MIHU v. ROMANIA - 36903/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 236 (01 March 2016)

In the case of Mihu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Boštjan M. Zupančič,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Antoanella Motoc,
          Gabriele Kucsko-Stadlmayer, judges,
and Fatoș Aracı, Deputy Section Registrar,

Having deliberated in private on 9 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 36903/13) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Petre Mihu (“the applicant”), on 21 May 2013.

2. The applicant was represented by Mr A. Anastasescu, a lawyer practising in Timişoara. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

3. The applicant complained of the death of his son as a result of alleged negligent medical care in a public hospital. In addition, he argued that the ensuing criminal investigation had been lengthy and ineffective.

4. On 11 September 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1938 and lives in Sibiu.

A. Death of the applicant’s son

6. At 9.55 a.m. on 21 August 2005 the applicant took his son L.M. to the emergency unit of the Sibiu County Hospital, accompanied by their family doctor. L.M. was immediately examined by the doctor on duty, Mr C.C.R., who recorded an initial diagnosis on the observation sheet of “icteric syndrome” (jaundice). Following subsequent tests the diagnosis was changed to "hepatic cirrhosis with gastrointestinal haemorrhage” and the patient was treated with drugs.

7. Dr C.C.R. filled in forms to admit the patient to the gastroenterology unit, as provided for by the hospital’s code of practice for patients with gastrointestinal haemorrhage. However, owing to the fact that the gastroenterology unit was in a separate building and had no elevator, the patient remained in the emergency unit.

8. Despite the treatment he was given, the patient’s condition worsened and at around 1 p.m. he was examined by Dr A.M., a doctor who specialised in intensive care. She recommended that the treatment be continued and ordered blood transfusions. Owing to a lack of beds in the intensive care unit, the patient was not immediately transferred there.

9. At around 5.40 p.m., L.M. was transferred to the intensive care unit. Dr A.M., on duty that night in the unit, came to see L.M. two times. At some point during the night the blood transfusions were stopped.

10. After 6 a.m. the next morning L.M.’s condition began to worsen and he was given blood transfusions again.

11. At around 4.30 p.m., because the patient’s state continued to deteriorate, Dr F.A., the head of the gastroenterology unit, decided to perform an endoscopy of the stomach. The procedure did not succeed because of massive gastrointestinal bleeding.

12. At 5.50 p.m. on 22 August 2005 L.M. was declared dead owing to cardio-respiratory failure. According to the hospital observation sheet, the direct cause of death was upper gastrointestinal haemorrhage, ruptured oesophageal varices, decompensated hepatic cirrhosis and a haemorrhagic duodenal ulcer.

B. Criminal proceedings against the doctors

1. Criminal investigation

13. On 22 August 2005 the applicant and his wife lodged a criminal complaint against C.C.R. and A.M., accusing them of manslaughter. The applicant firstly complained that, despite repeated requests, Dr C.C.R. had refused to allow the patient to be transferred to another, better equipped, hospital. The applicant also complained of the failure to provide blood transfusions, which he said caused the death of his son, and of the generally poor treatment received by his son in the Sibiu County Hospital.

14. On 19 September 2005 the two doctors were questioned by the Sibiu County Police. Dr C.C.R. explained that the patient’s state of health did not allow him to be transferred to another hospital. He also submitted that a particular medicine, Lactulose, had been missing from the hospital’s pharmacy and that he had asked the applicant to buy it. Concerning the lack of blood for transfusions, the doctor said that that was not his fault and that the hospital had run out of blood that night. In conclusion, the doctor stated that the patient, who was suffering from hepatic cirrhosis, had received the necessary treatment. Dr A.M. said that the patient’s condition had had a poor prognosis, that she had provided the correct treatment and that a transfer to another hospital would not have been possible under the circumstances.

15. The applicant’s statement was taken on 26 January 2006. He reiterated his previous complaints. In addition, he criticised the delay in the administration of Lactulose to his son.

16. An autopsy report issued on 17 April 2006 said that L.M. had not died by violent means. The death was caused by upper gastrointestinal haemorrhage due to the rupture of varices in the oesophagus and a duodenal ulcer in a patient already suffering from hepatic cirrhosis. The report concluded that no issues had been found that could raise questions about the medical treatment received by the patient.

17. On 2 May 2006 the applicant complained to the Sibiu Prosecutor’s Office of excessive delays in the investigation. He also requested a forensic medical expert report to verify whether his son had received the necessary treatment. He included the results of various blood tests made by L.M. between 2000 and 2005, intending to prove that his son had not been ill in the years before his admission to the Sibiu County Hospital.

