THIRD SECTION

DECISION

Application no . 7291/09 Ion OANCEA and Doina-Ligia OANCEA against Romania

The European Court of Human Rights ( Third Section ), sitting on 17 June 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Luis López Guerra , Johannes Silvis , Iulia Antoanella Motoc , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 27 January 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Ion Oancea and Ms Doina-Ligia Oancea , are Romanian nationals, who were born in 1952 and 1955 respectively and live in Ciulni ţ a, Arge ş County . They were represented before the Court by Mr G.A. Vasile , a lawyer practising in Pite ş ti .

2. The Romanian Government (“the Government”) were represented by their Agent, M s C. Brumar, of the Ministry of Foreign Affairs .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. M.C., the applicants ’ thirty-year-old son, was HIV-positive and was registered as such by Matei Balş Hospital, where he received monthly treatment.

5. On 14 August 2007 M.C. was arrested together with his two brothers and his brother-in-law and placed in Argeş Police detention facilities. He was in good shape at that time, but the tests run after his arrest showed that he had had a slow reaction to his retroviral treatment ( aderență scazută la tratament ). He spent most of his pre-trial detention in Coliba ş i Prison Hospital.

6. During his pre-trial detention, M.C. received treatment for his illness, except for three periods of respectively four, two and one, days when the medicine did not reach the prison hospitals on time. As his health deteriorated and he started complaining of severe back pain, he was taken for a consultation in a civilian hospital. The doctor recommended treatment with ointments and, if the pain did not subside, surgery. According to the statements made by his cellmates, including his brothers, the treatment was delayed by a few days and had to be administered by the inmates, who took turns in applying the ointments and hot water to the painful areas. As the treatment proved to be ineffective, M.C. requested an operation, which took place on 21 October 2008 in Bagdazar Arsenie Civilian Hospital.

7. M.C. ’ s official prison record submitted by the Government does not contain any complaint by M.C. to the post-sentencing judge about the medical treatment.

8. On 22 October 2008 M.C. was released from prison, based on a decision rendered by the Pite ş ti Court of Appeal. On 11 November 2008 he was admitted to a civilian hospital with similar symptoms as before (severe back pain and generally deteriorating health). He remained in the hospital until 22 December when he was declared incurable and released at the family ’ s request. He died on 23 December 2008.

9. On 3 August 2009 the applicants lodged a criminal complaint with the Prosecutor ’ s Office attached to the High Court of Cassation and Justice, against the administration and the medical personnel of Colibaşi Prison, accusing them of having intentionally postponed their son ’ s surgical operation, which led to his death. They argued that the operation was delayed intentionally by the prison authorities , who received significant financial benefits as additional bonuses to their salaries while dealing with an HIV - positive inmate : a 75 % salary increase for prison administrators and a 100 % salary increase for medical personnel.

10. From the records submitted by the Government, it appears that, at the applicants ’ request, the prosecutor ’ s office informed them on 30 September 2009 that an investigation into the matter was pending.

11. According to the information provided by the Government, the complaint was examined by the Prosecutor ’ s Office attached to the Piteşti Court of Appeal which, based on the evidence gathered, in particular statements by the applicants and the patient ’ s medical record, decided not to prosecute the medical personnel and the prison director. The decision was rendered on 22 March 2010 and communicated to the applicants on 1 April 2010. The applicants did not appeal against the prosecutor ’ s decision before the criminal courts.

B. Relevant domestic law and practice

12. I n paragraphs 43-45 of the judgment Dumitru Popescu (no. 1) v. Romania ( no. 49234/99, 26 April 2007) there is a description of the law concerning complaints against decisions of the prosecutor lodged under Article 278 1 of the Code of Criminal Procedure applicable at the date of the facts of the present case.

13 . The judgment delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic law and practice concerning the civil liability of medical staff.

14 . Excerpts from Law no. 275/2006 on the execution of sentences concerning the rights of detainees and the remedies provided therein are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 113 ‑ 119, 24 July 2012).

COMPLAINTS

15. The applicants complain ed under Article 2 of the Convention that their son M.C. was left to die by the authorities, as they failed to place him in a prison where he could have continued to receive adequate treatment for his condition.

16. Under Article 6 of the Convention they complained that the authorities did not open a criminal investigation into the death of their son.

THE LAW

17. The applicants complained, under Articles 2 and 6 of the Convention, about the deterioration of their son ’ s health in pre-trial detention, the conditions of his detention, which they alleged were inadequate, and the lack of an investigation by the domestic authorities into those allegations.

18 . The Court, being master of the characterisation to be given in law to the facts, considers that the applicants ’ allegations should be examined solely under Article 2 of the Convention, which, in so far as relevant, reads as follows:

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

A. The parties ’ arguments

19. The Government contested the second applicant ’ s desire to pursue the application in so far as she had not signed all the letters sent to the Court before communication.

20. They further argued that the applicants had abused their right to petition, as they had failed to inform the Court about the outcome of the criminal investigation concerning the treatment received by their son during his pre-trial detention. Moreover, as their son had not died in custody, an investigation could not have been opened without them having requested it: however, they had waited for more than seven months after his death before voicing their concerns with the authorities.

21. The Government further contended that the applicants had failed to exhaust the domestic remedies available to them. Firstly, they did not lodge an appeal against the prosecutor ’ s decision, although that remedy was effective according to the Court ’ s standards. They made reference to Ciobotaru v. Romania ((dec.), no. 33242/05, § 59, 10 January 2012). Secondly, they did not lodge a civil claim against the prison doctors or the hospital, either within the criminal proceedings or separately. Lastly, they did not bring disciplinary proceedings against the doctors.

22. The applicants summarily contested the Government ’ s assertions on all counts.

B. The Court ’ s assessment

23. The Court notes that the Government raised several objections. However, it considers that there is no need to examine them separately, in so far as the application is in any case inadmissible for the reasons explained below.

24. The Court reiterates that the positive obligations enshrined in Article 2 of the Convention 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, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; Eugenia Lazăr , cited above, § 66-71; and G.N. and Others v. Italy , no . 43134/05, §§ 69, 80 and 81, 1 December 2009). However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio , cited above, § 51).

26. In the present case, the applicants complained that while their son was in detention his health deteriorated because of a lack of proper medical treatment. The Court should therefore examine whether the deterioration of his health was caused by the actions or inaction of the State ’ s agents and whether the system put in place by the respondent State to respond to such allegations was sufficient to allow establishing guilt and obtaining redress.

27. The Court notes that while in detention the applicants ’ son did not complain to the post-sentencing judge about the quality of the medical treatment he received, although such a remedy would have been effective at that time. It would have allowed the judge to seek information from the prison authorities and hospital, to assess the case and, if necessary, to order the administration to take concrete steps in order to set right M.C. ’ s situation.

29. In the light of the above, the Court finds no indication, in the circumstances of the present case, that there has been any failure by the respondent State to provide a mechanism to establish whether the criminal, disciplinary or civil responsibility of the hospital or of the medical staff involved in the patient ’ s treatment was engaged.

It follows that the application must be rejected within the meaning of Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President