CASE OF I.M.P. v. ROMANIA

FOURTH SECTION

CASE OF I.M.P. v. ROMANIA

(Application no. 29634/22)

JUDGMENT
 

STRASBOURG

9 July 2024

This judgment is final but it may be subject to editorial revision.

In the case of I.M.P. v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Tim Eicke, President,
 Armen Harutyunyan,
 Ana Maria Guerra Martins, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 29634/22) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2022 by a Romanian national, Ms I.M.P. (“the applicant”), who was born in 1943, lives in Baia Mare and was represented by Ms Ş.R. Ban, a lawyer practising in Baia Mare;

the decision to give notice of the complaints concerning the domestic courts’ failure to undertake a thorough evaluation of the applicant’s disability and medical condition and the alleged discrimination in the enjoyment of her Convention rights in connection with her age and health situation, contrary to Article 14 of the Convention read in conjunction with Article 8 to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 18 June 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application mainly concerns the applicant’s complaint under Article 8 of the Convention that the domestic authorities had wrongly assessed the severity of her disability, thus depriving her of the possibility of benefitting from a personal assistant, which in turn had drastically reduced her personal autonomy.

2.  The applicant is an 80-year-old retired widow. According to various medical reports, including one dated 30 September 2020 on which the Maramureș Commission for the Evaluation of Adults with Disabilities (hereafter “the Maramureș Commission”) and the courts relied in the impugned domestic proceedings (see paragraphs 5-7 below), she has “Alzheimer dementia with severe cognitive dysfunctions”. A psychological evaluation report of the same date established a score of MMSE[1] – 9 and GAFS[2] 25-28 for the applicant: the same scores as she received in a previous medical evaluation in 2019. According to social inquiry and psychological reports on the applicant from 2019 and 2020, she has an extremely poor conversational capacity, difficulties in focusing, hypomnesia in relation to recalling recent data/events, severe executive dysfunction along with an inability to plan or assess risks and impaired judgment. She requires constant support, including for simple tasks such as getting dressed or cooking. She is totally unable to go outside her house without someone else’s help.

3.  Since 2019 onwards the applicant lives in a charity-run private centre for elderly persons as she is in need of constant attention and support. The agreement concluded by the applicant and her daughter with the private centre owned by a local Church (namely the Romanian Orthodox Episcopate of Maramureș and Satu Mare Counties), was subject to payment of monthly fees at the charge of the applicant and her daughter for the services provided therein, which did not include a personal assistant.

4.  On 15 December 2020, after considering the expert reports mentioned in paragraph 2 above, the Maramureș Commission issued a “disability certificate” attesting that the applicant had a “severe disability”.

5.  On 29 January 2021 the applicant sought the annulment of that certificate and the issuance of a new one attesting that she had a “severe disability necessitating a personal assistant”. She argued that her disability was neither mild nor reversible, as it required 24-hour care and constant supervision, while her medical condition was deteriorating every day. Additionally, the applicant complained that the qualification had been made solely based on medical documents, mainly dating from 2019, rather than a direct recent evaluation.

6.  By a judicial decision of 12 December 2021, the Maramureș County Court dismissed the applicant’s request holding that, in accordance with Article 85 § 3 of Law no. 448/2006 (“the Disability Act”), the Maramureș Commission was the body authorised to evaluate the type and severity of the applicant’s disability. The evaluation had to be done in accordance with Order of the Ministry of Health and of the Ministry of Work, Family and Equality of Opportunities no. 762 of 31 August 2007 (“the Ministerial Order no. 762/2007”), which set out the relevant criteria.

7.  The applicant appealed against that decision and raised arguments related to her broader situation, both medical and social referring to the medical evidence attesting to the “severe alteration” of her condition and requesting the appellate court to order a new psychological and medical evaluation. By a final judicial decision of 17 February 2022, the Cluj Court of Appeal dismissed her appeal. It noted that the medical report of 30 September 2020 (see paragraph 2 above) stated that the applicant was a person with severe cognitive impairment who had been evaluated and given “classification scores”. Based on those results and on the criteria contained in the Ministerial Order no. 762/2007, the report established that she was suffering from a “severe disability” and not from “a severe disability necessitating a personal assistant”. The Court of Appeal noted that, in accordance with the Ministerial Order, the GAFS score should have been lower than 20 for the applicant to be entitled to a personal assistant. The relevant parts of the decision read as follows:

“There was no wrongful assessment of the [applicant’s] disability, considering the fact that the applicant was in need of support for her daily chores and as such in a situation of dependency which is, in fact, appropriate to the classification of severe disability, but without the entitlement to a personal assistant because the relevant requirements of Order no. 762/2007 [were not met in this case].”

