CENTER OF LEGAL RESOURCES ON BEHALF OF VALENTIN CAMPEANU v. ROMANIA

THIRD SECTION

Application no. 47848/08
by the CENTER OF LEGAL RESOURCES
on behalf of Valentin CÂMPEANU
against Romania
lodged on 2 October 2008

STATEMENT OF FACTS

THE FACTS

The application was lodged by the Center of Legal Resources (CLR), based in Bucharest, Romania, on behalf of Mr Valentin Câmpeanu, now deceased, a Romanian national born in 1985. The International Centre for the Legal Protection of Human Rights (Interights), based in London, UK, act as advisor to counsel.

A. The circumstances of the case

The facts of the case, as submitted by the CLR, may be summarised as follows.

1. The death of Valentin Câmpeanu

1. Valentin Câmpeanu, a man of Roma ethnicity, was born on 15 September 1985. His father is unknown, and his mother, Florica Câmpeanu, who died in 2001, abandoned him at birth. Mr Câmpeanu was hence transferred to an orphanage, Corlate Centre, where he grew up.

2. In 1990 Mr Câmpeanu was diagnosed as HIV-positive. He was then diagnosed with “profound mental retardation, an IQ of 30 and HIV” and was characterised accordingly 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 (renamed in 2000 Craiova no. 7 Placement Centre).

3. On 30 September 2003, the Dolj County Commission for Child Protection terminated the measure to place Mr Câmpeanu in the care of the State. The decision was justified on the ground that Mr Câmpeanu had recently turned eighteen and that he was not at the time enrolled in any form of education.

Even though the responsible social assistant recommended that Mr Câmpeanu should be transferred to the Neuropsychological Recovery and Rehabilitation Centre, the Commission ordered that a competent social assistant should take all measures necessary for Mr Câmpeanu to be transferred to the Poiana Mare Neuropsychiatric Hospital (“PMH”).

Mr Câmpeanu was not present in person and was not represented at the hearing held by the Commission.

4. On 14 October 2003 Mr Câmpeanu’s health was reassessed, which resulted solely in the finding of the HIV infection, corresponding to the “average” disability group. It was also mentioned that the patient was “socially integrated”.

5. By a letter dated 16 October 2003, the PMH informed the Child Protection Commission that they could not admit Valentin Câmpeanu, who had been diagnosed with HIV and mental disability, since the hospital lacked the facilities necessary to treat individuals with such a diagnosis.

6. Following this refusal, between October 2003 and January 2004, the Commission and the County Department for the Protection of the Rights of the Child contacted a series of institutions asking for assistance in identifying a social or psychiatric establishment willing to accommodate Mr Câmpeanu. In asking for their cooperation, the Department stated that Mr Câmpeanu’s condition “did not necessitate hospitalisation, but rather continuous supervision in a specialised institution”.

7. It appears from the file that, when contacted by telephone, the Centre for Recovery and Rehabilitation of Persons with Handicap refused to accept Mr Câmpeanu, on the basis that “he was infected with HIV”.

8. The Commission eventually identified the Cetate-Dolj Medico-Social Unit (“CMSU”) as an appropriate establishment where Valentin Câmpeanu could be placed. In its request to the CMSU, the Child Protection Commission only noted that Mr Câmpeanu was HIV-positive, without mentioning his learning difficulties.

9. On 5 February 2004 Mr Câmpeanu was admitted to the CMSU. According to a report issued by CMSU and sent to the Center of Legal Resources (“CLR”) on 5 March 2004, detailing his condition upon admission, Valentin Câmpeanu was in an advanced state of “psychiatric and physical degradation”, dressed in a tattered tracksuit, without any underwear or shoes and without any retroviral medication or information concerning his medical condition. M.V., the doctor who treated Mr Câmpeanu at the Placement Centre, justified this oversight on the basis that “she did not know whether, depending on the results of the most recent investigation, it would be necessary to modify his treatment” (see § 4, above).

