FOURTH SECTION

DECISION

Application no. 9126/13 Clara ROMILA against Romania

The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris , Iulia Antoanella Motoc , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 26 January 2013,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Clara Romila , is a Romanian national who was born in 1952 and lives in Ia ÅŸ i . She was represented before the Court by Ms C. Moldovan, a lawyer practising in Ia ÅŸ i .

2. The Romanian Government (“the Government”) were represented by their Agent, Ms 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.

1. The applicant ’ s surgery and ensuing health issues

4 . On 25 August 2004 the applicant was admitted to hospital where she was scheduled to have a thyroid nodule removed.

5 . On 29 August 2004, in the presence of a doctor and a nurse, the applicant signed a consent form confirming that she had been informed of the nature and aim of the surgical procedure, as well as its possible complications and risks. She also confirmed that she had taken note that unpredictable situations could arise during surgery and consented to the doctors taking any measures they considered necessary on the spot.

6. The operation took place on 30 August 2004. As several other nodules were found during the surgery, her thyroid was removed completely. On 6 September 2004 the applicant was released from hospital.

7 . After the surgery the applicant sought medical help on several occasions because of problems with her voice and with swallowing. Tests revealed that one of her vocal cords had been damaged during the initial surgery. On 4 March 2005 she underwent plastic surgery. The nerve was repaired, but the vocal cord could not be saved. Some surgical nylon thread, which had remained from the previous operation, was also removed from her body. The applicant continued to r eceive in- patient and out-patient care until 2012.

2. Complaint lodged with the College of Doctors

8. On 20 December 2004 the applicant lodged a complaint with the College of Doctors ( Colegiul Medicilor ) about the post-surgery complications she was suffering.

9. On 10 May 2005 the Ia ş i branch of the College of Doctors decided that there had been no medical negligence in the applicant ’ s treatment.

10. On 9 April 2009 the Ia ÅŸ i Court of Appeal rejected an appeal lodged by the applicant for lack of standing. She did not appeal further.

3. Criminal complaint against the doctors

11 . On 5 July 2005 the applicant lodged a criminal complaint against the doctors who had operated on her on 30 August 2004, for negligently causing harm ( v ă t ă mare corporal ă din culp ă ). She complained that she had not been given appropriate medical treatment before the first surgical procedure and that, after the operation, the doctors had failed to admit their error and to treat her properly. Because of their attitude, the damage to her vocal cords had become permanent. She also complained that the medical team had assured her before the procedure that the operation carried no risks. She requested compensation for the damage caused to her health.

12 . On 15 February 2006 the Mina Minovici National Institute for Forensic Medicine (“the Institute”), which had examined the case at the prosecutor ’ s request, ruled out the possibility of any medical negligence in the case. It considered that the loss of the applicant ’ s voice and other side effects had not been caused by the medical procedure but rather by a pre ‑ existing medical condition. Unsatisfied with those conclusions, the applicant sought a new expert assessment and lodged a criminal complaint against the original experts, accusing them of negligence.

13 . On 14 January 2007 the Institute ’ s Superior Commission confirmed that the medical care provided before and during the procedure had been correct. It also affirmed that the loss of vocal cords was a known risk of such an operation. The prosecutor requested clarification of the possibility of medical negligence. On 18 July 2008 the Superior Commission supplemented its report and ruled out the possibility of any medical negligence during the surgery, and in respect of the consequences experienced by the applicant after the operation.

14. On 2 October 2008 the prosecutor ’ s office decided to terminate the criminal prosecution of both the doctors and the experts, as it considered that they had not committed any criminal offences. The prosecutor ’ s office found that the diagnosis and treatment received by the applicant had been appropriate for her condition, that the doctors ’ conduct during the operation had been correct and appropriate to the situation, and that her condition had made it necessary to operate.

15 . The applicant objected, and on 5 November 2009 the Iaşi County Court quashed the previous decisions and remitted the case to the prosecutor ’ s office. It indicated that the prosecutor ’ s office should order a new expert assessment of the applicant ’ s situation, study the post-operative medical evidence, and re-examine the witnesses.

16 . In a new medical report of 17 February 2011, the Superior Commission reiterated its previous findings that the treatment and operation had been correctly undertaken. It also asserted that the loss of the vocal cord could have been caused either by a pre-existing condition or by the operation itself.

17. Consequently, on 5 December 2011 the prosecutor ’ s office decided to terminate the criminal prosecution. It considered, based on the evidence gathered, that the doctors had not committed any criminal offence. The prosecutor ’ s office observed that no medical negligence had occurred, and that the consequences suffered by the applicant had been within acceptable risk parameters for such an operation.

