CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 17 juillet 2014

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text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s1CA00D95 { font-family:Arial; font-size:8pt; text-decoration:underline; vertical-align:super; color:#000000 } .s45AE5F73 { font-family:Arial; letter-spacing:-0.15pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sB15BD35E { color:#b5082e }     GRAND CHAMBER           CASE OF CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU v. ROMANIA   (Application no. 47848/08)                   JUDGMENT       STRASBOURG   17 July 2014     This judgment is final. In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Guido Raimondi,   Ineta Ziemele,   Isabelle Berro,   Alvina Gyulumyan,   Davíd Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Luis López Guerra,   Ledi Bianku,   Nona Tsotsoria,   Kristina Pardalos,   Vincent A. De Gaetano,   Angelika Nußberger,   Paulo Pinto de Albuquerque,   Paul Mahoney,   Johannes Silvis, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 4 September 2013 and 26 May 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 47848/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian non-governmental organisation, the Centre for Legal Resources (“the CLR”), on behalf of Mr Valentin Câmpeanu, on 2 October 2008. 2.     Interights, acting until 27 May 2014 as adviser to counsel for the CLR, was represented by Mr C. Cojocariu, a lawyer practising in London. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3.     The CLR alleged on behalf of Valentin Câmpeanu that the latter had been the victim of breaches of Articles 2, 3, 5, 8, 13 and 14 of the Convention. 4.     On 7 June 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.     Third-party comments were received from Human Rights Watch, the Euroregional Center for Public Initiatives, the Bulgarian Helsinki Committee and the Mental Disability Advocacy Center, non-governmental organisations (NGOs) which had all been given leave by the President to intervene in the proceedings (Article   36   §   2 of the Convention and Rule   44   §   3 of the Rules of Court). The Council of Europe Commissioner for Human Rights exercised his right to intervene in the proceedings and submitted written comments (Article   36   §   3 of the Convention and Rule   44   § 2). The Government replied to those comments (Rule 44 § 5). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 4 September 2013 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   C. Brumar,   Agent , Mr   G. Caian ,   Counsel , Mr   D. Dumitrache ,   Co-Agent ; (b)     for the CLR Ms   G. Iorgulescu , Executive Director, CLR, Ms   G. Pascu , Programme Manager, CLR, Mr   C. Cojocariu , lawyer, Interights,   Counsel ; (c)     for the Council of Europe Commissioner for Human Rights Mr   N. Muižnieks , Commissioner for Human Rights, Ms   I. Gachet , Director, Office of the Commissioner for Human Rights, Ms   A. Weber , Advisor, Office of the Commissioner for Human Rights.   The Court heard addresses by Ms Brumar, Mr Caian, Mr Cojocariu, Ms   Iorgulescu and Mr Muižnieks. Ms Brumar, Mr Cojocariu and Ms   Iorgulescu subsequently gave their answers to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The death of Valentin Câmpeanu 1.     Factual background 7 .     Valentin Câmpeanu, a man of Roma ethnicity, was born on 15   September   1985. His father was unknown, and his mother, Florica Câmpeanu, who died in 2001, abandoned him at birth. Mr   Câmpeanu was therefore placed in an orphanage, the Corlate Centre, where he grew up. In 1990 Mr Câmpeanu was diagnosed as HIV-positive. He was later diagnosed with “profound intellectual disability, an IQ of 30 and HIV” and was accordingly classified as belonging to the “severe” disability group. In time, he also developed associated symptoms such as pulmonary tuberculosis, pneumonia and chronic hepatitis. In March 1992 he was transferred to the Craiova Centre for Disabled Children and at a later date to the Craiova no. 7 Placement Centre (“the Placement Centre”). 2.     Assessments in 2003 and 2004 8.     On 30 September 2003 the Dolj County Child Protection Panel (“the Panel”) ordered that Mr Câmpeanu should no longer be cared for by the State. The decision was justified on the grounds that Mr Câmpeanu had recently turned eighteen and was not enrolled in any form of education at the time. Although the social worker dealing with Mr Câmpeanu had recommended transferring him to the local Neuropsychological Recovery and Rehabilitation Centre, the Panel ordered that a competent social worker should take all measures necessary for Mr Câmpeanu to be transferred to the Poiana Mare Neuropsychiatric Hospital (“the PMH”). According to the relevant law, the decision could be challenged before the Craiova District Court. Mr Câmpeanu was not present in person and was not represented at the hearing held by the Panel. 9 .     On 14 October 2003 Mr Câmpeanu’s health was reassessed by the Dolj County Council Disabled Adults Medical Examination Panel. The assessment resulted solely in a finding of HIV infection, corresponding to the “average” disability group. It was also mentioned that the patient was “socially integrated”. 10.     