A medical examination was carried out, which concluded that he suffered from “severe mental retardation, HIV infection and malnutrition”. At that time, Valentin Câmpeanu was 168 centimetres tall and weighed 45 kilograms. It is mentioned that “he could not orient himself in time and space and he could not eat or care for his personal hygiene by himself”.

10. During the evening of 6 February 2004, Mr Câmpeanu became agitated. In the morning of 7 February 2004 he “became violent, assaulted other patients, broke a window, tore up a mattress and his clothes and sheets”. He was given fenobarbital and then diazepam to calm him down.

The CMSU received retroviral medication only on 9 February 2004, by which time Mr Câmpeanu’s health had worsened considerably.

11. On 9 February 2004 he was taken for examination and therapeutic instructions to the PMH, as it was the nearest psychiatric establishment. He was again diagnosed with a “severe mental retardation”. However, his condition was qualified as “not a psychiatric emergency”, as “he was not agitated”. Doctor L.G. diagnosed him with “medium mental retardation” and prescribed sedative medicines (carbamazepina and diazepam).

12. Valentin Câmpeanu was returned to the CMSU on the same day. His ARV treatment was resumed. Despite these measures, his situation did not improve, the medical records mentioning that he continued to be “agitated” and “violent”.

13. The CMSU decided that since it lacked the facilities needed to treat Mr Câmpeanu’s health condition, it was impossible to hold him any longer. The hospital sent a request to the no. 7 Placement Centre to refer Mr Câmpeanu to a different establishment. However, the Placement Centre refused the request on the ground that he was already “outside their jurisdiction”.

14. On 11 February 2004, E.O., the director of the CMSU, allegedly called the Public Health Department and asked them to provide a solution for transferring Mr Câmpeanu to a facility which was more suitable for the treatment of his health problems. She was supposedly advised to transfer Mr Câmpeanu to the PMH for a period of four to five days for psychiatric therapy.

15. On 13 February 2004 he was transferred from the CMSU to the PMH, with the understanding that his hospitalisation at the PMH would last for three or four days with the purpose of attempting to provide therapy in view of his hyper-aggressive state. He was placed in Section V Psychiatry.

16. On 15 February 2004, Valentin Câmpeanu was taken into the charge of doctor L.G. Given the fact that Mr Câmpeanu was HIV-positive, the doctor decided to transfer him to Section VI Psychiatry, which had two generalist doctors on its staff. She continued to be in charge of his psychiatric treatment, as that section did not have any psychiatrists.

17. 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 “in a generally altered state”.

18. On 20 February 2004 a team of monitors from the CLR visited the PMH and noticed Valentin Câmpeanu’s situation. According to the information included in a report drafted by CLR on this occasion, Mr Câmpeanu was alone in an unheated 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. The staff at the PMH refused however to help him, allegedly for fear that they would contract the HIV virus. Accordingly, Mr Câmpeanu only received glucose through a drip. The report concluded that the hospital had failed to provide Mr Câmpeanu with the most basic treatment and care services.

19. Valentin Câmpeanu died in the evening of 20 February 2004. According to the death certificate prepared on 23 February 2004, the immediate cause of death was a cardio-respiratory insufficiency. The certificate also noted that the HIV infection was the “initial morbid state” and designated “mental retardation” as “another important morbid state”.

20. In spite of the legal provisions that rendered compulsory the carrying out of an autopsy when a death occurred in a psychiatric hospital (Common Order by the Minister of Justice and Health Minister no. 1134/255/2000), the PMH did not carry out an autopsy of the body, considering that “it was not believed to be a suspicious death, taking into consideration the two serious conditions displayed by the patient” (namely mental retardation and HIV infection).

2. The domestic proceedings

21. On 23 February 2004, the CLR lodged a criminal complaint with the General Prosecutor of Romania in relation to the circumstances which led to Valentin Câmpeanu’s death, underlining the fact that he had not been placed in the appropriate medical institution, as required by his medical and mental state.