18. On 30 May 2006 the Prosecutor’s Office of the Sibiu County Court sent a request for a forensic report to the Sibiu County Forensic Service. On 18 August 2006 the Sibiu County Forensic Service replied that it could not deliver such a report because its chief doctor had already performed the autopsy in the same case. Therefore, on 25 August 2006 the request was sent to the Cluj Napoca Forensic Institute.

19. On 20 December 2006 the forensic report was added to the case file and on 4 January 2007 it was made available to the applicant. The report noted that hospital practice had not been adhered to as the patient should have been admitted to the gastroenterology section, given the diagnosis. Nevertheless, the conclusion was that the treatment received by L.M. was adequate and correct and there was no indication of medical error.

20. On 18 January 2007 the applicant submitted objections to the report and requested it to be reanalysed by the Mina Minovici National Forensic Institute in Bucharest. On 24 January 2007 the applicant’s objections to the forensic report were rejected by the prosecutor, who only allowed it to be referred to the Mina Minovici National Forensic Institute for approval.

21. On 4 April 2007, in a one-page letter, the Mina Minovici National Forensic Institute approved the report drafted by the Cluj Napoca Forensic Institute.

22. On 11 April 2007, in a briefly-worded decision based on the forensic medical report, the Prosecutor’s Office of the Sibiu County Court decided not to commence criminal proceedings against the two doctors as there had been no finding of medical errors. That decision was upheld on 13 June 2007 by the chief prosecutor of the same prosecutor’s office.

2. First reopening of the investigation

23. A complaint by the applicant against the two decisions was allowed by the Timişoara District Court on 16 April 2008. The court decided to send the case back to the prosecutor in order to commence criminal proceedings against the two doctors. The court observed that the prosecutors’ decisions had been based only on statements by the two doctors and on the forensic report and held that the investigators in the case needed to clarify whether the patient’s state of health had required his admission to the gastroenterology unit and whether treatment in that unit could have influenced the course of the victim’s illness. The court ordered that such questions should be answered by way of a more thorough investigation, taking statements from doctors specialising in gastroenterology, as well as from other employees of the hospital. In addition, the court requested the prosecutors to clarify, by way of witness statements and confrontations, what was the practice of the hospital in dealing with cases of gastrointestinal bleeding and whether the two doctors had observed that practice. The judgment became final on 10 October 2008 when an appeal on points of law by the two doctors was rejected by the Timiş County Court.

24. On 20 March 2009 the investigation resumed with the questioning of Dr P.P.J., a gastroenterologist employed at the Sibiu County Hospital, and on 23 March 2009 of Dr F.A., who had performed the endoscopy on L.M. On 25 March 2009, C.C.R. and A.M., the two doctors under investigation, were questioned for a second time.

25. On 27 March 2009 the Prosecutor’s Office of the Sibiu County Court again found no fault in the actions of the two doctors. That decision was communicated to the applicant on 26 May 2009. On 18 June 2009 a complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office. The applicant took his case against those decisions to court.

3. Second reopening of the investigation

26. On 7 June 2010 the Timisoara District Court allowed the applicant’s complaint and ordered the reopening of criminal proceedings, considering that the questions raised in its judgment of 16 April 2008 had still not been answered. The court held that, bearing in mind the seriousness of the case, which involved the death of a man, the investigation should have been more detailed and the applicant’s allegations should have been more thoroughly checked. More specifically, the court noted that the applicant had maintained, among other things, that L.M. had been healthy and had never previously been admitted to hospital and that there had been delays in the administration of a particular drug and in giving blood transfusions. However, the medical reports had said that the deceased was suffering from an ulcer and cirrhosis. The court also reasoned that, even if it could be accepted that rapid changes could occur in such conditions, it was hard to believe that the victim had had no previous symptoms and had not been under the supervision of medical professionals prior to 22 August 2005. In view of the above, the court further requested that the prosecutors take statements from the family doctor and gather evidence about the victim’s state of health prior to his admission to the Sibiu County Emergency Hospital.

27. On 24 December 2010 the investigation resumed with a letter being sent to the Sibiu Police in which the prosecutor requested their assistance in obtaining a statement from the victim’s family doctor, as well as copies of any medical documents she might have concerning the victim’s state of health prior to his hospital admission on 21 August 2005. In January 2011 the family doctor, M.L.I., gave a statement to the police. She recalled that, during an examination in December 2004, L.M. had presented with signs of hepatic distress and that she had recommended various tests. The tests had come back showing results that were slightly above the norm, so she had advised him to see a gastroenterologist.