Subsequently, on an unspecified date in October or November   2003, a medical and welfare assessment of Mr Câmpeanu was carried out by a social worker and a doctor from the Placement Centre as a prerequisite for his admission to a medical and social care centre. Under the heading “Legal representative” they indicated “abandoned at birth”, while the space next to “Person to contact in case of emergency” was left blank. The diagnosis indicated was “severe intellectual disability, HIV-positive”, without any reference to the previous diagnosis (see paragraph 9 above). The following information was included in the assessment report: “requires supervision and intermittent assistance with personal care”, and the report concluded that Mr Câmpeanu was able to take care of himself, but at the same time required considerable support. 11 .     By a letter dated 16 October 2003, the PMH informed the Panel that it could not admit Mr Câmpeanu, who had been diagnosed with HIV and mental disability, as the hospital lacked the facilities necessary to treat individuals with such a diagnosis. 12 .     Following this refusal, between October 2003 and January 2004 the Panel and the County Department for the Protection of the Rights of the Child (“the Child Protection Department”) contacted a series of institutions, asking for assistance in identifying a social care or psychiatric establishment willing to admit Mr Câmpeanu. While stating that the PMH had refused to admit the patient because he had HIV, the Child Protection Department asked for the cooperation of the institutions concerned, mentioning that Mr   Câmpeanu’s condition “did not necessitate hospitalisation, but rather continuous supervision in a specialist institution”. 3.     Admission to the Cetate-Dolj Medical and Social Care Centre 13 .     The Panel eventually identified the Cetate-Dolj Medical and Social Care Centre (“the CMSC”) as an appropriate establishment where Valentin Câmpeanu could be placed. In its request to the CMSC, the Panel mentioned only that Mr Câmpeanu was HIV-positive, corresponding to the average disability group, without referring to his learning difficulties. 14 .     On 5 February 2004 Mr Câmpeanu was admitted to the CMSC. According to a report issued by the CMSC and sent to the CLR on 5   March   2004 detailing his condition upon admission, Mr Câmpeanu was in an advanced state of “psychiatric and physical degradation”, was dressed in a tattered tracksuit, with no underwear or shoes, and did not have any antiretroviral medication or information concerning his medical condition. It was noted that the patient “refused to cooperate”. In her statement to the prosecutor on 22 July 2004 in the context of the domestic proceedings (described in section B below), M.V., the doctor who had treated Mr Câmpeanu at the Placement Centre, justified the failure to provide appropriate medication or information on the basis that she did not know whether, depending on the results of the most recent investigation (see paragraph 9 above), it would be necessary to modify his treatment. A medical examination carried out upon Mr Câmpeanu’s admission to the CMSC concluded that he suffered from “severe intellectual disability, HIV infection and malnutrition”. At that time, he was 168 centimetres tall and weighed 45 kilograms. It was mentioned that “he could not orient himself in time and space and he could not eat or care for his personal hygiene by himself”. 15.     During the evening of 6 February 2004 Mr Câmpeanu became agitated. According to the above-mentioned report by the CMSC (see paragraph   14 above), on the morning of 7 February 2004 he “became violent, assaulted other patients, broke a window and tore up a mattress and his clothes and sheets”. He was given phenobarbital and then diazepam to calm him down. 4.     Examination at the PMH 16 .     On 9 February 2004 Mr Câmpeanu was taken to the PMH for examination, diagnosis and treatment, as it was the nearest psychiatric establishment. He was again diagnosed with “severe intellectual disability”. However, his condition was described as “not a psychiatric emergency”, as “he was not agitated”. Dr L.G. diagnosed him with “medium intellectual disability” and prescribed sedative medicines (carbamazepine and diazepam). According to the medical records kept at the PMH, no information regarding Mr Câmpeanu’s medical history could be obtained upon his admission to the hospital, as he “would not cooperate”. In the statement she gave to the investigative authorities on 8 December 2005, Dr D.M. from the PMH stated that “the patient was different in that it was not possible to communicate with him and he had mental disabilities”. 5.     Return to the CMSC 17.     Mr Câmpeanu was returned to the CMSC on the same day, by which time his health had worsened considerably. At that time, the CMSC had received a supply of antiretroviral medication and thus his treatment was resumed. Despite these measures, his condition did not improve, and his medical records noted that he continued to be “agitated” and “violent”. 18.     The CMSC decided that because it lacked the facilities needed to treat Mr Câmpeanu’s condition, it was impossible to keep him there any longer. The hospital sent a request to the Placement Centre asking it to refer him to a different establishment. However, the Placement Centre refused the request on the ground that he was already “outside its jurisdiction”. 