22. On 15 June 2004 the CLR lodged two more criminal complaints, with the Prosecution Service of the Craiova District Court and the Prosecution Service of the Craiova County Court respectively. The CLR renewed its request for a criminal investigation to be opened in relation to the circumstances surrounding Valentin Câmpeanu’s death, alleging that the following crimes had been committed:

- negligence by employees of the Department and of the no. 7 Placement Centre (Article 249 § 1 Criminal Code);

- malfeasance and nonfeasance against a person’s interests and endangering a person unable to care for herself/himself by employees of the CMSU (Article 246 and 314 Criminal Code);

- homicide by negligence or endangering a person unable to care for herself/himself by employees of the PMH (Article 178 § 2 and Article 314).

The CLR argued that the Commission for the Medical Examination of Adults with Handicap affiliated with the Dolj County Council wrongfully placed Mr Câmpeanu in the medium group of disability, contrary to previous and subsequent diagnoses (see § 4, above). In turn, the Department failed to institute proceedings for the appointment of a guardian for Valentin Câmpeanu when he reached majority, in breach of existing legislation.

The Placement Centre failed to provide the required ARV
(anti-retroviral) treatment to CMSU staff when Mr Câmpeanu was transferred there on 5 February 2004, which may have caused his death two weeks later.

The CLR also claimed that the transfer from the CMSU to the PMH was unnecessary, abusive, and contrary to existing legislation.

Finally, the CLR argued that Valentin Câmpeanu lacked adequate care, treatment and nutrition at the Poiana Mare Hospital.

23. On 31 August 2004 the Prosecution Service of 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 Service of the Dolj County Police Inspectorate.

24. On 22 October 2004 an exhumation and autopsy of Valentin Câmpeanu’s body was carried out; the forensic report issued on 2 February 2005 held that

“the death was not violent. It was due to a cardio-respiratory insufficiency caused by pneumonia, a complication suffered during the evolution of HIV syndrome. At exhumation, no traces of violence were noticed”.

25. On 19 July 2005 the Prosecutor’s Office of the Dolj County Court issued a decision of non-indictment holding, inter alia, that, according to the evidence produced, the death was not violent, but it was caused by a complication which occurred during the evolution of the HIV syndrome.

26. On 8 August 2005 the CLR lodged a complaint against this decision with the Head Prosecutor of the Public Prosecutor’s Office of the Dolj County Court. On 23 August 2005 the Head Prosecutor allowed the complaint, cancelled the decision of 15 June 2004 and ordered the reopening of the investigation so that all aspects of the case could be elucidated.

27. On 11 December 2006 the Prosecutor’s Office of the Dolj County Court decided that, according to the new procedural rules, it lacked jurisdiction to carry out the investigation, and referred the case file to the Prosecutor’s Office of the Calafat District Court.

28. On 11 January 2006 the Police Inspectorate requested the Dolj County Doctors’ Association to provide it with an opinion on “whether the therapeutic approach was correct in view of the diagnosis or if it contains elements pertaining to a medical malpractice”.

On 20 July 2006, the Disciplinary Commission of the Doctors’ Association decided that no grounds for disciplinary action against staff at the PMH existed:

“the psychotropic therapy, as noted in the general clinic observation notes from the PMH was adequate”, and therefore, “the information received suggests that the doctors’ decisions were correct, without any suspicion of medical malpractice concerning an opportunistic infection associated with the HIV virus incorrectly treated”.

This decision was challenged, but on 23 November 2006 it was rejected as out of time.

29. On 30 March 2007 the Prosecutor’s Office of the Calafat District Court issued a new decision of non-indictment. The prosecutor relied in his reasoning on the decision issued by the Disciplinary Commission of the Doctors’ Association.

30. The CLR lodged a complaint against it, which the Head Prosecutor of the Public Prosecutor’s Office of the Calafat District Court rejected on 4 June 2007.