28. Dr F.A. was again questioned on 27 January 2011. Two doctors who had been on duty when L.M. was admitted were questioned in February 2011. They did not remember any relevant details about the case.

29. On 25 July 2011 the Prosecutor’s Office of the Sibiu County Court, considering it established that the applicant had been suffering from cirrhosis well before August 2005 and that nothing could have been done to save his life, decided not to press criminal charges against the two suspects on the grounds that they had not committed any criminal act. A complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office on 23 August 2011.

4. Third reopening of the investigation

30. A complaint by the applicant against the prosecutors’ decisions of 25 July and 23 August 2011 was allowed by the Timisoara District Court on 21 December 2011. The court considered that all the facts had still not been clarified by the investigation and again ordered the reopening of criminal proceedings. Specific instructions were again given to the prosecutors. The court noted that, in order to observe the equality of arms and to guarantee a fair trial, the applicant should have been consulted on which witnesses to hear and given the opportunity to call doctors of his own choice as witnesses. The court further reiterated the instructions given in its previous judgments in the case, which it did not consider had been carried out by the prosecutor. Finally, the court ordered the prosecutor to conduct a speedier investigation, bearing in mind that a long time had passed since the lodging of the applicant’s complaint and that the inquiry had been totally ineffective up to that point.

31. The investigation was reopened on 21 February 2012. On 27 February 2012 a statement from the applicant was taken by the prosecutor. He stated that he did not know the names or addresses of the medical staff on duty at the time of the incident. He further requested a confrontation with the two doctors under investigation.

32. On 29 February 2012 the prosecutor asked the Sibiu County Emergency Hospital for a list of employees on duty on the two days of L.M.’s stay in hospital. On 21 March 2012 the hospital replied that it no longer had the duty sheets as that type of document was only kept for three years.

33. On 4 April 2012 two doctors specialising in gastroenterology, called as witnesses by the applicant, testified before the prosecutor that the diagnosis and treatment applied by Drs C.C.R. and A.M. had been correct in the circumstances. They noted that the only drug capable of removing blood from the stomach in order to prepare the patient for an endoscopy under the proper conditions was not available in Romania at that time.

34. A confrontation between C.C.R., A.M. and the applicant took place on 3 May 2012.

35. Between 11 and 20 April 2012 the prosecutor took statements from several employees of the Sibiu County Emergency Hospital. They all declared that they did not remember anything about the patient L.M.

36. By a decision issued on 8 June 2012 the Prosecutor’s Office of the Sibiu County Court ended its criminal investigation, finding no guilt in the actions of the two doctors. The prosecutor noted that according to the hospital’s practice, the patient should have been admitted to the gastroenterology unit but that this had not been possible because the unit did not have an elevator for wheeled beds. However, the prosecutor observed that all the medical reports drafted in the case had concluded that the patient’s diagnosis had been correct and that he had had the appropriate treatment. This conclusion was also confirmed by the two specialists called as witnesses by the applicant. The prosecutor stated that the endoscopy performed before the patient’s death had been rendered more difficult owing to the absence in the country of the drug needed to clear blood from the patient’s stomach. With regard to the applicant’s complaint concerning the doctors’ failure to administer blood transfusions, the prosecutor held that the patient’s death had been caused not only by anaemia but also by hepatic insufficiency.

37. The prosecutor’s decision was upheld on 16 July 2012 by the head prosecutor of the Prosecutor’s Office of the Sibiu County Court.

38. A complaint by the applicant against those two decisions was rejected with final effect on 19 November 2012 by the Timişoara District Court. The court, quoting widely from the prosecutor’s decision of 8 June 2012, held that the investigation had correctly led to the conclusion that there was no proof of fault by the two doctors.

C. Disciplinary proceedings

39. On 19 October 2005 the applicant and his wife lodged a disciplinary complaint against Drs C.C.R. and A.M.

40. The disciplinary committee of the Sibiu County College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from the doctors who had treated him. It gave its decision on 27 February 2006, ruling that no medical errors had been made.

41. The applicant objected to the committee’s conclusions and his appeal was examined by the superior disciplinary committee of the National College of Doctors.

