FOURTH SECTION

DECISION

Application no. 33502/11 R.S. against Romania

The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:

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

Having regard to the above application lodged on 23 May 2011,

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 R. S., is a Rom anian national, who was born in 1965 and lives in Bucharest. The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 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.

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

A. The circumstances of the case

3. The applicant was employed at the rank of captain by the Romanian Intelligence Service (hereinafter “the RIS”). She was assigned to a military unit in Bucharest.

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

1. The background of the case

5 . According to the applicant ’ s allegations, on 24 October 2003, at 9 a.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.

6 . Subsequently, 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, “the ER”) of the Emergency Military Hospital of the RIS “Agrippa Ionescu ” in Bucharest. The documents in the case-file, with the exception of the applicant ’ s submissions, do not mention the initial visit to the RIS clinic.

7 . The parties ’ 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.

8 . At the “Agrippa Ionescu ” 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 “ Floreasca ” 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.

9. According to the medical record drawn up at the “ Floreasca ” 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.

10. On 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.

11. The applicant has undergone several surgeries aiming to provide relief from her permanent disability and intermittent pain.

2. Criminal proceedings launched by the applicant ’ s father, on her behalf

12. On an unspecified date in 2004, the applicant ’ s father asked the RIS to initiate an investigation into how his daughter ’ s 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.

13. In 2006 the applicant ’ s 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 ’ s case; the medical documents proved that the deterioration of the applicant ’ s 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.

14 . Sometime at the beginning of 2007, the applicant ’ s father lodged, on her behalf, a criminal complaint with the prosecutor ’ s office attached to the High Court of Cassation and Justice. This complaint was registered with the prosecutor ’ s office on 27 March 2007. Relying on certain statements made by the driver, who had accompanied the applicant to the hospitals (see paragraph 7 above), the applicant ’ s father submitted that the critical state in which his daughter had arrived at the “ Floreasca ” Hospital around 2 p.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 6 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 “ Floreasca ” Hospital, which was only fifteen minutes away from where she worked. Such a timely reaction would have preserved his daughter ’ s chances for much better recovery after the surgery.

15. The applicant ’ s father gave two statements before the prosecutor ’ s 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.

16 . In his written submissions of 19 July, 5 November and 27 December 2007, the applicant ’ s 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.

17. On 6 December 2007 the doctor-colonel L.T. (see paragraph 8 above) was heard by the public prosecutor ’ s office. He stated that the applicant had arrived at the “Agrippa Ionescu ” 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 “ Floreasca ” Hospital.

18. Copies of medical documents from the “Agrippa Ionescu ” Hospital and from the “ Floreasca ” Hospital were included in the criminal file.

19 . On 13 November 2008 the military prosecutor ’ s office decided not to start criminal investigations against the medical staff involved in the applicant ’ s 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.

20 . On 13 January 2009 the Chief Military Prosecutor rejected the complaint brought by the applicant ’ s father against decision of the prosecutor ’ s 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 ’ s 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.

21. On 4 February 2009 the applicant ’ s 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.

22 . In his written submissions of 9 April 2009 the applicant ’ s father reiterated the complaints mentioned above. He further indicated succinctly that his daughter also sought compensation for the material and moral damage incurred.

23. On 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.

24 . By a judgment of 27 November 2009, the High Court held that the applicant ’ s 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 ’ s case. The High Court further held that, in any event, the alleged offences had become time-barred.

25 . The applicant lodged an appeal reiterating the aspects previously complained of by her father. By a final judgment of 22 November 2010, drafted on 22 February 2011, the High Court of Cassation and Justice, in a panel of nine judges, dismissed the applicant ’ s complaints as ill-founded.

B. Relevant domestic law and practice

26 . The 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 Lazăr v. Romania , no. 32146/05 , §§ 52-54, 16 February 2010; Csoma v. Romania , no. 8759/05 , §§ 22-26, 15 January 2013; and S.B. v. Romania , no. 24453/04 , §§ 37-42, 23 September 2014.

COMPLAINTS

27. Relying 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.

THE LAW

28. The 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:

“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 ’ submissions

29 . The 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.

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.

The Government relied on the Court ’ s case-law in similar cases, such as E.M. and Others v. Romania , (( dec. ), no. 20192/07, 3 June 2014); Istrăţoiu v Romania , (( dec. ), no. 56556/10, 27 January 2015) and Stihi Boos v. Romania (( 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.

30. The 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.

31 . The 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.

B. The Court ’ s assessment

32 . It 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. 26053/07, 12 October 2010), 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 ’ 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. Romania , no. 31675/04, § 103, 2 June 2009; and Jurica v. Croatia , no. 30376/13, § 84, 2 May 2017).

33 . At 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. France [GC], no. 46043/14, § 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, §§ 87-88).

34. Turning 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.

35. At the outset, the Court notes that according to the Government ’ s 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).

36. The Court however notes that the applicant had not pursued either of the two avenues mentioned above.

37. In 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 ’ s 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 ’ s decision not to institute criminal proceedings (see paragraph 22 above).

38. The 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 ’ s 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. Romania , cited above, § 55).

39. While taking particular note of the applicant ’ s choice between the available domestic legal avenues, the Court cannot ignore that the criminal complaint was lodged by the applicant ’ s 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, § 67 ). In spite of the relative promptness with which the criminal investigation was conducted ( approximately three years in all), the criminal responsibility for the alleged offences had become time- barred during these proceedings, namely on 24 October 2008 (see paragraph 20 above).

40. In 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 ’ s own examination and judgment may be deprived of meaningfulness and effectiveness (see Vartic v. Romania , ( dec. ), no. 27631/12, § 47, 6 May 2014).

41. The 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, § 53).

42. In the light of the above, the Court cannot but conclude that it was the applicant ’ s 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.

43. Furthermore, 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 ’ s treatment.

44. It follows that the application must be r ejected as being manifestly ill- founded within the meaning of Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 July 2018 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President