31. On 10 August 2007 the CLR challenged this decision before the Calafat District Court.

32. On 3 October 2007 the Calafat District Court allowed the complaint, annulled the decision of 30 March 2007 and ordered the reopening of the investigation, holding that several aspects of Mr Câmpeanu’s death had not been elucidated and therefore more evidence should be produced.

Among the shortcomings highlighted by the court were the following aspects: most of the documents which were supposed to be collected from the Contagious Diseases Clinic of Craiova and the Placement Centre were not actually added to the investigation file (the forensic documents on the basis of which Valentin Câmpeanu’s transfer and hospitalisation were carried out; the clinical and paraclinical tests undertaken; the questioning of the doctors and nurses who had Mr Câmpeanu in care; the bulletin on HIV testing). The contradictions in the statements of those involved in the transfer to the Cetate Hospital as well as the circumstances related to the interruption of the ARV treatment after the transfer were not clarified. In addition, the contradictory claims of medical personnel from the Cetate Hospital and the Poiana Mare Hospital regarding the alleged “state of agitation” of Mr Câmpeanu was in were not clarified.

The investigators also failed to clarify whether the medical staff at the Poiana Mare Hospital had carried out the necessary tests after Mr Câmpeanu was hospitalised there and whether he received the ARV and any other proper medication. The investigators failed to establish the origin of the oedema Valentin Câmpeanu suffered from in the face and lower limbs and whether the therapeutic approach adopted at the Poiana Mare Hospital was correct. From that perspective the request for an opinion from the Doctors’ Association was premature. The respective request was to be reiterated once the investigations file was completed.

33. The Prosecutor’s Office of the Calafat District Court appealed against this judgment. On 4 April 2008 the Dolj County Court allowed the appeal, annulled the judgment delivered by the Calafat District Court and rejected the complaint lodged by the CLR against the decision of non-indictment of 30 March 2007.

The court relied mainly on the forensic report and the medical opinions already existing in the file, attesting that there was no causal link between the medical treatment given to Mr Câmpeanu and his death.

3. Other proceedings initiated by the CLR

34. In response to the complaints lodged by the CLR, 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 Department and of the Public Health Department, the Criminal Investigations Department of the Dolj County Police Inspectorate and the Prefect’s Office. The commission was given ten days to complete the investigation and submit a report on its findings.

35. The report of the commission concluded that all procedures involved in Mr Câmpeanu ‘s treatment after his discharge from the Placement Centre were legal and justified in view of his diagnosis. The commission found only one irregularity in that an autopsy was not carried out immediately after Mr Câmpeanu died, in breach of existing legislation (see § 20 above).

36. On 21 October 2004 the National Authority for the Protection of the Child and Adoption sent a more substantial report on the circumstances surrounding Mr Câmpeanu ‘s death. The Authority acknowledged that the Commission had acted ultra vires when ordering Mr Câmpeanu to be hospitalised at the PMH. The Authority stated that in any case, this order did not have any consequences, given that the institution initially refused to accept Valentin Câmpeanu anyway (see above § 5).

The Authority concluded that the Department had acted in line with the principles of professional deontology when it transferred Valentin Câmpeanu to the CMSU. At the same time, the Authority stated that it was not entitled to pass judgment on the subsequent hospitalisation at the PMH.

Similarly, the Authority declined to express an opinion on the allegedly wrongful allocation of Mr Câmpeanu to the medium category of disability, or on the events which occurred after the transfer to the CMSU.

37. On 24 March 2004 the Dolj Public Health Department informed CLR that a commission made up of various county-level officials concluded that “no human rights have been breached” in connection with Valentin Câmpeanu’s death, as his successive hospitalisations were done in accordance with Article 9 of Law 584/2002 regarding measures for the protection of the spreading of HIV infection and protection of persons infected with HIV or suffering from Aids.