8.  According to the most recent medical report dated 26 September 2023, the applicant’s medical condition has deteriorated significantly, resulting in the following scoring: MMSE – 2 and GAFS 9-10.

9.  The applicant complained under Article 8 of the Convention taken alone and, in substance, in conjunction with Article 14 of the Convention that the domestic courts had failed to undertake a thorough evaluation of her disability and medical condition.

THE COURT’S ASSESSMENT

10.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The general principles concerning the State’s positive obligations to ensure the right to respect for private life in the context of a refusal to grant an applicant the right to the adequate support needed for his or her medical condition or disability have been summarised in Jivan v. Romania (no. 62250/19, §§ 40-42, 8 February 2022).

12.  As the Court noted in Jivan (cited above, § 43), the Romanian Disability Act calls for the protection of people with disabilities in the light of the guiding principles enshrined in that Law, including freedom of choice, social inclusion and respect for the specific needs of the individuals concerned. The level of protection afforded is based on a complex and personalised evaluation to establish an individual’s level of disability. That assessment must rely not only on medical data, but also on other indicators of the individual’s degree of autonomy (or lack thereof), assessed in the light of his or her living conditions.

13.  In the present case, competent services assessed that the applicant had severe executive dysfunction along with an inability to plan or assess risks and impaired judgment, and also that she required constant support, including for simple tasks such as getting dressed or cooking, as well as to leave her house (see paragraph 2 above). Consequently, the Maramureș Commission, which had the above reports in the file, issued a certificate establishing that the applicant had a severe disability, but not one that necessitated a personal assistant (see paragraphs 3-5 above). That assessment was also shared by the Cluj Court of Appeal, which was the final domestic court to examine the merits of the case (see paragraph 7 above). The Court cannot but observe that those findings stand in stark contrast to the applicant’s particular situation as explained in detail, in particular, in the report of 30 September 2020 (see paragraphs 2 and 7 above).

14.  Notwithstanding its limited competence concerning the interpretation and application of the domestic law, the Court cannot but note that the Maramureș Commission and the domestic courts focused their assessment on the formal requirements of the Ministerial Order in relation to the applicant’s GAFS score resulting from a psychological evaluation of 2020, merely acknowledging her high degree of dependency and limited ability to perform daily chores. In her claims before the authorities, the applicant raised arguments related to her broader situation, both medical and social (see paragraphs 5 and 7 above). In the Court’s view, those arguments were specific, relevant and important, and the Government did not argue otherwise. However, neither the Commission, when issuing the certificate, nor the Court of Appeal, in its final decision of 17 February 2022, genuinely engaged with them (see Jivan, cited above, § 48).

15.  In particular, the applicant’s right to autonomy and respect for her dignity do not seem to have been taken into account in the domestic assessments in question. Moreover, the authorities did not take into account the applicant’s age. Nothing in the impugned decisions explained the apparent discrepancies between the applicant’s particular situation of a lack of autonomy and the finding that her medical situation did not qualify as a “severe disability necessitating a personal assistant” under Ministerial Order no. 762/2007. As a consequence of those decisions, the applicant was left to fend for herself at her own expense (see paragraph 3 above) and the authorities did not offer any alternative practical arrangements to ensure her the constant support she needed (see Jivan, cited above, § 49).

16.  Having regard to all the above considerations, and notwithstanding its subsidiary role and the respondent State’s margin of appreciation, the Court considers that the domestic authorities did not do what was reasonable in the circumstances of the case to ensure the applicant, a disabled elderly person, effective protection of her right to respect for her private life.

17.  There has accordingly been a violation of Article 8 of the Convention.

18.  The applicant also complained under Article 14 read in conjunction with Article 8 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant claimed 53,000 Romanian lei (RON – approximately 10,850 euros (EUR)) in respect of pecuniary damage, which represented the sum that she would have received in benefits from 2019 to 2023 if she had been evaluated as having a severe disability necessitating a personal assistant. She further requested EUR 40,000 in respect of non-pecuniary damage.

20.  The applicant also claimed RON 3,700 in respect of costs and expenses incurred before the domestic courts and RON 5,280 in respect of those incurred before the Court.

21.  The Government argued that the amount awarded by the Court in respect of non-pecuniary damage should be consistent with the Court’s case-law. It also pointed to the case of Jivan (cited above) in that connection.

22.  Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of pecuniary and non-pecuniary damage combined, plus any tax that may be chargeable.

23.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,800 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii)  EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 9 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Tim Eicke
 Deputy Registrar President

[1] It appears that the acronym used by the domestic documents stands for “Mini-Mental State Examination”.

[2] It appears that the acronym used by the domestic documents stands for “Global Assessment of Functioning Scale”, which is used to rate the seriousness of a mental illness. It measures how much a person’s symptoms affect their day-to-day life on a scale of 0 to 100.