42. On the basis of the evidence presented to it, on 7 December 2006 the National College of Doctors terminated the disciplinary proceedings against Drs C.C.R. and A.M. Relying on the medical documents in the file and on the opinion of a university professor, the authority considered that it had been established that no medical errors had been made.

43. The applicant and his wife brought an action for the quashing of the decision adopted on 7 December 2006, pointing to the failure by the two doctors to provide appropriate treatment for their son.

44. On 5 June 2007 the Sibiu County Court dismissed the action as ill-founded and upheld the decision of the National College of Doctors.

45. An appeal by the applicant against that judgment was allowed by the Braşov Court of Appeal on 26 February 2008. The case was sent to the Braşov County Court for rehearing because the lower court had not examined any evidence other than the documents in the file, which had been the sole basis for its decision.

46. On 13 February 2013 the Braşov County Court took note of the fact that the applicant and his wife no longer wished to pursue the proceedings and closed the case.

II. RELEVANT DOMESTIC LAW AND PRACTICE

47. The relevant legal provisions and the domestic case-law and practice concerning the delivery of forensic reports, as well as the liability of medical staff, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010).

48. The relevant provisions of the former Romanian Civil Code concerning civil liability for tort read as follows:

Article 998

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

Article 999

“Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.”

49. The provisions of the former Romanian Code of Criminal Procedure regarding the possibility of opening civil proceedings separately from or jointly with criminal proceedings read as follows:

Article 15

“(1) A victim may bring civil claims during criminal proceedings against the accused, the defendant or the civilly liable person.

(2) Civil claims may be brought during criminal proceedings, as well as before the trial court until the indictment has been read out in court.”

Article 19

“(1) If a victim has not joined criminal proceedings as a civil party, he or she may initiate separate proceedings before the civil courts for damages arising from the offence.

(2) Civil proceedings shall be stayed pending a final judgment of the criminal courts.

(3) A victim who has joined criminal proceedings as a civil party may also initiate separate civil proceedings if the criminal proceedings are stayed. If the criminal proceedings are reopened the civil proceedings opened before the civil courts shall be stayed.

(4) A victim who has initiated civil proceedings before a civil court may abandon these proceedings and lodge an application with the investigating authorities or the trial court if criminal proceedings have subsequently been opened...The civil proceedings may not be abandoned if the civil court has delivered a judgment, even if the judgment is not a final one.”

50. The Government submitted several examples of judgments by which domestic courts had analysed and rejected complaints against decisions by the College of Doctors. They also submitted one domestic court judgment by which the Buzău County Court had allowed with final effect a claim in respect of pecuniary and non-pecuniary damage under Articles 998 and 999 of the Civil Code in a case of malpractice confirmed by forensic medical reports.

51. The Government also submitted data on the activity of the Sibiu County College of Doctors from 2005 to 2013, which showed that 118 complaints against doctors had been received during that period and that eleven warnings had been issued.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

52. The applicant complained of the circumstances surrounding his son’s death in hospital and of the lack of a subsequent effective investigation. He relied on Article 2 and Article 6 § 1 of the Convention.

53. The Court considers that the applicant’s allegations fall to be examined under Article 2 of the Convention alone (see Istrăţoiu v. Romania (dec.), no. 56556/10, § 56, 27 January 2015), which, in so far as relevant, reads:

“1. Everyone’s right to life shall be protected by law....”

A. Admissibility

1. The parties’ submissions

(a) The Government

54. The Government raised a preliminary objection of non-exhaustion of domestic remedies, arguing that the applicant could have brought a general action in tort under Articles 998 and 999 of the former Romanian Civil Code against the doctors or other persons he considered responsible for the death of his son. The remedy in question would have been available to the applicant and, according to the Court’s case-law, was also adequate, given the circumstances of the case. They also contended that, according to the relevant domestic legal practice, criminal law considered fault (culpa) a form of guilt only where it reached a high level of severity. However, tort liability could be incurred even for the slightest negligence (culpa cea mai uşoară). Therefore, the scope of application of tort liability was wider than that of criminal liability. Consequently, the findings of the domestic authorities in the current case excluded only the two doctors’ criminal liability, and not their tort liability.

55. In addition, the Government contended that the applicant had failed to pursue the disciplinary proceedings against Drs C.C.R. and A.M., although that remedy was also available and effective.