4. Background information concerning the Cetate and the Poiana Mare medical institutions

a) Poiana Mare Psychiatric Hospital

38. PMH is located in southern Romania, some 80 km from Craiova, Dolj County, in a former army base in grounds totalling thirty-six hectares. Currently the PMH has the capacity to admit 500 patients, who include voluntary as well as involuntary admissions, the latter resulting from either civil or criminal proceedings. Until a few years ago, the hospital also included a ward for patients suffering from tuberculosis. That ward was relocated to a nearby town as a result of pressure from a number of national and international agencies, including the Committee for the Prevention of Torture (CPT).

According to the CPT report of 2004 (see infra § 55), 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. The last visit of the Committee was aimed specifically at investigating the alarming increase in the death rate. After each visit, the Committee issued very critical reports, highlighting “the inhuman and degrading living conditions” at the PMH.

b) Cetate Medico-Social Unit

39. The information received from the CLR shows that Cetate Hospital is a small centre for medico-social care, with a capacity of twenty beds at the beginning of 2004. Before 1 January 2004 – the date when it was designated as a medico-social care service – Cetate Hospital was a psychiatric hospital.

According to the accreditation certificate for 2006-2009, Cetate Hospital is authorised to provide services for adults experiencing situations of difficulty in their families, with an emphasis on the social component of medico-social care.

B. Relevant domestic law

1. Romanian Criminal Code

40. The Romanian Criminal Code reads in its relevant sections as follows:

Article 114 – Admission to a medical facility

(1) When the perpetrator is mentally ill or a drug addict and he or she is in a state that presents a danger to society, the measure of admission to a specialised medical institute can be taken until the person regains health.

(2) This measure can be taken provisionally also during criminal prosecution or trial.

Article 178 - Homicide by negligence

(2) Homicide by negligence because of failing to observe legal provisions or preventive measures for the exercise of a profession or a trade, or by carrying out a certain activity shall be punished by an immediate prison sentence of from two to seven years.

Article 246 - Malfeasance and nonfeasance against persons’ interests

The act of a public servant, who, in the exercise of service prerogatives, knowingly fails to perform an act or performs it erroneously and by this infringes upon the legal interests of a person, shall be punished by immediate imprisonment of from six months to three years.

Article 249 - Negligence in service

(1) The transgression, by negligence, committed by a public servant, of a service duty by its non-accomplishment or by its erroneous accomplishment, if it has caused significant disturbance in the proper operation of a public authority or institution or of a legal entity, or causes damage to its property or major injury upon the legal interests of a person, shall be punished by imprisonment of from one month to two years or by days/fine.

Article 314 – Placing in jeopardy a person unable to look after him/herself

(1) The act of abandoning, sending away or leaving helpless a child or a person unable to look after him or herself, in any way, committed by the person charged with his or her supervision or care, placing his or her life, health or corporal integrity in imminent danger, shall be punished by immediate imprisonment of from one to three years.

2. Romanian Criminal Procedure Code

41. The relevant provisions on obtaining compensation in the event of unlawful detention are to be found in Pantea v. Romania, no. 33343/96, §§ 151-152, ECHR 2003‑VI (extracts).

3. Social assistance system

42. Law no. 705/2001 on the national system of social assistance defines the system in its Article 2, as

“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 generate marginalization or social exclusion of some persons”

Article 3 defines the scope of the social assistance system, which is

“to protect the persons who, for economic, physical, mental or social reasons do not have the opportunity to meet their social needs and to develop their own capacities and social integration skills”

43. Ordinance no. 68/2003 concerning social services, identifies the objectives of social services and details on the decision-making process concerning the allocation of social services.

4. Relevant law regarding the Romanian health system

44. Law no. 487/2002 on Mental Health and Protection of People with Psychological Disorders, which came into force in August 2002, prescribed the procedure for the placement of patients for involuntary treatment. A special psychiatric commission should confirm within seventy-two hours of a person’s admission to a hospital the treating psychiatrist’s decision that he or she remain for involuntary treatment. Furthermore, this assessment should be reviewed within twenty-four hours by the public prosecutor, whose decision, in turn, may be appealed to a court. The implementation of the provisions of the law was dependent on the adoption of the necessary regulations for its enforcement. The regulations were adopted on 2 May 2006.

