CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 février 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sD8AE9261 { width:36.9pt; display:inline-block } .sB1A859A2 { width:116.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }     FOURTH SECTION DECISION Application no. 63662/17 Marius-Daniel UZEA and Others against Romania   The European Court of Human Rights (Fourth Section), sitting on 22   February 2022 as a Committee composed of:   Gabriele Kucsko-Stadlmayer, President,   Iulia Antoanella Motoc,   Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no.   63662/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 August 2017 by the applicants listed in the appended table (“the applicants”), who were represented before the Court by Ms C.A. Ghencea, a lawyer practising in Bucharest; the decision to give notice of the complaints concerning Articles 2 and 8 of the Convention to the Romanian Government (“the Government”), represented by their Agent, Ms O. Ezer, from the Ministry of Foreign Affairs, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The first two applicants are the parents of Raisa Maria Uzea, the third applicant, who was born on 1 September 2009. Before the domestic courts and the Court, they alleged that medical negligence (including dysfunctions at the hospital level) to which the mother and the child had been subjected during the child’s birth had caused her to be born with severe physical and mental impairments. 2 .     On 20 November 2014 the prosecutor indicted the gynaecologist and sent her before the court; he further decided to terminate criminal proceedings in respect of the neonatologist, finding that she had not committed any criminal offence (the acts were not provided for by the criminal law). 3.     By a final judgment of 23 February 2017 (notified on 19 April 2017), the Bucharest Court of Appeal convicted the gynaecologist of unintentional infliction of bodily injury. It awarded the third applicant approximately 40,000   euros (EUR) in respect of pecuniary damage, EUR 500,000 in respect of non-pecuniary damage and a monthly allowance of EUR 1,500, to be used by the parents in her interests. 4 .     The court dismissed claims by the first two applicants to be compensated for breaches of their own right to respect for private and family life caused by the harm suffered by their daughter; it held that they were not entitled to such compensation, pursuant to the regulatory case-law of the High Court of Cassation and Justice (decision no. 12/4 July 2016), which stated that only the direct victim of unintentional infliction of bodily injury could claim compensation for breaches of Article 8 rights, the only exception where a similar entitlement applied to indirect victims being cases in which the direct victim had died as a result of such injuries. 5.     The applicants have also challenged the prosecutor’s decision not to indict the neonatologist (see paragraph 2 above). Their complaints were allowed by the courts, which remitted twice the case back to the prosecutor for further investigations. The prosecutor’s decision of 26 May 2017 held once more that the acts imputed to the neonatologist had not been provided for by the criminal law. By a final judgment of 19 January 2018 the Slobozia First-Instance Court dismissed the applicants’ complaint against that decision on the grounds that prosecution of the offence was time-barred because the special statute of limitation had expired. 6 .     In their submissions before the Court, the applicants complained of various deficiencies during the domestic criminal investigation, including their excessive length, which had caused the offence committed by the neonatologist to become time-barred. The first two applicants also submitted that under domestic law, they were not entitled to a remedy for the breach of the right to respect for their own private and family life, which had been seriously impacted by the medical negligence complained of. They relied on Articles   2 and 8 of the Convention. THE COURT’S ASSESSMENT 7.     Having regard to its long-standing case-law on similar matters and to the manner in which the applicants formulated their complaints (see paragraph   6 above) the Court will examine the applicants’ complaints from the viewpoint of Article 8 only, under its substantive and procedural limbs (see Vilela and Others v. Portugal , no. 63687/14, § 65, 23 February 2021). 8 .     Furthermore, although the first two applicants alleged that the treatment endured by the third applicant had also given rise to an interference with their own right to respect for their private and family life, for which they sought to obtain pecuniary redress the Court considers that it is only required to examine the issues raised from the standpoint of the third applicant’s right to respect for her physical integrity, while also having regard to the first and second applicants’ role as her parents and legal proxies (see, mutatis mutandis , Glass v. the United Kingdom , no. 61827/00 , § 72, ECHR   2004 ‑ II, and G.B. and R.B. v. the Republic of Moldova , no. 16761/09, §   24, 18   December 2012). 9.     The general principles relating to the States’ positive substantive obligations under Article 2 of the Convention in the context of health care and medical negligence were summarised by the Court in Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, §§ 185-96, 19 December 2017, with further references). In the context of alleged medical negligence, the States’ substantive positive obligations relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives (ibid., §§   186 and 189). These principles are also applicable in the same context to an interference with the right to physical integrity, as in the present case, which falls within the scope of Article 8 of the Convention (see Trocellier v.   France , no.   75725/01 , 5 October 2006, and Jurica v. Croatia , no.   30376/13, §§   84 ‑ 88, 2   May 2017). 10 .     