19.     On 11 February 2004 E.O., the Director of the CMSC, allegedly called the Dolj County Public Health Department and asked it to come up with a solution that would allow Mr Câmpeanu to be transferred to a facility which was more suitable for the treatment of his health problems. It appears that she was advised to transfer him to the PMH for a period of four to five days for psychiatric treatment. 6.     Transfer to the PMH 20.     On 13 February 2004 Mr Câmpeanu was transferred from the CMSC to the PMH, on the understanding that his stay at the PMH would last for three or four days with the purpose of attempting to provide treatment for his hyperaggressive behaviour. He was placed in Psychiatric Department   V. 21 .     On 15 February 2004 Mr Câmpeanu was placed under the care of Dr   L.G. Given the fact that Mr Câmpeanu was HIV-positive, the doctor decided to transfer him to Psychiatric Department VI. She continued to be in charge of his psychiatric treatment, as that department had only two general, non-specialist doctors and no psychiatrists on its staff. 22 .     On 19 February 2004 Mr Câmpeanu stopped eating and refused to take his medication. He was therefore prescribed an intravenous treatment which included glucose and vitamins. Upon examination by the doctor, he was found to be “generally unwell”. 7.     Visit by staff of the CLR 23 .     On 20 February 2004 a team of monitors from the CLR visited the PMH and noticed Mr Câmpeanu’s condition. According to the information included in a report by CLR staff on that visit, Mr Câmpeanu was alone in an isolated, unheated and locked room, which contained only a bed without any bedding. He was dressed only in a pyjama top. At the time he could not eat or use the toilet without assistance. However, the staff at the PMH refused to help him, allegedly for fear that they would contract HIV. Consequently, the only nutrition provided to Mr Câmpeanu was glucose, through a drip. The report concluded that the hospital had failed to provide him with the most basic treatment and care services. The CLR representatives stated that they had asked for him to be transferred immediately to the Infectious Diseases Hospital in Craiova, where he could receive appropriate treatment. However, the hospital manager had decided against that request, believing that the patient was not an “emergency case, but a social case”, and that in any event he would not be able to withstand the trip. 24 .     Valentin Câmpeanu died on the evening of 20   February   2004. According to his death certificate, issued on 23 February 2004, the immediate cause of death was cardiorespiratory insufficiency. The certificate also noted that his HIV infection was the “original morbid condition” and designated “intellectual disability” as “another important morbid condition”. 25 .     In spite of the legal provisions that made it compulsory to carry out an autopsy when a death occurred in a psychiatric hospital (Joint Order no.   1134/255/2000 of the Minister of Justice and the Minister of Health), the PMH did not carry out an autopsy on the body, stating that “it was not believed to be a suspicious death, taking into consideration the two serious conditions displayed by the patient” (namely intellectual disability and HIV infection). 26 .     Unaware of Mr Câmpeanu’s death, on 21 February 2004 the CLR had drafted several urgent letters and then sent them to a number of local and central officials, including the Minister of Health, the prefect of Dolj County, the mayor of Poiana Mare and the director of the Dolj County Public Health Department, highlighting Mr Câmpeanu’s extremely critical condition and the fact that he had been transferred to an institution that was unable to provide him with appropriate care, in view of his HIV infection; the CLR further criticised the inadequate treatment he was receiving and asked for emergency measures to be taken to address the situation. It further stated that Mr Câmpeanu’s admission to the CMSC and subsequent transfer to the PMH had been in breach of his human rights, and urged that an appropriate investigation of the matter be launched. On 22 February 2004 the CLR issued a press release highlighting the conditions and the treatment received by patients at the PMH, making particular reference to the case of Mr Câmpeanu and calling for urgent action. B.     The domestic proceedings 1.     Criminal complaints lodged by the CLR 27 .     In a letter of 15 June 2004 to the Prosecutor General of Romania, the CLR requested an update on the state of proceedings following the criminal complaint it had lodged with that institution on 23 February 2004 in relation to the circumstances leading up to Valentin Câmpeanu’s death; in the complaint it had emphasised that Mr Câmpeanu had not been placed in an appropriate medical institution, as required by his medical and mental condition. 28 .     