45. Law no. 270/2003 ("on hospitals") provides in its Article 4 that hospitals have an obligation to "ensure the provision of adequate accommodation and food and prevention of infections".

46. Law 46/2003 concerning patients’ rights provides in its Article 3 that “the patient benefits from respect as a human being, without discrimination”. Article 35 provides that the patient has “the right to continuous medical care until his health improves or he recovers”. Furthermore, “the patient has the right to terminal care in order to be able to die in dignity”.

47. Order by the Minister of Justice no. 1134/25.05.2000 and Order by the Minister of Health no. 255/4.04.2000 on proceedings related to medical expertise and other legal-medical acts, prescribes in its Article 34 that an autopsy should be conducted when a death occurs in a psychiatric hospital; Article 44 sets an obligation incumbent on the management of medical establishments to inform the criminal investigation authorities, who must request that an autopsy be carried out.

48. Law 584/2002 regarding measures for the prevention of the spread of HIV infection and protection of persons infected with HIV or suffering from AIDS prescribes in its Article 9 that the medical units and the doctors are compelled to hospitalise and to provide the appropriate medical care with regard to the specific pathology of the patient.

5. The guardianship system

a) Guardianship of minors

49. Articles 113 to 141 of the Family Code regulate guardianship of a minor whose parents are dead, unknown, deprived of their parental rights, incapacitated, disappeared or declared dead by a court. This section regulates the conditions making guardianship necessary, the appointment of a guardian (“tutore”), the responsibilities of the guardian, the dismissal of the guardian, and the end of guardianship. The institution with the widest range of responsibilities in this field is the guardianship authority (“autoritatea tutelarã”), entrusted, inter alia, with supervision of the activity of the guardian.

b) The incapacitation procedure and guardianship of people with disabilities

50. Articles 142 to 151 of the Family Code regulate the procedure of incapacitation (“interdicţie”), wherein a person proved to be incapable loses his or her legal capacity.

The measure of incapacitation is instituted and revoked by a court in respect of “those lacking the capacity to take care of their interests because of mental alienation or debility”, and may be initiated by a wide group of persons. Once a person is incapacitated, a guardian will be appointed to represent him or her, and his powers are similar to those of a guardian over a minor.

Although the procedure of incapacitation may be equally applied to minors, it is geared especially towards disabled adults.

51. Emergency Ordinance no. 26/1997 regarding children in difficult situations derogates from the provisions on guardianship in the Family Code. Article 8 (1) of the Ordinance provides that

“if the parents of the child are dead, unknown, incapacitated, declared dead by a court, disappeared or deprived of their parental rights, and if guardianship has not been instituted, if the child has been declared abandoned by a final court judgment, and if a court has not decided to place the child with a family or a person, according to the law, parental rights will be exercised by the County Council, [...] through the commission”.

C. Committee for the Prevention of Torture Reports

52. The Committee for the Prevention of Torture documented the situation at the Poiana Mare Hospital during three visits: in 1995, 1999 and 2004.

53. In 1995 the living conditions at the Poiana Mare Hospital were so deplorable that the CPT decided to make use of Article 8 § 5 of the Convention for the Prevention of Torture, which enables it in exceptional circumstances to make certain observations to the Government concerned during the visit itself. In particular, the CPT noted that in a period of seven months in 1995 sixty-one patients had died, of whom twenty-one were “severely malnourished” (§ 177). The CPT decided to ask the Romanian Government to take urgent measures to ensure that “certain fundamental living conditions” exist at Poiana Mare.

Other areas of concern identified by the CPT on this occasion were the practice of secluding patients in isolation rooms as a form of punishment, and the lack of safeguards in relation to involuntary commitment.

