Information Note on the Court’s case-law 240

May 2020

Aftanache v. Romania - 999/19

Judgment 26.5.2020 [Section IV]

Article 2

Article 2-1

Effective investigation

Lack of proper investigation into refusal by medical personnel to administer usual insulin treatment to a diabetic in precarious condition: violation

Article 5

Article 5-1

Deprivation of liberty

Lawful arrest or detention

Arbitrary and unlawf ul six-hour involuntary confinement in hospital: violation

Facts – On 30 March 2017, the applicant, diagnosed with type-1 diabetes and insulin-dependent since 1996, went to a pharmacy to buy medication prescribed by his diabetologist. On arrival he had to sit down as he was feeling weak. An ambulance came and the appli cant informed the paramedics about his medical condition. A blood test performed in the ambulance confirmed an imbalance in the applicant’s glucose level. Nevertheless, medical personnel from the ambulance and the municipal and psychiatric hospitals, where he was taken involuntarily, with the help of the police, refused to administer his insulin treatment despite his precarious condition. They suspected that he was a drug addict.

The applicant complained that his life had been put at risk in violation of Ar ticle 2 and that he was unlawfully deprived of his liberty in the hospitals in breach of Article 5 § 1.

Law – Article 2 (procedural limb)

(a) Applicability – Given the scarcity of available evidence, the Court could not speculate as to the exact effect on the applicant of the delayed insulin treatment on 30 March 2017 or whether his own behaviour, notably his refusal to submit to a drugs test, had contributed decisively to it. However, very high blood sugar levels could lead to diabetic ketoacidosis, a life threatening condition necessitating hospital treatment. Moreover, this condition, which was commonly triggered by infections, could develop quickly over a few hours. In the past, the applicant had already suffered a diabetic coma. Given the nature of the applicant’s illness and the absence of any conclusive evidence submitted by the Government that his life had not been put in danger, the denial of treatment on 30 March 2017 had caused a threat to his life serious enough to engage the State’s responsibilit y under Article 2.

(b) Merits – The prosecutor had only heard evidence from the four members of the ambulance team and from the applicant. No independent witness had been heard. The other individuals involved in the incident had not been interviewed by the investigators: the pharmacis ts, the police officers, the applicant’s wife, his regular doctor C.H., and the medical personnel at the two hospitals that the applicant had been taken to against his will that day. Moreover, the out-of-court statement made by C.H. had not been taken into account by the prosecutor or the court.

Although the applicant’s medical condition had been a key element in the incidents, no expert medical evidence had been requested by the prosecutor. In particular, several elements should have alerted the investigat ors to the need for further clarifications. The treatment had been postponed only because of suspicions of drug abuse. The first test carried out by the ambulance team had already showed an imbalance in the applicant’s blood glucose level. Moreover, the me dical personnel had been diligently informed that he was a diabetic in need of insulin and none of the doctors who had seen the applicant on that day had denied it. There had been no evidence in the file supporting the Government’s assertion that the docto rs had been unaware of his medical condition. However, if that had been indeed the case, far from being imputable to the applicant, such an omission on the part of the medical personnel would amount to an admission of professional misconduct, which could h ave put the applicant’s life at risk. At the least, those aspects should have called for a more thorough investigation by the authorities.

In addition, the District Court, which had been called on to examine the prosecutor’s decision, had merely upheld tha t decision based on the evidence already in the file, without taking the opportunity to complete the investigation or to ask the prosecutor to do so.

Having regard to the above deficiencies, the State authorities had failed to conduct a proper investigatio n into the incident of 30 March 2017. Those deficiencies made it impossible to assess whether the State had complied with its positive obligation to protect the applicant’s life.

Conclusion : violation (unanimously).

Article 5 § 1: Notwithstanding the relat ively short duration of the events, that is about six hours, an element of coercion present throughout the events was indicative of a deprivation of liberty. No legal basis had been offered by the authorities for the applicant’s deprivation of liberty. The applicant had duly brought his grievance to the authorities’ attention, but had received no answer from them.

Different possible reasons could have justified the applicant’s deprivation of liberty.

Firstly, concerning the grounds permitted by Article 5 § 1 (c), under domestic law, an individual suspected of having committed a criminal act could be escorted to the police station if his identity could not be verified. However, there had been nothing in the domestic decisions leading the Court to believe tha t the applicant would have refused to state his identity. The police had not asked for his identity papers. Moreover, no legal actions had been taken in that respect. The allegations that the applicant had been verbally abusive and aggressive towards the p olice officers and the medical personnel, had been dismissed as unfounded by the District Court. Consequently, his deprivation of liberty could not be justified on those grounds.

On the grounds listed under Article 5 § 1 (e), under domestic legislation, th e police or medical personnel might request non-voluntary admission to a psychiatric hospital. However, in the present case, no such official request seemed to have been made. In any event, regarding the necessity of the measure, a first blood test, confir ming the applicant’s blood sugar levels, had already been done by the ambulance paramedics. Moreover, the applicant had informed the doctor on duty of his condition upon admission to the municipal hospital. The applicant had not had a psychiatric record an d the domestic courts had found that he had not been violent during the incident.

The applicant, faced with denial of treatment that he had considered vital for him, could have been uncooperative. And he had also been falsely accused of drug use and threat ened with psychiatric confinement. Throughout that time, he had been suffering from an imbalance in his blood sugar level. A certain state of discomfort and agitation was thus understandable in those circumstances. However, there was no evidence that the m edical professionals had considered his personal circumstances and the possible explanations for his behaviour before recommending admission to the psychiatric hospital. Consequently, the applicant’s alleged agitation had not been sufficient to render the measure of confinement necessary.

For these reasons, the applicant’s deprivation of liberty on 30 March 2017 had not been free from arbitrariness and in compliance with domestic law. Consequently, it had not fallen within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, nor had it been “lawful” within the meaning of that provision.

Conclusion : violation (unanimously).

Article 41: EUR 12,000 for non-pecuniary damage; claim in respect of pecuniary damage dismissed.

© Council of E urope/European Court of Human Rights This summary by the Registry does not bind the Court.

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