CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 mai 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 19 May 2014   THIRD SECTION Application no. 63789/13 Sergiu SCRIPNIC and Maia SCRIPNIC against the Republic of Moldova lodged on 18 September 2013 STATEMENT OF FACTS 1.     The applicants, Mr Sergiu Scripnic and Ms Maia Scripnic, are Moldovan nationals, who were born in 1974 and 1977 respectively and live in Ciorescu. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     On 3 June 2003 the second applicant was admitted to the Municipal Clinical Hospital no. 2 to give birth to their couple’s second child. A panel of doctors examined her and concluded that she had a proportionally flat and narrow pelvis, a condition which made natural childbirth dangerous. Dr.   L. however proceeded with the birth without performing a Caesarean section. 4.     A medical report drawn up on the same day found that the applicants’ new-born baby had bled in her skull, within the brain tissue and around her right ribs; the bleeding had been produced during delivery as a result of medical manipulations. On 5 June 2003 the applicants’ baby died from the head trauma produced during delivery. 5.     On an unspecified date in 2003 the applicants brought a criminal complaint in respect of Dr. L. On 25 December 2006 criminal proceedings were instituted on charges of medical negligence. On 2   October   2009 the Rîșcani District Court discontinued criminal proceedings in respect of Dr.   L. because statutory limitation periods had expired. 6.     On 25 May 2010 the applicants brought a civil action against Dr.   L. and the Municipal Clinical Hospital no. 2 seeking the compensation of pecuniary damage in the amount of 11,550   Moldovan lei (MDL) (equivalent to 730   euros (EUR)), non-pecuniary damage in the amount of MDL   2,000,000 (equivalent to EUR   126,450) and costs and expenses in the amount of MDL   7,000 (equivalent to EUR   443). They relied on the provisions of the Civil Code about liability in tort and on the provisions of Law no. 411 about the hospital’s liability. 7.     On 27 November 2011 the Rîșcani District Court partially upheld the applicants’ claims and awarded them MDL   60,000   (EUR   3,800) as non-pecuniary damage and MDL   7,000 (EUR   443) as costs and expenses. The court concluded that Dr. L. was liable in tort once he had acknowledged his guilt in criminal proceedings discontinued on 2 October 2009 and that this circumstance excluded the hospital’s vicarious liability. The court concluded that the claim for non-pecuniary damage was excessive in the light of the economic situation and the average salary in Moldova. 8.     The applicants appealed, arguing that the amount of compensation was insufficient and that the hospital had been unlawfully exonerated of its vicarious liability for the negligent acts of its employee. 9.     On 26 April 2012 the Chișinău Court of Appeal awarded them an additional amount of MDL   11,500 (EUR   724) as pecuniary damage. The reasons given by the Chișinău Court of Appeal were adopted by process of incorporation of the district court judgment. The court did not reply to the applicants’ contention that the hospital was vicariously liable. 10.     The applicants appealed and reiterated their contentions before the appellate court. On 20 March 2013 the Supreme Court of Justice dismissed their appeal as ill-founded. That judgment was final. B.     Relevant domestic law and practice 11.   The Health Protection Law (Law no. 411) of 28 March 1995 reads as follows: “Article 19. Right to compensation of damages inflicted to patients’ health   (3) Patients ... shall be entitled to compensation of damages inflicted to their health by medical institutions by means of ... using inadequate treatment which affect their health, provoke permanent disability, endanger their life or result in their death.”   12.     The Civil Code, enacted under Law no. 1107 of 6 June 2002, reads as follows: “Article 1403. Vicarious liability (1) A person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job.” 13.     The applicants cited the case of Spînu v. Rentel SRL (no.   2ra ‑ 923/13), in which on 20   March   2013 the Supreme Court of Justice awarded the plaintiffs a compensation of MDL 490,000 (equivalent to EUR   30,690) as non-pecuniary damage for the death of their wife and mother respectively, as a result of the respondent company’s liability in tort (the victim fell in a trench dug and left open without any warning signs by the respondent company). COMPLAINTS 14.     The applicants complain in essence under Article 2 of the Convention that they had had no redress, in particular they had not received adequate compensation for the damage caused to them. 15.     The applicants also complain under Article 6 of the Convention that the courts did not give sufficient and adequate reasons for rejecting their contention that the hospital was vicariously liable. QUESTIONS TO THE PARTIES 1.     Has the respondent State complied with its relevant positive obligations under Article 2 of the Convention in the present case? In particular did the relevant domestic authorities provide for an effective legal venue for establishing any liability on the part of the medical practitioners and institutions concerned (see, among other authorities, Calvelli and Ciglio v.   Italy [GC], no. 32967/96, § 49, ECHR 2002-I; Erikson v. Italy (dec.), no.   37900/97, 26 October 1999)? 2.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the reasons provided by the courts to reject their argument concerning the hospital’s vicarious liability sufficient and adequate?