54. In 1999 the CPT returned to the Poiana Mare Hospital. The most serious deficiencies found on this occasion referred to the fact that the number of staff - both specialised and auxiliary – had been reduced from the 1995 levels, and to the lack of progress in relation to involuntary committal.

55. In June 2004 the CPT visited the Poiana Mare Hospital for the third time, this time in response to reports concerning an increase in the number of patients who had died. At the time of the visit, the hospital, with a capacity of 500 beds, accommodated 472 patients, of whom 246 had been placed there on the basis of Article 114 of the Romanian Criminal Code (forced hospitalisation by a criminal court).

The CPT noted in its report that eighty-one patients had died in 2003 and twenty-eight in the first five months of 2004. The increase in the number of deaths had occurred despite the transfer out of the hospital in 2002 of patients suffering from active tuberculosis. The main causes of death were cardio-respiratory attacks, myocardial infarction, or bronchopneumonia.

The average age of the patients who had died was fifty-six, with sixteen being less than forty years old. The CPT stated that “such premature deaths could not be explained exclusively on the basis of the pathology of the patients at the time of their hospitalisation” (§ 13). The CPT also noted that some of these patients “did not apparently benefit from sufficient care” (§ 14).

The CPT noted with concern “the poverty of human and material means” available to the hospital (§ 16). It singled out the serious deficiencies in the nutrition of the patients and the lack of heating in the hospital.

In view of the deficiencies found at the Poiana Mare Hospital, the CPT made the following statement:

“[...] we cannot exclude the fact that the combined impact of difficult living conditions – in particular the shortages of food and heating – resulted in the progressive deterioration of the general state of health of some of the weakest patients, and that the poor state of medical supplies available could not prevent their death in most cases.

In the opinion of the CPT, the situation found at the Poiana Mare Hospital is very preoccupying and justifies the adoption of energetic measures aiming to ameliorate the living conditions and also the care provided to patients. Following the third visit of the CPT at the Poiana Mare hospital in less than ten years, it is high time the authorities finally took the real measure of the situation prevailing in the establishment.”(§ 20)

Finally, in relation to involuntary civil committal, the CPT noted that the recently adopted law on mental health and the protection of persons suffering from mental problems (Law no. 487/2002) had not been implemented comprehensively, as it encountered involuntary patients who had been hospitalised in breach of the safeguards included in the law (§ 32).

D. Recent information from the media

56. On 29-30 September 2009, several media channels (ProTV, Antena 3) made public some information concerning the death of a patient at PMH, who had died from the effects of poison. It appears that the poison had been spread around in the yard, but also in the hospital, against the numerous rats and dogs wandering in the area.

The patient, a forty-two-old diagnosed with schizophrenia, had supposedly eaten some poisoned hot dogs which he had found in the yard. On the morning of 29 September 2009 the patient died. The autopsy confirmed that he had been poisoned.

57. On 29 November 2009, Ziua newspaper published an article concerning the death of another PMH patient, forty-five years old and schizophrenic, whose body was found two weeks after his disappearance, having been devoured by animals (supposedly stray dogs). The parts of the body still found (cranium, bones of the superior and inferior limbs) did not reveal any signs of violence.

COMPLAINTS

The Center of Legal Resources, on behalf of Valentin Câmpeanu, claims violations of Articles 2, 3, 5, 8, 13 and 14 of the Convention.

1. Under Article 2 it is alleged that Mr Câmpeanu has been unlawfully deprived of his life as a result of the combined actions and failures to act by a number of State agencies, in contravention of their legal obligation to provide him with care and treatment. In addition, the authorities failed to put in place an effective mechanism to safeguard the rights of persons with disabilities placed in long-stay institutions (including by initiating investigations of suspicious deaths), in breach of the positive obligations stemming from Article 2 of the Convention.