On the same day, the CLR lodged two further criminal complaints, one with the prosecutor’s office attached to the Craiova District Court and the other with the prosecutor’s office attached to the Craiova County Court. The CLR repeated its request for a criminal investigation to be opened in relation to the circumstances leading up to and surrounding Mr Câmpeanu’s death, alleging that the following offences had been committed: (i)     negligence, by employees of the Child Protection Department and of the Placement Centre (Article 249 § 1 of the Criminal Code); (ii)     malfeasance and nonfeasance against a person’s interests and endangering a person unable to care for himself or herself, by employees of the CMSC (Articles 246 and 314 of the Criminal Code); and (iii)     homicide by negligence or endangering a person unable to care for himself or herself, by employees of the PMH (Article 178 § 2 and Article   314 of the Criminal Code). The CLR further argued that the Medical Examination Panel had wrongly classified Mr Câmpeanu as being in the medium disability group, contrary to previous and subsequent diagnoses (see paragraph 9 above). In turn, the Child Protection Department had failed to institute proceedings for the appointment of a guardian when Mr Câmpeanu had reached the age of majority, in breach of existing legislation. Moreover, the Placement Centre had failed to supply the required antiretroviral medication to CMSC staff when Mr Câmpeanu had been transferred there on 5 February 2004, which might have caused his death two weeks later. The CLR also claimed that the transfer from the CMSC to the PMH had been unnecessary, improper and contrary to existing legislation, the measure having been taken without the patient’s or his representative’s consent, as required by the Patients’ Rights Act (Law no. 46/2003). Lastly, the CLR argued that Mr Câmpeanu had not received adequate care, treatment or nutrition at the PMH. 29.     On 22 August 2004 the General Prosecutor’s Office informed the CLR that the case had been sent to the prosecutor’s office attached to the Dolj County Court for investigation. On 31 August 2004 the prosecutor’s office attached to the Dolj County Court informed the CLR that a criminal file had been opened in response to its complaint, and that the investigation had been allocated to the Criminal Investigation Department of the Dolj County Police Department (“the Police Department”). 2.     Forensic report 30.     On 14 September 2004, at the request of the prosecutor’s office, a forensic report was issued by the Craiova Institute of Forensic Medicine. Based on the medical records submitted, the report concluded as follows: “Medical treatment was prescribed for [the patient’s] HIV and his psychiatric condition, the treatment [being] correct and appropriate as to the dosage, in connection with the patient’s clinical and immunological condition. It cannot be ascertained whether the patient had indeed taken his prescribed medication, having regard to his advanced state of psychosomatic degradation.” 31.     On 22 October 2004 Valentin Câmpeanu’s body was exhumed and an autopsy carried out. A forensic report was subsequently issued on 2   February   2005, recording that the body showed advanced signs of cachexia and concluding as follows: “... the death was not violent. It was due to cardiorespiratory insufficiency caused by pneumonia, a complication suffered during the progression of the HIV infection. Upon exhumation, no traces of violence were noticed.” 3.     Prosecutors’ decisions 32.     On 19 July 2005 the prosecutor’s office attached to the Dolj County Court issued a decision not to prosecute, holding, inter alia , that, according to the evidence produced, the medical treatment provided to the patient had been appropriate, and that the death had not been violent, but rather had been caused by a complication which had occurred during the progression of Mr Câmpeanu’s HIV infection. 33 .     On 8 August 2005 the CLR lodged a complaint against that decision with the Chief Prosecutor of the prosecutor’s office attached to the Dolj County Court, claiming, inter alia , that some of the submissions it had made concerning the medical treatment given to the patient, the alleged discontinuation of the antiretroviral treatment and the living conditions in the hospitals had not been examined. On 23 August 2005 the Chief Prosecutor allowed the complaint, set aside the decision of 19 July 2005 and ordered the reopening of the investigation so that all aspects of the case could be examined. Specific instructions were given as to certain medical documents that needed to be examined, once they had been obtained from the Infectious Diseases Hospital in Craiova, the Placement Centre, the CMSC and the PMH. The doctors who had treated Mr Câmpeanu were to be questioned. The circumstances in which the antiretroviral treatment had or had not been provided to the patient while he was in the CMSC and in the PMH were to be clarified, especially as the medical records at the PMH did not mention anything on that account. 34.     On 11 December 2006 the prosecutor’s office attached to the Dolj County Court decided that, pursuant to new procedural rules in force, it lacked jurisdiction to carry out the investigation, and referred the case file to the prosecutor’s office attached to the Calafat District Court. 4.     Disciplinary proceedings 35 .     