Legal summary

June 2023

Pitsiladi and Vasilellis v. Greece - 5049/14 and 5122/14

Judgment 6.6.2023 [Section III]

Article 2

Positive obligations

Statutory impossibility for parents to access donations collected to fund medical treatment abroad for their child, who later died: no violation

Facts – The applicants, the parents of a child who had cancer, were unable to access a bank account opened in their name and containing almost EUR 297,000 in donations raised in order to fund treatment for the child in the United States. At the relevant time, the legislation on fundraising prohibited the collection of donations on behalf of individuals; such collections were permitted only for certain associations, foundations and committees. The applicants’ son died a few days after the entry into force of a Law clarifying the existing legislation and making it possible to access the funds raised.

The applicants complained under Article 2 of the Convention that a malfunctioning of the regulatory framework had resulted in the death of their son.

Law – Article 2 (procedural): The applicants’ complaint did not concern medical negligence or refusal of medical treatment. Their son had had access to medical facilities and treatment, had received appropriate treatment free of charge in both public and private hospitals, and had undergone an operation and a transplant. The applicants likewise did not suggest that the State should have funded their son’s treatment on the grounds that they were unable to meet the cost, nor did they complain of not having access to public funds. Their criticism did not relate to a lack of rules in the field of public health, but rather to the content of the existing rules on fundraising, which they considered unduly restrictive.

Positive obligations arose under Article 2 in the sphere of public health in the context of alleged medical negligence or the refusal of treatment. However, neither of these applied in the present case.

The Court would examine the applicants’ complaint concerning rapid access to the bank account containing the funds from the standpoint of the State’s positive obligation to provide a regulatory framework for the protection of citizens’ health. In the present case, a set of rules had existed governing fundraising and the conditions for obtaining access to the donations collected, designed to ensure legal certainty and protect donors and to prevent fraud and the exploitation of the public’s generosity. Hence, the rules pursued the legitimate aims of preventing disorder and protecting the rights of others. The regulatory framework did not, in principle, cover the sphere of public health and Article 2 could not be interpreted as requiring precise rules governing access to the funds raised following an appeal for donations.

A set of regulations had been available to the applicants, who could have requested funding for their son’s hospital treatment abroad under the procedure before the special health committees. Although the Court could not speculate as to the outcome of such a request in the present case, the applicants had not provided any specific information demonstrating that they had made use of that procedure. Hence, the Court could not accept that the above-mentioned situation had made it necessary, as a preventive measure under Article 2, to grant an exception to the prohibition on organising a collection of donations in order to fund medical treatment.

The national authorities had acted in good faith and had not refused to take steps with a view to clarifying the legislation on fundraising which formed the basis for the applicants’ complaint. The applicants had applied in June 2000 for authorisation to transfer the sum required to cover the cost of their son’s hospital treatment. Eight months later, on 15 February 2001, the legislation amending the rules on fundraising had been passed. It had entered into force on 2 March 2001 and the Minister for Health had issued the authorisation in question on the same day. The national authorities had not refused to take active steps to allow the applicants to access the funds raised so that their son could be treated. The bank had transferred an amount of EUR 35,216 in anticipation of a change in the legislation.

In the Court’s view, it was not possible to provide an answer in the abstract to the question whether the inability to obtain immediate access to funds raised in order to pay for treatment abroad came within the scope of application of Article 2, since – even assuming that provision to be applicable – the respondent State had not failed to comply with the requirements of the protection of life.

The Court was mindful of the tragic nature of the circumstances of the case and the fact that the applicants’ son had died two days after they received authorisation from the Minister. However, even assuming that Article 2 was applicable, and account being taken of all the circumstances of the case and especially the fact that domestic law did not preclude recourse to a procedure for applying for funding, the fact that it was unclear whether the situation facing the applicants had arisen previously, and the fact that the national authorities had taken action without significant delay, the Court found no evidence to suggest that the domestic authorities had failed to fulfil a positive obligation under Article 2.

In view of all the above-mentioned circumstances, it did not appear that there had been a malfunction stemming from a failure by the State to comply with its obligation to provide a regulatory framework. In any event, the Court was unable to find a causal link between the national authorities’ conduct and the child’s death. It did not overlook the fact that the American hospital offered pioneering treatment specifically in cases such as that of the applicants’ son, which statistics showed to be capable of extending the life of patients. However, the hospital had merely sent an information document about the treatment and the methods used; the child had been due to undergo an individualised medical assessment on 5 February 2001 and the treatment would in any case not have commenced before that date.

The applicants’ son died on 4 March 2001, two days after the Minister had issued the authorisation. In view of the child’s precarious state of health and the deterioration of his condition that had been observed in the two months preceding the appointment of 5 February 2001 and eight days after it, the situation was not one in which positive action by the State, judged reasonably, might have been expected to extend the child’s life and avoid the risk of death.

Conclusion : no violation (six votes to one).

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

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