2. With respect to Article 3 the CLR complained that serious flaws in Mr Câmpeanu’s care and treatment at the Cetate Medico-Social Unit and the Poiana Mare Hospital, the living conditions at the Poiana Mare Hospital, as well as the general attitude of the authorities and individuals involved in his care and treatment over the last months of his life, together or separately amount to inhuman and degrading treatment.

In addition, the official investigation into his allegations of ill-treatment did not comply with the procedural obligation of the State under Article 3.

3. Under Article 5 it is submitted that Mr Câmpeanu’s detention at the Poiana Mare Hospital and the Cetate Medico-Social Unit was not in accordance with domestic law. Furthermore, he was not entitled to take proceedings to court to examine the lawfulness of his detention in breach of Article 5 § 4, nor did he have an enforceable right to compensation, in accordance with Article 5 § 5 of the Convention.

4. It is further submitted that the failure of the State to provide Mr Câmpeanu with any support for the making of decisions relating, inter alia, to his placement in an institution and the treatment received, constitutes a breach of its positive obligations under Article 8 of the Convention. At the same time, the failure of the State to provide community based alternatives to institutionalisation also constituted, allegedly, a breach of Article 8.

5. With respect to Article 13 taken in conjunction with Articles 2, 3 and 8 it is submitted that no effective remedy exists in the Romanian domestic legal order with respect to suspicious deaths and/or ill-treatment in psychiatric hospitals, in respect of breaches of private life in institutional settings.

6. With respect to Article 14 taken in conjunction with Articles 2, 3, 5 and 8 of the Convention, it is submitted that Mr Câmpeanu ‘s ill-treatment and his subsequent death, as well as the official investigation carried out in relation to these incidents, were heavily tainted with discrimination based on his HIV status and on his mental disability.

QUESTIONS TO THE PARTIES

1. In accordance with Article 34 of the Convention, does the Center of Legal Resources have locus standi to file the present application on behalf of the deceased Valentin Câmpeanu, having regard in particular to the fact that Mr Câmpeanu was an orphan and that it appears that he had no legal guardian appointed? If so, does this standing extend to all the complaints raised in the application or only to those related to the circumstances surrounding the deceased’s death or as limited by other criteria, and if so which?

2. Has the deceased’s right to life, ensured by Article 2 of the Convention, been violated in the present case?

Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

3. Does the manner in which the authorities have handled their obligation to provide the deceased with care and treatment, in view of his particular medical and legal situation, constitute inhuman or degrading treatment, in breach of Article 3 of the Convention?

Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4. Were the safeguards prescribed by Article 5 of the Convention complied with in respect of the deceased’s hospitalisation at Poiana Mare Hospital and at Cetate Medical Unit?

5. Has there been a violation of the deceased’s right to respect for his private life within the meaning of Article 8 of the Convention, in so far as he was deprived of any guardianship safeguards?

Was the decision-making process with respect to the deceased’s confinement to the Cetate and Poiana Mare medical institutions and to the medical treatment received therein in compliance with Article 8?

6. Has the deceased suffered discrimination in the enjoyment of his Convention rights on the ground of his medical condition (HIV-positive and with a learning difficulties), contrary to Article 14 of the Convention read in conjunction with Articles 2, 3, 5 and 8?

7. Did the deceased have at his disposal an effective domestic remedy for his complaints under Articles 2, 3, 8 and 14, as required by Article 13 of the Convention?

The Government are invited to submit information concerning:

a) the Poiana Mare Psychiatric Hospital – situation regarding the number of patients and of the staff (medical and administrative) and the standard guardianship procedures, if any, applied with respect to those patients suitable for such procedures according to the domestic law;

b) the guardianship procedures, if any, instituted in respect of the deceased Valentin Câmpeanu;

c) the legal proceedings relating to the confinement of Mr Câmpeanu in Cetate Medical Unit and Poiana Mare Hospital respectively;

d) the investigation file regarding the death of the deceased.

Full & Egal Universal Law Academy