Communicated on 16 September 2016

FOURTH SECTION

Application no. 16000/16 Mariana NEDELCU against Romania lodged on 14 March 2016

STATEMENT OF FACTS

The applicant, Ms Mariana Nedelcu , is a Romanian national who was born in 1964 and lives in Craiova. She is represented before the Court by Ms C. Velescu , a lawyer practising in Craiova.

A. The circumstances of the case

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

1 . Death of the applicant ’ s daughter-in-law and the disability of her grandson

On 15 August 2007 the applicant and her son took her daughter-in-law to Calafat Hospital because she was pregnant and was about to give birth. Following her admission to hospital, the applicant ’ s daughter-in-law ’ s medical condition was monitored by Dr S.B.C., who was a gynaecologist.

On the same date the applicant ’ s daughter-in-law was examined and blood samples were collected from her. Later that day she gave birth and suffered a rupture of her uterus during the delivery, followed by an abundant haemorrhage. After delivery, the newborn ’ s airways were blocked by blood and he had to be resuscitated because he was not breathing. The newborn lived, but he was left with a serious physical and mental disability.

Dr S.B.C. attempted to stop the applicant ’ s daughter-in-law ’ s bleeding, but was unable to do so. Subsequently, she asked Dr R. to perform an emergency uterus removal operation. The operation could not be performed, because Calafat Hospital did not have blood for a blood transfusion. Consequently, an ambulance was called and the applicant ’ s daughter-in-law was transferred to Craiova Clinical Hospital no.1, accompanied by three doctors, including Dr S.B.C. and Dr R., and a nurse. During the fifty ‑ five ‑ minute transfer the applicant ’ s daughter-in-law stopped breathing, and all the attempts to resuscitate her made at Craiova Clinical Hospital n o. 1 failed. She was pronounced dead on the same date at 11.05 p.m.

2 . Criminal investigation into the events of 15 August 2007

On 16 August 2007, of their own motion, the Calafat police initiated a criminal investigation into the events of 15 August 2007.

On an unspecified date in August 2007 the Craiova Forensic Institute produced an autopsy report which concluded that the applicant ’ s daughter ‑ in-law had died because of haemorrhagic shock after a rupture of her uterus.

On 26 December 2008 the Dolj Child Protection Commission acknowledged that the applicant ’ s grandson had a severe physical and mental disability.

On 12 March 2009 the Craiova Forensic Institute produced a forensic report which concluded that the applicant ’ s daughter-in-law had died because of the medical complications she had experienced during labour, and because of the lack of appropriate conditions for a fast surgical intervention. It noted that the applicant had been hospitalised correctly and that the medical supervision, examination and procedures during delivery had been appropriate. Also, the medical procedures during delivery had not caused the initial cervical bleeding. That complication happened relatively often, and was unpredictable and a possible risk. The newborn ’ s severe hypoxia and the fact that he had inhaled blood had been as a result of the medical complication at the time of the delivery, and this had been a possible risk and unpredictable. In addition, the rupture of the uterus had been a possible and unpredictable complication. Lastly, large babies could be delivered in hospitals like the one in Calafat , and the situation faced by Dr S.B.C. had been unpredictable and a possible risk of any birth.

On 25 March 2009 the Calafat police opened a criminal investigation ( a ȋ nceput urmărirea penală ) against Dr S.B.C. in relation to involuntary manslaughter and involuntary physical harm, and against M.S.N.I., a nurse, in relation to negligence.

On 10 November 2010 a prosecutor attached to the Calafat prosecutor ’ s office discontinued the criminal inve stigation against Dr S.B.C. and M.S.N.I. The applicant and her son challenged the decisions before a more senior prosecutor.

On 9 December 2010 a more senior prosecutor attached to the Dolj prosecutor ’ s office dismissed the applicant ’ s and her son ’ s challenges. The applicant and her son appealed against the judgment before the domestic courts.

On 15 February 2011 the Calafat District Court dismissed the applicant ’ s and her son ’ s appeals against the more senior prosecutor ’ s decision. The applicant and her son appealed on points of law against the judgment ( recurs ). In addition, they lodged an application with the Court of Cassation to transfer the proceedings to a different court ( a strămuta cauza ), on the grounds that there was a reasonable suspicion that the judicial authorities in Calafat lacked impartiality.

