military Court of Appeal, which however had jurisdiction only to assess the lawfulness of the prosecutor\u2019s decision not to institute criminal proceedings (see paragraph\u00a022 above).<\/p>\n 38.\u00a0\u00a0The decision not to prosecute was upheld by the domestic courts, which held that, on the substance, there was no indication of the commission of a criminal offence in the applicant\u2019s case and that, on the procedural level, the criminal liability for the alleged offences had already become time-barred (see paragraphs 20 and 24 above). The Court defers to the findings of the domestic authorities, which are ultimately better placed to assess the matter (see, mutatis mutandis, E.M. and Others v.\u00a0Romania, cited above, \u00a755).<\/p>\n 39.\u00a0\u00a0While taking particular note of the applicant\u2019s choice between the available domestic legal avenues, the Court cannot ignore that the criminal complaint was lodged by the applicant\u2019s father on her behalf more than three and a half years after the relevant incidents. Its main goal was to have the medical staff criminally punished (see paragraph 31 above, and, by way of contrast, Csoma, cited above, \u00a7 67). In spite of the relative promptness with which the criminal investigation was conducted (approximately three\u00a0years in all), the criminal responsibility for the alleged offences had become time-barred during these proceedings, namely on 24\u00a0October\u00a02008 (see paragraph 20 above).<\/p>\n 40.\u00a0\u00a0In this context, the Court reiterates that where time is of essence for resolving an issue in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly and fairly resolved. Indeed, with the lapse of time, memories of witnesses fade, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish, and the Court\u2019s own examination and judgment may be deprived of meaningfulness and effectiveness (see Vartic v. Romania, (dec.), no. 27631\/12, \u00a7\u00a047, 6\u00a0May\u00a02014).<\/p>\n 41.\u00a0\u00a0The Court would also point out the fact that at the time when the criminal proceedings ended, or, indeed, even at the time when the criminal proceedings started, the action in tort had arguably been already time-barred (see, by way of contrast, E.M. and Others v. Romania, cited above, \u00a7 53).<\/p>\n 42.\u00a0\u00a0In the light of the above, the Court cannot but conclude that it was the applicant\u2019s prolonged passivity which prevented her from fully enjoying the safeguards put in place by the State to ensure that alleged victims of medical negligence have access to proceedings in which they can obtain, if appropriate, compensation for damage.<\/p>\n 43.\u00a0\u00a0Furthermore, the Court finds no indication in the circumstances of the present case that there has been a failure by the respondent State to provide a mechanism to establish whether there was any criminal, disciplinary or civil liability on the part of the medical staff involved in the patient\u2019s treatment.<\/p>\n 44.\u00a0\u00a0It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 26 July 2018.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n