Communicated on 1 April 2014

THIRD SECTION

Application no. 55498/13 George DUMITRESCU and Alexandru DUMITRESCU against Romania lodged on 26 August 2013

STATEMENT OF FACTS

1 . The applicants, Mr George Dumitrescu and Mr Alexandru Dumitrescu , are Romanian nationals, who were born in 1962 and 1994 respectively and live in Turnu Măgurele . They are represented before the Court by Mr C.C. Voinea , a lawyer practising in Turnu M ă gurele .

A. The circumstances of the case

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

3 . Mrs M.M.D was the first applicant ’ s wife and the second applicant ’ s mother.

1. The applicant ’ s treatment and actions to obtain the necessary medicinal products

4 . In 2011, M.M.D. was diagnosed with a meningioma of sphenoidal crest and an intra-cranial expansive process of the pineal and mesencephalon gland. She underwent a medical surgery for the meningioma and a drain was made to collect a sample of tissue for biopsy. She was recommended radio-surgery gamma knife which she could not do in Romania, due to the inexistence of such therapy.

5 . In these circumstances, the applicants approached a clinic in Turkey where such treatment was available. They incurred the costs related to travelling.

6 . Following medical tests conducted in December 2012, it was established that the tumour had recurred and it was recommended that the treatment with mono-clonal antibodies, namely the medicinal product “A”, be initiated. M.M.D. started the medical treatment at her own expense.

7 . Further to the treatment with “A”, her condition improved and the tumour had reduced by half. The clinic in Turkey recommended that M.M.D. continue being treated with “A”, a schedule for the treatment being made available to her.

8 . M.M.D. further paid in full the costs relating to the administration of “A” for two cycles of treatment.

9 . As she could not afford to continue indefinitely to bear the costs of the treatment, M.M.D. requested to the Nati onal Health Insurance House (“the National House” ) and the Teleorman County Health Insurance House (“the County House") to cover the medical treatment with “A”.

10 . On 27 February 2013, the Experts ’ Commission for the implementation of the National Oncology Programme at the level of the National House (the "Experts ’ Commission") rejected her request to initiate treatment with “A” since it did not observe the therapeutical indications approved by the National House and the protocol of the product ’ s summary characteristics issued by the medicinal products manufacturer for the European Union.

2. Court proceedings to oblige the National House and the County House to provide her with specific treatment

11 . On 11 February 2013, M.M.D. brought proceedings against the National House and the County House, requesting the Bucharest Court of Appeal to order the defendants to provide her with the medicinal product “A” immediately and with priority for the period recommended by her doctors, as well as any other medicinal products prescribed by her doctors, until a final solution regarding the civil proceedings brought by her in domestic file no. 729/2/2013 would be rendered.

12 . By a judgment of 27 February 2013, the Bucharest Court of Appeal partially allowed the request. It ordered the National House and the County House to provide the medicinal product in question until a final solution in the civil proceedings would be rendered. The judgment became final in the absence of an appeal on points of law ( recurs ).

3. Actions to oblige National House and the County House to fulfil their obligation

13 . On 7 March 2013, M.M.D. wrote to the National House requesting the urgent enforcement of the judgment and seeking to be granted treatment with “A”.

14 . On 12 March 2013, she submitted the same request at the National House ’ s registry, attaching a copy of the judgment and the medical recommendation. She also indicated that on 15 March 2013 she was supposed to start treatment with “A” at the Oncology Section of the Turnu M ăgurele Hospital.

15 . On 15 March 2013, the hospital informed M.M.D. that the medical treatment could not be administered since the National House did not make available the medicinal product required for the treatment.

16 . On the same date, she lodged a complaint with the Prosecutor ’ s Office attached to the High Court of Cassation and Justice (the “ Prosecutor ’ s Office ” ) against the president of the National House for negligence while on duty.

17 . On 21 March 2013, the National House concluded a protocol whereby it approved the use of the medicinal product for a period of three months.

18 . On 25 March 2013, the Prosecutor ’ s Office informed M.M.D. that the complaint had been transferred to the Prosecutor ’ s Office attached to the Bucharest District Court.

19 . On 5 April 2013, M.M.D. requested to the general manager of the hospital the administration of the medical treatment for 26 April 2013 and 17 May 2013, which was partially paid and partially covered by the health insurance. The request was registered under no. 1888 of 9 April 2013.

20 . On 13 May 2013, the National House informed M.M.D. that in order for the medical treatment to be granted all administrative steps had to be followed and that, further to the protocol concluded on 21 March 2013 (see paragraph 14 above), the National House had executed the judgment of 27 February 2013.

21 . On 22 May 2013, the applicants notified the National House and the County House about their obligation to observe the judgment rendered by the Bucharest Court of Appeal and to assure the necessary medical treatment.

22 . On 3 June 2013, the Turnu M ă gurele Hospital informed M.M.D. that the medical doctor responsible for the treatment had been on holidays on 26 April 2013 and on medical leave on 17 May 2013 and that during this time period the oncology department had not been operational.

23 . M.M.D. and the applicants continuously tried to get access to the medicinal product for a new cycle of treatment scheduled for 7 June 2013.

24 . On 10 June 2013, further to a media campaign launched by the applicants, the medicinal product became available.

25 . On 11 June 2013, M.M.D. requested the aid of a bailiff to start enforcement proceedings against the National House and the County House.

26 . On 12 June 2013, the Experts ’ Commission made a public notice stating that ( i ) the patient had not manifested notable toxicities due to the treatment with the medicinal product in question, (ii) from an imagistic perspective, it had been ascertained that the disease was stationary and (iii) the continuation of the treatment with “A” had been approved.

27 . On 14 June 2013, M.M.D. died.

B. Relevant domestic law

28 . The relevant provisions of Law no. 189/2000 are mentioned in the case Panaitescu v. Romania (no. 30909/06 , § 19, 10 April 2012).

29 . Government decision no. 117/2013 approves the framework contract on the conditions for the granting of medical assistance within the framework of the social health insurance system for the years 2013 and 2014.

30 . Government decision no. 359/2012 amends decision no. 720/2008 approving the list of medicinal products from which insured persons being treated as outpatients could benefit, with or without a personal contribution, on the basis of a medical prescription, within the social health insurance system. “A” was not included in the list.

COMPLAINT

The applicants complain under Articles 2 and 6 of the Convention and Article 1 of Protocol No. 1 that the State authorities violated M.M.D. ’ s right to life by not making available the necessary medical treatment in breach of the State ’ s positive obligations.

QUESTION TO THE PARTIES

Having regard to the State ’ s positive obligation to protect the life of the individuals within its jurisdiction, was the life of the applicants ’ wife and mother respectively put at risk by the failure of the State ’ s authorities to provide her with the necessary medication? If so, did this amount to a breach of Article 2 of the Convention?