On an unspecified date in 2011 the Court of Cassation allowed the applicant ’ s and her son ’ s applications to have the proceedings transferred to a different court.

On an unspecified date in 2011 the Arad County Court allowed the applicant ’ s and her son ’ s appeals on points of law, quashed the judgment of the Calafat District Court, and referred the case back to the Calafat prosecutor ’ s office for additional evidence to be added to the file. The court instructed the prosecutor ’ s office to produce a forensic expert report in order to determine Dr S.B.C. ’ s medical liability, and to ask for the approval of the Higher Forensic Review Commission attached to the National Forensic Institute in case the conclusions of the new forensic expert report contradicted the conclusions of the forensic reports which were already available.

On an unspecified date the applicant and her son asked the prosecutor ’ s office attached to the Court of Cassation to transfer the proceedings to a different prosecutor ’ s office.

On 29 September 2011 the prosecutor ’ s office attached to the Court of Cassation allowed the applicant ’ s and her son ’ s applications to have the proceedings transferred to a different prosecutor ’ s office, and referred the case to the Timiş prosecutor ’ s office.

On an unspecified date in 2011 the Craiova Forensic Institute produced a forensic expert report in the case. It concluded that there had been no instructions for a caesarean section, and that the deceased ’ s condition after birth had required surgery under general anaesthesia and an immediate blood transfusion. The doctor could not have anticipated the rupture of the uterus, and the medical treatment and procedures had been carried out correctly. Also, Calafat Hospital had not had an anaesthetist, blood or plasma, and therefore the applicant ’ s daughter-in-law could not have been provided with appropriate surgery at the hospital. In addition, the newborn ’ s severe disability could only be explained by the inhalation of amniotic liquid, and was not connected with the actual rupture of the uterus. The baby ’ s hypoxia had occurred at the time of the delivery and this was a possible and unpredictable risk of every natural birth.

On 29 June 2012 the Higher Forensic Review Commission attached to the National Forensic Institute approved the forensic medical documents produced during the investigation and concluded that, according to the available medical documents, there had been no deficiencies in the medical assistance provided to the deceased. It held that the decision to attempt a natural birth had been appropriate. Also, the medication provided to the patient had been appropriate, given that it had been chosen by the doctor who had delivered the baby. The rupture of soft tissue was a possible risk of natural births. Also, the patient ’ s complication had required a fast and coordinated intervention by a team of doctors (a surgeon, an anaesthetist and a gynaecologist), and a blood transfusion. The decision to transfer the patient to Craiova had been based on an assessment of the available material and human resources.

On 22 September 2009, following a request by the Timiş police, the Timiş Forensic Institute produced a new forensic expert report in the case, based on the available medical documents. It concluded that the deceased had not received a medication overdose during labour, and that the aforementioned medication had not affected the foetus or caused the hypoxia. Also, the available medical documents attested to a normal birth and did not record any mechanical extraction of the foetus. In addition, the severe hypoxia could have occurred before delivery. The medical data had been insufficient to establish a causal link between the gynaecologist ’ s actions during labour and the newborn ’ s diagnosis after birth, but it had been necessary to examine the exact hospital conditions and, in particular, the lack of blood. The newborn ’ s disability had been cause d by the severe hypoxia, and Dr S.B.C. had performed all the required procedures in order to resuscitate and save the baby.

On 10 December 2014 the applicant and her son challenged before the Timiş prosecutor ’ s office the validity and conclusions of the forensic expert report produced by the Timiş Forensic Institute, and asked for a new forensic expert report to be produced in the case.

According to the applicant, the Timiş prosecutor ’ s office dismissed her and her son ’ s challenges to the aforementioned forensic expert report.

By a report of 9 February 2015 the Timiş police proposed to close ( clasa ) the criminal investigation against Dr S.B.C. and M.S.N.I. The report relied on the available forensic evidence and several testimonies and statements, including those of the deceased ’ s husband, the applicant, Dr S.B.C., Dr R., M.S.N.I., and the ambulance nurse who had accompanied the deceased during her transfer to Craiova.