56. The Government supported their arguments that proceedings under the general law of tort and disciplinary proceedings would have been effective remedies in the circumstances of the case by referring to the relevant domestic practice submitted before the Court (see paragraphs 50 and 51 above) and to the Court’s findings in the cases of Csoma v. Romania, no. 8759/05, §§ 24-25, 15 January 2013; Stihi-Boos v. Romania (dec.), no. 7823/06, §§ 42-43, 11 October 2011; and Istrățoiu, cited above, §§ 52-53.

(b) The applicant

57. The applicant contested the Government’s position. He argued that pursuing disciplinary proceedings or civil proceedings in tort would have been unlikely to succeed. He had chosen criminal proceedings, which were also available, as he thought that they were the best way to obtain as much evidence as possible in order to verify his suspicion of malpractice by the two doctors.

2. The Court’s assessment

58. The Court reiterates that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Bajić v. Croatia, no. 41108/10, § 74, 13 November 2012).

59. The Court therefore considers that in the light of the circumstances of the present case the Government’s objection has to be dismissed.

60. In conclusion, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

61. The applicant complained that his son’s death was due to the doctors’ failure to give him appropriate treatment in a timely manner. He further alleged that the failure to admit his son to the gastroenterology unit, coupled with the failure to give him blood transfusions for eighteen hours, had caused his death. He argued that the State was responsible for the poor organisation of medical care in public hospitals, as in the present case. The applicant lastly complained that the criminal investigation into the death of his son had been ineffective, incomplete, superficial and had exceeded a reasonable time.

62. The Government argued that the domestic authorities had set up an adequate legal framework for protecting patients’ lives, for regulating the medical profession and for punishing any faulty behaviour. They underlined that all medical documents and reports had shown that the applicant’s son had been given the appropriate treatment and that no medical errors had been made in the case. Lastly, the Government contended that the criminal investigation had been comprehensive and thorough, in compliance with the requirements of Article 2 of the Convention. At the initial phase of the investigation the authorities might not have gathered all the evidence considered necessary by the domestic courts, but had nevertheless fully complied with the instructions given by the courts.

2. The Court’s assessment

(a) General principles

63. The Court notes that the first sentence of Article 2 enjoins the State not only to refrain from the “intentional” taking of life, but also lays down positive obligations on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Valeriy Fuklev v. Ukraine, no. 6318/03, § 64, 16 January 2014).

64. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I).

65. In order to satisfy its positive obligation under Article 2 of the Convention, the State has a duty to ensure, by all means at its disposal, that the legislative and administrative framework set up to protect patients’ rights is properly implemented and any breaches of these rights are put right and punished. Therefore, the Court’s task is to examine whether there was an adequate procedural response on the part of the State to the infringement of the right to life (see Konczelska v. Poland (dec.), no. 27294/08, § 35, 20 September 2011). Moreover, the requirements of Article 2 go beyond the stage of the official investigation, where it has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law and the prohibition of ill-treatment (see Bajić, cited above, § 89).

(b) Application of the above principles to the present case

(i) Alleged breach of the State’s substantive positive obligation

66. The Court observes that in the instant case the applicant claimed that the death of his son was partly due to the poor organisation of the Sibiu County Hospital, including a lack of blood and other drugs, in breach of the State’s positive obligation to protect the life of those within its jurisdiction.

67. However, it is impossible for the Court to establish, on the basis of the evidence before it, whether or not the failures identified by the applicant in the hospital’s internal organisation played a role in his son’s death, especially in view of the fact that the medical reports produced in the case concluded unanimously that no fault could be found with respect to the death of the applicant’s son.

68. The Court considers that the events leading to the tragic death of the applicant’s son and the responsibility of the health-care professionals involved are matters which must be addressed from the viewpoint of the adequacy of the investigation which was carried out in order to shed light on the course of those events, allowing the facts of the case to be exposed to public scrutiny, not least for the benefit of the applicant (see Eugenia Lazăr, cited above, § 70, and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V).

69. In view of the above, the Court cannot conclude that the State had not complied with its substantive positive obligation to safeguard the applicant’s son’s right to life.

There has therefore been no violation of Article 2 of the Convention on this account.

(ii) Alleged ineffectiveness of the investigation

70. As the Court has often stated, the requirements of an effective investigation include, among other things, the need for “thoroughness”, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident (see, for example, Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, § 271, ECHR 2011 (extracts)). Furthermore, the requirement of promptness and reasonable expedition is implicit in this context (see Šilih, cited above, § 195, and Valeriy Fuklev, cited above, § 72).