In the present case the domestic courts established, on the basis of a consistent body of evidence, including medical reports, that the medical negligence in respect of the third applicant concerned individual acts and omissions committed by the gynaecologist and excluded any systemic dysfunction at the hospital level. Even though they did not expressly refer to Article   8 of the Convention, the courts established that there had been a serious interference with the third applicant’s physical integrity and awarded her compensation in respect of pecuniary and non ‑ pecuniary damage (see paragraph   2 above), the amount of which was considerably higher than that normally granted by the Court in similar cases (see Asiye Genç v. Turkey , no.   24109/07, § 90, 27 January 2015, where, in the context of medical negligence involving the death of the applicant’s son, after having found a breach of Article 2 of the Convention, the Court granted the applicant EUR   65,000 in respect of non-pecuniary damage). 11 .     In the absence of any indication that the national courts misinterpreted or misapplied the relevant legal principles or reached a conclusion which was manifestly unreasonable, the Court considers that the third applicant’s complaints examined under the substantive limb of Article 8 are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 12.     The remainder of the complaints refer to the procedural aspect of the case (for the relevant case-law principles see, Vilela and Others , cited above, §§   76 ‑ 79). The applicants made essentially the following arguments: that by splitting the proceedings in respect of the gynaecologist, on the one hand, and the neonatologist, on the other hand, the authorities had unjustifiably prolonged the proceedings; that the authorities had failed to make an appropriate assessment of the evidence in the case file, especially concerning the role of the neonatologist; and that by allowing the special statute of limitations in respect of the neonatologist’s offence to expire, the authorities had not been thorough in their establishment of fault. 13 .     It is apparent from the case file that the relevant criminal investigation was initiated promptly, the first and second applicants being heard by the prosecutor on 9 September 2010, thus within some two months after they had lodged their criminal complaint into the incident; the doctors whose actions had been criticised by the third applicant were interviewed, as were the medical personnel who had been present during the delivery and afterwards. Moreover, the third applicant, through her parents, was able to take part in the proceedings to the extent necessary to safeguard her legitimate interests and was awarded just compensation for the harm suffered, to be used by her parents in her interests (see paragraph 2 above). 14.     The Court acknowledges that the applicants were critical of the outcome of the investigation, specifically in that it had failed to establish the neonatologist’s liability for the dramatic incident leading to the child’s permanent disability . However, the Court does not observe in respect of the impugned investigation the existence of long periods of unexplained inactivity, nor any visible lack of coordination on the part of the domestic authorities (contrast Bilbija and Blažević v. Croatia , no. 62870/13, §   108, 12   January 2016). Indeed, the courts remitted twice the investigation back to the prosecutors for further investigations, but the prosecutors’ reiterated each time their conclusions that the neonatologist had not committed any criminal offence, following which the court had to terminate proceedings as the offence had become time-barred. 15.     Bearing in mind that both the course of events at the hospital and the decisions taken by the doctors were exposed to public scrutiny and noting that the proceedings, albeit rather lengthy, resulted in a criminal conviction – that of one of the doctors involved at the third applicant’s birth, while for the other one the investigation was closed because prescription had intervened without there being any long periods of inactivity attributable to the authorities – the Court does not find any serious defects in the authorities’ conduct (see, mutatis mutandis , Gecekuşu v. Turkey (dec.), no. 28870/05 , 25 May 2010). In that respect, the Court also reiterates that generally, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see Jurica, cited above, § 88). 16 .     Furthermore, if the right to personal integrity has not been infringed intentionally, in the specific sphere of medical negligence the positive obligation imposed under the Convention may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability on the part of the doctors concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see, mutatis mutandis , V.V.G. v. the former Yugoslav Republic of Macedonia (dec.), no. 55569/08 , §   41, 20   January 2015). In the present case, the criminal proceedings which the applicants joined also as civil parties, were effective as to the protection of the third applicant’s rights and were conducted in overall compliance with the relevant Convention requirements (see paragraphs 11   and 13 above). 17.     Having regard to all of the above, the Court considers that the present case does not disclose any appearance of a violation of the respondent State’s obligation to provide the third applicant with an effective remedy to protect her rights. It follows that this part of the application must be rejected under Article   35   §§   3   (a)   and   4 of the Convention.   For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 17 March 2022.     Ilse Freiwirth   Gabriele Kucsko-Stadlmayer   Deputy Registrar   President Appendix List of applicants:   Application no. 63662/17   No. Applicant’s Name Year of birth Nationality Place of residence 1. Marius-Daniel UZEA 1976 Romanian Slobozia 2. Ecaterina UZEA 1984 Romanian Slobozia 3. Raisa Maria UZEA 2009 Romanian BURGFIELD Common Reading