The report noted that, according to the statement of one of the doctors who had also monitored the condition of the deceased on the day of her death, in particular Dr V., her transfer to a different hospital prior to the actual delivery of the baby had not been necessary, given the fact that her medical condition had been adequate. Also, the head of the intensive care unit of Calafat Hospital, Dr M., had stated that the aforementioned department had had a unit of blood on the day of the incident, but this had already been used on a different patient by the time the applicant ’ s daughter-in-law had gone into labour. A request for a new unit of blood had been sent to the Craiova Transfusion Centre on the same day, but the hospital had received only a unit of plasma. In addition, the Craiova Transfusion Centre had notified the investigating authorities that domestic legislation did not regulate the quantity of blood Calafat Hospital should have in reserve based on the number of patients the hospital admitted. The Craiova County Emergency Hospital had also informed the investigating authorities that domestic legislation did not contain any provisions on whether hospitals could deliver babies in the absence of an appropriate blood reserve; whether a gynaecologist had to be aware of the existence of appropriate blood reserves; or whether a patient whose condition had been adequate before labour started should be transferred to a different hospital in the absence of such blood reserves.

The report held that, according to M.S.N.I. ’ s job description, she had not been responsible for replenishing the hospital ’ s blood reserves. According to the relevant domestic regulation, that responsibility belonged to the doctor coordinating the hospital ’ s blood transfusion unit. Also, given the absence of any legal provisions on the number of blood units Calafat Hospital should have in stock, the hospital ’ s practice had been to keep one unit of blood in stock. Consequently, neither M.S.N.I. nor any other member of the hospital ’ s staff could be held responsible for acting negligently, given that the hospital had asked the transfusion centre for a unit of blood on the day of the incident. The requested unit of blood had not been delivered for reasons that could not be attributed to the hospital ’ s staff members.

The report further held that, according to the available evidence, Dr S.B.C. had not been liable for involuntary manslaughter, given that her treatment of the patient had been adequate, she had performed appropriate medical procedures, the complications could not have been foreseen, and an urgent surgical intervention had not been possible at Calafat Hospital.

Lastly, the report held that any action against Dr S.B.C. concerning her liability for involuntary bodily harm had become time-barred. In any event, according to the available evidence, the newborn ’ s disability had been caused by severe hypoxia. The causes of the hypoxia had predated the actual delivery, and such a condition was unpredictable and a possible risk of a natural birth.

On 20 February 2015 a prosecutor attached to the Timiş prosecutor ’ s office examined the proposal in the report and decided to uphold it. The applicant and her son challenged the decision before a more senior prosecutor.

On 12 May 2015 a more senior prosecutor attached to the TimiÅŸ prosecutor ’ s office dismissed the applicant ’ s and her son ’ s challenges as ill ‑ founded. The applicant and her son appealed against the decision before the domestic courts. The applicant argued, inter alia , that the prosecutor ’ s office had investigated the circumstances of the case superficially and had failed to adduce sufficient evidence, and that the forensic experts had reached their conclusions by relying exclusively on the available medical documents and without actually examining her grandson. Also, the TimiÅŸ Forensic Institute ’ s expert report had not been produced by a gynaecologist or neonatologist, and had reached contradictory conclusions.

By a final judgment of 9 October 2015 the Arad District Court dismissed the applicant ’ s and her son ’ s appeals against the prosecutor ’ s office ’ s decision of 12 May 2015. It held that, according to the available evidence, both Dr S.B.C. and M.S.N.I. had acted appropriately, given the available resources, and in line with the relevant domestic legislation in force at the material time and their job descriptions. Moreover, the expert report produced by the Timiş Forensic Institute had clear content and conclusions. Furthermore, while the applicant could not be responsible for the fact that any action against Dr S.B.C. concerning her criminal liability for involuntary bodily harm had become time-barred, the merits of the charge had been examined and it had been established that Dr S.B.C. had not been responsible for that offence.

B. Relevant domestic law

The relevant provisions of the former Romanian Civil Code concerning civil liability for tort are described in Elena Cojocaru v. Romania , (no. 74114/12, § 70, 22 March 2016).

COMPLAINT

Relying in substance on Article 2 of the Convention, and expressly on Articles 6 and 13 of the Convention, the applicant complains that the criminal investigation into the events of 15 August 2007 was lengthy, superficial and inefficient. Moreover, it prevented her from having access to a court and an effective remedy.

QUESTIONS TO THE PARTIES

1. With regard to the investigation in the present case, c an the applicant claim to be a victim of an alleged violation of Article 2 of the Convention under its procedural limb, within the meaning of Article 34?

2. If so, h as the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, with regard to her complaint regarding the death of her daughter-in-law and her grandson ’ s severe physical and mental disability?

3. Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?