18 . This decision, contested by the applicant, was upheld by the Br ăila District Court on 13 August 2012. After re-examination of all the evidence in the file, the court reached the same conclusion as the prosecutor. The decision was final.

4. Claim for compensation lodged with the civil courts

19 . On 14 February 2013 the applicant lodged a civil claim for compensation with the Ia ş i District Court. She sought 30,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. She was required to pay 7,551 Romanian lei (RON – approximately EUR 1,700 at the relevant time) for court fees. The applicant sought an exemption from payment of the court fees. On 24 May 2013 the District Court dismissed the request, as it found that the applicant ’ s financial means were above the statutory threshold for obtaining an exemption. The court allowed her to pay the court fees by instalments.

20 . On 31 May 2013 the applicant informed the court that she did not have the financial means to pay the amount due and, on that basis, asked the court to proceed to withdraw her claim on the grounds of non-payment of the court fees. On the same day the court discontinued the proceedings. The applicant did not appeal against that decision, which thus became final.

B. Relevant domestic law

21. The provisions of domestic law on medical negligence and the obligation to obtain informed consent from patients are described in Codarcea v. Romania ( no. 31675/04, §§ 69-74, 2 June 2009) and Csoma v. Romania (no. 8759/05 , §§ 22-23, 15 January 2013) respectively. T he relevant provisions of Romanian tort law can be found in Csiki v. Romania (no. 11273/05, §§ 55-56, 5 July 2011).

COMPLAINTS

22. The applicant complained under Article 6 of the Convention of the unreasonable length of the criminal proceedings (see paragraphs 11–18 above). Under the same Article she complained that she had been denied access to a court in that her civil claim had been declared inadmissible by the criminal courts.

23. Under Article 8 of the Convention the applicant complained of the quality of the medical care received. She also complained that she had been operated on without having given prior and informed consent and that the domestic procedures for engaging the doctors ’ responsibility for their professional mistakes had been ineffective.

24. Relying on Article 13 of the Convention the applicant complained that the domestic law had offered her no effective remedy for her complaint of the length of the proceedings and offered her no access to a court to bring her civil claims.

THE LAW

25. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of negligence in the medical care received and of the manner in which the State authorities had dealt with her complaints in the matter.

26. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12 , §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone (see, for example, Csoma v. Romania (no. 8759/05 , §§ 27-28, 15 January 2013).

This provision reads as follows :

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There 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.”

A. The parties ’ observations

1. The Government

27. The Government argued that the mechanism set up for complaints of medical negligence had been adequate, and had allowed the applicant full access to a wide range of remedies. She had been able to present her case before the authorities, to contest the findings of the forensic medical reports, and to fully participate in the proceedings. The Government further argued that although the experts had expressed divergent opinions, those opinions had all converged in confirming the absence of any medical negligence.

28. The Government admitted that the proceedings had lasted a long time. However, they argued that the authorities had been diligent and there had been no periods of inactivity imputable to the investigators.

29. Moreover, relying on Floarea Pop v. Romania (no. 63101/00 , § 45, 6 April 2010), they further argued that the fact that the applicant had had to reduce the value of her claim before the civil courts would not have constituted a violation of Article 6 as long as any amount subsequently awarded by the courts represented just satisfaction. It had been open to the applicant to reduce the amount claimed as just satisfaction.

2. The applicant

30. The applicant argued that the doctors had taken the decision to remove her thyroid without her consent and that even before the surgery they had not effectively explained to her the risks of the procedure.

31. She further argued that the mechanism put in place by domestic law had not allowed for those responsible to be held accountable. She reiterated that she had used the system available to her under domestic law by joining her civil claim to the criminal complaint. She contended that lodging a separate action for compensation with the civil courts could not constitute an effective remedy. In any case, she contested the interpretation by the domestic courts and by the Government of the legal provisions concerning court fees.

B. The Court ’ s assessment

32. The Court makes reference to its general principles concerning the positive obligations of the State in cases of medical negligence, as recently reiterated in Jurica v. Croatia (no. 30376/13, § 84-88, 2 May 2017).

33. In particular, the Court reiterates that States must ensure that hospitals adopt appropriate measures for the protection of their patients ’ physical integrity ( ibid., § 84). In addition, it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. In particular, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be held directly liable under Article 8 for this failure to provide information (see Codarcea , cited above , § 105; and Pretty v. the United Kingdom , no. 2346/02, § 63, ECHR 2002 ‑ III). However, the present case does not disclose a failure by the medical professionals to comply with the above requirements (contrast Csoma , cited above, § 57). Moreover, the applicant was admitted to the hospital prior to the surgical procedure and was consulted by the medical team, who explained the risks of the operation to her (see paragraphs 4 and 5 above). Her allegation that she had been assured by the medical team that the operation carried no risks (see paragraph 11 above) is contradicted by the content of the consent form which the applicant signed before the operation took place (see paragraph 5 above).