On 11 January 2006 the Police Department asked the Dolj County Medical Association (“the Medical Association”) to provide it with an opinion on “whether the therapeutic approach [adopted] was correct in view of the diagnosis [established in the autopsy report] or whether it contains indications of medical malpractice”. On 20 July 2006, the Disciplinary Board of the Medical Association ruled that there were no grounds for taking disciplinary action against staff at the PMH: “... the psychotropic treatment, as noted in the general clinical observation notes from the PMH, was appropriate ... [and therefore] ... the information received suggests that the doctors’ decisions were correct, without any suspicion of medical malpractice [arising from] an opportunistic infection associated with HIV [being] incorrectly treated.” That decision was challenged by the Police Department, but on 23   November   2006 the challenge was rejected as out of time. 5.     New decision not to prosecute and subsequent appeals 36.     On 30 March 2007 the prosecutor’s office attached to the Calafat District Court issued a fresh decision not to prosecute. The prosecutor relied in his reasoning on the evidence adduced in the file, as well as on the decision issued by the Disciplinary Board of the Medical Association. 37 .     The CLR lodged a complaint against that decision, submitting that the majority of the instructions given in the Chief Prosecutor’s decision of 23   August   2005 (see paragraph 33 above) had been ignored. The complaint was dismissed by the Chief Prosecutor of the prosecutor’s office attached to the Calafat District Court on 4 June 2007. The brief statement of reasons in the decision referred to the conclusions of the forensic report of 14   September   2004 and the Medical Association’s decision of 20   July   2006. On 10 August 2007 the CLR challenged that decision before the Calafat District Court. 38 .     On 3 October 2007 the Calafat District Court allowed the complaint, set aside the decisions of 30 March 2007 and 4 June 2007 and ordered the reopening of the investigation, holding that several aspects of Mr   Câmpeanu’s death had not been examined and that more evidence needed to be produced. Among the shortcomings highlighted by the court were the following: most of the documents which were supposed to have been obtained from the Infectious Diseases Hospital in Craiova and the Placement Centre had not actually been added to the investigation file (the forensic documents on the basis of which Mr Câmpeanu had been admitted to the CMSC and transferred to the PMH; the clinical and paraclinical tests undertaken; the records of questioning of the doctors and nurses who had been responsible for Mr Câmpeanu’s care; and the HIV testing guidelines). Contradictions in the statements of those involved in Mr Câmpeanu’s admission to the CMSC had not been clarified, and neither had the circumstances relating to the interruption of his antiretroviral treatment after being transferred to the PMH. In addition, the contradictory claims of medical personnel from the CMSC and the PMH regarding Mr Câmpeanu’s alleged “state of agitation” had not been clarified. The investigators had also failed to ascertain whether the medical staff at the PMH had carried out the necessary tests after Mr Câmpeanu had been admitted there and whether he had received antiretrovirals or any other appropriate medication. The investigators had failed to establish the origin of the oedema noted on Mr Câmpeanu’s face and lower limbs and whether the therapeutic approach adopted at the PMH had been correct. Given these failures, the request for an opinion from the Medical Association had been premature and should be resubmitted once the investigation file had been completed. 39.     The prosecutor’s office attached to the Calafat District Court appealed against that judgment. On 4 April 2008 the Dolj County Court allowed the appeal, quashed the judgment delivered by the Calafat District Court and dismissed the CLR’s complaint concerning the decision of 30   March   2007 not to prosecute. The court mainly relied on the conclusions of the forensic report and the autopsy report, and also on the decision of the Medical Association, all of which had stated that there had been no causal link between the medical treatment given to Mr Câmpeanu and his death. C.     Other proceedings initiated by the CLR 1.     In relation to Mr Câmpeanu 40 .     In response to the complaints lodged by the CLR (see paragraph   26 above), on 8 March 2004 the prefect of Dolj County established a commission with the task of carrying out an investigation into the circumstances surrounding Valentin Câmpeanu’s death. The commission was made up of representatives of the Child Protection Department, the Public Health Department, the Criminal Investigations Department of the Police Department and the prefect’s office. The commission was given ten days to complete the investigation and submit a report on its findings. The commission’s report concluded that all procedures relating to Mr   Câmpeanu’s treatment after his discharge from the Placement Centre had been lawful and justified in view of his diagnosis. The commission found only one irregularity, in that an autopsy had not been carried out immediately after Mr Câmpeanu’s death, in breach of existing legislation (see paragraph 25 above). 