THIRD SECTION

Application no. 74114/12 Elena COJOCARU against Romania lodged on 14 November 2012

STATEMENT OF FACTS

The applicant, Ms Elena Cojocaru , is a Romanian national, who was born in 1953 and lives in Roman. She is rep resented before the Court by Mr M. Stoleriu , a lawyer practising in Suceava .

A. The circumstances of the case

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

1. The medical treatment of the applicant ’ s daughter

The applicant ’ s pregnant daughter was supervised by doctor I.M. during her pregnancy. Her daughter was examined by I.M. on a monthly basis and for seven months her pregnancy developed normally.

On 8 October 2001, I.M. performed a routine check up on her daughter at the Suceava County Hospital. On that occasion I.M. informed her daughter that she needed to be hospitalised for further investigations because she was running the risk of premature birth.

On the same date the applicant ’ s daughter was admitted to the Suceava County Hospital and doctor I.M. started administering her treatment which in his opinion would have caused the blood vessels to expand and induce labor .

On the night of 8 to 9 October 2001 the applicant ’ s daughter was administered the recommended treatment. Subsequently, large ecchymosis appeared on her legs and abdomen caused by the rupture of blood vessels. Within the next twenty four hours her daughter ’ s condition became worse and resulted in her running a high fever and losing consciousness.

After repeated requests from the applicant and her son ‑ in ‑ law, doctor I.M. accepted to contact doctor D. who at the time was a university professor. After he received details about the patient ’ s condition and treatment, doctor D. asked I.M. to perform an emergency C-section in order to save the mother ’ s life.

Doctor I.M. refused to perform the emergency C-section, but eventually he accepted for the applicant ’ s daughter to be transferred to a specialised State owned medical clinic in IaÅŸi where the diagnoses of a serious pre ‑ natal condition was established and an emergency C-section was performed. Both her daughter and the applicant ’ s new born grand daughter died immediately after the surgery.

2. Criminal investigation concerning the death of the applicant ’ s daughter and granddaughter

On an unspecified date in 2001 the applicant an d her son ‑ in ‑ law brought criminal proceedings, with no civil claims, against doctor I.M. for unintentional murder.

On 16 May 2003 the Suceava Police Department asked the Iaşi Forensic Institute to help them clarify certain aspects of the investigation by providing them with an explanation on the cause of death of doctor I.M. ’ s patient, whether doctor I.M. treated his patient adequately in the light of his professional obligations and whether ther e was a causal link between his behaviour and the deaths caused.

On 10 June 2003 the Iaşi Forensic Instit ute informed the Suceava Police Department that given his patient ’ s diagnosis doctor I.M. had a duty to promptly apply the recommended treatment in such circumstances. The fact that his patient reached the clinic in Iaşi in a very serious condition suggests that she was not provided with the re quired adequate care. The three day delay in determining a diagnosis contributed to the seriousness of the condition.

On 25 August 2003, at I.M. ’ s request, the Suceava Police Department asked the Higher Forensic C ommission attached to the “Mina Minovici ” Forensic Institute in Bucharest (“the Higher Forensic Commission”) to review the information provided by the Ia şi Forensic Institute on 10 June 2003.

On 23 April 2004 the Higher Forensic Commission informed the Suceava Police Department that it appr oved the information note of 10 June 2003. In addition, it stated that the Suceava County Hospital ’ s staff actions could be explained from a medical standpoint given that according to the information available they could have also concluded that the patient ’ s condition was caused by intoxication with mushrooms and not by a far worse medical condition as it turned out to be the case.

By an order of 4 May 2005 the prosecutor investigating the case attached to the Suceava Prosecutor ’ s Office decided not to prosecute I.M. on the ground that his medical conduct could be explained medically and therefore he had not been negligent. The applicant challenged the order before the hierarchical prosecutor.

By a final order of 1 September 2008 the hierarchical prosecutor dismissed the applicant ’ s complaint. The applicant challenged the order before the domestic courts.

By a final judgment of 30 March 2010 the Suceava County Court allowed the applicant ’ s compl aint and quashed the order of 1 September 2008. It held that the Prosecutor ’ s Office failed to raise all the required evidence to determine the circumstances of the case including the cause of death and that a forensic expert report was absolutely necessary for the case as the information not es of 10 June 2003 and 23 April 2004 were not forensic expert reports and did not fulfil the lawful requirements of such reports. Consequently, it referred the case to the Suceava Prosecutor ’ s Office with the instruction to prosecute I.M. and to find answers to several particular questions concerning the circumstances of the case.

By a final order of 1 February 2011 the Suceava Prosecutor ’ s Office decided not to prosecute I.M. on the ground that the crimi nal liability for his action had become time-barred. The applicant challenged the prosecutor ’ s order before the domestic courts.

By a final judgment of 6 June 2012 the Suceava District Court dismissed the applicant ’ s action as ill-founded.

B. Relevant domestic law

The judgement delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic case ‑ law and practice concerning the delivery of expert medico ‑ legal reports and the authorities competent for their issuance, as well as the relevant domestic law and practice concerning the civil liability of medical staff.

Article 19 (1) and (2) o f the Romanian Code of Criminal Procedure states that victims seeking compensation for damages caused as a result of an offence and who have not become civil parties to the criminal proceedings may open a separate set of civil proceedings before civil courts. The proceedings opened before a civil court shall be stayed pending the outcome of the criminal proceedings.

Articles 1, 3 and 8 of Law-Decree no. 167/1958 on time barring state that proceedings of a pecuniary nature sh all be time barred within three years from the date the victim was aware or should have been aware of the damage and of the identity of the person who caused it.

COMPLAINT

Relying on Articles 2, 6 and 13 of the Convention the applicant complains of the death of her daughter and grand daughter as a result of the Suceava County Hospital medical staff ’ s negligence, in particular doctor I.M. who provided her daughter with inadequate treatment for her medical condition. In addition, she argues that the crim inal investigation into the two deaths was ineffective, superficial and lacked any prom ptness.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, for complaining about the death of her daughter and granddaughter?

2. Having regard to the positive obligations to protect life, has the State satisfied the requirement to put in place regulations for the hospitals to protect their patients ’ lives (see, mutatis mutandis, G.N. and Others v. Italy , no. 43134/05 , 1 December 2009) ?

3. Having regard to the procedural protection of the right to life (see Eugenia Lazăr v. Romania , no. 32146/05 , 16 February 2010 ), was the investigation in the present case by the domestic a uthorities in breach of Article 2 of the Convention?