34. Moreover, the Court has considered that the States must provide victims of medical negligence with access to proceedings in which they could, where appropriate, obtain compensation for damage (see Jurica , cited above, § 84). In respect of Romania, it concluded that a civil claim attached to a criminal complaint could lead to an assessment of and compensation for the damage suffered in the particular circumstances of the case of Csoma (cited above, § 54). The Court does not see any reasons to reach a different conclusion in the present case.

35. As for the conduct of the proceedings, the Court notes that the applicant was fully able to bring her claims before the prosecutor and the criminal court, to examine and contest the evidence adduced, and to object to the findings of the prosecutor (see paragraph 12 in fine and paragraph 15 above). The Court reiterates that the victims must have the opportunity to obtain an effective medical expert examination of the relevant issues (see Jurica , cited above, § 86), and notes that in the present case the applicant was able to obtain additional clarification from medical experts, who collaborated fully with the investigation and replied to both the applicant ’ s objections and the prosecutor ’ s requests to supplement their reports, thus submitting three reports in total and an addendum to one of their reports (see paragraphs 12, 13 and 16 above; and contrast Eugenia Lazăr v. Romania , no. 32146/05, § 77, 16 February 2010 in which the Forensic Institute refused to reassess the case once it had given its opinion). Moreover, the conclusions of all three medical reports consistently ruled out any medical negligence (see, mutatis mutandis , E.M. and Others v. Romania ( dec. ), no. 20192/07, § 50, 3 June 2014). The authorities – the prosecutor ’ s office and the court – properly scrutinised the findings of the medical experts and reached their own conclusions (contrast Csoma , cited above, § 56).

36. The Court notes that the criminal proceedings lasted for little more than seven years (from 5 July 2005 until 13 August 2012 – see paragraphs 11 and 18 above). It considers that the length of the decision ‑ making process clearly did not contribute to the protection of the applicant ’ s rights. It observes, however, that this length is not in itself sufficient to allow the Court to conclude to a violation of the applicants ’ rights (see, mutatis mutandis , Lazariu v. Romania , no. 31973/03 , §§ 146 ‑ 153, 13 November 2014; O ’ Sullivan McCarthy Mussel Development Ltd v. Ireland , no. 44460/16 , §§ 143-157, 7 June 2018 ; and Diaconu and Others [Committee] ( dec. ), nos. 55663/13 and others, §§ 24- 27, 5 September 2017; see also, a contrario , Jurica , cited above, §§ 77-81 ). Moreover, it notes, taking into account its assessment of the domestic proceedings, that they were fair and capable of safeguarding the applicant ’ s rights under Article 8 of the Convention. The Court further reiterates that an unfavourable outcome for the applicant is not sufficient for a finding of liability in respect of the respondent State under the positive obligations arising from Article 8 of the Convention (see, mutatis mutandis and concerning a complaint under the procedural aspect of Article 2 of the Convention, Sevim Güngör v. Turkey ( dec. ), no. 75173/01, 14 April 2009).

37. By virtue of the principle of subsidiarity, the Court is not in a position to contradict the domestic courts ’ findings concerning the lack of criminal responsibility on the part of the doctor in the case, particularly as it has found that the investigation was properly conducted. The Court also reiterates that, where an infringement of a patient ’ s right to personal integrity has not been caused intentionally, the procedural obligation imposed on the States does not necessarily require the provision of a criminal-law remedy (see, mutatis mutandis , Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215 , 19 December 2017). Therefore, the proceedings initiated by the applicant before the civil courts could have constituted an effective remedy in her case. However, the applicant, who was allowed to pay the court fees by installments (see paragraph 19 above), failed to exhaust that remedy for reasons solely imputable to her (see paragraph 20 above). In this connection, the Court notes that the Committee of Ministers, when supervising in March 2011 the execution of the Court ’ s judgment in the case of Iorga v. Romania (no. 4227/02, 25 January 2007) found that the rules concerning court fees, which were applicable in the present case, complied with the Convention requirements (CM/ ResDH (2011)24).

38. In the light of the above findings, the Court concludes that the national authorities provided an effective mechanism which was capable of offering redress to the applicant. The authorities have thus complied with their positive obligations enshrined in Article 8 of the Convention.

Accordingly, the application is manifestly ill-founded and must be rejected in accordanc e with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 January 2019 .

Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President