41 .     On 26 June 2004 the CLR filed a complaint with the National Authority for the Protection and Adoption of Children (“the National Authority”), criticising several deficiencies concerning mainly the failure to appoint a guardian for Mr Câmpeanu and to place him in an appropriate medical institution. The CLR reiterated its complaint on 4   August   2004, submitting that the wrongful transfer of Mr Câmpeanu to the PMH could raise issues under Article 5 § 1 (e) of the Convention. In response to those allegations, the National Authority issued a report on 21   October   2004 on the circumstances surrounding Mr Câmpeanu’s death. The National Authority acknowledged that the Panel had acted ultra vires when ordering Mr Câmpeanu’s admission to the PMH. However, it stated that in any event, the order had been of no consequence, given that the institution had initially refused to accept Mr Câmpeanu (see paragraph   11 above). The National Authority concluded that the Child Protection Department had acted in line with the principles of professional ethics and best practice when it had transferred Mr Câmpeanu to the CMSC. At the same time, the National Authority stated that it was not authorised to pass judgment on Mr   Câmpeanu’s subsequent transfer to the PMH. Similarly, the National Authority declined to express an opinion on the allegedly wrongful categorisation of Mr Câmpeanu as belonging to the medium disability group, or on the events which had occurred after his admission to the CMSC. 42 .     On 24 March 2004 the Dolj County Public Health Department informed the CLR that a commission made up of various county-level officials had concluded that “no human rights were breached” in connection with Mr Câmpeanu’s death, as his successive admissions to hospital had been justified by Article 9 of Law no. 584/2002 on measures for the prevention of the spread of HIV infection and the protection of persons infected with HIV or suffering from AIDS. 2.     In relation to other patients 43.     On 16 March 2005, following a criminal investigation concerning the death of seventeen patients at the PMH, the General Prosecutor’s Office sent a letter to the Ministry of Health, requiring it to take certain administrative measures to address the situation at the hospital. While noting that no criminal wrongdoing was detectable in connection with the deaths in question, the letter highlighted “administrative deficiencies” observed at the hospital and called for appropriate measures to be taken as regards the following problems: “[L]ack of heating in the patients’ rooms; hypocaloric food; insufficient staff, poorly trained in providing care to mentally disabled patients; lack of effective medication; extremely limited opportunities to carry out paraclinical investigations ..., all these factors having encouraged the onset of infectious diseases, as well as their fatal progression ...” 44 .     In a decision of 15 June 2006 concerning a criminal complaint lodged by the CLR on behalf of another patient, P.C., who had died at the PMH, the High Court of Cassation and Justice dismissed an objection by the public prosecutor that the CLR did not have locus standi . It found that the CLR did indeed have locus standi to pursue proceedings of this nature with a view to elucidating the circumstances in which seventeen patients had died at the PMH in January and February 2004, in view of its field of activity and stated aims as a foundation for the protection of human rights. The court held as follows: “The High Court considers that the CLR may be regarded as ‘any other person whose legitimate interests are harmed’ within the meaning of Article 278 1 of the Code of Criminal Procedure. The legitimacy of its interest lies in the CLR’s request that the circumstances which led to the death of seventeen patients at the PMH in January and February   2004 be determined and elucidated; its aim was thus to safeguard the right to life and the prohibition of torture and ill-treatment ... by initiating an official criminal investigation that would be effective and exhaustive so as to identify those responsible for breaches of the above-mentioned rights, in accordance with the requirements of Articles   2 and 3 of the European Convention on Human Rights. [It also aimed] to raise the awareness of society as to the need to protect fundamental human rights and freedoms and to ensure access to justice, which corresponds to the NGO’s stated goals. Its legitimate interest has been demonstrated by the initiation of investigations, which are currently pending. At the same time, the possibility for the CLR to lodge a complaint in accordance with Article 278 1 ... represents a judicial remedy of which the complainant availed itself, also in compliance with the provisions of Article 13 of the European Convention on Human Rights ...” D.     Expert report submitted by the CLR 45 .     