71. In this regard, the Court notes that a criminal investigation was immediately opened against Drs C.C.R. and A.M. at the request of the victim’s family (the applicant and his wife). However, besides ordering the usual forensic examinations for this type of case and taking statements from the two doctors and the applicant, no other investigative steps were taken for almost twenty months in the initial period of the investigation. This preliminary investigation ended with a decision not to commence criminal proceedings against the doctors as no medical fault by them had been found. None of the applicant’s specific arguments, such as the fact that his son had no prior medical problems or the doctors’ failure to abide by hospital protocol and to administer certain drugs or blood transfusions had been verified by the prosecutors within this period.

72. The Court further observes that the aforementioned prosecutor’s decision was quashed by the Timişoara District Court, which ordered the opening of criminal proceedings against the two doctors. The domestic court pointed to a number of deficiencies in the investigation and ordered specific measures to be taken by the investigative authorities in order to clarify the circumstances surrounding the death of the applicant’s son (see paragraph 23 above).

73. On 27 March 2009, five and a half months later, the criminal proceedings were closed with the same conclusion of a finding of no medical fault on the part of the two doctors under investigation. That decision was communicated two months later to the applicant, who challenged it again. The Court notes that this second closure of the case was also found to be unjustified by the domestic courts, which considered that the necessary clarification had still not been provided by the prosecutor and that the investigation had lacked thoroughness. Therefore, further investigative measures were ordered (see paragraph 26 above).

74. One year later, after the questioning of four witnesses, the investigation was again ended with a decision not to press any criminal charges and for the third time the domestic courts considered that the investigation had not clarified the circumstances surrounding the death of the applicant’s son. In addition, the domestic courts noted that the applicant had not been given the chance to participate in the investigation.

75. The investigation reopened for the third time on 21 February 2012 but, by that time, almost seven years had passed since the events in question and most of the new witnesses questioned could no longer provide any clarification (see paragraph 35 above).

76. The Court observes that the death of the applicant’s son occurred in August 2005 and that the final decision in the case was taken in November 2012, seven years and three months later. The investigation was marked by long periods of inactivity imputable to the investigative authorities such as the initial period of almost twenty months, the two-month delay in the notification of the prosecutor’s decision of 27 March 2009, or the period of one year after the second reopening of the proceedings in which only four witnesses were questioned. In addition, the investigation was criticised by the national authorities themselves for a lack of thoroughness, a lack of promptness and non-compliance with the guarantees of a fair trial (see paragraphs 23, 26 and 30 above) and it included three referrals for additional investigation caused by the prosecutor’s failure to clarify the facts and to follow the instructions of the domestic courts (ibid.).

77. Lastly, the Government alleged that the authorities may have not gathered all the necessary evidence at the initial phase of the investigation but in the end they fully complied with the instructions given by the domestic courts. In this regard, the Court observes that, for example, on 16 April 2008 the Timişoara District Court ordered the prosecutor to obtain certain clarifications from employees of the Sibiu County Hospital. This instruction was indeed followed by the prosecutor but with a delay of four years, in April 2012, when the passage of time rendered the statements taken useless for the investigation (see paragraph 35 above).

78. Having regard to the manner in which the case was investigated and the considerable length of the criminal investigations, the Court considers that the authorities failed to show the requisite diligence and thoroughness in dealing with the criminal case, as required by Article 2 of the Convention (see Valeriy Fuklev, cited above, § 76).

79. In the light of the foregoing, the Court finds that the domestic system as a whole, faced with a case of an allegation of medical negligence resulting in the death of the applicant’s son, failed to provide an adequate and timely response consonant with the State’s procedural obligations under Article 2 of the Convention.

80. It follows that in the present case, there has been a violation of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

81. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

82. The applicant submitted that he was not seeking financial gain but rather to have the violation of his Convention rights acknowledged in order to create a precedent and put an end to this type of violation. He left at the Court’s discretion the issue of whether or not any compensation should be awarded in the current case.

83. The Government contended that the applicant should be regarded as not having formally claimed any pecuniary or non-pecuniary compensation within the time-limit afforded by the Court.

84. In view of the above, the Court considers that the applicant made no claim in respect of pecuniary or non-pecuniary damage, and therefore, does not make any such award.

B. Costs and expenses

85. The applicant did not claim any costs or expenses. Accordingly, the Court does not make any award under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 2 of the Convention under its substantive limb;

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb.

Done in English, and notified in writing on 1 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoș Aracı András Sajó
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MIHU v. ROMANIA - 36903/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 236 (01 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/236.html Cite as: [2016] ECHR 236