The CLR submitted an expert opinion, dated 4 January 2012 and issued by Dr Adriaan van Es, a member of the Forensic Advisory Team and director of the International Federation of Health and Human Rights Organisations (IFHHRO), assisted by Anca Boeriu, Project Officer at the IFHHRO. The opinion was based on copies of the evidence which the CLR also submitted to the Court, including the medical records from the CMSC and the PMH. The expert opinion referred to the “very poor, substandard, often absent or missing” medical records at the PMH and the CMSC, in which the description of Mr Câmpeanu’s clinical situation was “scant”. It noted that while at the PMH the patient had never been consulted by an infectious ‑ disease specialist. Also, contrary to Romanian law, no autopsy had taken place immediately after the patient’s death. Concerning the antiretroviral treatment, the documents available did not provide reliable information as to whether it had been received on a continuous basis. Therefore, as a result of inappropriate treatment, Mr Câmpeanu might have suffered from a relapse of HIV, and also from opportunistic infections such as pneumocystis pneumonia (pneumonia appeared in the autopsy report as the cause of death). The opinion noted that pneumonia had not been diagnosed or treated while the patient was at the PMH or the CMSC, even though it was a very common disease in HIV patients. Common laboratory tests to monitor the patient’s HIV status had never been carried out. The expert opinion stated that certain behavioural signs interpreted as psychiatric disorders might have been caused by septicaemia. Therefore, the risks of discontinued antiretroviral treatment, the possibility of opportunistic infections and the patient’s history of tuberculosis should have led to Mr Câmpeanu being admitted to an infectious-disease department of a general hospital, and not to a psychiatric institution. 46 .     The report concluded that Mr Câmpeanu’s death at the PMH had been the result of “gross medical negligence”. The management of HIV and opportunistic infections had failed to comply with international standards and medical ethics, as had the counselling and treatment provided to the patient for his severe intellectual disability. Moreover, the disciplinary proceedings before the Disciplinary Board of the Medical Association had been substandard and negligent, in the absence of important medical documentation. E.     Background information concerning the Cetate and Poiana Mare medical institutions 1.     Poiana Mare Neuropsychiatric Hospital 47 .     The PMH is located in Dolj County in southern Romania, 80   km from Craiova, on a former army base occupying thirty-six hectares of land. The PMH has the capacity to admit 500 patients, both on a voluntary and an involuntary basis, in the latter case as a result of either civil or criminal proceedings. Until a few years ago, the hospital also included a ward for patients suffering from tuberculosis. The ward was relocated to a nearby town as a result of pressure from a number of national and international agencies, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). At the time of the relevant events, namely in February 2004, there were 436   patients at the PMH. The medical staff included five psychiatrists, four psychiatry residents and six general practitioners. According to the CPT’s report of 2004 (see paragraph 77 below), during two consecutive winters, 109 patients died in suspicious circumstances at the PMH – eighty-one between January and December 2003 and twenty ‑ eight in the first five months of 2004. The CPT had visited the PMH three times, in 1995, 1999 and 2004; its last visit was specifically aimed at investigating the alarming increase in the death rate. After each visit, the CPT issued very critical reports, highlighting the “inhuman and degrading living conditions” at the PMH. Following a visit to several of the medical institutions indicated as problematic in the CPT’s reports, among them the PMH, the Ministry of Health issued a report on 2 September 2003. It concluded that at the PMH the medication provided to patients was inadequate, either because there was no link between the psychiatric diagnosis and the treatment provided, or because the medical examinations were very limited. Several deficiencies were found concerning management efficiency and the insufficient number of medical staff in relation to the number of patients. 2.     Cetate-Dolj Medical and Social Care Centre 48.     It appears from the information received from the CLR that the CMSC was a small centre for medical and social care, with a capacity of twenty beds at the beginning of 2004; at the time, there were eighteen patients at the CMSC. Before 1 January 2004 – when it was designated as a medical and social care centre – the CMSC was a psychiatric hospital. According to its accreditation certificate for 2006 to 2009, the CMSC was authorised to provide services for adults experiencing difficult family situations, with an emphasis on the social component of medical and social care. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Romanian Criminal Code 49.     The relevant parts of the Romanian Criminal Code as in force at the time of the impugned events read as follows: Article 114 – Admission to a medical facility “1.     When an offender is mentally ill or a drug addict and is in a state that presents a danger to society, his or her admission to a specialist medical institution may be ordered until he or she returns to health. 2.     This measure may also be taken temporarily during a criminal prosecution or trial.” Article 178 – Negligent homicide “Negligent homicide as a result of failure to observe legal provisions or preventive measures relating to the practice of a profession or trade, or as a result of the performance of a particular activity, shall be punishable by immediate imprisonment for two to seven years.” Article 246 – Malfeasance and nonfeasance against a person’s interests “A public servant who, in the exercise of official duties, knowingly fails to perform an act or performs it erroneously and in doing so infringes another person’s legal interests shall be punishable by immediate imprisonment for six months to three years.” Article 249 § 1 – Negligence in the performance of an official duty “The breach of an official duty, as a result of negligence on the part of a public servant, by failing to perform it or performing it erroneously, if such breach has caused significant disturbance to the proper operation of a public authority or institution or of a legal entity, or damage to its property or serious damage to another person’s legal interests, shall be punishable by imprisonment for one month to two years or by a fine.” Article 314 – Endangering a person unable to look after himself or herself “1.     The act of abandoning, sending away or leaving helpless a child or a person unable to look after himself or herself, committed in any manner by a person entrusted with his or her supervision or care, [or of] placing his or her life, health or bodily integrity in imminent danger, shall be punishable by immediate imprisonment for one to three years ...” B.     Romanian Code of Criminal Procedure 50.     The procedure governing complaints lodged with a court against decisions taken by a prosecutor during criminal investigations was set out in Articles   275-278 1 of the Code as in force at the time of the impugned events. The relevant parts of these Articles read as follows: Article 275 “Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...” Article 278 “Complaints against measures or decisions taken by a prosecutor or implemented at the latter’s request shall be examined by ... the chief prosecutor in the relevant department. ...” Article 278 1   “1.     Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275-278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute ( neurmărire penală ) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance. ... 4.     The person in respect of whom the prosecutor has decided to discontinue the criminal investigation, as well as the person who lodged the complaint against that decision, shall be summoned before the court. If they have been lawfully summoned, the failure of these persons to appear before the court shall not impede the examination of the case. ... 5.     The presence of the prosecutor before the court is mandatory. 6.     The judge shall give the floor to the complainant, and then to the person in respect of whom the criminal investigation has been discontinued, and finally, to the prosecutor. 7.     In the examination of the case, the judge shall assess the impugned decision on the basis of the existing acts and material, and on any new documents submitted. 8.     The judge shall rule in one of the following ways: (a)     dismiss the complaint as out of time, inadmissible or ill-founded and uphold the decision; (b)     allow the complaint, overturn the decision and send the case back to the prosecutor in order to initiate or reopen the criminal investigation. The judge shall be required to give reasons for such remittal and, at the same time, to indicate the facts and circumstances that require elucidation, as well as the relevant evidence that needs to be produced; (c)     allow the complaint, overturn the decision and, when the evidence in the file is sufficient, retain the case for further examination, in compliance with the rules of procedure that apply at first instance and, as appropriate, on appeal. ... 12.     The judge shall examine the complaint within thirty days from the date of receipt. 13.     A complaint lodged with the incorrect body shall be sent, as an administrative step, to the body with jurisdiction to examine it.” [footnote omitted] C.     Social assistance system 51.     Article 2 of the National Social Assistance Act (Law no.   705/2001), as in force at the relevant time, defines the social assistance system as follows: “... the system of institutions and measures through which the State, the public authorities and civil society ensure the prevention, the limitation or the removal of the temporary or permanent consequences of situations that may cause the marginalisation or social exclusion of some individuals.” Article 3 defines the scope of the social assistance system, which is: “... to protect individuals who, for economic, physical, mental or social reasons, do not have the ability to meet their social needs and to develop their own capabilities and social integration skills.” 52.     Ordinance no. 68/2003 concerning social services identifies the objectives of State social services and details the decision-making proce